The DMCA is Archaic: Copyright Office Permits People to Repair Their Game Consoles

If you want a fresh reminder of how archaic the DMCA is, the recent ruling that allows game console repairs is a good candidate.

The DMCA (Digital Millennium Copyright Act) was passed in 1998 in the US. At the time, there was plenty to be concerned about with it’s passage. Still, even then, lobbying and corruption within the halls of government is what tends to rule over all, and the law was passed. In the process, the name Orrin Hatch would become a highly notorious one. Of course, some of his comments also helped with his infamy.

Of course, the damage the DMCA unleashed on America and innovation is impossible to really encapsulate. It allowed the effective indiscriminate file-sharing lawsuits to be unleashed onto the population at large – often targeting children and teenagers (and, at least in one case, even targeting dead people). Hundreds of thousands, if not, millions, were threatened with multi-million dollar lawsuits for something they may not even know anything about. In the process, it completely transformed the major American music corporations from ones that are in the business of selling music to ones that are in the business of litigating their way to vast riches and wealth.

On the innovation side, the impacts of the DMCA were profound. Promising companies that actually create innovative products were sued out of existence thanks to anti-circumvention measures. As a result, the innovation sector is much more closely associated with patent trolling. That’s where companies patent obvious things like a windshield and promptly sue companies that use anything resembling their patent to pay a ransom or get sued out of existence.

As for freedom of expression, people who create content of today face a host of threats – even those who don’t really see themselves as creators. People who take on journalistic endeavours or offer commentary on things who think that they can simply rely on Fair Use suddenly find themselves with those protections being stripped away from them. As the famous dancing baby video proved, even a garbled background stereo while you record your baby dancing around could land you in court over copyright infringement. The good news about that case was that the person who shot the video got backed by the Electronic Frontier Foundation and won their case in the end. The video in question is now up:

Really, all of that is just a tiny hint of a start of all the damage caused by the DMCA. You could fill an entire Wiki website with the damage caused by the DMCA.

It ultimately took a decade and more just to start undoing the damage caused by all of this. Large tech giant’s like Google inked deals just to work out something to push technology forward. YouTube is cluttered with ads partly because of this. Even then, there are chunks of music library that are set in a way to auto silence video’s that just happen to contain it. To this day, we still aren’t in a place where we were when YouTube started in terms of freedom of expression and freedom to create new content. DMCA bots still vandalize video’s, though at the very least, it only affects parts of videos and not the whole clip at the very least. Moving technology back forward to the year 2001 is still going to take some effort still.

Another aspect of this is the review process that is run by the US Copyright Office. Every three years, they hear from a range of stakeholders on what minor exceptions they may grant. Things like being able to legally show a movie clip in class for educational purposes gets discussed. Recently, that review process has happened and the ruling by the copyright office suggests that you are now allowed to fix a video game console. From Arstechnica:

The librarian of Congress has provided a new exemption to the Digital Millennium Copyright Act that will let people repair optical drives on video game consoles. The new rule will also allow users to perform “diagnosis, maintenance, and repair” of other types of software-enabled devices marketed to consumers.

The US Copyright Office today announced the decision, which came from a set of recommendations by Register of Copyrights Shira Perlmutter. The office simultaneously released a final rule in which Librarian of Congress Carla Hayden adopted the recommendations.

“For the reasons discussed in the Register’s Recommendation, the Register recommended expanding the existing exemption for diagnosis, maintenance, and repair of certain categories of devices to cover any software-enabled device that is primarily designed for use by consumers,” the final rule said. “For video game consoles, the Register concluded that an exemption is warranted solely for the repair of optical drives.”

For anyone who has owned a console from at least 2006, they know just how asinine this all is. Game consoles have motherboards, hard drives, CPU’s, and a host of other components. So, if you own a Playstation 3, for instance, if specifically the optical drive (the thing that actually reads the disk) breaks down, great news! It is now legal to have that repaired. If the GPU breaks, something goes wrong with the hard drive, or anything else breaks, legally speaking, sorry, but you are out of luck. If you think about fixing that, then you’ll be thrown behind bars and they’ll throw away the key like the scum sucking criminal that you are.

Just to compound how archaic this all is, current generation consoles are moving away from having disk drives. For the Playstation 5, you can either save $100 and get a disk free version or pay the premium cost and get one with a Blu-Ray drive.

Even worse is the fact that, in three years, it’s possible that with enough lobbying, the exception can be removed anyway. So, it’s entirely possible that in three years, the copyright office will say that the decision was stupid and scrub this exception from the list anyway. Even then, this exception was a hard fought victory for consumers in the US. Public Knowledge released a statement hailing this new found exciting legal capability as a victory:

“The Copyright Office’s recommendations to allow consumers to repair software-enabled consumer devices and to to repair the optical drive on their video game consoles is a victory for consumers, Public Knowledge, and right to repair advocates. Section 1201 of the Digital Millennium Copyright Act has often been used as a legal battering ram to prevent consumers from repairing devices they own and has significantly limited the independent repair services available to consumers.

“While Public Knowledge is excited about today’s recommendation, it does not solve the larger issues with Section 1201. The 1201 process is more broken than I could have imagined. Device manufacturers hide behind trade associations that fear-monger about pirating movies, games, and music—copyrighted works that most of the locks in question do not even protect. It’s quite possible that the only copyright some locks protect is the software copyright in the lock itself. At a minimum, future 1201 proceedings should include more technical expertise and information from device manufacturers about how their locks really work.

“Public Knowledge will continue to fight for the right to repair and Section 1201 reforms that solve these larger issues with the exemption request process.”

If anything, devices simply get repaired in a grey market to this day. It really shouldn’t be like that. After all, e-waste is not just a huge problem, but a growing problem:

1. Global e-waste volumes grew by 21% between 2104 and 2019, according to the United Nations, a pace that will lead to a doubling of e-waste in just 16 years. The world discarded 53.6 million tons of e-waste in 2019.
2. Only 17.4% of e-waste discarded in 2019 was recycled, the United Nations reports.
3. Europe leads the world in e-waste recycling, collecting, and processing 42.5% of its 2019 e-waste, according to the International Telecommunications Union. Asia, with 24.9 million tons of e-waste, now accounts for almost twice the e-waste volume the Americas (13.13.1 million tons) produce each year. Asia also recycles more of its e-waste, at 11.7% in 2019, than the Americas do at 9.4%.
4. The United States generated 6.92 million tons of e-waste, about 46 pounds per person, in 2019. It recycled only 15% of the material.
5. The value of the raw materials contained in the e-waste produced in the U.S. during 2019 was $7.49 billion. That’s right. We threw away billions of dollars worth of materials that could be used again.

(Pretty sure the first line meant to say “2014 and 2019”. Likely just a typo.)

So, if you are not permitted to repair things like a game console legally, what does this encourage? You to throw away and buy used or new. What does that also do? Encourage the production of e-waste. We’re not saying all e-waste is generated thanks to the DMCA, but it certainly does encourage this behaviour of throwing devices away that can be repaired.

At the end of the day, if you want a fresh reminder of how archaic the DMCA is, this is just a fresh example of that. There is a world of difference between someone ripping movies and selling them on the streets and someone fixing a motherboard so the legal owner can get a few more years of mileage off of it. Yet, the system in place almost treats both one in the same. With intense lobbying to keep things this way to squeeze out even more profits, it’s not likely this is going to change any time soon. In some regards, this copyright abuse has been normalized, so it is difficult for these issues to make headlines these days, still, these problems haven’t necessarily gone away. They are just more conveniently swept under the rug. That leaves us all paying the price.

Drew Wilson on Twitter: @icecube85 and Facebook.

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