Software Freedom Conservancy's DMCA Exemption Requests Granted for Alternate Router Firmware, Copyleft Compliance Investigation and More

October 28, 2021

Software Freedom Conservancy is proud to announce that its efforts to stand up for the rights of FOSS developers have been successful and that it has been granted almost all of the exemptions that it requested in the Librarian of Congress' recent rule making, according to the final rule Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, which was published today. Effective today, the Librarian of Congress ("LoC") granted DMCA exemptions for installing alternate firmwares on routers and for investigating copyleft compliance, and the exemption that Software Freedom Conservancy previously applied for and received on Smart TVs was also expanded. While our formal request to extend the security research exemption to include privacy research was not granted, the Register clarified that privacy research is indeed included in security research. Our executive director, Karen Sandler, also participated as an individual in a request to expand the existing exemption for medical devices which was also successful.

Jailbreaking of routers

Our exemption request to allow the jailbreaking of routers and other networking devices to enable the installation of alternative firmware was approved for network router FOSS projects such as our OpenWrt project. This exemption permits users, after-market, to install FOSS firmwares (such as OpenWrt) on wireless router hardware that has DRM'd firmwares from the manufacturer. As the LoC noted in its rule making supplemental information, "the prohibition on circumvention is likely to prevent users from installing free and open source software (“FOSS”) on routers and other networking devices and that there are no viable alternatives to circumvention to accomplish that purpose." This exemption supports an important consumer rights issue of enabling life cycle management of our devices, which frees consumers from the "planned obsolescence" of being forced to upgrade devices at the whim of manufacturers and allows them to take control of their own routers. Allowing alternate firmware (like our project OpenWrt) gives us so much more freedom in how we manage our devices.

Investigation

We were also successful in seeking an exemption for circumvention of technological measures for purposes of investigating and confirming violations of FOSS license. This explicitly allows Software Freedom Conservancy and others to continue enforcement of copyleft licenses in the face of violators' efforts to thwart us with technological restrictions and the power of this law that, ironically, can make such work illegal. As an organization that stands up for the rights of users (see our recently filed case against Vizio), we can now be confident in our efforts to make sure corporations are held to their end of the copyleft bargain, even if they seek to obscure their disregard for the license. However, while the LoC otherwise granted the exemption we asked for on every other kind of device, they added one limitation. The LoC explicitly left out video game consoles from the types of devices on which TPMs (a more general term for DRM) may be circumvented, a baffling conclusion which reflects the strong lobbying against our work.

Privacy issues

Our third exemption requested expansion of the existing security research exemptions to also permit good-faith testing, investigation, and correction of privacy issues that are not otherwise covered by existing statutory or temporary exemptions. During this process, we noted that the similar exemption for security research fell short of protecting work on privacy issues, and asked for either an expanded exemption or a clarification that the existing exemption also covered privacy research. The LoC recognized the importance of this exemption, and, because the Register in its recommendations clarified that the security research exemption does indeed also apply to privacy research, there was no need to extend the current exemption for privacy research. This clarification brings safety to those who test devices for their handling of private information, regardless of whether those devices intended for the information to be collected and shared or not. As the Register wrote in its recommendations, "the exemption does not draw a distinction between vulnerabilities that the copyright owner authorized and those that were unauthorized."

Medical Devices

Our Executive Director Karen Sandler, along with Hugo Campos and Jay Radcliffe, filed for DMCA exemptions to medical devices which was submitted and defended by the USC Gould School of Law. Control over the tech we rely on is never more poignant than the software in our own bodies and the COVID-19 pandemic has highlighted how important it is to have the right to repair medical equipment and to retrieve data on those devices. Sandler participated in the original rule making in 2016 and the new ruling expands the existing exemption to cover all medical devices, not just ones that are implanted, and also for circumvention that is undertaken on behalf of a patient, not just by the patient themselves.

Going Forward

Overall we applaud the actions taken by the Librarian of Congress on the exemptions we were involved in as well as others granted in the same process. This decision underscores the need for continued advocacy in the field to fight the giant financial interests that seek to strip end users of their rights.

We are proud of our active license compliance work and advocacy like this and we rely on your financial contributions. If you like the work we are doing and want to support our on-going efforts to protect consumers rights and software freedom, please consider donating to us.

We also thank our attorneys, Pam Chestek and Aaron Williamson, whose expertise and hard work was invaluable to this process. Many thanks also to Amateur Radio Digital Communications (ARDC), whose mission is to support, promote, and enhance digital communication and broader communication science and technology, to promote Amateur Radio, scientific research, experimentation, education, development, open access, and innovation in information and communication technology, and who supported this work.