It’s no secret that the DMCA’s section 1201 is extremely problematic. It’s the “anti-circumvention” part of the law, that makes it illegal to circumvent “technological protection measures” even if it’s for non-infringing purposes. This is a mess — especially in an age of DRM trying to lock up everything. Try to get around it, and it’s a violation of the law — even if you’re not trying to infringe on the underlying material. This is why Cory Doctorow is running a new effort to eradicate DRM with a target placed firmly on Section 1201.
So it’s great to see Senator Ron Wyden and Rep. Jared Polis team up to introduce a bill to try to reform Section 1201. The full text of the bill (called the “Breaking Down Barriers to Innovation Act of 2015”) has a lot of good things in it. It says that circumventing DRM or other technology protection measures for non-infringing reasons should no longer be considered against the law. It also expands other exemptions for things like security research and testing and reverse engineering. It also would automatically renew the exemptions the Librarian of Congress issues every few years so we don’t have a repeat of the mess from a few years ago where the Librarian of Congress used the “triennial review” process to first grant an exemption to 1201 for unlocking mobile phones… and then to take that exemption away six years later.
Overall it’s a good bill — and I’m curious to understand how anyone could possibly push back on it, though Hollywood absolutely refuses to consider any changes to Section 1201. Unfortunately, it also seems unlikely that the bill has enough support to actually go anywhere. It seems a bit telling that Wyden released this bill the same day as the fast track bill, suggesting that it’s a signal of some sort to people that he’s not giving up on fixing copyright law. It’s unlikely, however, that this gesture will mollify the folks who are upset that Wyden allowed the fast track bill to move forward in its current form.