DMCA hearings, LA: Guest post by Betsy Rosenblatt

Guest post from Betsy Rosenblatt
The triennial Copyright Office DMCA exemption hearings began on May 19 for three days in Los Angeles before moving next week to Washington, D.C. for four more days.  I attended the first two days, which addressed a wide range of topics.  Some were exactly the sort of thing one would expect the Copyright Office to be thinking about:  space-shifting and format-shifting of audiovisual works; incorporating clips of audiovisual works into narrative and documentary films.  But more of them concerned what might be described as “tinkering”:  jailbreaking smart TVs and video game consoles; re-enabling authentication for no-longer-supported multi-player video games; conducting automotive safety research; and diagnosing, repairing and modifying motor vehicles such as agricultural machinery and cars.   And that’s only two days’ worth of topics; the sheer diversity of the rulemaking agenda reflects just how many corners of business and industry are now touched by the growing tendrils of copyright law.
Several times over the course of the proceedings, the Copyright Office representatives expressed wonder that we’d gotten to this point; even a decade ago, I doubt many people would have expected that over half a day of copyright hearings would be dedicated to motor vehicle safety and repair.   This, in turn, led to a lot of talk—especially during the motor vehicle sessions—about what is and isn’t a “copyright interest.” The automotive industry representatives provided a lot of scary hypotheticals about pollution, malicious misuse, and other horrible things that could result from hacking car software, closing with, essentially, “lives are at stake.”  Proponents, reasonably, countered that while all of those things were indeed scary and bad, they weren’t the sorts of ills copyright law was designed to prevent.  Noninfringing activity that harms people or society is still noninfringing.  Most of the time that sort of harmful or malicious activity violates other laws, and those laws—not copyright—should be used to prevent it.  This reasoning is echoed in the recent Garcia v. Google en banc opinion.
To my surprise, the Copyright Office didn’t seem entirely convinced.  Office representatives asked a number of questions about whether it had a responsibility to protect the public from non-copyright ills.  Several times, they probed the idea that by making it easier to do something illegal or dangerous by allowing people to bypass TPMs, the Copyright Office might in some way be endorsing or putting its seal of approval on those illegal or dangerous activities.  Proponents objected to this characterization.  The question Congress instructed the Copyright Office to ask was whether section 1201 interfered with a significant amount of noninfringing activity—not to do a cost-benefit analysis.  (Compare NAM v. SEC, where the SEC was instructed to make a rule about conflict minerals, not to determine if a rule about conflict minerals was justified.)  If 1201 interferes with noninfringing activities, then the Copyright Office is neither statutorily empowered to inquire further nor does it have the expertise to opine on the larger cost benefit analysis.  Other agencies—NHTSA, the EPA, or whoever else has that specific expertise can and should opine, and if there’s a problem with a particular function it’s going to be a problem whether or not the car makers (etc.) authorized it.   Noninfringing activities are noninfringing, and the fact that people could choose to not-infringe in a way that is otherwise harmful or illegal makes no difference from a copyright perspective.  (To wit:  the law allows people to own and operate cars even though it’s possible to do very harmful or illegal things with them.  Those things are governed by laws about operating cars, not by preventing people from owning them.)  
I’ll add to this that the existence or non-existence of an exemption is, as a practical matter, extremely unlikely to have any impact on malicious or illegal circumvention.  People who are going to do malicious or illegal things will do them regardless of whether there’s a copyright exemption along the way.  They’ve already established that they’re willing to break laws—what’s one more?  So the only people who will be chilled by a lack of copyright exemption are the people who want to be law abiding and do good (or at least not malicious!) things with their circumvention.
But back to the point:  This led to a debate over whether proponents could discuss the benefits of the noninfringing activities—in the vehicle case, safety improvements, technological innovations, personal benefits such as enabling someone to make their vehicle more suited to its purpose, and such.  Auto companies said that what was good for the goose was good for the gander, and if they couldn’t rely on the risks that might arise from breaking TPMs, then the proponents couldn’t rely on the benefits.  On the surface, this argument sounds logical.  But on probing, I think it doesn’t hold up.  The default state of the world without 1201 is that copyright law permits people to do anything that doesn’t infringe.  The Copyright Act doesn’t necessarily endorse those things, and they may be harmful or illegal, but the Copyright Act still allows them.  In allowing them, the Copyright Act presumably takes into account many benefits of carving certain types of activity out of infringement:  free expression, innovation, communication, education, community-building, self-actualization…while entirely and appropriately ignoring the myriad and diffuse ills that can arise from noninfringing activity (a list too long to enumerate, since all of the ills in the world except for copyright infringement arise from noninfringing activity, and many of them are governed by non-copyright law).  Therefore, in considering whether section 1201 unduly chills noninfringing activity, it seems wholly appropriate to consider the benefits of that noninfringing activity without considering its potential ills, which can and should be governed by non-copyright law when appropriate.
But the auto companies cast themselves in the role of protector:  by holding the keys to encryption, they are preventing the ills that may result from malicious hacking, and the fact that they’re also preventing tinkerers from creating benefits was (to their minds, slight) collateral damage.  And they no doubt believe that they actually do have everyone’s best interests at heart.  We should, the car companies imply, trust them to do all of the beneficial things themselves, so the tinkerers are unnecessary.  This of course ignores all of the community-building and self-actualization benefits of tinkering, the benefits of independent research and development, and the benefits of disruptive or non-market-driven creation and innovation, but in a larger sense it also reveals the fundamental culture clash at the heart of this exemption process.
There is a cultural gulf between manufacturer and tinkerer, big and small, outsider and incumbent, and it ran like a canyon through the proceedings.  (It was notable, and to my mind quite telling, that over the course of the two days, the opponents to the exemptions were, with one exception out of eleven, all white and male.  I’m not saying the proponents were exactly a rainbow of races and genders, but they were a lot more diverse.)  The proponents and opponents were, perhaps necessarily, talking past each other.  Over and over, the proponents explained they just wanted to be able to do what they wanted with a physical object they had lawfully purchased.  In response, every opponent told the Copyright Office that they provide official channels for allowing some people to do some of what the proponents are asking to do.  Automotive companies “partner with” hired researchers and sell tools to authorized repairers and modifiers to do some things.  Film studios license some clips for inclusion in films (even when using those clips without licensing would be fair use).  Some smart-TV makers provide tools that allow people to build some of their own applications.  Film and TV studios allow people to space- and format-shift some things using paid services like Ultraviolet.  Video game publishers have given permission to some museums and libraries to preserve some multiplayer video games.
But allowing “some” isn’t the same as allowing all, and each of these limited permissions comes with a catch.  Two catches, actually.  First, for each one, the users had to ask permission.  But people who want to do these things might not feel empowered enough to take the risk of asking for permission.  And even if they do, that permission can be denied if the encryption holder doesn’t like what the user is doing—if they don’t like what the user/creator’s film is saying, if they don’t like that the researcher might be revealing a safety vulnerability in their vehicle, if they want to make money by charging for format-shifting or modification/repair tools.  And second, none of the underlying activities is copyright infringement.  So even though the underlying activity doesn’t infringe copyright, section 1201 allows the encryption holder to decide who does and doesn’t participate in creation, innovation, research, or play, and exactly what they get to do.  The opponents, of course, relish this control, because they can use it to protect their brands and make higher profits.  They defend their opposition by explaining that they’re generously allowing people to do good things, while protecting the world from the dangers of unregulated tinkering (such as pollution, copyright piracy, and malicious exploitation of technology).  But why do they get to be the gatekeepers, when the activity isn’t infringing copyright, and the malicious stuff is mostly governed by other laws (such as environmental regulations and criminal copyright law)?  Why do they get to choose who does safety research; who preserves video games; who develops new after-market automotive innovations; who repairs tractors; who controls the closed captioning print size for televisions; who makes films? 
And that gatekeeper function is at the core of the culture clash: the opponents think they’re fantastic at guarding henhouses, and don’t seem to understand why the (yummy, yummy) chickens inside don’t trust them to protect the chickens’ best interests.  The proponents just want not to be ogled by foxes.
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