The base concept is relatively simple. When technological systems are deployed by copyright holders (or on their behalf) to protect access to their copyrighted works, in most cases these systems cannot be circumvented without violating the DMCA. Section 1201 also prohibits trafficking in technology or services that facilitate the circumvention of such systems.
Anti-Circumvention Goes Beyond Piracy
When enacting these provisions, Congress understood that technological protection measures would support new ways of distributing copyrighted materials. However, these provisions actually prohibit the very first step toward potential piracy, since copying content behind a protection measure is not required for a finding of illegal circumvention under the DMCA.
More importantly, these anti-circumvention provisions (exceptions aside) not only prohibit circumvention of measures when piracy is the goal but also when citizens want to repair electronic devices they own. Some devices even carry these protection systems for the purpose of restricting the ability to repair.
To address the obvious anti-consumer issues caused by the latter, the proposed ‘Freedom to Repair Act 2002‘ seeks to amend section 1201 of title 17 by allowing circumvention of technical protection systems when the goals are for diagnosis, maintenance and repair. If passed, the legislation would also permit the importation, manufacture and sale of technology to facilitate those three specific uses.
Of course, alarm bells are already being sounded by those who believe such changes will only herald a new wave of piracy, one that will prove even worse than the last, and the five or ten that preceded them, and those that predate the DMCA itself.
“Rep. Mondaire Jones (D-N.Y.) is a fresh, diverse voice in Congress and I am excited he is running for a new seat in the city,” actor, writer and producer Reggie Lochard wrote in The Hill this week.
“But I’m also pretty disappointed he is sponsoring legislation that would undermine the legal and technological protections that make streaming films and entertainment possible. I would have thought Jones would have the back of artists and filmmakers like myself.”
Lochard says that the proposed Act would legalize a “vast new market” for digital piracy tools and as such the bill amounts to “pro-piracy legislation”. He also suggests that the proposed solution is being used to “smuggle in other agendas”.
Precisely who the agenda smugglers are isn’t made clear but it’s not really unusual to see a filmmaker raising the alarm over perceived threats to legal streaming. The Copyright Alliance framing the proposed legislation as the legalization of piracy tools isn’t much of a surprise either.
Despite the concern, it seems unlikely that these exceptions would deliver a nightmare piracy scenario, at least one that is more of a nightmare than the one currently underway, taking place under even tighter legislation. The reasons for this are numerous but mostly center around the control of legal streaming content and the ease at which that control can be taken away by much easier solutions.
Cited ‘Threat Devices’ Are Already Thriving
As things stand the Freedom to Repair proposal relates to digital electronic equipment, dependent in whole (or in part) on attached or embedded digital electronics. As Lochard rightly points out, this would include devices used extensively for digital entertainment such as smart TVs, tablets, streaming boxes, and game consoles.
In one way or another, all of these devices can already be programmed, reprogrammed, hacked or otherwise modified to receive or display infringing content. More than two decades of the DMCA’s anti-circumvention provisions have been unable to stop that, at least as far as personal or ‘household’ piracy is concerned.
A complex and diverse piracy ecosystem means that simple explanations can be restrictive but a key issue is obvious – pirates tend not to care too much about the law and if a circumvention device or piracy service is available, they will use it whether the DMCA outlaws it or not. It’s extremely hard to detect this type of infringement and even harder to reach into people’s homes to prevent it.
Of course, none of this addresses Lochard’s key concerns that streaming piracy would increase due to a “devasting new trade in online piracy tools.”
Diagnosis, Maintenance and Repair
The proposed law is clear in that it identifies diagnosis, maintenance and repair as the only circumstances in which it would be legal to bypass the technological protection measures in a device. Bypassing TPMs for any other reason would remain as illegal as it is now so repair exceptions would not improve the legal position of consumer pirates in any way. But again, this misses the key issues related to streaming piracy.
On the understanding that the proposed exemptions apply strictly to user-owned devices, they cannot possibly apply to systems that are owned by someone else – a streaming service, for example. Digital services (such as Amazon) that deliver protected streaming content would not be covered by any exemption since only the company and its agents have any right to conduct maintenance or repair.
As a result, importing, selling or distributing any device, tool or service capable of circumventing protection measures on Amazon, Netflix or Disney+ would remain illegal, including if those tools were somehow executed via a hacked or ‘repaired’ consumer device. If any device is modified for piracy purposes it is illegal today and will be illegal tomorrow, right to repair or not.
Right To Repair Would Not Increase Streaming Piracy
Lochard says that the current provisions prohibiting circumvention are vital, but his claim that they ensure that “no one can buy tools to rip a copy of my work from Amazon Prime Video and upload it to a piracy site” are hopeful at best.
Specialist content extraction tools already exist in closed piracy circles and will continue to exist as long as pirates are motivated to build them. If they can’t be deployed, pirates regularly use screen capturing tools and not a lot can be done about that either.
All said, if today’s position of pirated movies and TV shows appearing online within minutes is the point we’re starting from, the law is already failing to prevent piracy and a limited right to repair consumer devices seems unlikely to worsen that.
Even if in some future nightmare scenario anyone at all was able to buy tools to download from Amazon (surprise, they already can) not much would change since everything is already available for download on pirate sites and yet another copy is no more useful than the ones already there.
Right to Repair Would Benefit The Majority of Consumers
This is perhaps the most important point. The vast majority of content consumers don’t pirate, aren’t interested in pirating and if they were, the tools to do so already exist. Not only that, today’s piracy methods are ridiculously simple, far easier than opening up a smart TV and attempting to conduct nefarious ‘repairs’ with a YouTube video for instruction.
Nevertheless, it’s likely that big rightsholder and manufacturing groups will oppose the Freedon to Repair Act proposals, or at least push for drastic carve-outs that exclude the devices most in need of repair, that cost the most, and are likely to end up as a net loss to the environment.
Meanwhile, pirates of all kinds – suppliers, distributors and consumers – will continue as if nothing has happened. For many copyright law is a mere inconvenience, text on a page to be shrugged at, if read at all.
Adding repair exceptions to the DMCA won’t change the fact that pirates will still be breaking the law. However, refusing to add exceptions means that the old mistakes get repeated again – only paying consumers are inconvenienced by such restrictions, pirates are oblivious to them.
It’s worth repeating that paying customers represent the vast majority in most countries and it is their hard earned cash that allows streaming services to exist. Crafting a right-to-repair law that acts in everyone’s interests may be difficult but, with some work, shouldn’t be impossible.