GRANTED: Permission to Tinker, Copy and Explore

Copyright Wins For Consumers

The Library of Congress has granted several new exemptions to the Digital Millennium Copyright Act (DMCA), giving consumers greater freedom to tinker with the software that controls their electronic devices, including automobiles. Other exemptions make it legal to rip DVDs to make fair-use remixes, play video games no longer supported by their publishers, and jailbreak all mobile devices, not just cellphones as the previous exemption specified.

When the DMCA was enacted 17 years ago, lawmakers were aware that future technology affecting copyright could not be foreseen. So they included in the DMCA provisions that directed the Library of Congress, which oversees the Copyright Office, to review the law every three years, and authorized the Librarian to grant exemptions to the DMCA’s provisions.

The latest triennial review began last November. And in typical government fashion, it took the Library almost a year to come to some obvious, common sense conclusions. The new exemptions were issued in late October 2015, and are detailed below.

The Electronic Frontier Foundation (EFF) requested an exemption allowing automobile owners, or their designated agents, to circumvent access controls on their cars’ Electronic Control Unit (ECU) for legitimate purposes such as diagnostics and repair.

Several manufacturers strongly opposed this exemption on the grounds that consumers’ tinkering with software could make their cars less fuel-efficient, more polluting, or even unsafe. John Deere made the preposterous argument that farmers might download pirated music while driving a Big Green tractor.

The EFF’s request got a big boost from the recent Volkswagen emissions-test cheating scandal. The ability of third parties to crack open and inspect ECU code is an important safeguard against similar shenanigans, the EFF argued. The Librarian agreed, to a certain extent.

What's New in Digital Copyright Laws?

For the next three years, at least, consumers are free to tinker with all of the software in their cars except for entertainment and telematics systems. “Telematics” includes remote diagnostics and control, such as OnStar. Apparently, the Librarian shares John Deere’s concern about music pirates riding farm tractors on the high seas of the fruited plain, so software that controls a vehicle’s entertainment systems is off-limits.

This exemption does not authorize illegal modifications such as disabling emission-control systems, as Volkswagen did. But it does break the monopoly of factory-authorized dealers on the diagnosis and repair of modern computerized vehicles. If you have the expertise and equipment, you can work on your car at home, or you can take it to an independent mechanic.

Even better, bona fide security research is now exempt from the DMCA’s “circumvention of access control” provisions. Medical devices and consumer products can now be inspected for functional or security flaws, even if doing so requires bypassing access protections that a manufacturer has embedded in the software.

As mentioned above, the existing exemption that permitted jailbreaking of smartphones so they can run third-party apps or be connected to different carriers has been expanded to include all mobile devices such as tablets, smartwatches, health monitors, etc.

Likewise, the existing exemption that permits non-commercial remixes of videos has been expanded to include ripping of DVDs, Blu-Ray discs, and downloaded videos. Of course, those must be for personal use, and not for sale.

Games no longer supported by their publishers can now be modified so that they don’t have to check in with an authentication server (that no longer exists). This exemption allows gamers to keep playing orphaned games for which they paid.

Overall, this triennial review of the DMCA has been a victory for consumers. Perhaps the next review will address the abuse of the law’s takedown and safe-harbor provisions. Presently, anyone can claim that anything violates his copyright, and most websites or hosting services will take down the challenged material to avoid liability for infringement. It really shouldn’t be a "guilty until proven innocent" model, or so difficult to appeal a takedown.

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