The Bizarre Process We Use To Approve Exemptions To The Digital Milliennium Copyright Act

Every three years, the doors to allowing legal circumvention of digital locks open up. Briefly.

The Bizarre Process We Use To Approve Exemptions To The Digital Milliennium Copyright Act
[Illustration: Gary Waters, Getty Images]

So you bought a game, and you play it all the time with people around the world. Three months later, the maker shuts down the network. You can still play in single-player mode against the computer-generated players, and other people can bring their consoles over for LAN parties. But the rest of the world is lost to you.


Worse, some people have resuscitated multiplayer access for your game with a bunch of hacks–but what they’re doing is illegal in America. If you install their patches and you’re in the U.S., you’re violating the law, too.

The Electronic Frontier Foundation (EFF) wants to change that, along with a host of other related copyright quirks. It has a window for change this year, as it and everyone else does every three years in a circus organized as part of the 1998 Digital Millennium Copyright Act (DMCA), specifically Section 1201. (And more precisely, 17 U.S.C. 1201(a)(1)(C).)

Section 1201 covers anti-circumvention. It’s among the most-hated provisions of the DMCA, an overarching law designed by and for big media entities and software publishers to criminalize piracy in the digital age. The DMCA in general assumes any kind of copying or modification infringes on the owner’s copyright, even though U.S. law carves out a number of exceptions, including fair-use provisions for criticism and certain forms of noncommercial use.

The DMCA doesn’t require proof of infringement; it stands alone. And Section 1201 is one of its key weapons. It makes circumvention of digital rights management (DRM)–also known as copy protection–a criminal offense and actionable in a civil trial. Creating, distributing, or using a tool to get around DRM for whatever reason can land you in the pokey and subject to vast fines and judgments. The tool could be as simple as instructions for placing a piece of tape over an optical scanner that looks for a hole to shine light into. A workaround could involve holding down the Shift key. You can be fined up to $500,000 and imprisoned for up to five years for an initial offense and double that for subsequent ones, and pay out bottomless sums in a lawsuit. (Every copy of every piece of media involved can be counted as a separate violation.)

Media and software creators have a legitimate interest in preventing the easy duplication of their work. But the DMCA digs deep in its reach. Many people interact constantly with not just media and conventional consumer electronics and software relating to it, but also other pieces of technology, ranging from coffee makers to medical devices to farm machinery. Everything that incorporates software–which, these days, is almost everything–is affected by the DMCA.

In the past, companies have sued or legally threatened people and organizations making replacement Lexmark printer cartridges, discussing how to work around Apple’s FairPlay DRM to use iPods with other software and operating systems, and releasing research into SunnComm’s CD copy-protection technology. (Keurig notably incorporated DRM into its Keurig 2.0 coffeemakers, which could be circumvented with a clip (distributed for a while by a competitor), though it hasn’t sued anybody.) While the suits have failed and the threats have proven to be empty, they have a chilling effect.


There is a loophole, though. The Librarian of Congress, a job that combines honorary and practical purposes, has a key to unlock the DMCA every three years. That time is once again nigh.


On May 20 and 21 in Los Angeles, the Copyright Office, which is organized under the Library of Congress, held hearings to talk about the current slate of 27 categories that are up for review under Section 1201.

That part of the DMCA requires a triennial process by the Librarian of Congress to review whether anti-circumvention provisions “adversely affect” users of copyrighted material. The list of adverse effects is long. Do DRM and similar techniques prevent “the availability for use of works for nonprofit archival, preservation, and educational purposes”? Is there an impact on “criticism, comment, news reporting, teaching, scholarship, or research”? The law doesn’t explain how to conduct this process, and the one developed favors DMCA enforcement backers.

The Librarian has opted to require one or more “champions” or proponents of a carefully defined category, like “Audiovisual works – educational uses – colleges and universities,” to file a brief. His office also opens the floor to rebuttals from opponents. Further, the Librarian sunsets every exemption every three years–something not required by the law, and which requires champions to arise again to launch a new defense. The office also doesn’t propose its own examples of circumvention that should be permitted, even though the law permits it to do so.

The sunsetting factor led to the embarrassing matter last July of Congress and the president agreeing–unanimously, in the case of the House–to legalize phone jailbreaking with the Unlocking Consumer Choice and Wireless Competition Act, when the relevant Section 1201 exemption had expired. This exemption let people unlock their phones when carriers wouldn’t. A related problem is the triennial cycle isn’t followed rigorously, leading to gaps between expiration and new exemptions being processed. (Technically, jailbreaking allows full access to an OS’s capabilities, while unlocking is a subcategory. However, devices typically need to be jailbroken in order to be unlocked without the cooperation of a carrier.)


For this round of exemptions, old favorites are back, such as unlocking and jailbreaking phones and tablets, vehicle software modification, and many academic exceptions. New in this round is “Abandoned software – video games requiring server communication,” a new brief from the EFF. Led by law student Kendra Albert, the EFF’s exemption request doesn’t encompass games with central worlds, like Second Life or League of Legends. Rather, it relates to multiplayer games that use matchmaking services to connect users across the Internet.

These services are almost always hardwired into a game, and once a company decides to shut down its servers, sometimes within a year of launching a game, Internet play is unavailable. Many companies also contract to third-party services to handle this matchmaking, and one, GameSpy, shuttered abruptly in 2014, leaving hundreds of games temporarily or permanently abandoned. An arcade console called DJMAX Technika (versions 2 and 3) became unusable following its makers’ turning off servers as well.

Albert advocates both on behalf of players and archivists and researchers. She notes networked gameplay is both a fundamental part of many games’ experience as sold to paying customers, and that researchers and historians cannot properly examine a game as a historical or functional work without having access to key capabilities. Some groups offer hacks and servers to bypass these limits without the permission of the original game developers. Albert notes, “Many of the groups that are in the best position to archive or run servers are not ones who want to take on a lot of litigation risk.”

While giving new life and academic purpose to old games that had this function abandoned would seem a reasonable goal, the trade group for the industry’s largest firms, the Electronic Software Association (ESA), opposes the exemption. The ESA maintains, among many rebutting arguments, that to hack its members’ games to use new matchmaking would require overriding fundamental protections against piracy both in its software and, in the case of gaming systems, the consoles or handhelds. (An ESA spokesperson initially said the ESA would offer comment, and then didn’t respond.)

It notes further that many games offer local networked play after Internet matchmaking is no longer available, which should allow gamers and researchers to avail themselves of these multiplayer modes. And its members might choose to reboot a game later, though the EFF’s proposal would require independent matchmakers shut down if that happened.


Let A Thousand Voices Blossom

Another new twist in this go-round involves participation. While the Copyright Office doesn’t require legal briefs, and one submission was from one “Blinky X,” the submission process is not as ideal as, say, the FCC’s for encouraging and managing submissions from the adversely affected users mentioned in the DMCA. The Copyright Office required a filer to download a Word document and select one of 27 unlabeled categories (shown on the site but not in the document), and then upload it.

Kyle Wiens, the head of iFixIt, a firm that documents the innards of electronic devices and sells tools and parts to repair and augment them, filed statements in several categories, and appeared on multiple panels at the hearings in Los Angeles. He advocates a “right to repair” for both cost and environmental reasons–keeping owners from being dependent on manufacturers for sometimes pricey fixes and keeping equipment out of landfills or electronics recycling programs.

iFixit CEO Kyle Wiens

In the case of the triennial exemption review, Wiens tried to “repair” the submission process. iFixIt created a streamlined form to collect comments and then file on behalf of consumers. It received 40,000 comments, and created a script to convert these to the appropriate Word format and upload at a rate of one per second, avoiding causing problems by overloading the Library of Congress’s servers. Or so Wiens thought. iFixIt instead accidentally brought down the LoC’s email system. Every uploaded comment was being emailed, and apparently the system couldn’t handle that relatively small number of messages.

“One of the most backwards, technologically poor government agencies is in charge of the future of innovation in the U.S.,” Wiens says. The Library of Congress decides “what technology is all right for modifying and what is not.” The irony doesn’t escape him. The office agreed to accept a bulk submission from him for each category as combined comments. It’s unknown how the scale of those comments will affect proceedings, which should result in decisions in a few months. (The library is a technological mess, with the General Accounting Office noting in a report, “The library does not have the leadership needed to address these IT management weaknesses.”)

The Madhouse Approach

The Los Angeles hearing was a bit of a madhouse, Wiens said, with a panel of five (four from the Copyright Office) running the process, and asking questions, including interrupting during what were supposed to be three-minute opening statements by each participating party.

Wiens said he was able to surprise opposing attorneys in a hearing on games consoles by citing the scale of console devices gone bad, such as the Xbox 360 and its “red ring of death”, a hardware problem that appeared over time and affected from 25 to 50 percent of units sold. Wiens says that “the iFixit red ring of death manual has been used millions of times,” and argues that being able to bypass a chip-based anti-circumvention module was necessary to keep otherwise working consoles from the trash.


“You have prioritized IP law to such an extent, it is limiting how long these products last, and there are environmental consequences to that, and you have to face those,” he adds.

The hearing helped clarify the stance of companies and organizations that oppose exemptions. An attorney for General Motors let slip, “It is our position the software in the vehicle is licensed by the owner of the vehicle.” John Deere made a similar statement in its filings. (Tesla Motors, however, did not.) That is, even though you bought the car, you don’t own the right to modify how it runs, because the software license prohibits it and the DMCA enforces that prohibition.

This triennial process is probably the worst thing that the companies that helped create the legislation could have wished for, because of the news coverage and consumer awareness that results. As more physical things become unrepairable and unmodifiable, even when software support is discontinued by a maker or the maker goes out of business, more people will face the choice between violating a law and getting what they believe they paid for. Congress is apparently not exempt from realizing that as well.

Section 1201’s chief flaw isn’t what it encodes. Rather, it’s that it threatens to make pirates of us all.

About the author

Glenn Fleishman is a veteran technology reporter based in Seattle, who covers security, privacy, and the intersection of technology with culture. Since the mid-1990s, Glenn has written for a host of publications, including the Economist, Macworld, the New York Times, and Wired.