We've always had our concerns about the ridiculous DMCA "exemptions" process concerning circumvention of digital locks. If you don't know, the DMCA has a strict anti-circumvention rule that says breaking digital locks, such as DRM, is itself a violation of copyright law, even if the purpose of the lock-breaking does not infringe on anyone's copyright. As a sort of "pressure valve" every three years, people can "apply" to the Librarian of Congress for exemptions to that rule. This, of course, is completely ridiculous and backwards. We need to apply, once every three years, to use legally purchased products the way we want to without it being considered illegal? That's crazy. But it's the way things are set up, and it can lead to some bizarre scenarios. As we explained last year when the latest round of exemptions was announced, the Librarian of Congress took awaythe exemption for unlocking your phone... but provided a 90 day window.
That window ends on Sunday. In other words, unlocking your phone on Saturday: legal. Unlocking your phone on Sunday: you probably just broke the law. As the EFF properly notes, this is not what copyright law is supposed to be about:
"Arguably, locking phone users into one carrier is not at all what the DMCA was meant to do. It's up to the courts to decide."
I don't even think there's anything "arguable" about it. Copyright law has no business being involved in deciding whether or not my phone can be unlocked. It's silly that this is an issue. It's silly that there needed to be an exemption in the first place. And it's silly that this exemption is being taken away. It's for things like this that people lose respect for copyright law.
Anti-circumvention laws, which ban the tools used to do things like copy DVDs and jailbreak devices, make no sense. There are plenty of legitimate uses for these tools, so regulating them inevitably squashes legal activity alongside the infringing activity such regulation is supposed to target. Under the DMCA in the America, this problem is ostensibly addressed by the fact that the Librarian of Congress can exempt certain tools and activities from the anti-circumvention provision every three years—but this solution mostly serves to create bizarre double standards, such as the fact that it's perfectly legal to jailbreak an iPhone, but not an iPod. Meanwhile, Canada is on track to create similar restrictions with the impending passage of Bill C-11.
Proponents of these laws (read: the copyright industries) tend to brush off all concerns about legal activity. In their mind, there's only one reason to circumvent copy protections: piracy. Mario Dabek, editor-in-chief of the jailbreaking website Jailbreak Matrix, just released a video that nicely counters this narrow-minded concept by showcasing 100 reasons to jailbreak an iPhone. The video lists a huge variety of tweaks and customizations, both functional and aesthetic, that have nothing to do with copyright infringement and are only possible with a jailbroken phone (with the apparent cumulative effect of making a girl's tank top disappear).
While jailbreaking iPhones and other cellphones is legal in the U.S. thanks to the exemption process, it's easy to see how the same or similar tweaks should be permitted on virtually any device (especially the near-identical iPod touch, for which making any of these changes is still illegal). While there are a couple of ideas featured that flirt with infringement (using the Nintendo emulator would only be legal if you are playing games you own as cartridges) the vast majority of them are things you have should every right to do on a device that you purchased. Jailbreaking is not about piracy—it's about important rights of ownership, property and fair use that are all being curtailed by anti-circumvention laws.
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.
The EFF is trying to get a DMCA exemption from the Library of Congress for people who jailbreak their iPhones (if history is any indication, this won't happen -- the Library of Congress never seems to care about consumer rights). However, Apple's response to the Library of Congress, suggesting that open or jailbroken iPhones could be used by terrorists to bring down cell towers is both preposterous and totally unrelated to the issue at hand. First it's preposterous, as there are plenty of "open" devices out there already, and there has yet to be a single report of anyone taking down a cell tower with their mobile phone.
But, much more to the point: the point of copyright is not to protect us from terrorists taking down cell towers. If we, as a country, are relying on the DMCA to protect us from terrorists who don't want us making phone calls, we've got bigger problems. Even if it were true that terrorists could take down cell towers with an open mobile phone, does anyone actually think they'd shy away from doing so because it violated the DMCA? It's not like that's going to make much of a difference at all. It's entirely meaningless to the question of whether or not legal buyers of a mobile device should have the right to place whatever legal software they want on the device.
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.