DRM vs. Civil Liberties: 2016 in Review

DRM vs. Civil Liberties: 2016 in Review
By Kit Walsh

Imagine a world where your Internet-connected car locks you in at the behest of its manufacturer—or the police. Where your media devices only let you consume mass media, not remix it to publish a counter-narrative or viral meme. Where your phone is designed to report on your movements and communications. Where your kid’s toy tells them it’s their friend, then talks about how much it loves sponsored products and transmits everything it hears in your home back to its manufacturer. Where your phone stops working if the police or the manufacturer ask it to. Where these backdoors are vulnerable to hacking, so anyone with the right resources can take advantage of them.

Now imagine that you could configure your devices to be loyal to you, to stop snitching, to run video publishing software, and to be more secure against hacking, except that the law forbids looking at the code or modifying it.

It shouldn’t be hard to imagine. These examples are real and the law in question is Section 1201 of the Digital Millennium Copyright Act.

Regulators and companies have gravitated towards the power that comes from code-based restrictions on user activity. Your conscience is irrelevant, the legality of what you want to do is irrelevant, your rights are irrelevant; you simply cannot use your device in a way contrary to its programming.

Unless you change that programming—or someone inspects the code and warns you about what the device is programmed to do so you can choose an alternative.

In July 2016, we sued the federal government to establish your right to do just that: to look at and change the code in your devices and to share the tools needed to do so. Traditional copyright law allowed such modifications; it’s only since the 1998 DMCA that your traditional rights have been swallowed up by what amounts to a blanket prohibition on accessing the software in your devices.

In our suit, we focus on the First Amendment problems with Section 1201—and there are many. The law directly prohibits protected speech in the form of instructions for how to access restricted code (or other copyrighted works). The law also prevents people from creating their own speech using copyrighted works of others, such as fair use remixes of media or compatible software. Finally, the law includes an unconstitutional regime for the Library of Congress to decide what speech will or will not be permitted every three years.

We and the government have both briefed the issues on a preliminary basis, and we await a ruling on whether this case can move forward.

In the meantime, we’re continuing to push for legislative reform. In October, we sent in comments—supported by 11,000 of you—telling the Copyright Office that Section 1201 needs to change to protect our right to inspect and use the software in our life, and to promote accessibility and free speech. Piecemeal proposals aren’t enough, we told them; it’s time for a comprehensive overhaul of Section 1201.

This article is part of our Year In Review series. Read other articles about the fight for digital rights in 2016.

 

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December 27, 2016 at 06:52PM
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