Recently, the White House made about 114,000 new friends by agreeing that it should be legal to unlock your cellphone. In a response to a We the People petition, a White House adviser wrote that the Obama administration would work to address a recent decision by the librarian of Congress that made unlocking your cellphone illegal under the anti-circumvention measures of the Digital Millennium Copyright Act.
The unlocking furor is just the latest example of popular opposition to the DMCA’s dreaded anti-circumvention measures. The Electronic Frontier Foundation recently issued a report arguing that over the last 15 years, the DMCA has impeded scientific research, innovation, fair use, and more. But among the DMCA’s many flaws is a significant one of which most people aren’t aware: For more than a decade, the act has imposed a barrier to access for people with disabilities. It hinders access to books, movies, and television shows by making the development, distribution, and use of cutting-edge accessibility technology illegal.
Making creative works accessible often involves transforming content from one medium to another—such as adapting the audio of a television show to closed captions to make it accessible to people who are deaf or hard of hearing. Copyright law ordinarily vests authors of creative works with the exclusive right to create adaptations, such as translations to foreign languages. But making works accessible to people with disabilities is arguably exempt from copyright law under the fair use doctrine and other laws like the Chafee Amendment to the Copyright Act. Congress, federal courts, the U.S. Copyright Office, and even the World Intellectual Property Organization have begun to recognize that it’s bad policy to block efforts to create accessible versions of copyrighted works.
At least, that’s the case with physical and analog media. But publishers, video programmers, and other copyright owners lock down digital content with digital rights management technology designed to limit users’ ability to access, copy, and adapt copyrighted works to specific circumstances. And copyright owners frequently fail to account for the need to adapt DRM-encumbered works to make them accessible to people with disabilities. For example, e-books often include DRM technology that prevents people who are blind or visually impaired from running e-books that they have lawfully purchased through a text-to-speech converter that reads the books aloud. Similarly, Internet-distributed video and DVD and Blu-ray discs include DRM features that prevent researchers from developing advanced closed captioning and video description technologies that make movies and television shows accessible. (For example, some Internet-delivered videos don't include closed captions at all, and subtitles on DVD and Blu-ray discs can be incomplete, riddled with errors, or so badly formatted that they can't be read.)
Bypassing this DRM technology is often trivial from a technical perspective. But the DMCA makes it illegal—even if the person bypassing DRM is doing so for a noninfringing use like making it accessible to people with disabilities. If you want to get around the DMCA, there is no fair use; instead, you must petition the librarian of Congress for a special exemption to circumvent a class of works, such as e-books. The proceeding to consider exemption petitions, known as the “triennial review,” takes place only once every three years and requires petitioners to navigate a complex bureaucratic process, satisfy an incredibly high burden of proof, invest months of effort, and overcome opposition from copyright lobbying groups with nearly bottomless resources. It’s no wonder the vast majority of exemption petitions are denied.
Even if a petitioner can successfully make a case for an exemption, a separate part of the DMCA still bars her from distributing accessibility technology with circumvention components to people with disabilities. Worse, the exemption will last for only three years, after which it will expire unless the petitioner successfully renews it. Making the same case over and over again isn’t just a waste of time and resources—it puts at risk any progress toward accessibility achieved under the previously granted exemption, which can be wiped away by the whim of the librarian of Congress and the U.S. Copyright Office. (The librarian’s October decision to ban cellphone unlocking after exempting it for nearly six years is a prime example of such a whim.)
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