The first time I wrote about the DMCA anti-circumvention and was in the wake of the 2005 Sony root kit fiasco in which Sony had surreptitiously installed software on computers restrictive DRM consumers who have played or tried to rip CDs . Under the anti-circumvention provisions, the security researcher who discovered the Princeton root kit had actually broken the law by reverse engineering the software, and consumers were likely to break the law if they tried to uninstall the hack. (Alone software will disable your CD if you tried to get rid of him.) Princeton researcher who brought to light root kit actually delayed his conclusions because he feared prosecution under the DMCA. This problem? It is still there.
Then it became clear that the anti-circumvention does not prevent you from being able to rip a DVD to your computer as you can rip a CD. In 2000, Universal Studios has obtained an injunction against three pirates who had created a software technology to overcome the DRM on DVDs. The court ruled, in effect, you have zero fair use rights to your encrypted DVDs: This is simply because you bought it does not mean you can do what you want with it, if "what you want" includes make your own digital copy for backup, put it on a mobile device, or watch from a computer. In 2006, I blogged about a survey that reported 90 percent of the population (more if they had children) think you should have the right to rip your DVD for backup or mobile. I bet that number is 100 percent right now, but this problem? It is also still there.
The provision prohibits jailbreaking phones until 2010, it is still illegal under the DMCA to jailbreak tablet, because apparently, "tablet" is a scary notion for fuzzy Library of Congress, which is the body that can grant exemptions to the DMCA, if they can be brought to understand what you're talking about with all this new technology. (You can not jailbreak a console game while we're there.) Amazon used anti-circumvention attempt to eradicate a software that converts e-books to audio so that the blind can listen to them - fortunately the Library of Congress has an exemption to this end, but not before 2010 (and it was not a good exemption until 2012). The provision has also been used to threaten a security researcher who investigated Internet filtering and blocking in the world, Apple has used to force an online forum for discussion of actually deleting the reverse engineering iPods, and it was used to continue Russian Dmitry Sklyarov pirate security and others. Legislators of Canada has used the rule as a guide to adopt its own legislation on the law last year, filled with digital lock technology even more restrictive than the DMCA, despite protests almost universal web community there . The Electronic Frontier Foundation maintains a current directory of these and other unintended consequences of the DMCA - a surprising number of them relate to anti-circumvention
And now, here we are again with unlocked phones. The Library of Congress has refused to grant an exemption to unlock your carrier locked phone (including The Atlantic rightly calls "the most ridiculous law of the year 2013 - to date"). In its decision, the librarian determined that, for the most part, it is not as difficult as it used to be to buy an unlocked phone, so what's the problem? And some quite remarkable rationalization Librarian wrote:
While each wireless device is available unlocked, and wireless telecommunications policies "release are not free of all restrictions, the record clearly demonstrates that there is a wide range of possibilities from which consumers can choose to obtain a wireless telephone unlocked.
Now, as you know, everything that a restriction on unlocking your phone is really doing allowing carriers increasingly restrict your ability to leave, despite their own behavior wildly anticonsumer, which increases costs Contract and soaring early termination fee. Indeed, the librarian has held that it is OK to restrict your consumer choice so that carriers can restrict your choice of consumers because, well, there are a few choices to consumers there!
Of course, the prohibition of unlocking cell phones is ridiculous - there are a growing number of voices on this and a new Whitehouse.gov petition to overturn the decision. But the problem will not be solved until the DMCA is fixed.
Attempt to add exceptions after the fact is a quite ridiculous to enforce anti-circumvention provisions are too broad and too imperfect. These exemptions, by the way, must be reissued every three years, which means madness could still climb back into (as The Atlantic points out, the blind have to defend their right to access e-books of the audio every three years), and the situation is constantly confused. The DMCA anti-circumvention provisions have always needed broad exemptions for personal use. They need to rewrite massive gaps that allow the continuation of security researchers, academics and journalists. They need and, frankly, a bit of basic logic. It is time to start beating the drum and eradicate the problem at its root.
