The Digital Millennium Copyright Act (DMCA) limits the circumvention of software that's designed to restrict access to copyrighted works. Unfortunately, such a blanket restriction can chill competition, free speech, and fair use. In an attempt to mitigate those harms, every three years the U.S. Copyright Office holds a rulemaking proceeding to consider exemptions to this rule.

EFF has participated in this rulemaking procedure for many years, and has secured exemptions for device unlocking, jailbreaking, ripping videos for remix, and more. In the 2018 proceeding, we requested exemptions for:

• Repair, diagnosis, and tinkering with any software-enabled device, including “Internet of Things” devices, appliances, computers, peripherals, toys, vehicle, and environmental automation systems;
• Jailbreaking personal computing devices, including smartphones, tablets, smartwatches, and personal assistant devices like the Amazon Echo and the forthcoming Apple HomePod;
• Using excerpts from video discs or streaming video for criticism or commentary, without the narrow limitations on users (noncommercial vidders, documentary filmmakers, certain students) that the Copyright Office now imposes;
• Security research on software of all kinds, which can be found in consumer electronics, medical devices, vehicles, and more;
• Lawful uses of video encrypted using High-bandwidth Digital Content Protection (HDCP, which is applied to content sent over the HDMI cables used by home video equipment).

We also supported other exemptions, including one for vehicle maintenance and repair that was proposed by the Auto Care Association and the Consumer Technology Association.

Many other organizations filed exemption requests as well. Here’s a full list of the exemption proposals.

In October of 2018, the Copyright Office issued its new rules. Here is what we won:

• People who repair digital devices, including vehicles and home appliances, will have more protection from legal threats.
• Filmmakers, students, and ebook creators will be able to use video clips more freely.
• People can now jailbreak and modify voice assistant devices like the Amazon Echo and Google Home, as they can with smartphones and tablets.
• Security researchers will have more freedom to investigate and correct flaws on a wider range of devices.

However, EFF proposed to expand the exemption for vehicle maintenance and repair to cover all devices that contain software, and to cover legal modification and tinkering that goes beyond repair. But the Office expanded the exemption only to “smartphone[s],” “home appliance[s],” and “home system[s], such as a refrigerator, thermostat, HVAC or electrical system.” This list doesn’t come close to capturing all of the personal devices that contain software, for which people need the ability to repair and maintain without legal threats. And the Office has again refused to expand the exemption to lawful modification and tinkering.

In a similar way, the Copyright Office rejected proposals to stop dividing video creators into narrow categories like “documentary filmmakers” and creators of “noncommercial videos” and “multimedia e-books.” Each group of creators will still have to jump through several varying legal hoops to avoid lawsuits under Section 1201 as they do their work.