DMCA exemption update: SFLC replies to content industry

March 5, 2012

The Software Freedom Law Center responded on Friday to comments submitted in the DMCA exemption rulemaking process by the Business Software Alliance, Recording Industry Association of America, Motion Picture Association of America, and several other content industry groups. SFLC’s full reply is here; it begins with this summary:

In our initial comments, the Software Freedom Law Center voiced a self-evident proposition: the owner of a computer should decide what software to run on it, regardless of the form that computer embodies. This proposal was echoed by the subsequent comments of dozens of organizations and individuals, for whose unsolicited support we are deeply grateful.

Against common sense and public opinion stands a single submission, the comments a group of content industry associations who represent neither the manufacturers producing computing devices nor the users who buy them. Where we affirm the right of device owners to improve their devices, accommodate the needs of disabled persons, and ensure their own security, these groups respond with a single nonsequitur: a concern for copyright infringement that the exemption would neither enable nor encourage.

The red herring of “piracy” obscures the respondents’ true purpose, to control the secondary market in operating systems and applications. They do not make this purpose explicit because it is baldly anticompetitive: as the Federal Circuit warned and the Ninth Circuit acknowledged, the content industry’s reading of 17 U.S.C. § 1201(a) “would allow companies to leverage their sales into aftermarket monopolies, in potential violation of antitrust law.” Their comments in this rulemaking would themselves implicate antitrust laws were they not shielded by the Noerr-Pennington doctrine.

When the Digital Millennium Copyright Act’s anticircumvention provisions were first enacted, respondents reaped a windfall. The law gave them an effective power of prior restraint, presumptively banning all manner of lawful activity where technological protection measures were used. It is no surprise, then, that they have never met an exemption that they didn’t oppose—here, they call even limited accommodations for blind and deaf persons “unnecessary.” They should not be allowed to extend their already-substantial control to copyrighted software produced by others.

SFLC’s exemption would have neither the legal nor the practical effect of encouraging infringement; rather, it would protect innovation in the secondary market, promoting the production of new copyrighted works and the security of users. DMCA § 1201(a)(1) is concerned with unauthorized copying of copyrighted works. But where, as here, it is used not to prevent infringement but to control the secondary market in computing hardware or software, its reach must be curtailed.

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