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17 USC § 1201, DMCA Exemptions and Software Freedom

by Bradley M. Kuhn on December 16, 2020

We at Conservancy spent much in the last week preparing our Long Comments in our DMCA exemptions requests for this round. When we announced these exemption filings, many of our Supporters asked us to “back up and explain” what this whole process is and why Conservancy participates. These are excellent questions and so we provide below a simple explanation of the DMCA exemption process, why it exists, and why FOSS-friendly organizations like us chose to participate in what is ultimately a flawed process.

The provisions of the DMCA were designed to support DRM with the power of civil (and in some cases, criminal) law. Media companies, seeing that digital distribution of content would likely become the standard, sought an iron grip on their business models and gain absolute control of their copyrighted works — making it effectively impossible for FOSS to exist for reading books, watching movies, or listening to podcasts or music. The law is morally wrong because it it seeks to criminalize publication of some software techniques and knowledge, and, moreover, the law creates “chilling effects” for everyone in the USA who might consider writing FOSS that is on the edges of such the law's technological restrictions. We saw just in the last few months how organizations like the RIAA can use the DMCA to harm FOSS projects. Since the law has been enacted, DRM has become ubiquitous. Those who write FOSS that even comes near the job of circumventing DRM live in fear.

The dangers of such regulation are obvious to most FOSS activists and technologists. However, to people less savvy about technology, the purported “compromise” struck in the DMCA can seem perfectly reasonable. 17 USC § 1201 prohibits “circumvention [of] technological measures” put in place to stop acts that were otherwise illegal. To those not well versed in copyright policy, this would of course seem no different than other updates to laws for the digital area — such as assuring existing crimes in real life were also crimes when committed over the Internet. For those of us who understand technology and software, the compromise is not reasonable; DMCA made a digital action a crime that had never been a crime when done in analog — publishing technological know-how to improve and repair devices that we own. The DMCA ultimately gave carte blanche and the force of law to ubiquitous DRM.

The main part of the statute that accomplishes this is 17 USC § 1201(a)(1)(A). Ostensibly, §1201(a)(1)(B-C) provide limitations that rein (A) back. Take a read of these sections and then follow along here in parallel. (A) uniformly forbids “circumvention of” a DRM measure implemented by a copyright holder. (B) tells us that we, the public, can come forward once every three years to to identify technological measures we should have the right to circumvent. If we can prove (per (C)), that there are legitimate non-infringing activities that we could imagine engaging in by circumventing the technology restrictions and we can convince the Copyright Office that those circumventions would indeed legitimately aid in non-infringing uses of the DRM'd copyrighted works, then — and only then — can we circumvent a technological measure that effectively controls access to a work. That's the basics of the exemption process.

For a more detailed understand of how the process works, there are three videos from the Copyright Office:

While the material unfortunately includes significant pro-DRM propaganda, it does explain 17 USC §1201 quite well. The TL;DR summary is as follows:

Basic Overview of 17 USC §1201

First, §1201 is primarily concerned with so-called “Technological Protection Measures” (generally abbreviated “TPM” in DMCA policy circles). A TPM is defined broadly to include any access control, including scrambling, encryption, password protection and the like.
§1201 prohibits circumvention of a TPM implemented for access controls to a copyrighted work.
§1201 prohibits dissemination of information (both commercially and non-commercially) that explains how to circumvent a TPM put in place for either access controls, or copy prevention of work. (The statute and the Copyright Office use the pro-DRM term, “trafficking”, for such activity. We use the term “dissemination” to avoid supporting that propaganda.) If you've heard us and others talk about how the DMCA squelches Free Speech (or are familiar with the phrase “chilling effects” that we activists have argued are produced by DMCA's mere existence), this is the part of §1201 that relates to those issues.
Exemptions to these rules exist. The law itself has some permanent exemptions, listed in §1201(d-j). These permanent exemptions are useful but certainly don't permit unbridled development of FOSS software that might be considered a circumvention technique.
All other exemptions are temporary. The exemption process happens every three years — hence the term “Triennial Rulemaking”. There is a rulemaking process occurring right now, and here's a summary of how that works:

The Triennial Rulemaking Process

A temporary exemption is only granted for uses of copyrighted works that are otherwise non-infringing (i.e., only §1201 restrictions cause infringement, and there must be no infringement due to any other part of the copyright act).
The Copyright Office Exemptions are never permitted to the “dissemination prohibitions”, only for use and access. (Only Congress can change anything regarding actual dissemination of circumvention techniques. This is particularly troubling for many reasons, including that the WCT, the international treaty that DMCA intended to implement, only mandated the access control issue, and does not speak to dissemination of general circumvention information. Most DMCA-like laws in other countries are not as strict. But in the USA, there is simply no way to get an exemption for dissemination of circumvention techniques — other than lobbying for legislative change.)
Exemption applicants must show that there is current adverse impact due to TPMs for the public regarding the non-infringing uses that the exemption would allow. (Alternatively, the applicant, may show that there will be such adverse impact within three years.)
Hypothetical and theoretical arguments are not accepted. Applicants must show that specific people will (or soon will) suffer adverse effects when unable to engage in real-world non-infringing uses that are directly prevented by a specific TPM and that circumvention would enable those non-infringing uses to resume and/or continue.
The Rulemaking process itself proceeds as follows:
- The Office issues an NPM, which is the standard method by which any Administrative Branch agency announces a process where new rules will be made.
- Round1: Petitioners make an initial filing to indicate that they'll apply for an exemption and its primary impetus. These are short, and were filed on 2020-09-08 for the 2021 Rulemaking.
- Petitioners and others can then make supportive public comments. Those are what were due on Monday (2020-12-14) for the 2021 Rulemaking. (We'll have follow up blog posts about our filings throughout this week and next.)
- Round 2: opponents may file objections and disagreements. We'll of course expect to see lots of software-freedom-unfriendly vendors making arguments against our filings during that period, and we'll point our blog readers to any filed in opposition of our exemption requests.
- Round 3: reply comments from the Petitioners (and neutral comments from others) are allowed.
- Finally, Round 4: public hearings occur, which are optional. Conservancy participated in the public hearings in the 2015 year Rulemaking when we successfully requested the exemption for “smart” TVs.
Note, finally, that there is an expedited process for renewal of temporary exemptions, which Conservancy also participated in for the TV exemption originally granted in 2015 and renewed in 2018.

For many activist organizations, the question often becomes whether to participate in or boycott this process. The process places the burden on underfunded activist organizations to make a case just to permit what are ultimately extremely narrow areas of activity. (Remember that the Copyright Office's position is that exemptions are never granted for circumvention dissemination, only access, so the temporary exemptions are both narrowed in that scope and narrowed to specific types of devices or activities.) Conservancy, like EFF, used to be among those who boycotted this process. Reforms — which were sought by CDT, EFF, Public Knowledge, Public Labs, and other organizations — in recent years have improved the process, but it remains time-consuming and painful. However, given that there is no viable political will or path to seek repeal of the DMCA, we're stuck with this process. Just as copyleft is designed to utilize the general copyright system — which most FOSS activists (at least) find problematic or (in many cases) oppose outright — we must similarly work, with regard to this specific part of the Copyright Act, within the system to find our way through. Conservancy has focused our filings in the process on those areas that most directly impact software freedom, and we look forward to telling you more about them this week.

Meanwhile, the dangers we face from the parts of the DMCA that cannot receive exemptions are real. People have been put in prison for “trafficking” under this statue; a company can, as Adobe did, simply phone the FBI to get someone arrested. Companies like Sony can drag in the Feds into civil cases to apply pressure for demand of unreasonable settlements. As long as we live in a regime willing to tolerate this kind of policy, we have to make use of the process we have to improve the odds that FOSS developers and researchers don't face both civil and criminal penalties.

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Tags: conservancy, law, licensing

Public Drafting Process for the DMCA Cooperation Pledge

by Bradley M. Kuhn on November 30, 2020

In my blog post two weeks ago, I proposed — in light of increased DMCA takedowns against FOSS projects (and relatedly, increased enforcement of 17USC§1201) — that we ask for-profit copyright holders to agree to a pledge similar to GPLv3§8¶3. Simply put, proprietary copyright holders should be equally as reasonable as GPL copyright holders are and give FOSS projects 30 days to negotiate and discuss copyright infringement allegations before triggering a de-facto injuction with the DMCA.

I admit that I thought it unlikely that any for-profit companies would even be willing to discuss the possibility of making such a pledge; my proposal was more thought experiment than actual policy. I was however pleasantly surprised to receive positive feedback from at least four companies as well as interest from another non-profit organization who is excited about the idea.

After both internal discussion and external discussion with these parties, we feel that now that the project has moved from thought experiment to real potential policy, that we should move the discussion public. It's just in our DNA at Conservancy to act transparently and welcome stakeholders into public discourse about policies. Moreover, these sorts of industry pledges and assurances have historically been drafted in secrecy by a few companies and then put forward as a fait accompli to the FOSS community. We'd like to change that tendency in this process.

Today, we created a Git repository and a mailing list for this project. We welcome anyone interested in the proposal of this pledge to join the mailing list and propose a patchset or just generally write up suggestions. Folks participating need not and do not in our view bind their company to the pledge; rather, we're looking for wide input on what the text needs to say to make it most likely that organizations will agree to the pledge.

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Tags: conservancy, law, licensing

A Modest Proposal In The New Age of DMCA Takedown Aggression

by Bradley M. Kuhn on November 13, 2020

Just two weeks ago, my colleague Denver posted a criticism of Microsoft's GitHub for its capitulation to the RIAA takedown notice — which alleged, with specious evidence, that youtube-dl violated 17 USC § 1201. Frankly, this is the kind of behavior we'd expect from the RIAA — an organization controlled in recent decades by two dudes who seem to have helped write § 1201. No one is surprised when the RIAA attacks FOSS projects.

Last night, though, I was shocked to learn that a company that generally has a much better track record on DMCA matters (and with FOSS projects) joined the recent onslaught of DMCA takedown notices against FOSS projects. Namely, GitHub announced yesterday that Google sent a § 1201 DMCA takedown notice for a FOSS project called widevine-l3-decryptor.

Google is the primary provider of browser-based DRM technology for nearly all of the well-known entertainment streaming services, through a product called Widevine. If you've watched a streaming video from a major provider (such as Netflix, Prime Video, and Hulu), then you've probably used Google's DRM. For the past two years, researchers have been in a DRM arms race with Google in cracking the lowest level (and lowest video quality level) of Widevine (called “L3”). The most recent crack inspired creation of a FOSS project, called widevine-l3-decryptor. If successfully integrated into browsers and other platforms, this new freely licensed code may well allow a 100% FOSS solution for viewing videos at this lowest level of DRM⁰. As always, though, DRM and software freedom remain on an irreconcilable collision course; the function of one always precludes the other.

If you just had déjà vu, it's likely because the narrative here resembles the story of DeCSS from about 20 years ago. The big differences are: (a) cracking L3 isn't as big of a threat to DRM technology (since it yields video output at very low quality), and (b) more importantly, and strangely, Google takes on the role of the MPAA in this repeat dance of DMCA history.

What Should Activists Do?

I admit that this situation kept me up half the night. My first thought was to come out blogging today that we needed to immediately institute a full boycott of all DRM, and the companies that produce it. Yes, a boycott would surely be effective, but it is effectively impossible. Seth Schoen, who has spent nearly a lifetime working to fight DRM, told me once that the talking point inside the industry circles in the early 2000s was: DRM is inevitable. Indeed, the media companies succeeded in inserting that phrase into culture, research circles, and everywhere else — so much so that it eventually became a running joke for activists.

We erred in our arrogant belief that DRM would remain clunky and rare. Media companies and their technology providers have laughed at us all the way to the proverbial bank. Then, the W3C and Mozilla Foundation capitulated with EME. Simply put, the boycott won't work now because DRM, along with the ubiquity of proprietary software in (at least as some component of) every popular platform means that DRM is seamless, easy-to-use, and rarely gets in the way of paying customers. We in fact tried, and mostly succeeded, in boycotting DRM when it was cumbersome, full of bugs, and annoyed users in the early 2000s. Today, most users of DRM don't even know it's there, or who provides it. While I'm not a user of browser-based streaming, I am still embarrassed to say that until yesterday I didn't even know Widevine was a Google product. I thought others were fighting the good fight against DRM and I mostly ignored it. But no one really is. DRM may not rule the technological world for software freedom activists who shun proprietary platforms. But it silently rules everyone else's tech world, and boycotting DRM effectively means boycotting most technology.

This led me to think of political polarization and a failure to compromise, and how it puts policy issues into gridlock. So, for a moment, let's step aside from our visceral negative reaction to 17 USC § 1201. Of course, we should never forget that § 1201 frustrates many Free Speech rights with respect to software in the USA; however, we also must admit that strategies until now have failed to repeal that abhorrent law. So, let's attempt for a few minutes to see the other side's position, as it might help us find other ideas to try while we wait indefinitely (22 years and counting ☹) for restoration of technological Free Speech rights.

Toward that mindset, consider that the copyright statute is ultimately a tool. We in the FOSS community created copyleft as a method to use that tool for good rather than ill. Meanwhile, the media and big tech companies lack any moral motivations on this issue, so they see this tool as merely a method to keep paying customers paying over and over again for the same content. It seems on the surface that there's no zone of agreement, but perhaps there is. Maybe we can agree, especially when we look back to the era of DeCSS, that §1201 is a tool so sharp that it instead became a clumsy weapon. Herein, I propose a compromise that slightly blunts §1201's sharpness. That compromise can be found by focusing on the consensus we already have regarding what parts of copyright that copyleft enforcement should avoid.

Short Term: Copyright Enforcement Parity

Two years ago, Google along with many other companies signed on to the IBM's Red Hat initiative and agreed to the RHCC. The RHCC is a pledge (similar to the KESAP, the latter of which we endorsed) whereby all copyright holders in GPL'd software agree to allow infringers 30 days to repair any copyright infringement consequence-free. During that 30 days, the infringer can continue acts of copyright infringement (e.g., violating the GPL) with impunity. On the thirtieth day, if the infringer achieves full compliance with the GPL, all is forgiven and no penalties are imposed.

While 30 days of unabated GPL violations are quite problematic and often result in thousands of customers remaining uninformed forever that their products contain copylefted software (and thus are possibly never informed that software freedom exists), GPL enforcers have always understood that it takes time for folks to coordinate a response and fix the situation. We have remained steadfast in our focus on beginning with friendly and respectful conversation with any infringer. We never demand immediate injunction; in fact, we usually don't even request one for about 120 days or more. By contrast, DMCA takedown is the exact opposite approach. Takedowns are unwarranted for FOSS projects that develop and operate transparently in the open and facilitate important work for the public good.

Thus, I hereby call on all these companies who signed onto the RHCC to agree immediately to the following pledge:

We agree that regarding any and all alleged copyright infringement committed by any software project that is licensed under (or intends to license under) an OSI-Approved License, that we will give notice to the project, and take no action of copyright enforcement (including but not limited to DMCA takedown) for at least 30 days from the date of notice of our concerns made to the project.

I will be writing to my contacts at all the companies who signed onto the RHCC to ask them to sign onto this provision as well.

Medium and Long Term Solutions

An agreement to slow the rising DMCA takedown onslaught won't actually solve the scourge of §1201. But it can raise awareness. We live every day under unreasonable restrictions from the DMCA and similar laws worldwide. We sometimes forget the urgency of this problem, but this fall's reemergence of the DRM wars should remind us that we must regularly discuss concrete ideas for response. Over the coming weeks, I'll be blogging more on the topic with more ideas to address this problem. In the meantime, I hope I've inspired some of you to propose ideas on how to respond in this struggle, and please do share this post and the request above on social media and any other fora you frequent!

⁰Google does claim, without evidence (presumably because DMCA doesn't require Google to provide evidence at this stage of the process), that some of the files in the project were copyrighted by Google and therefore not licensable as FOSS. If true, Google would also have a more mundane copyright infringement allegation unrelated to §1201. However, recall that it's typical for pro-DRM organizations to (incorrectly) claim that databases of keys or even keys themselves are independently copyrightable, and we strongly suspect that's occurring here.

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Tags: conservancy, licensing, software freedom for everyone

Conservancy is headed to Brussels

by Deb Nicholson on January 24, 2020

Greetings software freedom friends! We will again be in Brussels for FOSDEM and the Second Annual Copyleft Conf. We would love to see you while we're there so here are few of the places and times where you can find us.

FOSDEM

Our Executive Director, Karen Sandler and our Policy Fellow, Bradley M. Kuhn are half of the team behind Saturday's popular and long-running Legal & Policy DevRoom. This year the DevRoom will have debates on critical current topics. Sustainability, the relevance of the Open Source Definition, privacy and open hardware are just a few that will be covered. In past years this room has gotten full, so savvy attendees should show up a little early for the sessions they want to catch.

On Sunday, Conservancy staff have two talks in the Community Devroom run by Leslie Hawthorn, Laura Czajkowski and Shirley Bailes. Our Director of Community Operations, Deb Nicholson will be discussing Building Ethical Software Under Capitalism just before lunch, and near the end of the day Bradley looks at how Innersource might affect the future of upstream contributions.

Conservancy will also have a stand all day on Sunday in K level 2 (we are in group E). Come by, say hi, load up on stickers, share some FLOSSip, etc. We could also use a few volunteers at the booth. If you like talking about free software and you can help out for an hour or two, please get in touch!

Conservancy projects Godot and Coreboot also have stands at FOSDEM so be sure to swing by and see what they've got going on.

Second Annual Copyleft Conf

Copyleft Conf is a one day conference on February 3rd, dedicated to -- you guessed it -- copyleft licensing! We'll be discussing theory, practice and the future of copyleft in a friendly and welcoming environment. Porfessional tickets are $200, student/under-employed/non-profit employee tickets are just $20. Both tickets include coffee and tea in the morning as well as lunch. You're going to want to register in advance so that we can get a solid headcount for lunch and get everyone checked in quickly in the morning. Please get in touch if $20 is prohibitive for you.

We could also use volunteers onsite for Copyleft Conf. Volunteer tasks include; helping with registration, time-keeping and recording. Email us if you can pitch in with these important tasks.

Bonus!

Deb is also keynoting CHAOSScon on the Friday before FOSDEM starts. She'll be talking about ethics and metrics. If you're in town early and want to join, the conference organizers recommend registering as soon as possible because space is limited.

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Tags: conferences, licensing

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