Digital Copywrongs

On July 26 the librarian of Congress announced six ways you can legally violate the Digital Millennium Copyright Act. The Internet found this extremely exciting. "DMCA Victory!" declared the homepage of the Electronic Frontier Foundation. "With the full force of the U.S. government behind [you] … you might be able to, perhaps, sue Apple when an iOS update makes your phone inoperable," PC Magazine daydreamed. Some reactions were even more grandiose.

Passed in 1998, the DMCA brought U.S. law into harmony with various international intellectual-property treaties. The new law not only changed the liabilities and penalties associated with copyright violation but also went after the tools that make such violations possible. For some time, various copyright holders had been attempting to deal with the challenges of copy-friendly digital technology by creating so-called Digital Rights Management (DRM) systems. DRM is what makes your iTunes movie rentals expire after 24 hours; it's what makes it impossible to copy an Xbox game disc in a DVD burner. There are tools that can defeat DRM; in DMCA parlance, they're called "circumvention devices" (though they usually take the form of software, not physical devices). The DMCA outlawed the creation and distribution of such tools.

However, there are legitimate uses of copyrighted content that are impeded by DRM. That's where the DMCA's exemption mechanism comes in. Every three years the librarian of Congress reviews proposed exemptions and grants or denies them. The exemptions don't permit new uses of copyrighted content -- they just outline specific scenarios in which defeating DRM is acceptable.

Monday's announcement outlined six exemptions. (It also allowed one exemption to expire -- a narrow provision designed to help researchers investigate an odious piece of spyware that Sony briefly decided to install on its audio CDs.) Three of them are renewals of exemptions issued in 2006: You can still circumvent software DRM if it's trying to make you use an outdated hardware copy-protection device known as a dongle; if your eBook tries to suppress "read aloud" functionality without offering an alternative; or if you want to "unlock" your mobile phone in order to use it on a network other than the one operated by the carrier who sold it to you. There is one new exemption, allowing users to "jailbreak" mobile phones in order to install applications other than the ones explicitly allowed by their carriers. (It's this last exemption that has attracted the most excitement.)

The final two are tweaked versions of previous exemptions, and they merit more attention than they've received. One exemption used to cover the archival preservation of programs and games for platforms and media that have become obsolete. Now it only applies to PC video games and only covers circumvention for security testing, not archival purposes. The other modified exemption allowed film departments at universities to circumvent DRM in order to create compilation videos for classroom use. Superficially, it appears to have been expanded -- documentarians and noncommercial video producers join educators as classes of protected users -- but the exemption now specifically applies only to CSS, the technology used to encrypt DVD contents. There's no mention of AACS, the equivalent technology for Blu-ray discs, or of HDCP, the DRM system most likely to make installing your next TV a nightmarish ordeal.

It's nice to have documentarians and nonprofit filmmakers included in the exemption. But naming new classes of users is a bit beside the point. This is software, after all -- if a tool is legal for some, it's likely to become available to everyone in short order. It will be no surprise if DVD-ripping software soon begins to ship with a lengthy clickwrap license that asks users to confirm that they'll only employ it for qualified uses. No one's going to be checking anyone's documentarian license.

In fact, many of the exemptions are like this: They establish an island of protected use that slopes sharply down to the treacherous, crashing surf of consumer behavior -- a zone where the authorities will never bother to venture, and where an Xbox mod chip based on protected research can easily enable piracy with firmware downloaded from an overseas server. Research done to make locked-down eBooks useful to the visually impaired also helps to make it easier to pirate them on Bittorrent. It's a compromise. The DVD companies retain their nominal rights, consumers are mostly free to make reasonable use of things they've bought, and no one else has to go to jail -- not unless they have the temerity to start making money off this arrangement, anyway.

It might seem strange for the government to attempt to regulate consumers' use of their electronics, then turn a blind eye toward violations. For that matter, the exemptions themselves might seem a bit arbitrary. Isn't it a little silly to permit jailbreaking an iPhone but not an iPod? Might any of the 25 other suggested exemptions have had merit? Doesn't this all reek of selective enforcement (albeit executed at a glacial pace)? And isn't it a bit ridiculous to rely on the librarian of Congress to mediate the tensions between rights holders, device manufacturers, and the IP-buying public?

The answer to all of these questions is yes. But it's worse than that. Proscribing circumvention technologies is a bad idea. This is true even if we immediately carve out reprieves from that restriction, and regardless of whether those reprieves are narrow in principle or wide in practice.

It's true that asking people not to violate copyright doesn't work very well, so it's understandable that rights holders invented DRM. But DRM doesn't work very well, either. Now we've invented a law to force people to pretend that DRM works. That law doesn't work, either, of course -- and it couldn't. The exemptions are a recognition of the fact that if the DMCA functioned perfectly, it would be intolerable. DRM is a lock that can be opened by software, and software is little more than an idea -- certainly the circumvention techniques, the substance of that software, are nothing more than ideas.

Restricting the flow of ideas is both difficult and odious: consider the many forms that the original CSS-cracking program has taken -- are we prepared to outlaw a haiku? In this case the restrictions are especially galling, since the locks in question are typically used to protect purchased items from their owners -- who, in many cases, don't want to infringe upon anyone's copyright at all.

So don't get too bogged down in the novelty of the new exemptions. With or without the librarian's say-so there will still be a spacious gray area within which citizens can employ appropriate digital conveniences -- one that bears little relation to the specific scope of exemptions. The exemptions are fine; they hardly matter. It's the fact that we need them at all that's the problem.

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