Since when is fair use something we must beg for on a triennial basis? I guess the answer is since 1998 when the Digital Millennium Copyright Act was signed into law. This law not only extended copyright terms by an additional 20 years, it created a section of law that basically told the public that we do not own the media and computing devices we buy. No, the companies that produced that media and those computing devices own it as long as those companies put DRM on the products to lock out uses they don’t approve of.
This was a highly controversial move and in an attempt to look like they cared about fairness and balance, Congress added a process by which the public can petition the Library of Congress, the body that was created to manage US copyright, every three years to beg for the right to crack DRM for specific issues. This process is far from fair and in fact is a slap in the face of fair use in copyright law.
Fair use of copyrighted materials is codified into law. This means that there is a legal right to use copyrighted materials in ways that the copyright holder would not normally approve. You don’t even have to ask permission. But the DMCA threw a wrench into fair use by saying that it does not exist if DRM is involved.
Think about it. Why can you legally rip the songs off your CDs and move the resulting MP3 or OGG files onto your phone or music player, but you can’t do the same with the movies on your DVD or Bluray disk? That is the DMCA. It says that if DRM exists, fair use does not. Because DVDs and Blurays have DRM meant to only allow playback on approved devices. If you want to use an unapproved device, like your phone or Linux computer, you are legally out of luck thanks to the DMCA.
This is where the triennial DMCA exemption process comes in. Because this anti-circumvention law is so absolute and one-sided, we have to review it on a regular basis and see if its application is too draconian in specific scenarios. During the process, we the public can beg for specific exemptions and those benefiting from the DMCA can express their objections. Then the Library of Congress goes into their backroom and throws darts at a board to see which ones it will approve and which ones it will reject.
This is where the problem comes in. The LoC is greatly biased in favor of the copyright holders over the public. Toss out the word piracy and the LoC will instantly reject any proposed exemption. Let’s take a look at a few of the recent exemptions granted by the LoC.
Cracking DRM on Games
When the process began last year, the EFF sought approval to crack DRM on games that had the authentication servers shut down by the game’s developer or publisher. Without this exemption a number of games will become completely unplayable, even in single player mode, because the games could no longer connect to authentication servers and there are no patches to remove the DRM.
The LoC approved this with some caveats. It is now legal to crack the DRM on games if the publisher doesn’t run authentications servers. However, there has to be a specific announcement from the game’s publisher or you have to wait 6 months after the servers are shut down without notice. Next, you can only crack the DRM if it is to access single player or local multiplayer. The LoC drew the line at accessing online multiplayer. For some reason this was too close to piracy as it would require distributing the tools needed to crack the game.
Which brings us to our first problem. If it is legal to crack the game but illegal to distribute the tools needed to crack the game, how is anyone supposed to crack the game without prior technical training? This requirement means that the right to crack and play games you legally bought is out of reach of a large number of people. Legally anyway. In reality, where the LoC does not reside, people are cracking DRM on games that still have active authentication servers, games that were released in the last week.
Why is this absurd? Because we should not have to ask permission from the US government and copyright lobbies to play games we legally purchased. Nothing about the DMCA prevents pirates from cracking DRM or downloading previously cracked game files. All this law does it make it more difficult for law abiding citizens to play their games. This should be allowed under existing fair use.
Cracking DRM on Game Consoles
This one is far more restrictive. In this one, The EFF sought an exemption to crack the DRM on consoles that the manufacturers no longer support. They want this so that when the latest generation of consoles are no longer supported, people who bought them can still play the games they legally bought.
Unfortunately, the LoC gave in to the FUD from the Entertainment Software Association. The ESA raised a massive piracy flag on this exemption and the LoC took it hook, line and sinker. But not so much as to completely override the exemption request.
The LoC did approve an exemption for museums and libraries that want to preserve video games for history’s sake. This will allow for games on modern consoles to be preserved in a museum setting. But us gamers can’t do the same to preserve the game library we built up. They did this because they think any normal person who cracks DRM will instantly become a pirate.
On a similar front, the LoC declined to approve an exemption to allow the cracking of DRM on consoles in order to install homebrew applications or alternate operating systems.
Why is this absurd? For one, the exemption does not apply to regular console owners. This means when Nintendo, Sony and Microsoft end support for the Wii, PS3 and 360, we are out of luck if we want to play any of the games we bought, especially the downloaded ones that can’t be played without the online connection. But wait, I hear you ask, why does the above exemption for cracking games not apply? The answer to that is in order to crack the DRM on a console game, you have to crack the DRM on the game console first. So with console games you have a dual DRM system in which it is only legal to pick one of the locks.
The second reason this is dumb is that the exemption does not apply to for profit businesses. This means that a game store cannot crack the DRM on second hand consoles no longer supported by the manufacturer before selling the consoles to its customers. How is that for business? Either cheat your customers or skip an entire generation of consoles.
DVDs and Blurays
This one is even more frustrating. Because of the DMCA, it is illegal for us to make copies of the movies we buy for any use. The only slight change is that now, educational institutions, as long as they are non-profit, can make copies of small parts of movies in order to use them in their lessons. They still can’t copy the full film. This exemption also excludes a number of institutions that are for profit. I don’t see that going by without a legal challenge.
But the big problem is that it is still illegal for us to make copies of our movies in order to play them on portable devices like we can with our music.
In The End
Of course this whole process is a farce. Nothing about the DMCA or the exemption process is doing anything to stop piracy. The tools to crack DRM on games, movies and consoles exists, it is out in the wild, it is widely distributed and used. But don’t tell anyone in the LoC, Congress or the copyright industries. They like pretending that the DMCA is a panacea for the plague of piracy. What this law really does is act as a security blanket for the babies in control of copyright industries.
So if the law is ineffective and the process to counter the law is pointless, why is it still here? Because Congress are a bunch of morons who listen to special interests rather than reason. The law needs to be changed. It needs to be written to codify real fair use. Real fair use would allow us to make copies of movies we own. It would allow us to crack the DRM on our games and consoles, which frankly should be illegal in and of itself. But because piracy is such a scary word in Congress, we can’t get it.
So for now, we are stuck with this pointless and frustrating process.