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.