EFFecting Digital Freedom

by Elliot Harmon

DRM Law Keeps Copyright Stuck in the Past

Copyright law is slow.  Whenever you hear about a case of alleged copyright infringement and you think, "Wait, what was illegal about this?" consider that the law is probably many, many years older than the activity it's being used to target.  Then it starts to make a little bit more sense.

To see how far copyright is behind reality, look at how it treats Digital Rights Management (DRM), the irritating array of methods that digital content providers use to attempt to restrict their customers' behavior.  DRM isn't just an annoyance: thanks to the 1998 Digital Millennium Copyright Act, it's the law.  Section 1201 of the Digital Millennium Copyright Act (DMCA) made it illegal to bypass DRM or give others the means of doing so.  It doesn't just void the warranty or break the terms of service.  It's against the law, and it comes with stiff penalties.

DMCA 1201 does allow members of the public to argue for certain exemptions to the prohibition on circumvention.  If granted, those exemptions last for three years - after that, you have to go through the same process of proposing the same exemptions to the U.S. Copyright Office again.  But this permission system means that the law will never catch up: you have to bypass DRM in order to tinker with a lot of products with built-in software, and it's that tinkering that can build the case for an exemption.   Having to ask for permission chills innovation.

In 2015, the Electronic Frontier Foundation requested four kinds of DMCA 1201 exemptions - ripping DVDs, Blu-rays, and online video for remix and analysis; preserving abandoned video games; jailbreaking cell phones, tablets, and other portable computing devices; and modifying cars for security research or repair.  The Copyright Office granted each exemption, with some strings attached.  So in that way, it was a victory.  But in a larger sense, the whole ordeal is exasperating.  Why are we asking the government for permission to bypass DRM?  Why is it illegal in the first place?

For all the bad ideas in U.S. copyright law, there's one very good idea too: fair use.  Fair use protects a wide range of completely valid uses of copyrighted work, uses that shouldn't be considered copyright infringement.  Certain powerful content owners often try to write off fair use, treating it like a loophole in copyright law or an old-fashioned relic.  But without fair use, copyright isn't compatible with the First Amendment.

Fair use can also be a secret weapon against copyright law's lethargy.  That's because rather than clearly delineating accepted uses, the law identifies four factors to use as a starting point in determining whether a given use of a work might qualify as fair use: the purpose of your use, the nature of the original work, the amount of the original work used, and the effect of your work on the market for the original.

The cool thing about having a flexible set of factors - rather than more rigidly defined exceptions - is that fair use can grow and change with new technologies instead of getting out of date the moment a law is signed.  Case in point: libraries.  Although there are specific copyright exceptions on the books for library use, those exceptions haven't kept up very well with new technologies.  It's fair use that's saved the day, allowing libraries to digitize materials and optimize them for search.  Fair use doesn't build a fence around innovation; it lights the way to new possibilities.

After the DMCA passed in 1998, an argument emerged that would reflect how something had gone very wrong in the copyright balance.  Some of the companies suing over DMCA 1201's prohibition on hacking DRM have claimed that the ban applies even if the reasons why you're doing it would qualify as fair use.  In essence, that Congress passed a law that overrode fair use.

And the stakes are higher than ever.  In 1998, when people talked about DRM, they were mainly talking about movies and music.  Today, we're talking about video game systems, automobiles, medical devices, and farm equipment.  Think of how many everyday products come with software installed on them.  Many of those products employ some form of DRM, making it potentially illegal to alter them.  We're living in a world where modifying the software on your slow cooker might be illegal.

You can almost forgive Congress for this mess - they didn't know that DRM would soon crawl into every aspect of life.  On the other hand, they helped bring the infestation on.  The DMCA incentivized manufacturers to build DRM into their products, because doing so gave them ammunition to fight people using their products in ways they didn't approve of.  Can't compete with unauthorized repair shops?  Make them illegal.

I said earlier that U.S. copyright law is slow.  There's one thing it's surprisingly nimble at: replicating itself.  Through trade agreements, many countries around the world have been coerced into adopting American-style long copyright terms and severe penalties.  But those trade agreements don't require fair use provisions, giving many countries the worst of both worlds: strong copyright laws and weak recognitions of users' freedom.

As you read this, the Trans-Pacific Partnership (TPP) could be up for a vote in Congress any day.  This deal could make the United States' ban on circumventing DRM the standard for twelve Pacific Rim countries.  When bad copyright policy gets written into international agreements, it's sort of the ultimate resignation to languidness: individual countries can pass laws making things worse than the agreement requires, but it's difficult to make them better.

The battle over DRM has nothing to do with copyright infringement - let's be honest.  DRM hasn't kept a single song, film, or video game off of the Internet.  It's about your right to innovate.  It's about your right to customize the software on a product you own, or to keep using it after the manufacturer has gone out of business.  It's about your right to know how an automobile works before you get inside it, or how a hearing aid works before it gets inside you.  DRM undermines your right to hack.  Without that, we've got nothing.