OTI Urges Copyright Office To Disregard Opponents of DMCA Section 1201 Exemptions
New America's Open Technology Institute (OTI) urged the U.S. Copyright Office to disregard arguments by BSA/The Software Alliance, the Software Information Industry Association and other opponents of proposed exemptions to Digital Millennium Copyright Act (DMCA) Section 1201 for software and medical device security research. The proposed software and medical device security research exemptions are among 27 proposed exemptions that the CO is considering as part of its sixth triennial rulemaking process for Section 1201, which prohibits the circumvention of technological protection measures (TPMs). Other proposed exemptions include one allowing resellers to unlock eligible cellphones on behalf of a selling customer or on the reseller’s own behalf and one that would allow smart TV owners to circumvent TPMs that prevent the installation of user-supplied software. Comments on the proposed exemptions, which were due Friday, were limited to responses to previous filings. CO officials told us they anticipated the comments would be available Tuesday, but none had been posted online at our deadline.
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OTI was among the consumer groups and open source software advocates that urged the CO in February to implement the proposed 27 Section 1201 exemptions (see 1502110062). BSA and General Motors were among the opponents of an exemption for “good faith” software security research, which they separately argued didn’t limit exempted circumvention to acts that didn’t constitute copyright infringement and presented other security issues (see 1504010054). Several commenters who were proponents of the software security research exemption told us they didn’t file reply comments, including the Free Software Foundation.
“Opposition commenters fail to recognize that to the extent there are existing vulnerabilities in software that expose personal information, malicious attackers may already be exploiting those vulnerabilities to gain access to the information, and may continue to do so as long as such vulnerabilities go undiscovered and unaddressed by those with the power to issue patches,” OTI said in its Friday reply comments. “It is in the best interest of the public to dismantle roadblocks” like Section 1201 “that chill important security research to discover vulnerabilities that expose consumers’ personal information to unauthorized access.” The DMCA wasn’t intended to address issues of consumer privacy and data security, “and the fact that this proceeding has veered into such areas that Congress never intended is as good a proof as any that the DMCA’s anti-circumvention provisions are having a worrisomely overbroad impact far beyond the scope of copyright law,” OTI said. The CO “can and should help address that overbreadth through the approval of sensible exemptions” to Section 1201.
OTI Senior Policy Counsel Laura Moy is among the eight proponents of the software security research exemption who are to testify during a May 26 CO hearing on the exemption, the CO said. BSA Senior Manager-Policy Christian Troncoso and General Motors Public Policy Executive Director-Global Connected Customer Harry Lightsey will testify against the exemption. CO also plans a separate hearing May 26 on the wireless device unlocking exemption, which includes three proponent witnesses. CO plans 21 hearings on the exemptions between May 19 and May 29, with the first 10 to be at the University of California, Los Angeles School of Law. The other 11 hearings, including the May 26 hearings, are to be at the Library of Congress.