I'll be in TUCSON, AZ from November 8-10: I'm the GUEST OF HONOR at the TUSCON SCIENCE FICTION CONVENTION.
I have spent a quarter century obsessed with the weirdest corner of the weirdest section of the worst internet law on the US statute books: Section 1201 of the Digital Millennium Copyright Act, the 1998 law that makes it a felony to help someone change how their own computer works so it serves them, rather than a distant corporation.
Under DMCA 1201, giving someone a tool to "bypass an access control for a copyrighted work" is a felony punishable by a 5-year prison sentence and a $500k fine – for a first offense. This law can refer to access controls for traditional copyrighted works, like movies. Under DMCA 1201, if you help someone with photosensitive epilepsy add a plug-in to the Netflix player in their browser that blocks strobing pictures that can trigger seizures, you're a felon:
But software is a copyrighted work, and everything from printer cartridges to car-engine parts have software in them. If the manufacturer puts an "access control" on that software, they can send their customers (and competitors) to prison for passing around tools to help them fix their cars or use third-party ink.
Now, even though the DMCA is a copyright law (that's what the "C" in DMCA stands for, after all); and even though blocking video strobes, using third party ink, and fixing your car are not copyright violations, the DMCA can still send you to prison, for a long-ass time for doing these things, provided the manufacturer designs their product so that using it the way that suits you best involves getting around an "access control."
As you might expect, this is quite a tempting proposition for any manufacturer hoping to enshittify their products, because they know you can't legally disenshittify them. These access controls have metastasized into every kind of device imaginable.
DMCA 1201 is the brainchild of Bruce Lehmann, Bill Clinton's Copyright Czar, who was repeatedly warned that cancerous proliferation this was the foreseeable, inevitable outcome of his pet policy. As a sop to his critics, Lehman added a largely ornamental safety valve to his law, ordering the US Copyright Office to invite submissions every three years petitioning for "use exemptions" to the blanket ban on circumventing access-controls.
I call this "ornamental" because if the Copyright Office thinks that, say, it should be legal for you to bypass an access control to use third-party ink in your printer, or a third-party app store in your phone, all they can do under DMCA 1201 is grant you the right to use a circumvention tool. But they can't give you the right to acquire that tool.
I know that sounds confusing, but that's only because it's very, very stupid. How stupid? Well, in 2001, the US Trade Representative arm-twisted the EU into adopting its own version of this law (Article 6 of the EUCD), and in 2003, Norway added the law to its lawbooks. On the eve of that addition, I traveled to Oslo to debate the minister involved:
The minister praised his law, explaining that it gave blind people the right to bypass access controls on ebooks so that they could feed them to screen readers, Braille printers, and other assistive tools. OK, I said, but how do they get the software that jailbreaks their ebooks so they can make use of this exemption? Am I allowed to give them that tool?
No, the minister said, you're not allowed to do that, that would be a crime.
Is the Norwegian government allowed to give them that tool? No. How about a blind rights advocacy group? No, not them either. A university computer science department? Nope. A commercial vendor? Certainly not.
No, the minister explained, under his law, a blind person would be expected to personally reverse engineer a program like Adobe E-Reader, in hopes of discovering a defect that they could exploit by writing a program to extract the ebook text.
Oh, I said. But if a blind person did manage to do this, could they supply that tool to other blind people?
Well, no, the minister said. Each and every blind person must personally – without any help from anyone else – figure out how to reverse-engineer the ebook program, and then individually author their own alternative reader program that worked with the text of their ebooks.
That is what is meant by a use exemption without a tools exemption. It's useless. A sick joke, even.
The US Copyright Office has been valiantly holding exemptions proceedings every three years since the start of this century, and they've granted many sensible exemptions, including ones to benefit people with disabilities, or to let you jailbreak your phone, or let media professors extract video clips from DVDs, and so on. Tens of thousands of person-hours have been flushed into this pointless exercise, generating a long list of things you are now technically allowed to do, but only if you are a reverse-engineering specialist type of computer programmer who can manage the process from beginning to end in total isolation and secrecy.
But there is one kind of use exception the Copyright Office can grant that is potentially game-changing: an exemption for decoding diagnostic codes.
You see, DMCA 1201 has been a critical weapon for the corporate anti-repair movement. By scrambling error codes in cars, tractors, appliances, insulin pumps, phones and other devices, manufacturers can wage war on independent repair, depriving third-party technicians of the diagnostic information they need to figure out how to fix your stuff and keep it going.
This is bad enough in normal times, but during the acute phase of the covid pandemic, hospitals found themselves unable to maintain their ventilators because of access controls. Nearly all ventilators come from a single med-tech monopolist, Medtronic, which charges hospitals hundreds of dollars to dispatch their own repair technicians to fix its products. But when covid ended nearly all travel, Medtronic could no longer provide on-site calls. Thankfully, an anonymous hacker started building homemade (illegal) circumvention devices to let hospital technicians fix the ventilators themselves, improvising housings for them from old clock radios, guitar pedals and whatever else was to hand, then mailing them anonymously to hospitals:
Once a manufacturer monopolizes repair in this way, they can force you to use their official service depots, charging you as much as they'd like; requiring you to use their official, expensive replacement parts; and dictating when your gadget is "too broken to fix," forcing you to buy a new one. That's bad enough when we're talking about refusing to fix a phone so you buy a new one – but imagine having a spinal injury and relying on a $100,000 exoskeleton to get from place to place and prevent muscle wasting, clots, and other immobility-related conditions, only to have the manufacturer decide that the gadget is too old to fix and refusing to give you the technical assistance to replace a watch battery so that you can get around again:
When the US Copyright Office grants a use exemption for extracting diagnostic codes from a busted device, they empower repair advocates to put that gadget up on a workbench and torture it into giving up those codes. The codes can then be integrated into an unofficial diagnostic tool, one that can make sense of the scrambled, obfuscated error codes that a device sends when it breaks – without having to unscramble them. In other words, only the company that makes the diagnostic tool has to bypass an access control, but the people who use that tool later do not violate DMCA 1201.
This is all relevant this month because the US Copyright Office just released the latest batch of 1201 exemptions, and among them is the right to circumvent access controls "allowing for repair of retail-level food preparation equipment":
While this covers all kinds of food prep gear, the exemption request – filed by Public Knowledge and Ifixit – was inspired by the bizarre war over the tragically fragile McFlurry machine. These machines – which extrude soft-serve frozen desserts – are notoriously failure-prone, with 5-16% of them broken at any given time. Taylor, the giant kitchen tech company that makes the machines, charges franchisees a fortune to repair them, producing a steady stream of profits for the company.
This sleazy business prompted some ice-cream hackers to found a startup called Kytch, a high-powered automation and diagnostic tool that was hugely popular with McDonald's franchisees (the gadget was partially designed by the legendary hardware hacker Andrew "bunnie" Huang!).
In response, Taylor played dirty, making a less-capable clone of the Kytch, trying to buy Kytch out, and teaming up with McDonald's corporate to bombard franchisees with legal scare-stories about the dangers of using a Kytch to keep their soft-serve flowing, thanks to DMCA 1201:
Kytch isn't the only beneficiary of the new exemption: all kinds of industrial kitchen equipment is covered. In upholding the Right to Repair, the Copyright Office overruled objections of some of its closest historical allies, the Entertainment Software Association, Motion Picture Association, and Recording Industry Association of America, who all sided with Taylor and McDonald's and opposed the exemption:
This is literally the only useful kind of DMCA 1201 exemption the Copyright Office can grant, and the fact that they granted it (along with a similar exemption for medical devices) is a welcome bright spot. But make no mistake, the fact that we finally found a narrow way in which DMCA 1201 can be made slightly less stupid does not redeem this outrageous law. It should still be repealed and condemned to the scrapheap of history.
Tor Books as just published two new, free LITTLE BROTHER stories: VIGILANT, about creepy surveillance in distance education; and SPILL, about oil pipelines and indigenous landback.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
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