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Unlocking the DMCA’s Stranglehold on Essential Software

· January 20, 2015

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We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

The Library of Congress is in the process of conducting its sixth cycle of adopting exemptions to the Digital Millennium Copyright Act’s prohibition on the circumvention of technological protection measures (TPMs). The majority of the 27 proposed exemptions address situations far from Congress’s intended target of online infringement when it adopted the DMCA in 1998, indicating that Congress drafted the DMCA far too broadly, and that the Copyright Office is implementing the exemption process far too narrowly.

In an effort to protect the economic interests of copyright owners in the digital age, Congress prohibited people from hacking TPMs in order to get unpaid access to copyrighted works. However, the DMCA is worded so broadly as to prohibit owners of copies of works from circumventing the TPMs limiting access to their copies. Manufacturers of a wide range of devices have exploited this overbreadth to exercise after-market control over the devices in a manner that has nothing to do with copyright protection. Many devices include software essential to their operation. Manufacturers have placed TPMs on this software in an effort to tether the device to complementary networks or products. The DMCA makes unlawful the circumvention of these TPMs for the purpose of untethering the devices.

Congress recognized that there may be legitimate reason for circumventing TPMs, so it authorized the Librarian of Congress to conduct a rulemaking every three years to adopt appropriate exemptions to the DMCA’s circumvention prohibition. In this rulemaking cycle, 14 of the 27 proposed exemptions concern situations where the work protected by the TPM is a software component of a hardware device owned by the user. In other words, the exemption would allow the owner of a hardware product to make a use of her personal property obstructed by the DMCA.

Five of the proposed exemptions involve the “unlocking” of different kinds of devices so as to connect them to an alternate wireless network. The devices include telephone handsets, tablet computers, wearable computing devices, mobile connectivity devices, and consumer machines such as smart meters.

Another five of the proposed exemptions involve the “jailbreaking” of devices so that they can access alternate lawful content. The devices include telephone handsets, all-purpose mobile computing devices, dedicated e-book readers, video game consoles, and smart televisions.

Two of the exemptions involve vehicle software. One exemption would permit the circumvention of TPMs on software that controls the function of motorized land vehicles for the purpose of diagnosis and repair, or after-market personalization. A second exemption would allow the circumvention of the TPMs on such software for the purpose of researching the safety or security of the vehicles.

The final two exemptions would enable the use of alternative feedstock for 3D printers and research into the safety, security, and effectiveness of medical devices.

These exemptions obviously should be granted. Congress did not enact the DMCA to prevent these sorts of uses; it did not intend to restrict owners of hardware products from making full use of their personal property. And the granting of these exemptions will in no way facilitate widespread infringement.

Unfortunately, it is not a foregone conclusion that the Librarian will grant these exemptions. After all, in the last rulemaking cycle, the Librarian refused to renew an exemption for cellphone unlocking, precipitating a public uproar that led Congress to pass a law temporarily permitting the unlocking of cellphones.

Moreover, as a policy matter, it makes no sense to force all those who desire to unlock devices with embedded software to apply for a device-specific exemption every three years.

So how do we get out of this situation? The Federal Circuit identified one possible solution when it interpreted the DMCA as requiring a nexus between circumvention and infringement before circumvention liability could attach. In Chamberlain v. Skylink, the Federal Circuit found that the circumvention of the TPM on the software in a garage door opener motor by the manufacturer of universal garage door opener remote controls did not violate the DMCA because there was no possibility of infringement. Unfortunately, the Ninth Circuit rejected this approach in MDY v. Blizzard. Moreover, in some instances, the unlocking of the device may require the copying of the TPM-protected software (although such copying likely is a fair use).

Another solution is for Congress to amend the DMCA in the course of its ongoing review of the Copyright Act. It could explicitly require a nexus between circumvention and infringement, as in Chamberlain, or it could adopt an exception for the circumvention of TPMs on software essential to the operation of hardware. Any amendment of the DMCA is likely to be opposed strenuously by copyright owners, making this approach highly uncertain.

That leaves the DMCA exemption process. The Copyright Office, which administers the process, could take a more pragmatic approach toward exemptions for essential software. For example, it could consider, and ultimately grant, a broad exemption for all software essential to the operation of hardware in the lawful possession of the user. Regrettably, in this rulemaking cycle the Copyright Office has gone in the opposite direction, drawing up classes as narrowly as possible. For the unlocking of devices from wireless networks, the Copyright Office has identified five separate classes for five different kinds of devices. It has done the same for jailbreaking. For vehicle software, the Copyright Office is considering only land vehicles, when the same issue obviously will apply to boats and aircraft.

By balkanizing the essential software problem in this manner, the Copyright Office places a much greater burden on the applicants of each narrow class to meet the evidentiary standard the Office imposes. Section 1201(a)(C) certainly does not require the identification of such narrow classes.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.