Techdirt is a fascinating site for many reasons. Right now this TVWriter™ minion, at least, is blown away by this article on the cultural and political ramifications of copyright law. Who’d a thunk that the copyright thing was so frighteningly complicated?
by Mike Masnick
For quite some time we’ve pointed out how problematic Section 1201 of the DMCA is. That’s the part of the law that says it’s copyright infringement to simply circumvent any kind of “technological protection measure” even if the reasons for doing so are perfectly legal and have nothing to do with infringement at all. And, of course, we now have the big “1201 Triennial Review” results that are about to come out. That’s the system that was put in place because even Congress realized just how stupid Section 1201 was and how much innovation and research it would limit — so it created a weird sort of safety valve. Every three years, the Copyright Office and the Librarian of Congress would work together to come up with classes of technology that are magically “exempted” from the law. Now, normally, you’d think that if you have to come up with exemptions, there’s probably something wrong with the law that needs to be fixed, but that’s not the way this worked.
The latest triennial review results are about to come out, and a lot of people are focused on it — in part because of current events. As you may recall, earlier this year, we wrote about one of the exemption requests in particular: over whether or not you can tinker with the software in your car. GM was fighting against this, and we were shocked to then see the EPA side with GM (!?!?) on this issue, claiming that it’s a perfectly reasonable use of copyright law to stop tinkering with cars on the off chance that some of that tinkering might lead to changing emissions to illegal levels.
Of course, just a few weeks later, we discovered that VW had been playing games with its software to avoid emissions tests and pollute the world at a much greater rate than is legal (or healthy). Many people have pointed out that, if the software wasn’t all locked up, it seems likely that people would have discovered this problem much earlier. The latest to weigh in on this is Senator Ron Wyden, in a WSJ op-ed, where he explains how the EPA has this whole thing completely backwards:
This year the Environmental Protection Agency submitted comments to the Copyright Office requesting that no exemptions should be granted for car owners or researchers to access and modify the software in their vehicles. The EPA says you shouldn’t be allowed to tinker with your car because it might increase emissions from your tailpipe.
This would block any researcher who would study software in automobiles to make them safer or more environmentally friendly. This summer, security researchers demonstrated that a hacker could take over a Jeep’s systems—GPS, transmission and brakes, among others—over the Internet. This could lead to crashes and even sabotage. In this case at least, Chrysler recalled 1.4 million vehicles to patch that vulnerability, which otherwise could have gone unnoticed.
The obstacle thrown up against access to copyrighted software makes it more difficult for researchers and engineers to find similar problems in the future. Volkswagen’s falsified emissions reports were discovered by independent testing—yet the source of the problem was in the automobile’s software. Independent researchers might have found the problem sooner if not for the threat of lawsuits brought by the company under the DMCA.
In short, while the EPA is worried about individuals potentially violating the Clean Air Act or other regulations, it should be worried about the companies that are actually doing so.
And it’s not just the EPA. As Wyden notes, the FDA is doing something similar, which may be even more dangerous:…