Section 1201 Needs to Provide Non-Copyright Infringing Circumvention, Say Consumer Copyright Advocates
Digital Millennium Copyright Act Section 1201 should be amended to provide for the circumvention of digital rights management software, as long as that DRM circumvention isn’t used for copyright infringement, said speakers at a Public Knowledge (PK) event on DMCA. Section 1201, designed to mitigate piracy, limits consumers’ abilities to repair their technology and the efforts of the disabled to access software in a way that meets their needs, said panelists Thursday. If Section 1201 isn’t reformed, DRM circumvention will get “worse” with the expected proliferation of the Internet of Things (IoT), said Corynne McSherry, Electronic Frontier Foundation (EFF) intellectual property director.
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The Unlocking Technology Act, introduced by event speaker House Judiciary Committee member Zoe Lofgren, D-Calif., was championed by panelists as the most effective tool for reforming Section 1201. HR-1892 provides for the sharing of tools and technology for the circumvention of DRM, and the act of circumvention, if not used for copyright infringement (http://1.usa.gov/1mNpd94), which Section 1201 presently prohibits. The Unlocking Consumer Choice and Wireless Competition Act passed the House in February, providing for the unlocking of mobile DRM if a consumer wants to use a different network carrier (CD Feb 27 p11). Because HR-1123 didn’t address bulk unlocking, PK and the EFF withdrew support of the bill before passage. There’s “much more around DMCA and unlocking to do and accomplish,” said Chris Lewis, PK vice president-government affairs.
Congress needs to be “sympathetic” to content providers worried that their products could be infringed, but “shackling technology” isn’t the right approach, said Lofgren. Tech and content industries “don’t always work well together,” but that’s “starting to happen” on this issue, she said. Don’t expect the bill to be passed “in the next six months in this Congress,” she said. The content community needs to know that technology is its “friend,” said Lofgren.
Section 1201 is the “dark side of the DMCA” and its “cost-benefit analysis doesn’t look very good,” said EFF’s McSherry. Section 1201 “inhibits competition and innovation,” because companies making software for printer cartridges, for example, know that if they use DRM on the software, they can sue anyone who tries other software for the cartridge, she said: Section 1201 “isn’t about stopping competition in the printer cartridge market.”
"As electronics move into physical products, the rights we expect” are “running into copyright law,” said Kyle Wiens, CEO of iFixit, a free online repair manual for software and other products. IoT is the “intersection between digital property rights and physical property rights,” but with Section 1201, you can’t necessarily “make a modification” to repair a software product if it has DRM, he said. If a mobile recycling company isn’t able to “unlock software” to sell a previously owned AT&T phone for a Vodafone customer, “they won’t resell,” he said. “The threat of violating an esoteric copyright statute is stifling.” Wiens said he didn’t “know of any case where” Section 1201 “has been used to prevent piracy."
The visually impaired and those with disabilities must often use Copyright Office triennial reviews to legally circumvent DRM software to maximize use, said Blake Reid, University of Colorado School of Law assistant clinical professor, who has represented disabled groups. The reviews are “burdensome,” and if an attorney is necessary, will cost around $100,000, he said. If the circumvention is approved, the client must resubmit to the review “from scratch” three years later, he said. Lofgren’s bill does a “great job ameliorating this problem,” he said.