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by 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:
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.
by 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.
by on November 6, 2020
We were very excited to hear that Massachusetts voters approved a new right to repair law earlier this week. Laws like these are important tools in allowing us to control the devices that we use. In particular, we believe it is important that people be able to fix their own devices, and to be provided with all the information they might need to make the best repair decisions. This principle has applied to cars for over a century and, now that cars are increasingly made up of computers, the implications for both repairing vehicles and software freedom are hard to ignore.
The proposed law is an excellent start for providing telematics information to vehicle owners. As the full text of the law (pages 5 and 6) describes, there are still implementation aspects to be decided by the Massachusetts Attorney General. These include a notice that describes "the mechanical data collected, stored and transmitted by a telematics system" and "the prospective owner's ability to access the vehicle's mechanical data through a mobile device", which dealers will be required to provide to prospective vehicle buyers and lessees.
The law also states the vehicle manufacturers must implement "an inter-operable, standardized and open access platform across all of the manufacturer's makes and models [that] shall be capable of securely communicating all mechanical data emanating directly from the motor vehicle via direct data connection to the platform". While the law mentions that this data needs to at least "be directly accessible by the owner of the vehicle through a mobile-based application", we would like to see the Massachusetts Attorney General clarify in their notice that the data should be accessible through an API available to the owner as part of this, one that is "inter-operable" and "standardized" per above.
We find often that people can read "a mobile-based application" to mean apps that are available via the Google Play Store or Apple App Store, but nowhere else. Both of these stores are proprietary software and lock users into single-company controlled infrastructure, so it is important to have other options for those who don't want to use such apps, including using an app available in some other store, for some other operating system, or that they wrote themselves if they like (using the API described earlier).
Initiatives like this Massachusetts Right to Repair measure are important for our freedom - our freedom to repair our devices (which includes vehicles) ourselves or by the repair shop of our choice, and our freedom to use whichever tools we wish in order to complete the repair. The right to repair movement is crucial in this world of increasingly locked-down devices, and we hope to build even more bridges to support the shared principles with software freedom going forward. We applaud and stand with the voters who made this initiative happen and look forward to many more such initiatives in the future.
Dear Ms. Healey:
We at Software Freedom Conservancy, a 501(c)(3) charity dedicated in part to helping people take control of their computing experience through the freedom to choose which software they use, are very supportive of the "Right to Repair Law" Vehicle Data Access Requirement Initiative that Massachusetts voters approved this past week (organizationally and also as it relates to employees of ours based in Massachusetts). We see that as Attorney General you have been tasked with writing the telematics notice that manufacturers will provide to vehicle buyers and lessees, and we'd like to provide some suggestions given our experience with the different apps and software that users may wish to use to receive this telematics data.
In particular, we see that the notice will describe "the mechanical data collected, stored and transmitted by a telematics system" and "the prospective owner's ability to access the vehicle's mechanical data through a mobile device", which dealers will be required to provide to prospective vehicle buyers and lessees. The law also states the vehicle manufacturers must implement "an inter-operable, standardized and open access platform across all of the manufacturer's makes and models [that] shall be capable of securely communicating all mechanical data emanating directly from the motor vehicle via direct data connection to the platform".
While the law mentions that this data needs to at least "be directly accessible by the owner of the vehicle through a mobile-based application", we would like to see the Attorney General clarify in their notice that the data should be accessible through an API available to the owner as part of this, one that is "inter-operable" and "standardized" per above.
We find often that people can read "a mobile-based application" to mean apps that are available via the Google Play Store or Apple App Store, but nowhere else. Both of these stores are proprietary software and lock users into single-company controlled infrastructure, so it is important to have other options for those who don't want to use such apps, including using an app available in some other store, for some other operating system, or that they wrote themselves if they like (using the API described earlier).
Please let us know if you have any questions about our suggestions above. For reference, Conservancy's Execute Director, Karen Sandler, has been CCed. We are available to help draft specific text or join whatever process you establish for comments related to the implementation of this measure.
Thanks for your consideration!
by on September 16, 2020
Every three years, the US Copyright Office conducts a rulemaking process to consider exemptions to the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA). These are the provisions of the law that make it a criminal offense to circumvent digital rights management technology (DRM). These provisions give technology companies far too much control over the technology people use, prohibiting all kinds of modification and tinkering in the name of “copyright protection.” We would love to see the anticircumvention provisions of the DMCA repealed in their entirety.
Until that happens, the rulemaking process gives us an opportunity to request exemptions that are strategically important for software freedom and essential for us to be able to control our own devices. This year we requested three new exemptions:
All of these exemptions recognize the growing prevalence of small, dedicated devices in many people’s lives. We’re always horrified to learn when gadgets that should be innocuous like doorbells, thermostats, and baby monitors are spying on us, whether by design or careless programming. It should not be a crime for people to investigate these issues and take steps to defend themselves with devices they’ve bought and own—especially when the device is running FOSS that promises the user those very rights. Our requests call on the US Copyright Office to codify that common sense into law.
We also requested renewal of the exemption that allows people to install alternative software on smart TVs that we previously won in 2015.
These requests kick off the beginning of the process, where all new exemptions are requested. We can expect the Copyright Office to announce what exemptions are granted around this time next year. We’ll be sure to keep you updated on the process.