When the Copyright Office Meets, the Future Needs a Seat at the Table

Every three years, EFF’s lawyers spend weeks huddling in their offices, composing carefully worded pleas we hope will persuade the Copyright Office and the Librarian of Congress to grant Americans a modest, temporary permission to use our own property in ways that are already legal.

Yeah, we think that’s weird, too. But it’s been than way ever since 1998, when Congress passed the Digital Millennium Copyright Act, whose Section 1201 established a ban on tampering with “access controls for copyrighted works” (also known as “Digital Rights Management” or “DRM”). It doesn’t matter if you want to do something absolutely legitimate, something that there is no law against — if you have to bypass DRM to do it, it’s not allowed.

What’s more, if someone wants to provide you with a tool to get around the DRM, they could face up to five years in prison and a $500,000 fine, for a first offense, even if the tool is only ever used to accomplish legal, legitimate ends.

Which brings us back to EFF’s lawyers, sweating over their briefs every three years. The US Copyright Office holds proceedings every three years to determine whether it should recommend that the Librarian of Congress grant some limited exemptions to this onerous rule. Every three years, EFF begs for — and wins — some of these exemptions, by explaining how something people used to be able to do has been shut down by DMCA 1201 and the DRM it supports.

But you know what we don’t get to do? We don’t get to ask for the right to break DRM to do things that no one has ever thought of — at least, that they haven’t thought of yet. We don’t get to brief the Copyright Office on the harms to companies that haven’t been founded yet, the gadgets they haven’t designed yet, and the users they haven’t attracted yet. Only the past gets a seat at the table: the future isn’t welcome.

That’s a big problem. Many of the tools and technologies we love today were once transgressive absurdities: mocked for being useless and decried as immoral or even criminal. The absurd transgressors found ways to use existing techologies and products to build new businesses, over the howls of objections from the people who’d come before them.

It’s a long and honorable tradition, and without it, we wouldn’t have cable TV (reviled as thieves by the broadcasters in their early days); Netflix (called crooks by the Hollywood studios for mailing DVDs around in red envelopes); or iTunes (“Rip, Mix, Burn” was damned as a call to piracy by the record industry).

These businesses exist because they did something that wasn’t customary, something rude and disorderly and controversial — they did things that were legal, but unsanctioned by the businesses they were doing those things to.

And today, as these businesses have reached maturity, the so-called pirates have become admirals. Today, these former disruptors also use DRM and are glad that bypassing their DRM to do something legal is banned (because their shareholders prefer it that way).

Those companies aren’t doing themselves any favors, either. Even as Apple was asking the Copyright Office to ban third-party modifications to the iPhone, it was copying these unauthorized innovations and including them in the official versions of its products.

Our Catalog of Missing Devices gives you a sense of what we’ve lost because DMCA 1201 has given the companies that succeeded last year the right to decide who can compete with them in the years to come.

It’s a year that’s divisible by three, and that means that EFF is back at the Copyright Office, pleading for the right of the past to go on in the present — but we can’t ask the Copyright Office to protect the future, the DMCA doesn’t allow it.

That’s why we’ve sued the US Government to invalidate Section 1201 of the DMCA: Congress made a terrible blunder in 1998 when it created that law, and the effects of that blunder mount with each passing year. We need to correct it — and the sooner, the better.


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Author: Cory Doctorow

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Just a figment of your imagination.