Human Rights and TPMs: Lessons from 22 Years of the U.S. DMCA

Introduction

In 1998, Bill Clinton signed the Digital Millennium Copyright Act (DMCA), a sweeping overhaul of U.S. copyright law notionally designed to update the system for the digital era. Though the DMCA contains many controversial sections, one of the most pernicious and problematic elements of the law is Section 1201, the “anti-circumvention” rule which prohibits bypassing, removing, or revealing defects in “technical protection measures” (TPMs) that control not just use but also access to copyrighted works.

In drafting this provision, Congress ostensibly believed it was preserving fair use and free expression but failed to understand how the new law would interact with technology in the real world and how some courts could interpret the law to drastically expand the power of copyright owners. Appellate courts disagree about the scope of the law, and the uncertainty and the threat of lawsuits have meant that rightsholders have been able to effectively exert control over legitimate activities that have nothing to do with infringement, to the detriment of basic human rights.. Manufacturers who designed their products with TPMs that protected business models, rather than profits, can claim that using those products in ways that benefited their customers, (rather than their shareholders) is illegal.

22 years later, TPMs are everywhere, sometimes called “DRM” (“digital rights management”). TPMs control who can fix cars and tractors, who can audit the security of medical implants, who can refill a printer cartridge and whether you can store a cable broadcast and what you can do with it.

Last month, the Mexican Congress passed amendments to the Federal Copyright Law and the Federal Criminal Code, notionally to comply with the country’s treaty obligations under Donald Trump’s USMCA, the successor to NAFTA. This law included many provisions that interfered with human rights, so much so that the Mexican National Commission for Human Rights has filed a constitutional challenge before the Supreme Court seeking to annul these amendments.

Among the gravest of the defects in the new amendments to the Mexican copyright law and the Federal Criminal Code are the rules regarding TPMs, which replicate the defects in DMCA 1201. Notably, the new law does not address the flawed language of the DMCA that has allowed rightsholders to block legitimate and noninfringing uses of copyrighted works that depend on circumvention and creates harsh and disproportionate criminal penalties that creates unintended consequences for privacy and freedom of expression . Such criminal provisions are so broad and vague that it can be applied to any person, even the owner of the device, even if that person hasn’t committed any malicious intent to commit a wrongful act that will result in harm to another. To make things worse, the Mexican law does not provide even the inadequate protections the US version offers, such as an explicit, regular regulatory proceeding that creates exemptions for areas where the law is provably creating harms.

As with DMCA 1201, the new amendments to the Mexican copyright law contains language that superficially appears to address these concerns; however, as with DMCA 1201, the Mexican law’s safeguard provisions are entirely cosmetic, so burdened with narrow definitions and onerous conditions that they are unusable. That is why, in 22 years of DMCA 1201, no one has ever successfully invoked the exemptions written into the statute.

EFF has had 22 years of experience with the fallout from DMCA 1201. In this article, we offer our hard-won expertise to our colleagues in Mexican civil society, industry, lawmaking and to the Mexican public.

Below, we have set out examples of how DMCA 1201 — and its Mexican equivalent — is incompatible with human rights, including free expression, self-determination, the rights of people with disabilities, cybersecurity, education, and archiving; as well as the law’s consequences for Mexico’s national resiliency and economic competitiveness and food- and health-security.

Free Expression

Copyright and free expression are in obvious tension with one another: the former grants creators exclusive rights to reproduce and build upon expressive materials; the latter demands the least-possible restrictions on who can express themselves and how.

Balancing these two priorities is a delicate act, and while different countries manage their limitations and exceptions to copyright differently — fair use, fair dealing, derecho de autor, and more — these systems typically require a subjective, qualitative judgment in order to evaluate whether a use falls into one of the exempted categories: for example, the widespread exemptions for parody or commentary, or rules that give broad latitude to uses that are “transformative” or “critical.” These are rules that are designed to be interpreted by humans — ultimately by judges.

TPM rules that have no nexus with copyright infringement vaporize the vital qualitative considerations in copyright’s free expression exemptions, leaving behind a quantitative residue that is easy for computers to act upon, but which does not correspond closely to the policy objectives of limitations in copyright.

For example, a computer can tell if a video includes more than 25 frames of another video, or if the other works included in its composition do not exceed 10 percent of its total running time. But the computer cannot tell if the material that has been incorporated is there for parody, or commentary, or education — or if the video-editor absentmindedly dragged a video-clip from another project into the file before publishing it.

And in truth, when TPMs collide with copyright exemptions, they are rarely even this nuanced.

Take the TPMs that prevent recording or duplication of videos, beginning with CSS, the system used in the first generation of DVD players, and continuing through the suite of video TPMs, including AACS (Blu-Ray) and HDCP (display devices). These devices can’t tell if you are making a recording in order to produce a critical or parodical video commentary. In 2018, the US Copyright Office recognized that these TPMs interfere with the legitimate free expression rights of the public and granted an exemption to DMCA 1201 permitting the public to bypass these TPMs in order to make otherwise lawful recordings.The Mexican version of the DMCA does not include a formal procedure for granting comparable exemptions.

Other times, TPMs collide with free expression by allowing third parties to interpose themselves between rightsholders and their audiences, preventing the former from selling their expressive works to the latter.

The most prominent example of this interference is to be found in Apple’s App Store, the official monopoly retailer for apps that can run on Apple’s iOS devices, such as iPhones, iPads, Apple Watches, and iPods. Apple’s devices use TPMs that prevent owners of these devices from choosing to acquire software from rivals of the App Store. As a result, Apple’s editorial choices about which apps it includes in the App Store have the force of law. For an Apple customer to acquire an app from someone other than Apple, they must bypass the TPM on their device. Though we have won the right for customers to “jailbreak” their devices, anyone who sells them a tool to effect this ommits a felony under DMCA 1201 and risks both a five-year prison sentence and a $500,000 fine (for a first offense).

While the recent dispute with Epic Games has highlighted the economic dimension of this system (Epic objects to paying a 30 percent commission to Apple for transactions related to its game Fortnite), there are many historic examples of pure content-based restrictions on Apple’s part:

In these cases, Apple’s TPM interferes with speech in ways that are far more grave than merely blocking recording to advantage rightsholders. Rather, Apple is using TPMs backed by DMCA 1201 to interfere with rightsholders as well. Thanks to DMCA 1201, the creator of an app and a person who wants to use that app on a device that they own cannot transact without Apple’s approval.

If Apple withholds that approval, the owner of the device and the creator of the copyrighted work are not allowed to consummate their arrangement, unless they bypass a TPM. Recall that commercial trafficking in TPM-circumvention tools is a serious crime under DMCA 1201, carrying a penalty of a five year prison sentence and a $500,000 fine for a first criminal offense, even if those tools are used to allow rightsholders to share works with their audiences.

In the years since Apple perfected the App Store model, many manufacturers have replicated it, for categories of devices as diverse as games consoles, cars and tractors, thermostats and toys. In each of these domains — as with Apple’s App Store — DMCA 1201 interferes with free expression in arbitrary and anticompetitive ways.

Self Determination

What is a “family?”

Human social arrangements don’t map well to rigid categories. Digital systems can take account of the indeterminacy of these social connections by allowing their users to articulate the ambiguous and complex nature of their lives within a database. For example, a system could allow users to enter several names of arbitrary length to accommodate the common experience of being called different things by different people, or it could allow them to define their own familial relationships, declaring the people they live with as siblings to be their “brothers” or “sisters” — or declaring an estranged parent to be a stranger, or a re-married parent’s spouse to be a “mother.”

But when TPMs enter the picture, these necessary and beneficial social complexities are collapsed down into a set of binary conditions, fenced in by the biases and experiences of their designers. These systems are suspicious of their users, designed to prevent “cheating,” and they treat attempts to straddle their rigid categorical lines as evidence of dishonesty — not as evidence that the system is too narrow to accommodate its users’ lived experience.

One such example is CPCM, the “Content Protection and Copy Management component of DVB, a standard for digital television broadcasts used all over the world.

CPCM relies on the concept of an “authorized domain” that serves as a proxy for a single family. Devices designated as belonging to an “authorized domain” can share video recordings freely with one another, but may not share videos with people from outside the domain — that is, with people who are not part of their family.

The committee that designed the authorized domain was composed almost exclusively of European and US technology, broadcast, and media executives, and they took pains to design a system that was flexible enough to accommodate their lived experience.

If you have a private boat, or a luxury car with its own internal entertainment system, or a summer house in another country, the Authorized Domain is smart enough to understand that all these are part of a single family and will permit content to move seamlessly between them.

But the Authorized Domain is far less forgiving to families that have members who live abroad as migrant workers, or who are part of the informal economy in another state or country, or nomads who travel through the year with a harvest. These “families” are not recognized as such by DVB-CPCM, even though there are far more families in their situation than there are families with summer homes in the Riviera.

All of this would add up to little more than a bad technology design, except for DMCA 1201 and other anti-circumvention laws.

Because of these laws — including Mexico’s new copyright law — defeating CPCM in order to allow a family member to share content with you is itself a potential offense, and selling a tool to enable this is a potential criminal offense, carrying a five-year sentence and a $500,000 fine for a first offense.

Mexico’s familial relations should be defined by Mexican lawmakers and Mexican courts and the Mexican people — not by wealthy executives from the global north meeting in board-rooms half a world away.

The Rights of People With Disabilities

Though disabilities are lumped into broad categories — “motor disabilities,” “blindness,” “deafness,” and so on — the capabilities and challenges of each person with a disability are as unique as the capabilities and challenges faced by each able-bodied person.

That is why the core of accessibility isn’t one-size-fits-all “accommodations” for people with disabilities; rather, it is “universal design” is “design of systems so that they can be accessed, understood and used to the greatest extent possible by all people regardless of their age, size, ability or disability.”

The more a system can be altered by its user, the more accessible it is. Designers can and should build in controls and adaptations, from closed captions to the ability to magnify text or increase its contrast, but just as important is to leave the system open-ended, so that people whose needs were not anticipated during the design phase can suit them to their needs, or recruit others to do so for them.

This is incompatible with TPMs. TPMs are designed to prevent their users from modifying them. After all, if users could modify TPMs, they could subvert their controls.

Accessibility is important for people with disabilities, but it is also a great boon to able-bodied people: first, because many of us are merely “temporarily able-bodied” and will have to contend with some disability during our lives; and second, because flexible systems can accommodate use-cases that designers have not anticipated that able-bodied people also value: from the TV set with captions turned on in a noisy bar (or for language-learners) to the screen magnifiers used by people who have mislaid their glasses.

Like able-bodied people, many people with disabilities are able to effect modifications and improvements in their own tools. However, most people — whether they are able-bodied and people with disabilities — rely on third parties to modify the systems they rely on because they lack the skill or time to make these modifications themselves.

That is why DMCA 1201’s prohibition on “trafficking in circumvention devices” is so punitive: it not only deprives programmers of the right to improve their tools, but it also deprives the rest of us of the right to benefit from those programmers’ creations, and programmers who dare defy this stricture face lengthy prison sentences and giant fines if they are prosecuted.

Recent examples of TPMs interfering with disabilities reveal how confining DMCA 1201 is for people with disabilities.

In 2017, the World Wide Web Consortium (W3C) approved a controversial TPM for videos on the Web called Encrypted Media Extensions (EME). EME makes some affordances for people with disabilities, but it lacks other important features. For example, people with photosensitive epilepsy cannot use automated tools to identify and skip past strobing effects in videos that could trigger dangerous seizures, while color-blind people can’t alter the color-palette of the videos to correct for their deficit.

A more recent example comes from the med-tech giant Abbott Labs, which used DMCA 1201 to suppress a tool that allowed people with diabetes to link their glucose monitors to their insulin pumps, in order to automatically calculate and administer doses of insulin in an “artificial pancreas.”

Note that there is no copyright infringement in any of these examples: monitoring your blood sugar, skipping past seizure-inducing video effects, or changing colors to a range you can perceive do not violate anyone’s rights under US copyright law. These are merely activities that are dispreferred by manufacturers.

Normally, a manufacturer’s preference is subsidiary to the interests of the owner of a product, but not in this case. Once a product is designed so that you must bypass a TPM to use it in ways the manufacturer doesn’t like, DMCA 1201 gives the manufacturer’s preferences the force of law,

Archiving

In 1991, the science fiction writer Bruce Sterling gave a keynote address to the Game Developer’s Conference in which he described the assembled game creators as practitioners without a history, whose work crumbled under their feet as fast as they could create it: “Every time a [game] platform vanishes it’s like a little cultural apocalypse. And I can imagine a time when all the current platforms might vanish, and then what the hell becomes of your entire mode of expression?”

Sterling contrasted the creative context of software developers with authors: authors straddle a vast midden of historical material that they — and everyone else — can access. But in 1991, as computers and consoles were appearing and disappearing at bewildering speed, the software author had no history to refer to: the works of their forebears were lost to the ages, no longer accessible thanks to the disappearance of the hardware needed to run them.

Today, Sterling’s characterization rings hollow. Software authors, particularly games developers, have access to the entire corpus of their industry, playable on modern computers, thanks to the rise and rise of “emulators” — programs that simulate primitive, obsolete hardware on modern equipment that is orders of magnitude more powerful.

However, preserving the history of an otherwise ephemeral medium was not for the faint of heart. From the earliest days of commercial software, companies have deployed TPMs to prevent their customers from duplicating their products or running them without authorization. Preserving the history of software is impossible without bypassing TPMs, and bypassing TPMs is a potential felony that can send you to prison for five years and/or cost you half a million dollars if you supply a tool to do so.

That is why the US Copyright Office has repeatedly granted exemptions to DMCA 1201, permitting archivists in the United States to bypass software TPMs for preservation purposes.

Of course, it’s not merely software that is routinely restricted with TPMs, frustrating the efforts of archivists: from music to movies, books to sound recordings, TPMs are routine. Needless to say, these TPMs interfere with routine, vital archiving activities just as much as they interfere with the archiving and preservation of software.

Education

Copyright systems around the world create exemptions for educational activities; U.S. copyright law specifically mentions education in the criteria for exempted use.

But educators frequently run up against the blunt, indiscriminate restrictions imposed by TPMs, whose code cannot distinguish between someone engaged in educational activities and someone engaged in noneducational activities.

Educators’ conflicts with TPMs are many and varied: a teacher may build a lesson plan around an online video but be unable to act on it if the video is removed; in the absence of a TPM, the teacher could make a local copy of the video as a fallback.

For a decade, the U.S. Copyright Office has affirmed the need for educators to bypass TPMs in order to engage in normal pedagogical activities, most notably the need for film professors to bypass TPMs in order to teach their students and so that their students can analyze and edit commercial films as part of their studies.

National Resiliency

Thus far, this article has focused on the TPMs’ impact on individual human rights, but human rights are dependent on the health and resiliency of the national territory in which they are exercised. Nutrition, health, and security are human rights just as surely as free speech, privacy and accessibility.

The pandemic has revealed the brittleness and transience of seemingly robust supply chains and firms. Access to replacement parts and skilled technicians has been disrupted and firms have failed, taking down their servers and leaving digital tools in unusable or partially unusable states.

But TPMs don’t understand pandemics or other emergencies: they enforce restrictions irrespective of the circumstances on the ground. And where laws like DMCA 1201 prevent the development of tools and knowledge for bypassing TPMs, these indiscriminate restrictions take on the force of law and acquire a terrible durability, as few firms or even individuals are willing to risk prison and fines to supply the tools to make repairs to devices that are locked with TPMs.

Nowhere is this more visible than in agriculture, where the markets for key inputs like heavy machinery, seeds and fertilizer have grown dangerously concentrated, depriving farmers of meaningful choice from competitors with distinctive offers.

Farmers work under severe constraints: they work in rural, inaccessible territories, far from authorized service depots, and the imperatives of the living organisms they cultivate cannot be argued with. When your crop is ripe, it must be harvested — and that goes double if there’s a storm on the horizon.

That’s why TPMs in tractors constitute a severe threat to national resiliency, threatening the food supply itself. Ag-tech giant John Deere has repeatedly asserted that farmers may not effect their own tractor repairs, insisting that these repairs are illegal unless they are finalized by an authorized technician who can take days to arrive (even when there isn’t a pandemic), and who charge hundreds of dollars to inspect the farmer’s own repairs and type an unlock code into the tractor’s keyboard.

John Deere’s position is that farmers are not qualified and should not be permitted to repair their own property. However, farmers have been fixing their own equipment for as long as agriculture has existed — every farm has a workshop and sometimes even a forge. Indeed, John Deere’s current designs are descended from modifications that farmers themselves made to earlier models: Deere used to dispatch field engineers to visit farms and copy farmers’ innovations for future models.

This points to another key feature for national resiliency: adaptation. Just as every person has unique needs that cannot be fully predicted and accounted for by product designers, so too does every agricultural context. Every plot of land has its own biodynamics, from soil composition to climate to labor conditions, and farmers have always adapted their tools to suit their needs. Multinational ag-tech companies can profitably target the conditions of the wealthiest farmers, but if you fall too far outside the median use-case, the parameters of your tractor are unlikely to fully suit your needs. That is why farmers are so accustomed to adapting their equipment.

To be clear, John Deere’s restrictions do not prevent farmers from modifying their tractors — they merely put those farmers in legal peril. Instead, farmers have turned to black market Ukrainian replacement software for their tractors; no one knows who made this software, it comes with no guarantees, and if it contained malicious or defective code, there would be no one to sue.

And John Deere’s abuse of TPMs doesn’t stop at repairs. Tractors contain sophisticated sensors that can map out soil conditions to a high degree of accuracy, measuring humidity, density and other factors and plotting them on a centimeter-accurate grid. This data is automatically generated by farmers driving tractors around their own fields, but the data does not go to the farmer. Rather, John Deere harvests the data that farmers generate while harvesting their crops and builds up detailed pictures of regional soil conditions that the company sells as market intelligence to the financial markets for bets in crop futures.

That data is useful to the farmers who generated it: accurate soil data is needed for “precision agriculture,” which improves crop yields by matching planting, fertilizing and watering to soil conditions. Farmers can access a small slice of that data, but only through an app that comes bundled with seed from Bayer-Monsanto. Competing seed companies, including domestic seed providers, cannot make comparable offers.

Again, this is bad enough under normal conditions, but when supply chains fail, the TPMs that enforce these restrictions prevent local suppliers from filling in the gaps.

Right to Repair

TPMs don’t just interfere with ag-tech repairs: dominant firms in every sector have come to realize that repairs are a doubly lucrative nexus of control. First, companies that control repairs can extract money from their customers by charging high prices to fix their property and by forcing customers to use high-priced manufacturer-approved replacement parts in those repairs; and second, companies can unilaterally declare some consumer equipment to be beyond repair and demand that they pay to replace it.

Apple spent lavishly in 2018 on a campaign that stalled 20 state-level Right to Repair bills in the U.S.A., and, in his first shareholder address of 2019, Apple CEO Tim Cook warned that a major risk to Apple’s profitability came from consumers who chose to repair, rather than replace, their old phones, tablets and laptops.

The Right to Repair is key to economic self-determination at any time, but in times of global or local crisis, when supply chains shatter, repair becomes a necessity. Alas, the sectors most committed to thwarting independent repair are also sectors whose products are most critical to weathering crises.

Take the automotive sector: manufacturers in this increasingly concentrated sector have used TPMs to prevent independent repair, from scrambling the diagnostic codes used on cars’ internal communications networks to adding “security chips” to engine parts that prevent technicians from using functionally equivalent replacement parts from competing manufacturers.

The issue has simmered for a long time: in 2012, voters in the Commonwealth of Massachusetts overwhelmingly backed a ballot initiative that safeguarded the rights of drivers to choose their own mechanics, prompting the legislature to enact a right-to-repair law. However, manufacturers responded to this legal constraint by deploying TPMs that allow them to comply with the letter of the 2012 law while still preventing independent repair. The situation is so dire that Massachusetts voters have put another ballot initiative on this year’s ballot, which would force automotive companies to disable TPMs in order to enable independent repair.

It’s bad enough to lose your car while a pandemic has shut down public transit, but it’s not just drivers who need the Right to Repair: it’s also hospitals.

Medtronic is the world’s largest manufacturer of ventilators. For 20 years, it has manufactured the workhorse Puritan Bennett 840 ventilator, but recently the company added a TPM to its ventilator design. The TPM prevents technicians from repairing a ventilator with a broken screen by swapping in a screen from another broken ventilator; this kind of parts-reuse is common, and authorized Medtronic technicians can refurbish a broken ventilator this way because they have the code to unlock the ventilator.

There is a thriving secondary market for broken ventilators, but refurbishers who need to transplant a monitor from one ventilator to another must bypass Medtronic’s TPM. To do this, they rely on a single Polish technician who manufacturers a circumvention device and ships it to medical technicians around the world to help them with their repairs.

Medtronic strenuously objects to this practice and warns technicians that unauthorized repairs could expose patients to risk — we assume that the patients whose lives were saved by refurbished ventilators are unimpressed by this argument. In a cruel twist of irony, the anti-repair Medtronic was founded in 1949 as a medical equipment repair business that effected unauthorized repairs.

Cybersecurity

In the security field, it’s a truism that “there is no security in obscurity” — or, as cryptographer Bruce Schneier puts it, “anyone can design a system that they can’t think of a way around. That doesn’t mean it’s secure, it just means it’s secure against people stupider than you.”

Another truism in security is that “security is a process, not a product.” You can never know if a system is secure — all you can know is whether any defects have been discovered in it. Grave defects have been discovered even very mature, widely used systems that have been in use for decades.

The corollary of these two rules is that security requires that systems be open to auditing by as many third parties as possible, because the people who designed those systems are blind to their own mistakes, and because each auditor brings their own blind spots to the exercise.

But when a system has TPMs, they often interfere with security auditing, and, more importantly, security disclosures. TPMs are widely used in embedded systems to prevent competitors from creating interoperable products — think of inkjet printers using TPMs to detect and reject third-party ink cartridges — and when security researchers bypass these to investigate products, their reports can run afoul of DMCA 1201. Revealing a defect in a TPM, after all, can help attackers disable that TPM, and thus constitutes “circumvention” information. Recall that supplying “circumvention devices” to the public is a criminal offense under DMCA 1201.

This problem is so pronounced that in 2018, the US Copyright Office granted an exemption to DMCA 1201 for security researchers.

However, that exemption is not broad enough to encompass all security research. A coalition of security researchers is returning to the Copyright Office this rulemaking to explain again why regulators have been wrong to impose restrictions on legitimate research.

Competition

Firms use TPMs in three socially harmful ways:

  1. Controlling customers: From limiting repairs to forcing the purchase of expensive spares and consumables to arbitrarily blocking apps, firms can use TPMs to compel their customers to behave in ways that put corporate interests above the interests of their customers;
  2. Controlling critics: DMCA 1201 means that when a security researcher discovers a defect in a product, the manufacturer can exercise a veto over the disclosure of the defect by threatening legal action;
  3. Controlling competitors: DMCA 1201 allows firms to unilaterally decide whether a competitor’s parts, apps, features and services are available to its customers.

This concluding section delves into three key examples of TPMs’ interference with competitive markets.

App Stores

In principle, there is nothing wrong with a manufacturer “curating” a collection of software for its products that are tested and certified to be of high quality. However, when devices are designed so that using a rival’s app store requires bypassing a TPM, manufacturers can exercise a curator’s veto, blocking rival apps on the basis that they compete with the manufacturer’s own services.

The most familiar example of this is Apple’s repeated decision to block rivals on the grounds that they offer alternative payment mechanisms that bypass Apple’s own payment system and thus evade paying a commission to Apple. Recent high-profile examples include the HEY! email app, and the bestselling Fortnite app.

Streaming media

This plays out in other device categories as well, notably streaming video: AT&T’s HBO Max is deliberately incompatible with leading video-to-TV bridges such as Amazon Fire and Roku TV, who command 70% of the market. The Fire and Roku are often integrated directly into televisions, meaning that HBO Max customers must purchase additional hardware to watch the TV they’re already paying for on their own television sets. To make matters worse, HBO has cancelled its HBO Go service, which enabled people who paid for HBO over satellite and cable to watch programming on Roku and Amazon devices .

Browsers

TPMs also allow for the formation of cartels that can collude to exclude entire development methodologies from a market and to deliver control over the market to a single company. For example, the W3C’s Encrypted Media Extensions (see “The Rights of People With Disabilities,” above) is a standard for streaming video to web browsers.

However, EME is designed so that it does not constitute a complete technical solution: every browser vendor that implements EME must also separately license a proprietary descrambling component called a “content decryption module” (CDM).

In practice, only one company makes a licensable CDM: Google, whose “Widevine” technology must be licensed in order to display commercial videos from companies like Netflix, Amazon Prime and other market leaders in a browser.

However, Google will not license this technology to free/open source browsers except for those based on its own Chrome/Chromium browser. In standardizing a TPM for browsers, the W3C — and Section 1201 of the DMCA — has delivered gatekeeper status to Google, who now get to decide who may enter the browser market that it dominates; rivals that attempt to implement a CDM without Google’s permission risk prison sentences and large fines.

Conclusion

The U.S.A. has had 22 years of experience with legal protections for TPMs under Section 1201 in the DMCA. In that time, the U.S. government has repeatedly documented multiple ways in which TPMs interfere with basic human rights and the systems that permit their exercise. The Mexican Supreme Court has now taken up the question of whether Mexico can follow the U.S.’s example and establish a comparable regime in accordance with the rights recognized by the Mexican Constitution and international human rights law. In this document, we provide evidence that TPM regimes are incompatible with this goal.

The Mexican Congress — and the U.S. Congress — could do much to improve this situation by tying offenses under TPM law to actual acts of copyright violation. As the above has demonstrated, the most grave abuses of TPMs stem from their use to interfere with activities that do not infringe copyright.

However, rightsholders already have a remedy for copyright infringements: copyright law. A separate liability regime for TPM circumvention serves no legitimate purpose. Rather, its burden falls squarely on people who want to stay on the right side of the law and find that their important, legitimate activities and expression are put in legal peril.

Source: Human Rights and TPMs: Lessons from 22 Years of the U.S. DMCA

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