By Sherwin Siy Just last week, if you had to get around a digital lock to fix the computer in your car, get your child’s glucose monitor to talk to your phone, or move your tablet to another wireless company, you could be accused of breaking the law. That was true even if you had every legal right to access that work in the first place. This is all due to a law called the Digital Millennium Copyright Act. The law keeps people from bypassing locks to access the copyrighted software that runs their cars and tractors, their medical devices, and their phones, even if only to fix them, get better data from them, or use them with a new cell phone company, respectively.
The law wasn’t meant to do this; it’s intended to make it harder for people to make illicit copies of movies, music, and apps, not keep people from using generic toner cartridges or diagnosing their buggy electronics. But increasingly, we can see it doing exactly that.
There’s a process in the law that’s supposed to ameliorate this problem: Every three years, the Library of Congress comes out with a list of exemptions to the law — a list of otherwise legal things that could run afoul of the DMCA. They issued the latest rules on Oct. 27.
While we’re relieved that this latest set of rules includes a lot of newly-granted exemptions, like the ability of patients to get some data off their medical devices, this expanding list raises the question of where it’s supposed to end. More and more people are asking for exemptions as they see the expansive reach of this law; and at the same time people who have been asking for (and even getting) exemptions for the past 15 years, have to show up anew in every cycle. I expect that advocates for blind readers and educational users of films will be spending valuable time doing this again in two years’ time, as the 2018 rulemaking approaches. They will likely be joined by people researching vehicle security, who got an exemption this year, as well as any other new groups who will find the need for exemptions in 2016 or 2017.
And so the list of exemption requests will get even longer, and the debates wider. Even something as commonsense as letting people fix their own cars, or discover flaws in their software, is being decried by car manufacturers, who seem altogether unchastened by recent scandals about what they’ve been hiding from consumers and from regulators in their software.
This can’t go on forever. And yet that’s exactly what will happen, unless we do something about it. Congress has stepped in before to change this law—in 2014, after considerable discussion and refinement, Congress reversed the 2012 decision of the Library to prevent cell phone unlocking, and ensure that consumers could have other protections for unlocking going forward. That was a good, but modest step on just one of the many categories that need to be addressed every three years. There are more comprehensive solutions — Rep. Zoe Lofgren’s, D-Calif., Unlocking Technology Act would make it clear that consumers didn’t need to appeal to the Library for exemptions, so long as their uses of copyrighted works didn’t infringe those copyrights. And there are other pathways forward, too. Sen. Ron Wyden, D-Ore., and Rep. Jared Polis, D-Colo., have proposals to lighten the load on consumers by allowing already-granted exemptions to be more automatically renewed — an approach shared by Maria Pallante, the register of copyrights.
Regardless of what path reform takes, it’s becoming increasingly clear that something needs to be done. Even as many sets of consumers breathe a sigh of relief, others remain uncertain as to their status for the next two years. A victory in a lawsuit would be pretty hollow if you knew it would just mean getting sued again three years later, and three years after that, until the end of time. It doesn’t have to come to that. Let’s not let it.
Sherwin Siy is vice president of legal affairs at Public Knowledge.