It would take many, many blog posts to fully articulate all the ways that modern copyright law threatens innovation. But one notable way is through Section 1201 of the copyright statute.
As discussed previously, Section 1201 is ostensibly supposed to minimize copyright infringement by making it its own offense to bypass the technical protective measures (TPMs) controlling access to a particular copy of a copyrighted work. (Sometimes these sorts of TPMs are referred to as DRM, or Digital Rights Management.) It is a fair question whether forbidding the bypass of TPMs is at all an effective approach to minimizing infringement, but it’s an even more important question to ask whether the portion of the copyright statute that forbids the bypassing of TPMs does so at the expense of other sections of the statute that specifically entitle people to make certain uses of copyrighted works.
The answer to this latter question is clearly no, and in fact Congress anticipated that it would be “no,” when it put into Section 1201 the requirement that the Copyright Office consider afresh, every three years, whether certain types of TPM bypassing should be deemed specifically permissible, notwithstanding Section 1201’s general prohibition against it. Unfortunately these triennial rulemakings are an extremely cumbersome, expensive, and ineffective way of protecting the non-infringing uses of copyrighted works the public is entitled to make. But the even bigger problem, and the one that I will focus on here, is that Section 1201’s prohibition against bypassing TPMs is increasingly standing in the way of not just non-infringing uses of copyrighted works but non-infringing uses of computing devices as a whole.
In the triennial rulemaking underway members of the public petitioned for a number of exemptions to Sections 1201’s prohibition, which the Copyright Office distilled into 27 classes of exemptions. The first 10 classes generally sought to allow people interact with copies of copyrighted works in ways they were entitled to but that the TPMs controlling the interaction prevented. But the latter classes, 11 through 27, were notable in that, rather than involving the sort of consumption of copyrighted media content DRM is designed to control, they all were classes designed to allow people to interact with computing logic itself.
Some of these classes, like 23 (“Abandoned software – video games requiring server communication”) and 24 (“Abandoned software – music recording software”), sought to allow people to bypass TPMs so that they could actually run the copies of software they legitimately had access to. But for many of these classes petitioners found themselves needing to ask not for exemptions to use copyrighted works in ways that they that the legitimate right to but for exemptions allowing them to use computers in ways they had the legitimate right to use them.
Because particularly for the classes seeking exemptions to modify the functionality of, or perform security research on, devices like phones (Classes 11 and 16), tablets (Class 12), TVs (Class 20), vehicles (Classes 21 and 22), and even computer-chipped medical devices (Class 27), that’s what these devices all are: computers. They just happen to be phone, TV, car, and pacemaker-shaped computers. Like a home PC (which Congress had not explicitly sought to regulate access to in 1998 when it codified Section 1201) they are pieces of computing hardware with circuitry that gets controlled by software. And, just like the home PC, people should be able to use the processing power of their computing devices as they would choose to, regardless of the shapes they come in.
Unfortunately, unless they bypass the TPM they can’t, and unless the Copyright Office grants the exemption they can’t bypass the TPM legally. And that’s a problem, because when people’s exploration of the full contours of their computing devices is limited by the threat of legal sanction, all the innovation and discovery that exploration would have yielded is chilled.
But to the extent that it is copyright law that is causing this chilling, it is a particularly bizarre result. Copyright law is inherently about promoting the progress of the arts and sciences, or, in other words, stimulating innovation and knowledge-sharing. It is completely anathema to copyright law’s constitutional mandate for Section 1201 of the copyright statute to explicitly impose barriers to that discovery.
This contradiction was an important point I made in two sets of comments and testimony submitted as part of this rulemaking process. In them I argued that these exemptions, particularly for classes 11-27, should be granted liberally in order that people’s freedom to tinker with the tools they legitimately possessed not be impinged upon just because those tools happened to contain a TPM. If the Copyright Office were to do nothing and simply let these TPMs continue to block this free exploration with the threat of legal sanction it would be particularly unjust because none of those TPMs were implemented to limit the infringement of copyrighted works. While the software running a device may itself be a copyrighted work, the TPM bypass would not be about violating any of the exclusive rights in that work’s copyright. Rather, the TPM bypass would simply be about getting the device itself to work as its user would choose.
Opponents to these classes argued that, even if the TPMs were not guarding against copyright harms, they prevented other sorts of harms that might result if people could use computing technology with unfettered freedom. For instance, they fretted, with regard to vehicles it was argued that if people could study or modify the software on their cars then brakes would fail, pollution would increase, and other terrible consequences would befall the world. But something important to remember is that by limiting this sort of discovery we also limit all of its benefits as well. If people cannot legally do security research on their cars, for instance, it doesn’t make those cars more secure. It just makes it harder to make them more secure.
Also, it is not the role of copyright to regulate technology use and development (except to the extent that it is designed to stimulate innovation). When the Copyright Office suddenly gets to be the gatekeeper on how people can use their computing technology, while it may forestall some potential negative outcomes to that use, it also forestalls any good ones. Furthermore it prevents any other more appropriate authority better equipped to balance the costs and benefits of technology use to craft more nuanced and effective regulation to address any negative ones. As they would — after all, it’s not like we have been living in the Wild West up until the Copyright Office managed to become inserted into the technology regulation space. For instance, even in the analog world if people modified the physical attributes of their cars – something they never needed the Copyright Office’s blessing to do – other regulators could still speak to whether they would be allowed to drive their modified cars on open roads. These other regulators have not become enfeebled just because the modifications people may choose to make to their cars may now be digital, particularly when the consequences to these modifications are not.
But even when the consequences to how people use their machines are digital, regulators can still address those outcomes. The problem has been that regulating computing use is tricky and up to now we haven’t done it very well. Instead we’ve ended up with laws like the Computer Fraud and Abuse Act (CFAA), laws that are very powerful and just as blunt, which punish beneficial computer uses as much as negative ones. But just because we have not perfected laws governing computer use does not mean that the Copyright Office should simply say no to these uses. In fact, it’s actually reason that the Copyright Office should say yes to them.
One of the problems with the CFAA is that it construes the question of wrongfulness of a computer use based on the permissibility of that action. As a result, without the exemptions we are left in a situation where barriers erected under the auspices of copyright could threaten to become the sole basis by which the CFAA gets its teeth to sanction the very sort of inherently non-infringing activity that copyright law was never intended to prevent. And that’s the bitter irony, because while laws like the CFAA sadly lack any adequate mechanism to assess whether a computer use is a beneficial or otherwise fair use, copyright law by design can, and, indeed, pursuant to its Constitutional origins, must.
For these reasons the Copyright Office should grant all the sought after exemptions, particularly for these latter classes. And it’s also for these reasons that it’s time to amend the copyright statute to remove the bottleneck to innovation Section 1201 has become given how it requires the permission of the Copyright Office before any of this computer use can be allowed.
Thanks to Jeffrey Vagle and others for their help preparing these comments and testimony.
A version of this post appeared on Techdirt.