In latest DMCA review, US Copyright Office eases rules on computer security research, right to repair

Game console fixes are limited – and there's no allowance for exploit tools

In its latest interpretation of the 1998 Digital Millennium Copyright Act, the US Copyright Office has relaxed the legal restrictions that deter security researchers and enthusiasts from analyzing and tinkering with protected content on digital devices.

At the same time, the revised rules allow for only limited game console repair and fail to permit the distribution of security vulnerability exploitation tools.

Two years after the Digital Millennium Copyright Act was enacted, establishing that it is illegal to bypass technical protection measures that control access to copyrighted works, the Librarian of Congress, on the advice of the Register of Copyrights, set up a process for creating exemptions.

These exemptions, spelled out in DMCA Section 1201 Rulemaking, allow digital locks to be broken. They get reformulated every three years, though the first such rulemaking took place in 2000, only two years after the law was enacted. The rulemaking ritual is the legislative equivalent of Groundhog Day – a film in which the protagonist lives one day over and over.

Initially, there were only two exemptions: accessing digitally protected web filter lists – because people deemed it more important to know what websites were being blocked – and accessing digital files where the technical protection mechanism was broken – because otherwise the data could not lawfully be recovered.

Over the years, these exemptions have been expanded, thanks largely to advocacy groups, policy wonks, and vocal technologists. Some of carve-outs include: the ability to use software that breaks the Content Scrambling System to copy DVDs for non-infringing uses (for those who still use physical media); the ability to unlock your cell phone, so it can be used with a different mobile carrier; and "jailbreaking" personal computer devices.

This year's tricks

For the 2021 rulemaking, Shira Perlmutter, the Register of Copyrights and Director of the US Copyright Office, has submitted an extensive list of recommendations [PDF] and the Librarian of Congress has adopted them [PDF].

Among the changes is the removal of a passage that made the exemption for computer security research contingent upon "not violating any applicable law."

Security company Rapid7, among others, lobbied to have this passage purged because it created ambiguity for researchers [PDF]. The firm argued that security researchers, faced with looking into devices that might have hardware, mobile, and cloud components, each with its own end-user license agreement and jurisdiction, couldn't be sure which laws might apply.

And the US Justice Department agreed in a letter endorsing the change.

"An increasing portion of contemporary computer security research involves collaboration among researchers across international borders," said John Lynch, chief of the Computer Crime and Intellectual Property Section of the Justice Department, in a letter [PDF] to the Copyright Office. "Accordingly, the 'any applicable law' requirement means that a U.S. researcher’s violation of foreign law could result in a loss of the exemption and attendant liability under the DMCA."

Harley Lorenz Geiger, chief policy officer of Rapid7, celebrated the removal of that passage via Twitter.

"The final rule has now eliminated the 'all other laws' requirement (pg 258)," wrote Geiger. "This is major progress in legal protection for security researchers. DOJ, Copyright Office, & NTIA were united in expanding protection – a sign of the growing consensus on the importance of this activity."

The right to repair one's devices has also been enhanced. The 2018 rules [PDF] offers narrow exemptions for certain classes of items, specifically:

  • Computer programs that control motorized land vehicles, including farm equipment, for purposes of diagnosis, repair, or modification of the vehicle, including to access diagnostic data
  • Computer programs that control smartphones, home appliances, or home systems, for diagnosis, maintenance, or repair of the device or system

That language has become more expansive, which eliminates a lot of uncertainty about whether items not specifically cited qualify for an exemption. The rule now allows for breaking technical protections on:

  • Computer programs that operate the following types of devices, to allow diagnosis, maintenance, and repair:
    • Motorized land vehicles or marine vessels
    • Devices primarily designed for use by consumers
    • Medical devices and systems

So boats, but not planes, are now fair game, as are medical devices and pretty much anything consumer-oriented.

And on the software side

The Software Freedom Conservancy (SFC) celebrated the granting of an exemption for jailbreaking routers to install free and open source (FOSS) software like OpenWrt.

"This exemption supports an important consumer rights issue of enabling life cycle management of our devices, which frees consumers from the 'planned obsolescence' of being forced to upgrade devices at the whim of manufacturers and allows them to take control of their own routers," said the SFC in a blog post. "Allowing alternate firmware (like our project OpenWrt) gives us so much more freedom in how we manage our devices."

The group also noted the granting of exemptions for circumventing technical protection measures in order to investigate FOSS license violations, privacy violations, and medical devices.

There is however still room for further refinement. As iFixit policy director Kerry Maeve Sheehan observes, the latest exemptions allow only limited game console repair – fixing the optical drive. The 2021 rules also exclude commercial devices while making no allowance for the distribution of circumvention tools.

In a statement to The Register, iFixit CEO Kyle Wiens expressed satisfaction that the Copyright Office has recognized that copyright law shouldn't prevent you from repairing your own stuff, whatever kind of device is involved.

“Unfortunately, the new rules still maintain some absurd limitations—like excluding commercial devices and non-infringing modification of software-enabled devices (like changing the settings on a software-enabled cat litter box)," said Wiens.

"Particularly troubling is the [the Register of Copyright's] reliance on potential service contracts with manufacturers in order to deny the exemption for repair of commercial or industrial equipment. If repair is non-infringing then manufacturers' monopoly-preserving service contracts shouldn't prevent the Office from granting an exemption."

Wiens also said the rulemaking process still has flaws, namely the need to reargue the same point every three years. He also expressed concern about the lack of allowance for the need to distribute repair tools that can circumvent digital locks.

"Without access to those tools, the exemptions are largely academic," said Wiens. "This is why Congress needs to step in and permanently exempt repair, and repair tools, from Section 1201. Copyright law should never stand in the way of repair."

“Until Congress finally fixes Section 1201 and grants a permanent right to repair, we’re going to be stuck on this Ferris wheel with the Copyright Office every three years." ®

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