Feb. 12, 2015
A couple weeks ago we wrote about the unexpected ways that Section 1201 of the Digital Millennium Copyright Act might interfere with your ability to repair or modify devices you own, such as your phone, your TV, or even your car. We explained that every three years the U.S. Copyright Office has the power to grant exemptions to that law on behalf of consumers like you. With the next round of exemptions coming up, we invited you to share your thoughts on Section 1201 of the DMCA with the Copyright Office by filling out a simple form put together by our friends over at the Digital Right to Repair Coalition.
And now we’re writing to thank you, because you delivered! Before Friday’s deadline, a number of consumer and public interest groups filed comments, along with thousands of individuals. According to Kyle Wiens, co-founder of DIY electronics repair group iFixit and board member of the Digital Right to Repair Coalition, 2,818 individuals used the form to file a total of 40,755 comments. Meanwhile, our friends at the Electronic Frontier Foundation are also collecting signatures in support of two specific exemption proposals (for jailbreaking mobile devices and fixing cars, respectively); as of today (February 6) they have collected 14,064 signatures in support of jailbreaking and 1,550 signatures in support of automotive repair.
Not only did we urge you to share your thoughts with the Copyright Office, but we also filed our own set of comments. In our comments we took a different approach: rather than commenting on a specific exemption proposal, we commented on the Copyright Office’s process for deciding which proposals should and should not be granted. We noted that Congress designed the exemption process as a “fail safe” against overreaching copyright law; however, in recent years the exemption process has fallen short of achieving that purpose, largely because the Copyright Office has made it harder to get an exemption than Congress intended. We highlighted a few ways the Copyright Office could modify the process to bring it more in line with what Congress intended. Specifically, the Copyright Office should:
Stop asking users who want an exemption for a (copyright) noninfringing use to demonstrate that they will suffer some kind of secondary harm if they don’t get the exemption (the harm is that they want to make a noninfringing use and can’t)
Recognize that to get an exemption, the law only requires users to demonstrate that the thing they want to do is likely noninfringing, not to prove that it is certainly noninfringing
Provide a mechanism for members of the public who want to submit confidential versions of comments in circumstances that require confidentiality, such as when security researchers want to provide specific examples of security vulnerabilities that they normally wouldn’t reveal to the public
In the relatively short term, we really hope that the Copyright Office will grant all or most of the exemptions that users are asking for. This includes some really important ones, such as:
A proposed exemption for people who have an implantable medical device and want to retrieve their own medical data from their own device
A proposed exemption for people who want to repair their own car, rather than having to take it back to the dealer
A proposed exemption for people who are blind and print-disabled and want to use assistive technologies to help them read ebooks
...and many more!
In the long term, however, we hope Congress will step in and amend the DMCA so it doesn’t interfere with activities that have nothing to do with copyright infringement.
Our next step is to wait for those who oppose the proposed exemptions to file their comments at the Copyright Office. Then we will have another chance for reply comments, due May 1. After that there will be hearings in Washington, DC and perhaps also out in Silicon Valley. We’ll keep you updated and hope you will continue assisting us in our campaign for digital rights.