On October 29, a group of copyright experts answered questions on Reddit about Section 1201 in U.S. Copyright Law. Even though that conversation had ended, the thread is still worth reading, because there is a lot of wisdom in there. As I read it, this text from Cara Gagliano stands out to me:
We agree that section 1201 needs to go entirely, and in 2016 we filed a lawsuit that's still pending challenging the law's constitutionality.
We also totally agree that for as long as we're stuck with this exemption scheme, it shouldn't be addressing different devices piecemeal and should include non-repair modification—which is why we asked for both of those things in our petition this year.
The result was a mixed bag: While we're disappointed that the final repair exemption doesn't go as far as covering all software-enabled devices, it's actually a pretty big win that we got it to cover all consumer-oriented devices. In the past, the Copyright Office has been more stubborn about limiting the exemption to specific devices that have evidence in the record. This change makes the exemption a lot more flexible, and the fact that they've started listening to us about the problems with that approach and the lack of meaningful distinctions between different device firmware is encouraging.
The biggest disappointment is the refusal to include non-infringing modifications in the exemption, especially because the Register's recommendation didn't even meaningfully engage with that point. From a more optimistic perspective, this has always been an incremental process (frustratingly so), and it's at least moving in the right direction. The progress we made on the scope of covered devices will let advocates focus more on modification next time around (if we haven't managed to get rid of 1201 by then!), and we already have support on that point from the NTIA, which has input in the process.
As you read it, you might find other text that is meaningful to you, so dive in!
[Addendum 12/29/2021: Looking back, I see I posted something short about this in November. Apologies for the repeat, but this Reddit thread is truly good stuff!]
Thread Title: We are copyright experts here to talk to you about this week’s anticircumvention exemptions from the U.S. Copyright Office. Ask us anything.
Thread Description: On Wednesday [Oct. 27], the Copyright Office released its recommendations regarding the latest round of exemption requests to Section 1201 of the Digital Millennium Copyright Act. Section 1201 of the Digital Millennium Copyright Act makes it illegal to bypass a digital lock that protects a copyrighted work, such as a device’s software, even when there is no copyright infringement. Every 3 years, the Copyright Office reviews exemption requests and issues recommendations to the Librarian of Congress on granting certain exceptions to Section 1201.
Ask us anything about this week’s decisions, the review process, or right-to-repair and security research generally.
Participants:
- Electronic Frontier Foundation's Cara Gagliano
- iFixit's Kyle Wiens
- Public Knowledge's Kathleen Burke
- Public Knowledge's Meredith Rose
- Organization for Transformative Works:
- Copyright Law Professor Rebecca Tushnet
- Copyright Attorney Heidi Tandy
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