Read and share online: https://www.defectivebydesign.org/blog/2018_dmca_anticircumvention_exemption_process_some_progress_not_enough

Dear Ruben Safir,

The anti-circumvention provisions of the Digital Millennium Copyright
Act (DMCA) are still a threat. The latest round of its exemptions
process showed some successes, and where the work needs to continue.

The DMCA has quite a few troubling provisions in it, but the nastiest
of them all are the anti-circumvention rules. These provisions create
legal penalties for anyone trying to control their own software or
devices, and potential criminal risk when users try to share tools for
avoiding Digital Restrictions Management (DRM). These rules are
grossly unfair, and deprive users of the right to repair the devices
that they own, to study or research potential security flaws, or to
make or modify their own copies of works to meet their needs. As
paltry compensation, Congress carved out a complicated process run by
the US Copyright Office for reclaiming the ability to control your
computing in narrow circumstances. As we wrote previously:

Every three years, supporters of user rights are forced to go
through a Kafkaesque process fighting for exemptions from the
anti-circumvention provisions of the DMCA... In short, under the
DMCA's rules, everything not permitted is forbidden. Unless we
expend time and resources to protect and expand exemptions, users
could be threatened with legal consequences for circumventing the
Digital Restrictions Management (DRM) on their own devices and
software, and could face criminal penalties for sharing tools that
allow others to do the same. Exemptions don't fix the harm brought
about by the DMCA's anti-circumvention provisions, but they're the
only crumbs Congress deigned to throw us when they tossed out our
rights as users.

Even when exemptions on avoiding DRM are approved, the ability to
share tools to make use of the exemptions is not covered, rendering
most exemptions practically useless for most users. 2018 saw yet
another round of this silly process come to a close. While we will
keep fighting to eliminate the anti-circumvention rules, making this
process obsolete, we do want to take a moment to review this year's
results (PDF).

In this latest round, we supported all twelve newly proposed
classes. While we can celebrate some limited success in that nine
classes received some level of expanded or new exemptions, some
classes were outright rejected. Calls for broader-based exemptions
were also rejected, and the Copyright Office once again narrowly
tailored their exemptions, leaving the landscape difficult to navigate
and needlessly complex.

There was some procedural progress made in this round. First, the
Copyright Office simplified the process of renewing existing
exemptions. In previous rounds, every three years activists and users
would have to claw and scratch to make sure that previously granted
exemptions were maintained. For anyone wanting to make use of these
exemptions, having them called into question so frequently left users
in an uncertain position. Under the new system, the process for
supporting existing exemptions is simpler, and led to every single
preexisting exemption being renewed. This a nice step in the right
direction. The exemptions process unfairly burdens smaller
organizations and individuals, who don't have the resources to
constantly be providing the type of in-depth information and research
that the Copyright Office favors in its reviews. While we give voice
to the rights of users in this process, the Copyright Office's public
response is that we do not provide enough "data." Rights aren't
numbers on a spreadsheet. Anything that reduces this artificial burden
is beneficial, but the best way to improve the system is to get rid of
it altogether.

Another procedural improvement this year was how the Copyright Office
intends to deal with other governmental regulatory bodies interfering
with the exemptions process. DRM is about copyright in name only; it
has always simply been about controlling the user. But one of the most
malicious aspects of the exemptions system was a growing trend of
other governmental agencies trying to use DRM in order to restrict
users based on regulations having nothing to do with copyright. We've
repeatedly called out these DRM Drones for what they are: enemies
of user rights. On this front we can celebrate some measure of
success, as the Copyright Office explicitly denounced this act. It
said it will no longer consider other governmental agencies' attempts
to expand the DMCA's anti-circumvention provisions for reasons having
nothing to do with copyright. The Copyright Office tying its
exemptions review back to copyright is again beneficial, in that it
hopefully means they will grant more exemptions and prevent other
agencies from mangling an already convoluted system. It's good that
they have rebuffed these attempts for now, but that still leaves us in
a situation where users don't have full control over their own
computing based on a false claim of upholding copyright.

None of these improvements to the exemptions process resolve the
fundamental unfairness of threatening users with legal repercussions
for trying to live their lives without outside interference. And none
of the successes that we enjoyed this year allow users to share the
tools necessary to enjoy that success. We cannot stop here. We must
continue to fight for the end of DRM and the DMCA's anti-circumvention
provisions.

Will you help us win this fight? Help spread the word about the
dangers of the DMCA's anti-circumvention provisions by sharing this
article with your friends.

Sincerely,

Donald Robertson, III

Licensing and Compliance Manager