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Reverse Engineering: Ethical considerations of the DMCA

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Purpose

What was the purpose and intent of the DMCA?

The main intent and reason behind passing the Digital Millennium Copyright Act of 1998 (DMCA) legislation was to update intellectual property based laws to be in line with the modern, digital era of technology. The intent with these rulings appears to be to give copyright holders, primarily corporations, with a large generalized control over the usage and distribution of products they have released (be they physical or intellectual).

Legality

What is banned and restricted under the DMCA?

The main provisions of the DMCA impose the following regulations. Section 1201 imposes a ban on circumventing technological protection measures, or other access control technologies. A restriction and ban on distributing any devices designed to be able to circumvent digital protections or related access control measures. A ban on altering copy written materials in a way that would remove copyright related management information. The DMCA also includes a provision that is meant to protect Internet Service Providers (ISP)s from liability related to the actions of users breaking DMCA regulations, so long as they did not know the users were violating the rights of a copyright holder (Digital Millennium Copyright Act (DMCA) - UW Copyright Resource, 2023).

Anti–reverse engineering

Why is the DMCA considered to be an anti–reverse engineering law?

It is considered to be an anti-reverse engineering lay because the DCMA typically prohibits reverse engineers from taking actions that would allow them to bypass technological protection measures. It prohibits them from creating and sharing tools that are designed to be able to circumvent technological protection measures. In circumstances such as with jail breaking your devices so that you can install third-party applications, you can be exempt from the rulings and allowed to perform these actions, but still would not be allowed to distribute a tool that would allow others to take these actions. Another example It is counterproductive to the work that reverse engineers can perform, or that they can help others to perform. In practice, the process a reverse engineer would need to go through in order to be granted a personal exemption is absurd, and could quite literally take years to accomplish. An example I found includes the following regarding just how difficult the library of congress is making usage of approvals, “In 2015, they granted car owners permission to jailbreak their cars in order to repair them—but they didn’t give mechanics the right to jailbreak the cars they were fixing. That ruling means that you, personally, can fix your car, provided that 1) you know how to fix a car; and 2) you can personally jailbreak the manufacturer’s car firmware (in addition to abiding by the other snares in the final exemption language),” (Doctorow, 2018).

Exceptions

One of the newest exemptions added to the DMCA is to allow TPMs to be circumvented in cases where the circumvention is taking place to preserve software. This is mostly in the context of museums from my understanding. Exemptions also include the following, “certain activities of nonprofit libraries, archives, and educational institutions, lawfully authorized investigative, protective, information security, or intelligence activity of a state or the federal government, certain “reverse engineering” activities to facilitate interoperability, certain types of research into encryption technologies, certain activities to prevent the “access of minors to material on the internet”, certain activities “solely for the purpose of preventing the collection or dissemination of personally identifying information”, certain acts of “security testing” of computers and computer systems,” (Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 2018). There is also an interoperability exception which, “permits reverse engineering of technically protected software “for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs.” The information obtained thereby can only be used or disseminated to others for interoperability purposes,” (Samuelson, 2015).

Impact

What are your thoughts on the DMCA and its long-term impact on reverse engineering and the computer science field?

I am of the belief that the DMCA is an overreach into the lives of private citizens. It is far too broad sweeping and generalized to be realistic. I am of the opinion that intellect, knowledge, is to be shared and taught to others. I am not fond of the current legal definitions for “intellectual property”. I also don’t think it promotes the best interest of a healthy society to continue passing laws that favor the interests of lobbyists over the general public. Especially when those laws can then dictate what the public are allowed to do with the real property that that they have purchased, and that they “own”. I think that in both the short and long term, the DMCA greatly stifles competition, and that it has a negative impact on the ability of reverse engineers to do work by attempting to limit the ways in which they can break down and understand products. I am firmly of the belief that innovation is made by allowing individuals with the mind for it to tinker with and explore different ideas. By breaking down problems, or existing products to determine how they function, and consider what they may be lacking, reverse engineers are able to iterate on and design better products for the future. I am of the opinion, that this is just as true for software products and systems as it is for physical products. I don’t believe that exploring how software works in a non-intrusive manner, with the purpose of innovating should be prevented. I do believe it to be wrong to take someone else’s work and claim it for your own. But plagiarism is not the same as using an idea as inspiration for transformation. That is, to take something old, and to then use the knowledge that it holds in order to build something new. I do not believe that work that is transformative in nature should be regulated or made illegal. And I agree with the sentiment of the statement given by Pamela Samuelson that, “Congress should have adopted narrower anti-circumvention rules in the first place,” (Samuelson, 2015).

Sources