·  by Kathleen Burke

Everything About the Section 1201 Process is Mad

Originally Posted On: Public Knowledge

In middle school, I played Alice in our school’s production of Alice and Wonderland. Back then I had blonde hair, and most importantly, could memorize more lines than most of my peers. At the end of the play, I had to defend the Knave of Hearts for his alleged burglary of the Queen of Hearts’ tarts—a trial that grew increasingly absurd as it went on and yet is eerily similar to the Copyright Office’s 1201 exemption process.

The very structure of Section 1201 seems to follow the Queen of Hearts’ own backwards sentence-first, verdict-second logic. While Section 1201 doesn’t require any decapitation, it de facto outlaws otherwise completely legal things. Section 1201 makes it illegal to find a way around a technological protective measure (aka a lock) that protects a copyrighted work even when you are only bypassing that lock to do something you are legally allowed to do, such as repair your device. Congress tried to ensure fairness, by tasking the Copyright Office with reviewing and granting (when warranted) exemption requests every three years. But, this relief is about as useful to users as receiving an innocent verdict would be to the Knave of Hearts if the Queen of Hearts had already carried out her “Off with his head!” sentence.

From the outside looking in, the Section 1201 exemption process seemed ineffective, but I did not realize just how nonsensical it truly is until I fell down the 1201 rabbit hole while working on Public Knowledge and iFixit’s most recent 1201 exemption request to repair the optical drive on a video game console. Here’s what I learned:

Even though nearly every exemption request receives opposition, the device owners rarely (if ever) oppose an exemption request to circumvent the locks on their devices.

Did Microsoft show up to oppose our exemption request to circumvent a digital lock that allegedly protects the firmware of its XBox consoles? No. But, the Motion Picture Association of America, the Entertainment Software Association, the Alliance for Recorded Music, and the DVD Copy Control Association did.

None of the groups that opposed our request actually own the underlying copyrighted work at issue.

Unfortunately, this is not unusual. The copyright interests that typically oppose an exemption request are almost always third party copyright interests that seem to oppose every exemption request just for the sake of opposing exemption requests. For example, in the most recent 1201 proceeding, the Motion Picture Association, Entertainment Software Association, and Alliance for Recorded Music lodged oppositions in 14 out of the 17 classes of copyrighted works under review for exemptions.

Even when a copyright owner is a member of these associations, they choose to hide behind the shield of third party copyright interests. In its opposition to our petition, the Entertainment Software Association (ESA) did not raise concerns about consumers pirating or gaining access to XBox firmware, even though Microsoft is one of its members. Instead, ESA focused its concerns on the copyrighted material in video games themselves—not the copyrighted material underlying the lock on a video game optical drive.

These trade groups derail the whole 1201 process into fear mongering over pirating movies, games, and music—copyrighted material that most of the locks in question are not even supposed to protect. Instead of recognizing the stuff and nonsense of these groups, the Copyright Office often gives third party copyright interests incredible deference, contributing even more to the absurdity of the whole process.

Neither the Copyright Office nor the participants really know how the digital locks work. And, trying to find out would violate Section 1201.

Because the device owners do not show up throughout the exemption request process, no one can really testify or provide evidence about how a particular technological protective measure works, what underlying work it really protects, and whether or not circumventing the lock will impact the third party copyright interests that actually do oppose an exemption request. To make this even more absurd, trying to discover the answers to these questions without the help of the device manufacturer would likely result in a 1201 violation since it would require circumventing the lock.

The worst part is that it is not even clear if certain digital locks are actually protecting an underlying work or if the only underlying work they protect is the software in the lock itself. Since circumventing a lock for any reason without an exemption violates the law, manufacturers and device designers could simply use software locks that protect nothing other than the copyright in the lock itself to prevent users from doing all kinds of legal things like repairing their devices without using official repair services.

Not only does this make it impossible for parties to properly present their case for an exemption, it also means that the Copyright Office does not have the technological information it needs to truly understand what’s at stake.

Fortunately, this is not Wonderland where things are always mad. Congress can enact changes that will eliminate or at least reduce the absurdity of the 1201 process. While I know my first choice solution, getting rid of Section 1201 entirely, is not plausible, there are some less drastic ways to make this proceeding much less absurd:

  1. Create a presumption in favor of granting exemptions for certain lawful uses (i.e. right to repair, research, etc.).
  2. Require at least one of the affected copyright owners (aka an actual device manufacturer) to oppose an exemption request.
  3. Require copyright owners that use locks to protect their copyright works to provide technical data regarding their locks for the purpose of examining exemption requests. To access this information, copyright owners can require 1201 exemption request participants to enter into formal confidentiality agreements.
  4. Create a blanket exemption for unlocking a device for the purpose of preparing for a 1201 exemption request proceeding.
  5. Detail a technical expert from the National Telecommunications and Information Administration to the 1201 exemption proceeding.

These proposals will not completely solve the issues with the Section 1201 exemption request process. But, they will certainly help it feel less like living the real-world version of Alice’s fantasyland where everything is nonsense and nothing is what it is, because everything is what it isn’t.