<b>commentary</b> The anti-circumvention provision of the DMCA has been stifling research, slowing innovation, and annoying consumers for more than a decade. So why does it still exist?
The first time I wrote about the DMCA and anti-circumvention was in the wake of the 2005 Sony root kit fiasco, in which Sony had surreptitiously installed restrictive DRM software on the computers of consumers who played or attempted to rip CDs. Under the anti-circumvention provisions, the Princeton security researcher who discovered the root kit had actually broken the law by reverse-engineering the software, and consumers risked breaking the law if they attempted to hack it in order to uninstall it. (On its own, the software would disable your CD drive if you tried to get rid of it.) The Princeton researcher who brought the root kit to light actually delayed his findings because he feared prosecution under the DMCA. That problem? That's still around.
Then it became clear that anti-circumvention would prevent you from being able to rip a DVD to your computer the way you can rip a CD. In 2000, Universal Studios won an injunction against three hackers who had created software to defeat digital rights management technology on DVDs. The court ruled, in fact, that you have zero fair use rights to your encrypted DVDs: That is, just because you bought it doesn't mean you can do whatever you want with it, if "whatever you want" includes making your own digital copy for backup, to put on a mobile device, or to watch from a computer. In 2006, I blogged about a survey that reported 90 percent of people (more if those people had kids) think you should have the right to rip your DVDs for backup or mobile use. I bet that number is 100 percent by now, but that problem? That's also still around.
The provision outlawed jailbreaking phones until 2010; it's still illegal under the DMCA to jailbreak a tablet, because apparently "tablet" is a scary, fuzzy concept for the Library of Congress, which is the body that can grant exemptions to the DMCA, if they can be persuaded to understand what you're talking about with all this new technology. (You also can't jailbreak a game console, while we're at it.) Amazon used anti-circumvention to try to stamp out software that converted e-books to audio so that the blind could listen to them -- fortunately, the Library of Congress did allow an exemption for that purpose, but not until 2010 (and it wasn't a very good exemption until 2012).
The provision has also been used to threaten a security researcher who was investigating Internet filtering and blocking around the world; Apple used it to force an online forum to actually remove discussions about reverse-engineering iPods; and it was used to prosecute Russian security hacker Dmitry Sklyarov and others. Canada's lawmakers used the rule as a guideline for enacting its own copyright legislation last year, replete with digital lock technology even more restrictive than the DMCA's, despite almost universal protest from the Web community there. The Electronic Frontier Foundation maintains a running tally of these and other unintended consequences of the DMCA -- a startling number of them refer to anti-circumvention
And now, here we are again at unlocked phones. The Library of Congress refused to allow an exemption for unlocking your carrier-locked phone (which The Atlantic rightly calls "The most ridiculous law of 2013 -- so far"). In the ruling, the Librarian determined that, essentially, it's not as hard as it used to be to buy an unlocked phone, so what's the big deal? And in a truly remarkable bit of rationalization, the Librarian writes:
While it is true that not every wireless device is available unlocked, and wireless carriers' unlocking polices are not free from all restrictions, the record clearly demonstrates that there is a wide range of alternatives from which consumers may choose in order to obtain an unlocked wireless phone.
Now, as you know, all that a restriction on unlocking your phone really accomplishes is allowing carriers to increasingly restrict your ability to leave them, despite their own wildly anticonsumer behavior, increasing contract costs, and skyrocketing early termination fees. In effect, the Librarian ruled that it's OK to restrict your consumer choice so that the carriers can restrict your consumer choice because hey, there's a little bit of consumer choice out there!
Quite obviously, the ban on unlocking cell phones is ridiculous -- there's a growing chorus of voices on that fact and a new Whitehouse.gov petition to overturn the ruling. But the problem won't be fixed until the DMCA is fixed.
Attempting to add exemptions after the fact is an absolutely ludicrous way to enforce anti-circumvention provisions that are already too broad and way too flawed. Those exemptions, by the way, have to be reissued every three years, meaning insanity could still creep back in (as The Atlantic points out, the blind have to defend their right to access e-books as audio every three years), and the state of affairs is constantly confused. The DMCA anti-circumvention provisions have always needed broad exemptions for personal use. They need massive rewriting to close the loopholes that allow for prosecution of security researchers, academics, and journalists. And they need, quite frankly, some basic logic. It's time to start beating that drum and stamp out this problem at its root.