so as i mentioned i'm carrie sheehan i'm
the u.s policy lead for ifixit
i'm going to be your moderator today and
so i'm going to
first introduce the panelists and then
i'll hand it over to them to
give their introductions and their
statements
and once we've gone through all the
statements we're going to open it up for
questions
if you have a question please indicate
in the chat and i will unmute you
um and then you can ask your question
and then once we've gotten through all
the questions if there are no further
questions
uh then we will end the call um we'll
also
before ending a call check in with our
youtube stream and see if we have any
good questions in the comments and
answer those
so without further ado i would like to
introduce our panelists
kyle wiens is the ceo and co-founder of
ifixit
meredith rose is the
is the senior policy counsel at
public knowledge and cara
gagliano is the staff attorney at the
electronic frontier foundation
matt zuminski is the vp of the
repairassociationrepair.org
and trammell hudson um trimble do you
want to introduce yourself
you have a lot of titles and i i
i don't want to get it wrong i'm
i'm a security researcher and the i do
special projects for lower layer labs
which involves a lot of reverse
engineering of devices and device
firmwares
great thank you apologies uh so
first uh we're gonna hand it over to
kyle who can give a brief introduction
to ifixit's position on section 1201
and right to repair yeah so we are
gathered here to talk about copyright
which is not something that normally
involves repair or should not
traditionally involve repair uh and and
the idea of right to repair is something
that i fix is very passionate about i
fixed it is the open source
uh repair community for everything our
goal is to enable everything to fix
their things
and we strongly believe that everyone
should have the right to be able to
repair their things
and you know sometimes you get pushback
people say well right to repair uh you
know i fix things all the time
what do you mean i don't have the right
to fix my things well section 1201 of
the dmca is the law that says that you
do not have the right to fix uh certain
kinds of things
it says that you cannot circumvent a
lock
that is protecting a copyrighted work
and unfortunately
as software is moving into all kinds of
things we have an internet of things
refrigerators then that that
refrigerator is running software
anytime you add a microchip to a product
it adds software to it
and in the natural course of designing
products we tend to secure these things
so there are locks so now
almost every product in the world has
software and a lock
and section 1201 when it was passed in
1998 wasn't relevant to a wide spectrum
of products
now just about any kind of repair that
we would want to do
uh is is potentially going to fall file
1201.
so ifixit uh is advocating for user
rights we've uh
collaborated with with public knowledge
and
the university of southern california
law school for uh filings
uh this go around every three years we
ask the copyright office for the ability
to
uh they have this escape patch built
into the law where we can ask for
exemptions and
uh historically the copyright office has
granted exemptions that we've asked for
things like for farmers to be able to
repair their tractors
but they have denied other requests i
fix it three years ago
applied for the right to be able to
repair game consoles something that is
very important
and we were denied and so mayor that is
going to be talking about
how we're applying again for that uh so
this kind of sets the stage where we
have to ask for permission
1201 is a law that says you have to ask
for permission to do something with
product that you own
it says that certain kinds of math are
illegal without permission
uh and and we think that the law is
fatally flawed and and needs to be fixed
but in the meantime every three years we
go to the copyright office so the hat in
hand
asking for permission to fix our things
thank you kyle uh meredith would you
like to go next
sure um so you know as kyle mentioned
uh public knowledge worked with ifixit
uh
to file an exemption request for uh
repairing uh video game consoles uh in
this go around
for those of you who aren't familiar
with public knowledge we are a dc based
consumer advocacy organization
um and we work primarily at the
intersection of tech policy copyright
uh competition policy and all that
entails so a little bit of everything
and of course uh we are regular sort of
frequent flyers in the 1201 proceedings
um and despite the fact that the right
to repair is a pretty fundamental issue
we are back arguing about it every three
years in front of the copyright office
and so the way we see it is that the
dmca has really been a boon to
manufacturers across
all different kinds of sectors and
industries have used the law to lock out
downstream competition third party
repair interoperability
those kinds of things which was never an
intention behind the law but it's how
it's been weaponized
and we believe that owners and users
have a fundamental right to repair their
stuff
and a manufacturer's business model
should never take precedent over
basic principles of ownership and use so
to that end we're
you know working uh hopefully we will be
able to get this one across the finish
line this time
um and folks will be able to start
repairing your uh
xbox 360s which are no longer uh covered
by microsoft's official repair program
uh and hopefully we'll you know turn
over a new
uh new page for console owners this time
so i'm cara from eff and
eff is a non-profit digital rights
organization
that really within the copyright space
works to represent
the interests of the public as opposed
to
the interests of the big rights holders
that are amply represented
before the copyright office in congress
and everywhere else
uh so so we try to represent the
interests of the general public
in a balanced copyright system which is
one that promotes
innovation discourages censorship and
enables broad
and equal access to information in the
digital age
section 1201 impedes all three of those
goals
by making it illegal to just access
copyrighted works
even to make completely lawful uses of
them so
this allows rights holders to as
meredith
said really weaponize the dmca to
insulate their business models
in ways that have nothing to do with
rights actually granted to
copyright holders now eff
actually has a pending first amendment
challenge to
section 1201 based on its failure to
respect these traditional boundaries
of copyright law including safeguards
like fair use
so the you know the the fact that
manufacturers can stop fair uses
and actually make it illegal to do
the steps necessary to make a fair use
of their work
is a huge problem that's completely
incompatible
with the first amendment but you know
the
wheels of justice are slow churning so
at the same time while that lawsuit's
pending you know we
are also participating in the rulemaking
process
and have for several several rounds
now in hopes of winning some exemptions
that will at least mitigate the law's
harms
so this year eff is like
ifixit and public knowledge asking the
office to
expand on its device repair exemption
with a much broader version that would
apply to all software-enabled devices
uh since as kyle noted it it's
difficult to find a product these days
that doesn't have some computerized
component
and they all face the same kinds of
issues and also so that this
exemption would include non-repair
modifications
because we completely agree uh
with kyle and meredith that it is a
fundamental right
of consumers to be able to repair the
things they own
but we think it's more than that too you
know they should be able to tinker with
it modify the things they own
customize things to work better for them
to make them better for other people too
so
so we we want the copyright office to
really
broaden the scope of this exemption so
that we'll cover a lot more
of this activity you know in so
in past rulemaking's office has insisted
on drawing these really
arbitrarily narrow categories of
you know what's the difference between a
home
appliance versus you know a
consumable uh device that uses
consumables
and home systems versus video game
consoles
and so we're our goal this year is to
really show
them how wrong-headed and unprincipled
that approach is because the same issues
apply across the board
in that same vein we're also asking the
office to clarify
its exemption for jail breaking smart
tvs
to to clarify that includes streaming
video devices like
roku or apple tv so you know kind of in
some
this rule making process especially as a
copyright office has approached it
it's far from a solution to section
1201's problems
but we're hoping that these efforts can
at least give some more protection
to folks who just want to customize and
improve their devices
without fear of a lawsuit
and one note on the timing side you can
go to copyright.gov
1201 and click through and see the exact
uh dates and timing but
every three years they run this process
it started this fall
today is the filing deadline for us to
file our detailed request for exemptions
and so that's that's what we're
announcing today is
that uh eff is submitting theirs and i
fix it and
repair association filing our exemption
requests
those exemption requests will go live on
the copyright office's website
um probably later this week but we can
share our our petitions
with anyone who is interested
we'll all be posting them to our
websites as well
pass it over to matt thanks kyle
uh the repair association is the largest
trade association
for repair businesses in the united
states and
uh we not only advocate for small
businesses but we're advocating for the
everyday consumer
all of which are underrepresented by the
law the dmca the nature of copyright law
is that it's almost always reactive to
technology and the changes of technology
and because of that
it gets twisted up when innovation comes
along and over the years since the dmca
was enacted
our technology has changed and similarly
the needs of consumers and small
businesses has changed
consumers don't experience the dmca and
specifically section 1201 as a copyright
protection
they experience it as the reason they
can't fix the things that they own
things like their tractor their video
game consoles or even something as
simple and mundane as buying
cheaper printer ink right it's
ridiculous today's system
has put in place this process where if
the owner of a tractor
has a unit that breaks down and needs
repairs she has to petition the
librarian of congress every couple of
years for permission to make
those repairs and that's not sustainable
with a business like a farmer
that's not sustainable for a repair
business that's not sustainable for
anybody and if you think critically
about it it's a little bit absurd
in general this law was enacted as it
was way
too broad and it gives too much leverage
to companies to hold on to rights that
they have no intention of supporting in
the future
for the end user there's something
absurd about having a law as broad as
this one is and simultaneously requiring
some sort of a new exemption every three
years
this suggests probably that there is
something wrong with the law
and not necessarily with the exemptions
that we're fighting for
even with those exemptions that we've
been able to fight for and win over the
last couple of years
there's always the risk that in a future
hearing at a future review
to a new copyright office ruling could
nullify those rights that were
previously won
so here we are again in the interest of
small businesses
consumers and all that translates to
your local economies we're strongly
advocating for
necessary exemptions for repair uh from
everything from tractors to cell phones
and everything in between
during this trial review but also we're
arguing for a substantive discussion
in the public about the nature of
copyright law
repair and how we can best support and
protect consumers
so several years ago i was really
frustrated with the limitations
and functionality of a camera that i
owned and as a curious hacker type i
chose to reverse engineer the firmware
to try to adapt it to my needs
and along the way i ended up creating an
open source community of
developers who write new extensions
and make modifications that run inside
the camera
alongside the vendor firmware that's
embedded in the device this
magic lantern firmware now has hundreds
of thousands of users across the world
who are able to make their cameras more
suited to their own needs
these include new software features like
uncompressed video
as well as interoperability with
external devices for things like remote
controls or non-standard
lenses and flashes they're also able to
work around hardware problems like
broken buttons by remapping these
functions to
different inputs or broken screens by
drawing information elsewhere
as well as making the devices more
accessible by adjusting the fonts and
adding audio
cues since then i've built custom
firmware for a
range of devices from laptops to light
bulbs to make them to work the way that
i want
and to interoperate with the systems
that i use i always release these
modifications as open source for others
who might have similar needs
as well as for people who have totally
different needs and want to build on my
initial work
it's really my firm belief that everyone
should be able to customize and repair
the devices that they own
including modifications to both the
hardware and the firmware
and especially that they'd be able to
publish information on how to do
this so that others are able to do the
same i really want to thank ifixit and
the eff
and public knowledge for hosting this
event and their work on establishing
dmca exemptions during the previous
trilo processes i'm really looking
forward to the discussion and
learning from the other panel members so
thanks so much
thank you everyone so i'd like to open
it up for questions
now if you could please indicate in the
zoom chat whether
you have a question and i will unmute
you
we can ask you some other questions too
[Laughter]
well let's make sure the reporters here
have a chance to ask us some questions
since that's why we're here
no questions feel free to ask questions
on the youtube
stream as well on weekend uh uh we're
happy to weigh in
well while we wait drink okay go for it
matt
matthew let's see
here go
all right here i am hello great hello hi
this is uh
matthew galt with vice motherboard um
can you give us
can you elaborate on what some of the
exceptions you'll be
you'll be seeking to carve out our like
what what is on the list this year what
are the top priorities
meredith do you wanna take that sure uh
yeah so we're asking
um so pk and i fix it together um are
asking
for an exemption that would allow for
um circumventing a tpm in order to
uh die i think it's diagnose uh
repair main diagnosis and repair and
maintenance there's like a term of art
for it um of video game consoles
specifically
um and one of the problems that we
identified
is that right now a lot of the trend
since the xbox 360 really has been to
pair
um motherboards and optical drives so
when an optical drive breaks you think
okay i'll just pop it out put in a new
one you know
which makes it sound a lot simpler than
it is even without a tpm but
um you know optical drives are
relatively simple
um you know comparatively pretty cheap
but since the xbox 360
what console manufacturers have started
doing is basically
pairing the motherboard to the optical
drive in such a way that
the motherboard won't accept any optical
drive except the exact
physical specimen that it was shipped
with initially um
and so in order to replace the optical
drive without breaking a tpm
you'd have to replace the entire
motherboard and find a motherboard that
has a paired optical drive you just have
to replace the whole kit and caboodle
um so we're asking for an exemption to
be able to
again diagnosis maintenance and repair
um for those specifically
um especially as that becomes more and
more of a trend
as we see it i think nintendo might be
the only one that hasn't actually tpm
paired any of their
components together but both sony and
microsoft do it now and in the last few
years we've also seen microsoft ceased
offering repair services for anything
prior to i think the last iteration
of xbox one
s i don't i can't keep up with the
naming scheme um but the last iteration
of the xbox one i think is still
technically under repair coverage but
they also just discontinued a whole
bunch and their policy from what we can
find
is if we're not printing them we're not
fixing them so
you really have this entire category of
of consoles where there's no
official repair option and unless you're
willing to circumvent a tpm
you know you either have to buy a new
console or you just have to sort of live
with a brick
yeah i went on microsoft's website uh
last week uh to see if i could send my
xbox one in for service and they said
they do not
service it anymore uh we we provided we
have repair guides on i fix it that by
the way are very popular during the
pandemic i fix its traffic on
all these repair uh of game consoles has
tripled like there's huge
interest in people fixing game consoles
right now everyone wants to play
uh cyberpunk on their console and
uh this is a real challenge we uh the
way that we get around is we'll sell an
optical drive and a motherboard together
paired but that's very expensive and the
only way we can get those parts is from
recyclers
and they're they're we're almost always
sold out
uh carl pass over you to talk about
eff's exemption
so you know the eff's approach
is kind of the opposite of
the past approach of looking at specific
categories of devices so apart from
the one petition i mentioned where we're
just looking for a
clarification of the smart tv exemption
our other petition is really a broad
petition
asking for an exemption for
circumvention
of software that controls any
software-enabled
device uh for for repair diagnosis or
modification
and to support that you know the
approach that we've taken
is to go through eight different
examples of different devices
and circumventions and modifications
that
consumers are doing or likely would want
to do
but the idea isn't to say you know
exempt these specific devices
which are everything from digital
cameras
uh using tremmel's magic lantern example
to uh modification of
automated litter boxes so that they
have more efficient cleaning cycles to
you know modifying kindle paper wipes so
that you can put your own screensavers
and fonts on them
so really just a wide range
of devices which is really by
design for us because we want to show
them that look we
we went through your individualized
analysis
for each of these and if you look at our
comments that we'll be
submitting later this afternoon you'll
see that the analysis
is practically identical in almost all
respects for all of these because they
all present
the same issues the fair use analysis
hinges on the same things
the statutory factors hinge on the same
things
the issue of tpms it infects
all kinds of devices and if there is
some slim category of
software-enabled devices that doesn't
have
any tpms a i don't know about it
and b i would be surprised if it stayed
that way for very long
given the trends that we're seeing among
manufacturers
so our approach is really not to carve
out
specific categories but illustrate why
we shouldn't be doing that
yeah and i think it's important you know
to to realize and remember that
we got to where we're at um in part
because technology changed and it was
hard for
the the creators of this law to
anticipate where things might go
um you know almost 20 or 30 years beyond
when it was enacted similarly it's hard
to anticipate what exemptions are going
to be needed every three years
um but you know we we do need to keep in
mind that
um we want to to try to anticipate the
needs of consumers
of um entrepreneurs of innovation um
going forward and and whenever we're
talking about restricting somebody's
rights we should try to do so
um in as narrow a way as possible and
not kind of
come up with a blanket kind of law that
restricts everybody's ability to
do something as simple as again fix you
know
your printer so that you can get cheaper
printer ink right some of the ways that
manufacturers are are enacting some of
these restrictions are
increasingly nefarious and for the end
user it's it's not really always clear
kyle was lucky in that microsoft told
him flat out that
he wouldn't be able to get his xbox
repaired it's not always clear
until you've forked out a couple hundred
dollars uh that
you can't even get service done on your
your units right and so
again we need to think more critically
about
where we want our society to go where
this law
should go and how it should be rewritten
for you know not just today's needs but
also the needs
you know decades in advance
carry your music do you have any
follow-up questions becky
okay i've unmuted you hello uh all right
so
it seems like part of this process feels
like
um weird and outdated
can can anyone kind of paint a picture
of what might be a
better process here do we just kind of
eliminate this all together
you know can we what is a what is a
better way forward
for uh the future of repairable easy
and repairable devices and copyright
i think this is a great one for cara
or i think we were in the it's like if
meredith wants to
go ahead yeah i mean there's a couple of
kind of a couple of ways you can think
about it um
you know i think the the best way
is to just not have 1201
um you know i think we can all agree
this is a pain and we'd rather not be
doing this
every three years and it just
fundamentally we have to relitigate
very basic questions of technology every
three years um at a huge frankly human
time cost um barring that
um you know there was a bill introduced
um
by senator wyden i forgot who was the
other co-sponsor on it
um basically saying look you know right
now
the way the law is structured is that it
is a crime
just to bypass a tpm or to circumvent a
tpm
regardless of what you actually do once
you're inside there that is
circumventing is in and of itself a
separate problem it's a separate
uh source of liability
um what this bill would have done is
impose what's called the nexus
requirement
which basically says it's only source of
liability if you actually infringe the
copyright
in the thing that you're accessing by
circumventing the tpms
which seems utterly reasonable and
therefore has made it very difficult
to pass um you know because it would
basically remove this whole idea of you
know attaching liability to just
cracking the tpm in order to like fix
something for example
um there's kind of a bunch of different
ways you can go with that um those are
the two that i'm most familiar with
um i know kyle you've been doing a lot
of work especially at the state level
for you know some right to repair issues
more broadly if you want to talk about
those
right this the state rights repair bills
say uh basically
give us the tools so if you if if apple
has a fancy repair tool for pairing an
iphone screen
then apple should make that tool
available that's what the state bills
say
what 1201 it allows us to do is to make
our own tool
so if if trammel wanted to design an
iphone pairing tool
we'd need we'd make sure that we would
need an exemption for that unfortunately
the way 1201
um is is written in the copyright office
has been interpreting
we cannot we cannot distribute those
tools so even if tran will built the
tool he could use it himself
to fix his iphone but he could not
distribute that tool
for anyone else to do it and that really
is a fatal flaw
in the exemption process uh as it stands
today
yeah and i you know i really feel that
the the ability to
distribute information and to share
information about how to build
these tools and how these internal
systems work
is a vital part of being able to
uh repair and modify devices that if we
can't share that knowledge
we all have to reinvent it for ourselves
and that makes us
i think much poorer as as a society
yeah from you know eff's perspective
we totally agree with meredith and
kyle that the the next best thing would
be
a nexus requirement and also you know
addressing
the different treatment of tools
and but you know as meredith said as
well
really the solution here is get rid of
1201
there it it completely turns on its head
the traditional copyright system and the
ways
that it ensures compatibility with the
first amendment
i mean when when you think about it fair
use
the point of fair use is supposed to be
to say
you can make these uses without asking
permission
from anyone and you can't
be held liable for it under copyright
law
here they're saying okay we're going to
protect copyright by
making it so that you have to ask
permission
to make non-infringing uses you have to
get permission first
and you can only ask permission every
three years
and the way the copyright office has
approached it
even if it thinks okay yes
this probably would be a fair use
if it doesn't think there's sufficient
evidence
that people are actually making
this modification or they aren't really
sure whether
something is a tpm they'll say well we
don't have enough evidence
to say that this is really needed so
you know if the small cluster
of public interest groups and
repair associations and the
have to give a shout out to the uh law
student clinics
that that help us a lot every three
years
with these petitions you know if they
didn't happen to find
an example of your type of use
well you're out of luck that's not
how the first amendment and
fair use is supposed to work uh
and it's really a just a fundamental
problem
with 1201 and this rule making process
thank you thanks so much everybody so uh
matthew do you want to ask another
follow-up question or justin or damon
do you have additional questions you'd
like to ask
damon okay great all right so we're
going to go to some questions that we've
received
from our youtube stream the first
question
we have is uh how can consumers
help what can consumers do to help um
i'm going to throw that over to you kyle
well the the first thing to do is uh is
you know get involved i would say get
involved with state rights repair
advocacy because that's the most
immediately relevant
to you uh starting in january we
anticipate there will be a wave of
states that introduce right to repair
bills so find your local legislator
and uh and um
tell them that you you know support the
right to repair you can go to your
state.repair.org so newyork.repair.org
or california.repair.org
and there's a handy form for for writing
your legislator um and then
you know another thing uh eff uh put out
a call for
you know information we're always
looking for examples of the kinds of
uh uh circumventions that people need to
be doing like we've been asking
travel like you know what are the
obstacles that you're running into in
your work
um talking with repair professionals and
and diy
fixers where do you see obstacles
because if we know what the obstacles
are then we can
then we can step up and fight to make
sure that we have those exemptions
uh for example one one thing that we uh
i think we mentioned
um or we're going to mention in the
final day today is we learned that john
deere uses the same engines and boats
that they do in tractors
and so we have an exemption currently
for fixing tractors
but this a ship using the same engine
that would not be legal to do that that
repair
uh circumvention uh for so that that's
the kind of thing that we we
you know we don't know everything we
need we need input from
from the world
we have another question uh one viewer
is asking how will this help mom and pop
shops
yeah i mean a little bit ties back to
what kyle addressed on the previous
question right and how
consumers can help this is fundamentally
a local economy small business local
jobs
issue what often happens what what kyle
has uncovered
um you know and we've uncovered recently
is that businesses
have stacks of units that because
there's some sort of drm on it that's
um proclaimed to be under you know 1201
copyright
they cannot perform the necessary fixes
to get those units up and running again
and functioning for their customers so
you have these stacks um in some cases
from floor to ceiling
of units that are perfectly good that
just need a
what is a relatively simple hardware
swap um that then can be resold or
or just plainly fixed for the consumer
and they can't do it it's essentially
relegated to to the junkyard because um
of the locks that have been put in place
right so
so at its basic level for small
businesses this is going to be um
you know supporting them in opening up
new new revenue streams right they'll be
able to perform repairs they previously
couldn't
uh additionally you'll be able to um
develop
stronger relations with your customers
right by having them come in on a more
recurring basis once you're able to fix
something
as opposed to having to give them the
negative news that sorry
your sol we can't support you because uh
microsoft or
john deere or gm or whoever put a
restriction in that means that we can't
replace this specific component
not that we technically can't just that
they've told us we can't
through this software limitation that's
kind of the
very high level broad understanding of
how it relates to small businesses
when do we expect a response from the
copyright office and do we think we'll
get the response that we want
uh so the process plays out over a
pretty prolonged period of time the
total
process is about 18 months in total um
so despite the fact that it's a three
year cycle we're really on every 18
months we're
we're sort of on and off um
after uh the filings that went in today
there's another couple of steps there
will be opposition filings then we get
rebuttals and then there will be
round tables and the short version is
that we will probably hear back sometime
next fall
um is the the target date that they are
shooting for um late summer early next
fall
um i think we're gonna get the answer we
want i think that every year
um so i i hold out hope
that you know i continue to be as
correct as possible um
but uh yeah it's usually it happens on
about an 18 month time frame so sometime
late summer early fall of 2021 we should
have
an answer
and does anyone else want to add
anything to meredith's answer
not soon enough right there's all kinds
of devices that get invented
this the problem with this three-year
process is
uh there are products that like get
introduced and go away
like uh since the previous three-year
rule making
uh these these electric scooters have
appeared all over the world
we don't have an exemption for those
because nobody thought about asking for
that three years ago
so uh this this you know tedious
permission
process every three years it's not
working for the citizenry
another question coming in from the
stream why not change the law so there
is no option to copyright anything
related to these devices
for example tractors game consoles
litter boxes phones etc
so if i'm understanding
the question correctly i think this
person is
asking you know why not uh deny
copyright protection to firmware
maybe to device firmware um
and i mean that that would certainly be
one way to go about uh
getting rid of the circumvention issue
but i think you know
kind of two two notes about that
one is that you know i i think
thinking about copyrightability and
getting you know law and or court
decisions that
narrow the scope of or not narrow the
scope but clarify the scope
of copyrightability either way uh
is is you know an important component of
this
uh listeners might be familiar with the
pending google versus oracle case in the
supreme court
uh which concerns the whether
apis are you know sufficiently
creative works to be copyrightable
uh eff filed an amicus brief
in that case you know arguing that no
these are not copyrightable and and it's
really
essential uh that they they
not be um but you know i think
i should also mention that you know even
though we're
we're focused in this conversation on
device firmware there are a lot of other
problems
with section 1201 you know the
circumvention ban
applies to other types of copyrighted
works so
this also covers like drm on ebooks
i know there is a pending
one of the petitions that's been
submitted is looking for
an exemption that would allow you to
circumvent
drm on ebooks to be able to do
uh like linguistic analysis
on on the text of those books
um so you know even even just
changing the copyrightability of
firmware wouldn't get at
all of the problems of section 1201
so the the legal fix was just repeal
1201
and then we're good yeah
and would that make beta max the uh the
law of the land again
unknown unclear i've got another
question coming in
uh is anyone concerned with the
emergence of digital lock-based business
models like the way tesla limits access
to battery capacity
yeah it's it's not just tesla doing this
if you're not familiar with tesla
they they were shipping the big battery
in cars and artificially limiting the
life down
unless you unless you pay more i think
they've done the same thing with
some other self-driving car features
that the cars have all the sensors that
they would need they just won't
uh won't turn it on for you um this
certainly is a concern
and i it certainly is an argument that
you could use
against these exemptions right because
they would say well i could undermine
their business model
this is similar to the argument that uh
the way that the
at t managed to get cell phone unlocking
criminalized in the u.s
uh only country the developed country
that i know of in our lifetimes where it
was illegal to move a cell phone from
one carrier to another and the reason
for that was that at t was selling
uh pre-paid cell phones for below cost
let's say you go to 7-eleven you could
get a cell phone for twenty dollars
it cost them more than that but they're
they figured they would they would
you know sell the um give away the
razors and
the handles and make money on the razors
kind of a model
we the copyright office and congress
this was the first time that congress
had stepped in
and and made a change to copyright law
since 1998 was to address this
cell phone unlocking problem that 1201
uh manifested
and i think that it's it's not the job
of the copyright office to
you know subsidize or or enforce a
arbitrary business model
if if a company wants to do that and
they can protect it with a digital lock
fine they shouldn't also be uh also be
protected by section 1201
and it is someone who pokes around in a
lot of device firmwares i i see
essentially market segmentation being
implemented in software
where you can buy one device like a cpap
machine
that has all the functionality to be a
bipap or a ventilator
if you just flip a few bits in the
firmware or add a few extra functions
into it
but these sell at radically different
prices likewise on the digital cameras
the features like the raw video
recording
were only available in multi thousand
dollar cameras
but the magic lantern project figured
out how to make this available
in 300 uh essentially um
disposable cameras for a lot of these um
the movie studios and these
sort of functionalities uh you know are
simple matters of software you know the
joke in in the programming world say oh
it's a it's a simple matter of
programming to implement these things
but it actually is that it the hardware
is
is largely the same between these
devices but they're sold at radically
different price points
um and you know as somebody
again who does some reverse engineering
it is nice to be able to unlock that
functionality
so that people can get better value from
the devices that they buy
but how that intersects with 1201 is you
know
definitely an important question
if you have a canon camera you need
magic lantern that's so cool
so we did get one question that that it
might have not have been completely
clear earlier in our conversation what
exactly a tpm is
so cara if you wouldn't mind explaining
for our audience
sure so a tpm uh stands for
technical technological protection
measure
and that is the digital locks
that we're talking about so in the
context
of section 1201's anti-circumvention
prohibition a tpm is
any kind of technological device
that could include like encryption
password requirements uh
other content protection bits
that restricts access to
a copyrighted work so in the case of
the device firmware we're talking about
this would be like if the
firmware is encrypted you have to
the the circumvention would be that you
have to
decrypt it or in some other way
get around that encryption to be able to
access the firmware code and be able to
analyze it
modify it tinker with it whatever it is
that you need to do
and most products these days if you're
going to design anything securely you're
going to put a lock on it
just to make it secure not necessarily
because you want to lock somebody out
but just to make it secure it's going to
have some kind of
encryption what kind of
claims have been made in opposition or
reasons why the copyright office has not
granted exemptions in the past
matt do you mind addressing that
question
uh well i mean you added the limitation
of why they haven't granted exemptions
in the past but one of my favorite
ones that i like to talk about with
mobile repair businesses
is in 2009 apple had claimed that if you
allowed for uh consumers or businesses
to
jailbreak devices that it would ruin
their phone repair phone business model
um right and you just fast forward to
where we are um
10 plus years later and that's certainly
not the case um but
they often make broad sweeping claims
about piracy um you know that was one
specific example that was
thrown out there back uh last time we
did this back
in 2017 um you know and and anybody that
has done repairs understands that that
that argument is
is just fluff it doesn't really stand up
but they they make these increasingly
um you know outlandish claims intended
to intimidate and scare
the people who would grant us these
exemptions from you know trying to react
too broadly so
um that's kind of the general claims
that i've noticed is is from a piracy
standpoint
and generally as as kyle and mentioned
you know security is another concern
um i don't know kyle do you remember
what other specific ones were
interesting last time we we met
well john deere said that if farmers
could modify the software on the tractor
that they would modify it so that they
could pirate taylor swift
music which seems crazy uh but these
tractors are running general purpose
computers they have a touch screen i
mean you could probably run bittorrent
on any general purpose computer
um yeah we've heard good sorry
no go for it um i was to say in the the
one of the common refrains that we hear
in opposition to this is well if we let
people circumvent to do x thing they
will also do
piracy while they're in there um so the
idea if we let anybody get at it for any
reason you're throwing open the doors to
piracy
um this has come up a lot especially in
like the first iteration of the
game console petition which is back in
2012.
um you know the register at the time
basically came out and said well
allowing anybody to tinker with
video game consoles is just inviting
piracy all the time
um you know which is doubly ironic in
light of the fact that the
copyright office puts in you know as
cara put it
just these ridiculously narrow
exemptions where it's you only get an
exemption
for a very specific purpose in a lot of
cases
um you know to which our response is
always well then they'd be
not within the scope of the exemption if
you're circumventing
to put in a you know a disc burner for
example on
your xbox you're not you're still
violating 1201 because you're operating
outside the scope of the exemption that
you've been giving it and also you're
probably violating a whole lot of other
laws
at the same time um you know and getting
that point across
to the copyright office that like no
copyright is not in fact the only thing
standing between
uh you know us and planes falling out of
the sky uh which is
an actual argument that was made in the
context of 3d printing
um because the uh uh
some of the 3d printing uh 3d printer
manufacturers basically came back and
said
well if you allow people to put any
feedstock they want the 3d printer
people use 3d printers to print plain
parts and you can have this whole rash
of faulty plane parts
and you'll have boeings falling out of
the sky was an actual argument that was
made
um you know which is why we ended up
with some wacky language in the 3d
printing thing about like a regulated
goods
um so it comes down to
like you know sort of more and more
patently absurd arguments about what
what are the extra consequences that are
going to happen
um very rarely do you actually get
people just opposing on the grounds of
like we actually don't think that what
you'd be doing with it is a fair use
those have kind of fallen by the wayside
and we've gotten into this corner of
having to make more and more ridiculous
uh doomsday scenarios
yeah so to meredith's point uh about
piracy right so the thing is
piracy is already illegal under another
law
that's called copyright law right so
what they're
effectively doing when they say
you know we are not going to
give us an exemption for this
non-infringing use because we're afraid
that
people will make infringing uses
if they circumvent what they're doing
is saying okay we are going to put this
legal penalty
on people who want to circumvent for
making a fair
use because other people
might already be violating might use it
to violate a different law
and we need them to have double
liability
um you know it's just kind of one of the
fundamental
incoherencies of section 1201
where you know the section 1201
doesn't make the
these digital locks stronger
in any way technically stronger harder
to circumvent
so if you have someone who is willing
to violate copyright law and
pirate copyrighted material
then it it doesn't make a lot of sense
to think that
the thing that will stop them is oh i
don't want to
also violate the dmca
anti-circumvention provision so i will
not
circumvent this digital lock even if i
can
no it's really just punishing
the people who want to make fairy uses
by accessing
copyrighted works which is not a right
that copyright law traditionally gives
to rights holders
so that that's really just one of the
fundamental issues
with section 1201 and uh
travel has pointed out you know an
another
issue with with taking that approach of
kind of throwing out the baby with the
bath bathwater
is it's it's really the exact opposite
of how the supreme court has made clear
that copyright law should be applied
in the betamax case you know say that a
a device that could be used
for infringement for piracy
you know is is totally
lawful to make and distribute if it has
a significant non-infringing use so
protection of the non-infringing uses
is supposed to take priority over
preventing infringing uses which can
still be penalized later
and that's really the exact opposite of
how 1201 operates
thank you so we just have two minutes
left i want to return to
the journalist on the call damon justin
matthew
do you guys have any questions that you
want to ask in the two minutes we have
left
or anything you want to chat about
even if it's not a question
and reminder to let me know in the chat
so i can unmute you
okay um well i want to close this out we
had some unanswered questions on our
on the youtube stream that we will try
to get to and
we'll be sharing out our filings uh
later on today
i'm also happy to schedule any follow-up
interviews or conversations with any of
our panelists just
feel free to reach out to me directly
it's kerry k-e-r-r-y
ifixit.com and i want to thank you all
for joining
panelists and journalists alike and it
was delightful
delightful conversation and and really
enjoyed having you all here
thank you great thanks for the
invitation