Software Freedom Conservancy's DMCA Exemption Requests Granted

[Daniel Pono Takamori]

URL:

https://sfconservancy.org/news/2021/oct/28/2021-DMCA-final-exemptions-win/

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Software Freedom Conservancy's DMCA Exemption Requests Granted for
Alternate Router Firmware, Copyleft Compliance Investigation and More

Software Freedom Conservancy is proud to announce that its efforts to
stand up for the rights of FOSS developers have been successful and that
it has been granted almost all of the exemptions that it requested in
the Librarian of Congress' recent rule making, according to the final
rule Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies [0], which was published today.
Effective today, the Librarian of Congress ("LoC") granted DMCA
exemptions for installing alternate firmwares on routers and for
investigating copyleft compliance, and the exemption that Software
Freedom Conservancy previously applied for and received on Smart TVs was
also expanded. While our formal request to extend the security research
exemption to include privacy research was not granted, the Register
clarified that privacy research is indeed included in security research.
Our executive director, Karen Sandler, also participated as an
individual in a request to expand the existing exemption for medical
devices which was also successful.

Jailbreaking of routers

Our exemption request to allow the jailbreaking of routers and other
networking devices to enable the installation of alternative firmware
was approved for network router FOSS projects such as our OpenWrt
project. This exemption permits users, after-market, to install FOSS
firmwares (such as OpenWrt) on wireless router hardware that has DRM'd
firmwares from the manufacturer. As the LoC noted in its rule making
supplemental information, "the prohibition on circumvention is likely to
prevent users from installing free and open source software (“FOSS”) on
routers and other networking devices and that there are no viable
alternatives to circumvention to accomplish that purpose." This
exemption supports an important consumer rights issue of enabling life
cycle management of our devices, which frees consumers from the "planned
obsolescence" of being forced to upgrade devices at the whim of
manufacturers and allows them to take control of their own routers.
Allowing alternate firmware (like our project OpenWrt) gives us so much
more freedom in how we manage our devices.

Investigation

We were also successful in seeking an exemption for circumvention of
technological measures for purposes of investigating and confirming
violations of FOSS license. This explicitly allows Software Freedom
Conservancy and others to continue enforcement of copyleft licenses in
the face of violators' efforts to thwart us with technological
restrictions and the power of this law that, ironically, can make such
work illegal. As an organization that stands up for the rights of users
(see our recently filed case against Vizio) [1], we can now be confident
in our efforts to make sure corporations are held to their end of the
copyleft bargain, even if they seek to obscure their disregard for the
license.  However, while the LoC otherwise granted the exemption we
asked for on every other kind of device, they added one limitation. The
LoC explicitly left out video game consoles from the types of devices on
which TPMs (a more general term for DRM) may be circumvented, a baffling
conclusion which reflects the strong lobbying against our work.

Privacy issues

Our third exemption requested expansion of the existing security
research exemptions to also permit good-faith testing, investigation,
and correction of privacy issues that are not otherwise covered by
existing statutory or temporary exemptions. During this process, we
noted that the similar exemption for security research fell short of
protecting work on privacy issues, and asked for either an expanded
exemption or a clarification that the existing exemption also covered
privacy research. The LoC recognized the importance of this exemption,
and, because the Register in its recommendations clarified that the
security research exemption does indeed also apply to privacy research,
there was no need to extend the current exemption for privacy research.
This clarification brings safety to those who test devices for their
handling of private information, regardless of whether those devices
intended for the information to be collected and shared or not. As the
Register wrote in its recommendations, "the exemption does not draw a
distinction between vulnerabilities that the copyright owner authorized
and those that were unauthorized."

Medical Devices

Our Executive Director Karen Sandler, along with Hugo Campos and Jay
Radcliffe, filed for DMCA exemptions to medical devices which was
submitted and defended by the USC Gould School of Law. Control over the
tech we rely on is never more poignant than thesoftware in our own
bodies and the COVID-19 pandemic has highlighted how important it is to
have the right to repair medical equipment and to retrieve data on those
devices. Sandler participated in the original rule making in 2016 and
the new ruling expands the existing exemption to cover all medical
devices, not just ones that are implanted, and also for circumvention
that is undertaken on behalf of a patient, not just by the patient
themselves.

Going Forward

Overall we applaud the actions taken by the Librarian of Congress on the
exemptions we were involved in as well as others granted in the same
process.  This decision underscores the need for continued advocacy in
the field to fight the giant financial interests that seek to strip end
users of their rights.

We are proud of our active license compliance work and advocacy like
this and we rely on your financial contributions. If you like the work
we are doing and want to support our on-going efforts to protect
consumers rights and software freedom, please consider donating to us
[2].

We also thank our attorneys, Pam Chestek and Aaron Williamson, whose
expertise and hard work was invaluable to this process. Many thanks also
to Amateur Radio Digital Communications (ARDC), whose mission is to
support, promote, and enhance digital communication and broader
communication science and technology, to promote Amateur Radio,
scientific research, experimentation, education, development, open
access, and innovation in information and communication technology, and
who supported this work.

Links to social media:
https://mastodon.technology/@conservancy/107181015700983536
https://twitter.com/conservancy/status/1453819298011508761

[0] - https://public-inspection.federalregister.gov/2021-23311.pdf
[1] - https://sfconservancy.org/vizio/
[2] - https://sfconservancy.org/donate/