Rapid7, Bugcrowd, and HackerOne file pro-researcher comments on DMCA Sec. 1201

Last updated at Tue, 25 Apr 2023 20:47:09 GMT

On Mar. 3rd, Rapid7, Bugcrowd, and HackerOne submitted joint comments to the Copyright Office urging them to provide additional protections for security researchers. The Copyright Office requested public input as part of a study on Section 1201 of the Digital Millennium Copyright Act (DMCA). Our comments to the Copyright Office focused on reforming Sec. 1201 to enable security research and protect researchers.

Our comments are available here.

Background

Sec. 1201 of the DMCA prohibits circumventing technological protection measures (TPMs) to access copyrighted works, including software, without permission of the owner. That hinders a lot of security research, tinkering, and independent repair. Violations of Sec. 1201 can carry potentially stiff criminal and civil penalties. To temper this broad legal restraint on unlocking copyrighted works, Congress built in two types of exemptions to Sec. 1201: permanent exemptions for specific activities, and temporary exemptions that the Copyright Office can grant every three years. These temporary exemptions automatically expire at the end of the three-year window, and advocates for them must reapply every time the exemption window opens.

Sec. 1201 includes a permanent exception to the prohibition on circumventing TPMs for security testing, but the exception is quite limited – in part because researchers are still required to get prior permission from the software owner, as we describe in more detail below. Because the permanent exemption is limited, many researchers, organizations, and companies (including Rapid7) urged the Copyright Office to use its power to grant a temporary three-year exemption for security testing that would not require researchers to get prior permission. The Copyright office did so in Oct. 2015, granting an exemption to Sec. 1201 for good faith security research that circumvents TPMs without permission. However, this exemption will expire at the end of the the three year exemption window,  after which security researchers will have to start from zero in re-applying for another temporary exemption.

The Copyright Office then announced a public study of Sec. 1201 in Dec. 2015. The Copyright Office undertook this public study, as the Office put it, to assess the operation of Sec. 1201, including the permanent exemptions and the 3-year rulemaking process. This study comes at a time that House Judiciary Committee Chairman Goodlatte is reviewing copyright law with an eye towards possible updates, so the Copyright Office's study may help inform that effort. Rapid7 supports the goal of protecting copyrighted works, but hopes to see legal reforms that reduce the overbreadth of copyright law so that it no longer unnecessarily restrains security research on software.

Overview of Comments

For its study, the Copyright Office asked a series of questions on Sec. 1201 and invited the public to submit answers. Below are some of the questions, and the responses we provided in our comments.

"Please provide any insights or observations regarding the role and effectiveness of the prohibition on circumvention of technological measures in section 1201(a)."

Our comments to the Copyright Office emphasized that Sec. 1201 adversely affects security research by forbidding researchers from unlocking TPMs to analyze software for vulnerabilities. We argued that good faith researchers do not seek to infringe copyright, but rather to evaluate and test software for flaws that could cause harm to individuals and businesses. The risk of harm resulting from exploitation of software vulnerabilities can be quite serious, as Rapid7 Senior Security Consultant Jay Radcliffe described in 2015 comments to the Copyright Office. Society would benefit – and copyright interests would not be weakened – by raising awareness and urging correction of such software vulnerabilities.

"How should section 1201 accommodate interests that are outside of core copyright concerns[?]"

Our comments responded that the Copyright Office should consider non-copyright interests only for scaling back restrictions under Sec. 1201 – for example, the Copyright Office should weigh the chilling effect Sec. 1201 has on security research in determining whether to grant an exemption for research to Sec. 1201. However, we argued that the Copyright Office should not consider non-copyright interests in denying an exemption, because copyright law is not the appropriate means of advancing non-copyright interests at the expense of activity that does not infringe copyright, like security research.

Should section 1201 be adjusted to provide for presumptive renewal of previously granted exemptions—for example, when there is no meaningful opposition to renewal—or otherwise be modified to streamline the process of continuing an existing exemption?

Our comments supported this commonsense concept. Currently, the three-year exemptions expire and must be re-applied for, which is a complex and resource-intensive process. We argued that a presumption of renewal should not hinge on a lack of "meaningful opposition," since the opposition to the 2015 security researcher exemption is unlikely to abate – though that opposition is largely based on concerns wholly distinct from copyright, like vehicular safety. Our comments also suggested that any presumption of renewal of exceptions to Sec. 1201 should be overcome only by a strong standard, such as a material change in circumstances.

Please assess whether the existing categories of permanent exemptions are necessary, relevant, and/or sufficient. How do the permanent exemptions affect the current state of reverse engineering, encryption research, and security testing?

Our comments said that Sec. 1201(j)'s permanent exemption for security testing was not adequate for several reasons. The security testing exemption requires the testing to be performed for the sole purpose of benefiting the owner or operator of the computer system – meaning research taken for the benefit of software users or the public at large may not qualify. The security testing exemption also requires researchers to obtain authorization of owners or operators of computers prior to circumventing software TPMs – so the owners and operators can dictate the circumstances of any research that takes place, which may chill truly independent research. Finally, the security testing exemption only applies if the research violates no other laws – yet research can implicate many laws with legal uncertainty in different jurisdictions. These and other problems with Sec. 1201's permanent exemptions should give impetus for improvements – such as removing the requirements1) that the researcher must obtain authorization before circumventing TPMs, 2) that the security testing must be performed solely for the benefit of the computer owner, and 3) that the research not violate any other laws.

We sincerely appreciate the Copyright Office conducting this public study of Sec. 1201 and providing the opportunity to submit comments. Rapid7 submitted comments with HackerOne and Bugcrowd to demonstrate unity on the importance of reforming Sec. 1201 to enable good faith security research. Although the public comment period for this study is now closed, potential next steps include a second set of comments in response to any of the 60 organizations and individuals that provided input to the Copyright Office's study, as well as potential legislation or other Congressional action on Sec. 1201. For each next step, we will aim to work with our industry colleagues and other stakeholders to propose reforms that can protect both copyright and independent security research.