It’s quite uncomfortable to think, for instance, that the pacemaker some people have in their chest—which provides electrical signals that make their heart pump blood and keep them alive, is a legal black box. In other words, it’s illegal to tinker with the device for any reason whatsoever—even if all you want to do is evaluate its mechanism for potential vulnerabilities or malfunctions. This is a direct result of the Digital Millennium Copyright Act, an act that creates a wide range of protection to those who hold a copyright for their intellectual property. The thing is, the DMCA treats all intellectual property as the same thing, even if it’s a life-saving piece of technology. A safety system for a nuclear power plant, a pacemaker, and a Taylor Swift song are all protected in the same manner.
The act creates measures known as TPM—technological protection measures. Basically, they are systems a copyright holder may utilize in order to restrict access to their work, such as a movie, a song or a piece of software. This type of restriction may be through some sort of encryption, access controls, password protections or many other things, and the DMCA rules it unlawful to try to bypass such measures. Mostly, this is a safety measure created due to the entertainment industry’s fear of hackers who may access their copyrighted material for purposes they do not approve of—but the act ends up outlawing 3D Scanning and reverse engineering in general, which it considers a way of circumventing TPM.
In a few cases, the DMCA will allow for exemptions. For instance, every three years, an affected party may request that they’re excluded from TPM rules if they feel such rules have been restriction their legitimate activities. In 2014, 44 proposals were collected, and the this year petitioners and rights holders got head to head, making arguments against or for exemption in the copyright Office. After extensive rounds of reviews and hearings, the Office will release its decisions on each particular proposal.
Requested exemptions basically fall into one of two large categories: computer security and interoperability. From 44 proposals, the office came up with a total of 27 material classes to be considered for exemptions.
All of those appear to be somewhat reasonable. But should we expect the Copyright Office to see it that way?
Don’t bet on it. As written by Pamela Samuelson, the Berkeley Center’s co-director, in the ACM’s Communications, it’s quite likely that the Copyright Office is going to deny the vast majority of the anti-circumvention exceptions requested, regardless of how harmless they may appear, if the past is a good predictor of the future.
Samuelson concludes that, instead, the congress should have adopted narrowed rules in the first place to protect creators from circumvention—it should only be illegal in cases where it facilitates copyright infringement. This would remove the need for such an extensive triennial review process, and make it much less risky to reverse engineer digital works.
