The anti-circumvention section of the Digital Millennium Copyright Act threatens to make archivists criminals if they try to preserve our society's artifacts for future generations.
Perhaps by now you've heard about the campaign to repeal the anti-circumvention section (1201) of the Digital Millennium Copyright Act. This most recent challenge to the DMCA arose from a recent decision by the Librarian of Congress to discontinue a three-year exemption that made cell phone unlocking legal.
Opponents of the DMCA anti-circumvention provision claim that the law threatens consumer control over the electronic devices we buy, and they're right. But the stakes are much higher than that. Our cultural history is in jeopardy. If the DMCA remains unaltered, cultural scholarship will soon be conducted only at the behest of corporations, and public libraries may disappear entirely.
That's because the DMCA attacks one of the of the fundamental pillars of human civilization: the sharing of knowledge and culture between generations. Under the DMCA, manmade mechanisms that prevent the sharing of information are backed with the force of law. And sharing is vital for the survival of information. Take that away, and you have a recipe for disaster.
The DRM Problem
In the last decade, more and more commercial cultural products have become available for purchase (or, more accurately, license) over the Internet -- works like music, movies, video games, apps, TV shows, novels, and educational texts. They arrive free of any fixed media as a stream of bits coming in through a network cable.
To protect these cultural products against unauthorized duplication and distribution, most vendors of digital goods wrap them in encrypted data formats as part of digital rights management (DRM), a form of copy protection. Most DRM systems tie the "ownership" of digital goods to a certain user account or a certain device which is then verified by a connection to a remote server on the Internet.
The DMCA makes it illegal and punishable by a $500,000 fine or up to five years in prison to circumvent copy control and access control technologies like DRM.
Common wisdom would tell you, "Don't copy things without permission, and everything will be fine." But just as DRM-based copy protection prevents unauthorized users from making copies of digital goods, it also prevents cultural institutions from making copies for archival purposes. Every encrypted cultural work is locked, and to get the key, you have to pay the content owner.
Certain big publishers and copyright aggregators will immediately point out that DRM-protected cultural works will remain available to cultural institutions because they will gladly license the rights to use them. Currently, most US libraries have agreements like this with book publishers to provide e-book access to their patrons.
But this scenario gives content holders undue powers over the of machinery of cultural scholarship and preservation. When shrouded in DRM and license agreements, a cultural work is never truly and legally in the possession of the libraries, meaning that libraries cannot properly preserve them for use by future generations.
What's worse, not all cultural works -- take, for example, iOS Apps, Steam games, and Xbox Live titles -- are available for license to cultural institutions. So they're inaccessible from legitimate scholarly study and preservation even at present, never mind 100 years from now.
The anti-circumvention provision of the DMCA was created primarily to protect DVDs; it did not anticipate our rapid shift to media-independent digital cultural works, so it is absurdly myopic when it comes to digital preservation.
To properly preserve digital works, libraries must be able to copy and media-shift them with impunity. It may sound strange, but making a DRM-free copy of a digital work is the 21st century equivalent of simply buying a copy of a paper book and putting it on a shelf. A publisher can't come along and take back that paper book, change its contents at any time, or go out of business and leave it scrambled and unreadable. But publishers can (and have done) all three with DRM-protected works.