You may remember, back in 2006, one of the DMCA "exemptions" granted by the Librarian of Congress was for jailbreaking or unlocking mobile phones, for the purpose of moving them to a different carrier. This move was most seriously fought by one company: Tracfone, which offers prepaid phones at a steep discount. Its business model only works if you can't jailbreak phones -- but copyright law was never about protecting one company's bad business model. Tracfone has even claimed that allowing such jailbreaking is a matter of national security. What they really mean is that it's a matter of protecting their business model.
Tracfone actually sued the Librarian of Congress for allowing jailbreaking but, in 2007, quietly dropped the lawsuit because it found that courts were simply ignoring the exemption. Instead, Tracfone just kept suing people for jailbreaking and many caved and settled. What was really troubling though, was that people were being put in jail for this. Now, in the first trial involving such a case, a guy (who has already spent over a year in jail for unlocking phones) has been found guilty of violating the DMCA.
This is according to a press release put out by the lawyers representing Tracfone and they sort of bury the key point: the guy pled guilty. So it's not as if a court judged the overall situation on the merits. But what's scary is that this seems to clearly go against the very exemption the Librarian of Congress made for jailbreaking phones. And we're not even talking about a civil copyright complaint here, but a criminal one... for doing something that the Librarian of Congress has already said is legal.
Well here's a surprise. The US Copyright Office finally used its obligated DMCA exemption rulemaking process to support exemptions that protect consumers. As you may recall, every few years the US Copyright Office is obligated, by law, to listen to requests for specific classes of work that should be exempted from the DMCA's anti-circumvention clause and then recommend that the Library of Congress adopt certain exemptions (if it so chooses). Usually the exemptions are extremely limited and do little to protect consumers. In fact, in the past, the EFF has argued it wasn't even worth requesting exemptions for consumer issues, saying the process was "simply too broken." This year, however, they did participate, and actually got some things through.
Included in the rulemaking were exemptions that say jailbreaking smartphones is legal, saying:
"When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses."
Separately, it approved getting around DRM on DVDs for use in non-commercial or educational video works. This is a blow to Hollywood, which in the past has tried to suggest that if educational institution want to use a fair use clip from a video, they should just set up a video camera on a tripod pointed at a TV screen playing the DVD. That said, the Copyright Office made it clear that these uses are very limited, and must be for purposes of "criticism or comment," and the maker of the new work must show that the circumvention is "necessary" to make the video work, saying "where alternatives to circumvention can be used to achieve the noninfringing
purpose, such noncircumventing alternatives should be used." That seems extremely limiting, since you can almost always claim that some sort of alternative could be used.
The EFF also notes that the Copyright Office renewed one good exemption from a previous rulemaking, while clarifying what it covered, where it noted that unlocking a mobile phone to take it to another network is not violating the DMCA.
There were some additional classes approved, including video game DRM, in certain cases, where the DRM is being broken for the sake of security testing. They also approved getting around DRM in the form of computer dongles when those dongles are considered "obsolete," defined as "no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace." This one is also basically an expansion of an earlier ruling. The final one is also more or less a repeat of earlier rulemakings, concerning allowing ebooks to be read aloud for the blind -- even though the Copyright Office recommended against it, the Librarian of Congress included it anyway.
Separately, it is notable what was requested and rejected, but we'll do a separate post on that later.
Apple has remained pretty quiet, on the whole, concerning the fact that people "jailbreak" their iPhones to allow them to run non-Apple-approved software on the devices (or to use them on other mobile carriers). However, in responding to an attempt by the EFF to get jailbreaking (and other phone unlocking efforts) declared clear of any potential copyright claims, Apple has now officially said they believe that jailbreaking the iPhone is infringing on their copyright. This is troubling for a number of reasons. It's the same sort of argument that has been used by garage door opener makers and printer makers to prevent competition and interoperability -- which has been struck down repeatedly in the courts.
As the EFF notes, if jailbreaking is determined to be copyright infringement, it opens up a whole host of problems. Automakers could, conceivably create "software" in their cars that only lets you fill up at their approved stations. Breaking that "software" to allow for "interoperability" would then be seen as infringement. Hopefully the Copyright Office sees through this claim and makes it official that jailbreaking is perfectly legal. It's almost ridiculous that we even need to have this discussion. If you buy the device, it should be yours -- to do with it what you want, including putting "unapproved" software on the device.
silverscarcat: Even Italians are calling the U.S. a police state. dennis deems: ? google search yields nothing silverscarcat: I got it on my first attempt. Should be the top result. Rikuo: Jeebus, you'd think ISPs would have learned about data caps My ISP, Digiweb, has just announced three Fibre plans, 70Mb down, 20Mb up. First two plans though have 70GB and 200GB caps respectively, which is ridiculous for such high speeds. For the high price of 80 euro/month, I can get unlimited bandwidth Thing is, I've learned to be wary, so I click on Terms and Conditions, to see what their definition of unlimited is...only to be met by an error page saying my IP address had been blocked silverscarcat: Well... That sucks. :( ... Whut? Water balloons? ... Seriously?! I think I need to get some, fill them with oil-based paint and throw them all over that school. Rikuo: huh...was finally able to read the Terms and Conditions. Nowhere is mentioned a hidden definition of unlimited Christopher Best: Now what did I miss on DoJ and Department of Edu? Don't see what article (if any) you guys are referring to... silverscarcat: Well, since you guys can't seem to find it... http://legalinsurrection.com/2013/05/the-fire-the-government-has-mandated-speech-codes-on-all-campuses/ Mike Masnick: we have an article upcoming about that, which ssc appears to be undermining by revealing to all of you. ;) Rikuo: DEATH TO THE HERETIC /sarcmarc Christopher Best: Wow, just when I thought there was no way to make college campuses more intolerant... silverscarcat: Well, Mike, I'm glad that you had it in the upcoming posts, I called my senators and rep today about it right after I read it. Jay: Wow... Some Guy created a new form of acronym for the DMCA. Automated Rights Trampling System. I think I'll use ARTS from now on. silverscarcat: Well, this is so true. Someone needs to tell their Senators that they're fulfilling what Bin Laden said in 2001. "I tell you, freedom and human rights in America are doomed. The U.S. government will lead the American people in — and the West in general — into an unbearable hell and a choking life." - Osama Bin Laden, in sole post 9/11 interview