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DMCA anti-circumvention and the policy problem in HCI

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There a lot of reasons why you might not be able to use technology the way you want to use it. In human-computer interaction (HCI) research, for example, we think a lot about design and usability. However, another reason might be: the law says you can’t. So what do we do when aspects of interaction with technology are outside the control of both the user and the designer? This post summarizes a paper (“Lawful Users: Copyright Circumvention and Legal Constraints on Technology Use” published at CHI 2020) that examines one example of this: copyright anti-circumvention.

DRM Digital rights management (DRM) is a type of technological measure that protects copyrighted works from use, modification, or distribution. For example, DRM means you can’t back up a film from a DVD, but also (as pointed out in a 2009 Ars Technica article) “is so rage-inducing, even to ordinary, legal users of content, that it can even drive the blind to download illegal electronic Bibles.” And in the United States, the Digital Millennium Copyright Act (DMCA) criminalizes circumventing that technology protection (e.g., ripping a DVD).

The DMCA is also unique in that the law has a mechanism to change itself; every three years, the U.S. Copyright Office holds rulemaking proceedings in which they consider whether “lawful uses” of copyrighted works have been or are likely to be “adversely affected” by the ban. This process has resulted in a number of exemptions to the law, including e.g., unlocking mobile devices, jailbreaking for the purpose of running otherwise unavailable software, and allowances for computer security testing. The process has also been a way for ordinary users to have their voices heard. For the most recent DMCA exemption cycles, organizations have provided easy-to-access form letters for providing comments on proposals. As a result, the public documents associated with the proceedings include a unique, expansive dataset about ordinary technology users’ attitudes about copyright anti-circumvention rules. This CHI paper is based on a qualitative analysis of 1,100 responses to exemption proposals, with an eye towards understanding how people think they should be able to use their tech, and how the DMCA is constraining those uses.

These public comments showed patterns of arguments that largely relate to ideas of right to use, as well as values around freedom and innovation. They reveal that common mental models around what it means to “own” something break down in current technological and legal contexts. Usability problems occur when people expect certain functionality from technology and it isn’t there; this same kind of frustration can result when they can’t do what they want with the technology they own. Anti-circumvention rules can also stifle the functionality of technology, either making it less effective or inhibiting the ability to make it more effective. They might even render technology useless, as in the case of abandoned video game software. DMCA exemptions have also been necessary for accessibility; circumventing copyright is often required in order to make content accessible to screen readers, and without this practice, technology literally becomes non-functional for people with vision impairments.

Another common argument is that inhibiting certain uses around technology stifles innovation and creativity–that innovation comes from our freedom to re-purpose devices and re-use device parts or software in new ways. As one commenter put it, “It is unamerican to prevent us from tinkering.” Innovation is framed as benefiting society as a whole, and the “rights” that people should have is not just to use their technology, but to create new ones in a way that benefits everyone.

As a contribution to HCI, these findings illustrate how in some cases the problem at the core of “I want to do this and I can’t” is not one of technical functionality or interface design but one of rules and law–as well as cases where rules or law are contributing to poor functionality or interfaces. Technology designers should be aware that there are sometimes mechanisms outside their control that impact how their technology can be used.

In framing this problem for HCI, I looked to a similar problem — that of infrastructure. In a 2010 CHI paper, Edwards et al. laid out the infrastructure problem in HCI — that even the best user experience designers may have to fight an uphill battle against layers of underlying infrastructure that are typically inaccessible during a user-centered design process. Policy such as DMCA anti-circumvention rules can create a similar problem of constrained user experiences, which means that designers most often work within these constraints. Drawing from their suggestions for solutions at very levels (from surface level to deep), I suggest that the policy problem in HCI has similar potential solutions, starting with those that just work within constraints without reducing frustration (e.g., the absence of a “download” button on a user interface, even if expected) and those that acknowledge constraints and work to increase intelligibility and support end-user comprehension (emphasizing what the user can and cannot do, and ideally, why).

According to Edwards et al., deep approaches to the infrastructure problem focus on influencing those who create the infrastructures that we rely upon, in order to help them create technologies that are more usable and useful. Therefore, the deep approach to solving the policy problem is to advocate for policy change. Deep solutions are arguably both the best solutions and the hardest ones, particularly since they often go far beyond the usual skillset of interaction designers or other technologists. However, it does not require, for example, running for public office. In addition to consumer advocacy organizations like the Electronic Frontier Foundation, organizations like the Computing Community Consortium provide a collective voice to policymakers for computing researchers. In fact, HCI researchers and practitioners should think about the policy problem beyond just copyright circumvention, and should be working with advocacy groups on a breadth of policy issues that impact the ways that people interact with technology.

In sum, this paper provides both insights into usability problems that stem from anti-circumvention policies, in addition to the multi-layered ways that the HCI community might address these and other “policy problems.” With respect to the former, there are two potential implications for design: (1) In general, consider in the design process the ways that policy might influence use; and (2) In more specific cases, consider the values (as explored in these findings) that people have for their “technology rights,” and decide to design for them, or to explicitly not design for them.

However, I end with a stronger call to action: though the challenges of legal constraints on technology use can be partially addressed through thoughtful and policy-aware design, the real solutions to the policy problem in HCI require working for change beyond design. Technologists as a stakeholder group is particularly important since policymakers are not always the best equipped to understand technology. Therefore, it is often left to advocacy groups to attend to laws that may be outdated or not in the best interests of technology users. The HCI research community is uniquely well suited for determining how policy may or may not be in the best interest of user experience.

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Fiesler, Casey. Lawful Users: Copyright Circumvention and Legal Constraints on Technology Use. Proceedings of the ACM Conference on Human Factors in Computing Systems (CHI 2020).

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Casey Fiesler

Casey Fiesler

Faculty in Information Science at CU Boulder. Social computing, copyright, ethics, women in tech, fan communities, geekery. www.caseyfiesler.com

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