The US Copyright Office frees the McFlurry
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 β 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 metasized 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 β without any help from anyone else β 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.