Subject: It is time to end the DMCA anti-circumvention exemptions process and put a stop to DRM
From: "Donald Robertson\, III\, DBD" <[email-masked]>
To: Giovanni Biscuolo <[email-masked]>
Date: Wed, 22 Jan 2020 17:07:36 -0500

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Dear Giovanni Biscuolo,

It seems like only [yesterday][0] that we were wrapping up the 2018
round of the Digital Millennium Copyright Act (DMCA)
anti-circumvention exemption process. As we've written [time and
again][1]:

>Every three years, supporters of user rights are forced to go through
> a Kafkaesque process fighting for exemptions from the
> anti-circumvention provisions of the DMCA... In short, under the
> DMCA's rules, everything not permitted is forbidden. Unless we expend
> time and resources to protect and expand exemptions, users could be
> threatened with legal consequences for circumventing the Digital
> Restrictions Management (DRM) on their own devices and software, and
> could face criminal penalties for sharing tools that allow others to
> do the same. Exemptions don't fix the harm brought about by the
> DMCA's anti-circumvention provisions, but they're the only crumbs
> Congress deigned to throw us when they tossed out our rights as
> users.

[0]: https://www.defectivebydesign.org/blog/2018_dmca_anticircumvention_exemption_process_some_progress_not_enough 
[1]: https://www.defectivebydesign.org/end-DMCA-anti-circumvention-provisions

Although it is accurate, there's one aspect of the process that is
missing from that description: the length. While the process kicks off
every three years, the work that goes into fighting exemptions,
whether previously granted or newly requested, has a much shorter
interval. As you can see from the timeline of events from the [2018
round of the exemptions process][2], the process stretches on for
months and months. For each exemption we have to prepare research,
documents, and our comments through wave after wave of submission
periods. For the 2018 exemptions round, the first announcements from
the United States Copyright Office were in July of 2017, on a process
that concluded in October of 2018. Fifteen months, every three
years. If you do the math, that means we're fighting about 40% of the
time just to ensure that exemptions we already won continue, and that
new exemptions will be granted. If the timeline from the last round
holds up, then we're only a few short months away from starting this
whole circus back up again.

[2]: https://www.copyright.gov/1201/2018/

Describing it as a circus seems an appropriate label for the purpose
of this whole process. It's not meant to be an effective mechanism for
protecting the rights of users: it's a method for eating up the time
and resources of those who are fighting for justice. If we don't step
up, users could lose the ability to control their own computing and
software. It's like pushing a rock up a mile-long hill only to have it
pushed back down again when we've barely had a chance to catch our
breath.

In that sense, the exemptions process is much like DRM itself: a
method of control that pretends to be about rights. DRM is the use of
technological measures to control what users can do with their own
devices and digital media. As we've [explained previously][3]:

>DRM creates a damaged good; it prevents you from doing what would be
> possible without it. This concentrates control over production and
> distribution of media, giving DRM peddlers the power to carry out
> massive digital book burnings and conduct large scale surveillance
> over people's media viewing habits.

[3]: https://www.defectivebydesign.org/what_is_drm_digital_restrictions_management

The DMCA's anti-circumvention provisions use legal measures to
reinforce this harmful level of control, and the exemptions process
uses blind bureaucracy to increase the burden of fighting that
control.

We have had some success in diminishing that bureaucracy, even if we
haven't been able to kill it outright. In the 2018 round of the
exemptions process, the Copyright Office simplified the fight to
protect previously granted exemptions, letting them stand unless
challenged. That resulted in all previously granted exemptions being
granted again in the 2018 round. That is good progress, but it is not
enough, because there are companies with billions of dollars who can
easily raise challenges to each exemption.

We call once again for the end of the DMCA's anti-circumvention
provisions, and the absurd exemptions process that comes with
it. Users have the right to control their own computing, and the right
to share the tools we create with others. The DMCA violates those
rights.

We shouldn't have to fight for what is already morally ours. But fight
we will, and we won't stop no matter how many hurdles they throw in
front of us. We can't stop until all users have their rights
restored. Here's what you can do to help:

* If you are in the US, complain to your congressperson about section
  1201 of the DMCA, which threatens criminal penalties for removing
  DRM.

* Sign up for our [mailing
  list](https://www.fsf.org/free-software-supporter/subscribe) so you
  can be ready for the next round in this fight.

* Support our work by [becoming a member](https://my.fsf.org/join) or
  making a [donation](https://www.fsf.org/about/ways-to-donate).

*This article is a part of [Copyright
Week](https://www.eff.org/copyrightweek).*

Sincerely,  
Donald Robertson, III  
Licensing and Compliance Manager  

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