Surprising New DMCA Exceptions: Jailbreaking Smartphones, Noncommercial Videos Somewhat Allowed

from the didn't-expect-this dept

Mon, Jul 26th 2010 1:08pm — Mike Masnick

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.

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Filed Under: circumvention, dmca, exemption, jailbreaking, videos

30 Comments

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:Lobo Santo (profile), 26 Jul 2010 @ 1:13pm

*sigh*
And yet, these are all things which should not need exemption; as there's no good reason for any of them to be illegal.

EFF is right--it's broken.
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Simon, 26 Jul 2010 @ 1:19pm

But how...?
...is it not still illegal to obtain / provide / own the tools to break the DRM?

If so, unless you can crack the DRM completely on your own, you are still a criminal.
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- Anonymous Coward, 26 Jul 2010 @ 1:34pm
  
  Re: But how...?
  Excellent point.
  
  I also find it frustrating how specific these exceptions are. The i-phone exception applies only to smart phones, even though the same logic ought to allow jail-braking of ipod touches and ipads.
  
  Furthermore, we have no guarantee that in three years, these exceptions might get yanked. How can someone make a business plan taking advantage of these exceptions knowing that there's a good chance they could go away in a few years.
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- Anonymous Coward, 27 Jul 2010 @ 3:57am
  
  Re: But how...?
  Court Says Using Software Others Modified To Circumvent DRM Doesn't Violate DMCA's Anti-Circumvention Directly
  
  http://www.techdirt.com/articles/20100725/22194810352.shtml
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Hephaestus (profile), 26 Jul 2010 @ 1:23pm

This is the one that surprised me ...
"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."

It surprised me in that it cuts into, and perhaps will ruin, the market for books on tape, as the technology of text to speech matures.
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- Anonymous Coward, 26 Jul 2010 @ 1:26pm
  
  Re: This is the one that surprised me ...
  It surprised me in that it cuts into, and perhaps will ruin, the market for books on tape, as the technology of text to speech matures.
  
  Those things(tapes) still exist?
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  - Hephaestus (profile), 27 Jul 2010 @ 6:13am
    
    Re: Re: This is the one that surprised me ...
    "Those things(tapes) still exist?"
    
    LOL ... they are still called "books on tape" even though they are CD's, mp3's, FLAC, etc today. People have been using term "Audio Books" also but that has yet to catch on.
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- imbrucy (profile), 26 Jul 2010 @ 1:45pm
  
  Re: This is the one that surprised me ...
  I'm not sure you're right about that. Even as text-to-speech gets better, it will never be able to read a book in a dramatic fashion like many books on tape do. Most humans would rather listen to another human read the book, using inflections and emphasizing words to make the book more interesting. Text-to-Speech will not be able to reproduce those type of experiences. At least not for a long time.
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  - Derek Bredensteiner (profile), 26 Jul 2010 @ 1:52pm
    
    Re: Re: This is the one that surprised me ...
    Agreed, we're barely at the stage where the text to speech understands a complete word. We've got a long ways to go before it understands a sentence and the relevant stresses and tonality for that. And an even longer way to go until it understands the subject matter and the appropriate emphases due to that.
    
    Not that every human speaker is capable of the latter, but it certainly makes for a more enjoyable listening when they do.
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    - Anonymous Coward, 26 Jul 2010 @ 2:47pm
      
      Re: Re: Re: This is the one that surprised me ...
      But at least you won't get hauled in for infringing if you are sight-impaired and with no other recourse than text to speech.
      
      Same w/the phones - Apple wanted serious penalties for jailbreaking iPhones for infringment, and that just went out the window. Jailbreaking will void the warranty, but they can't sue you for doing so.
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      - Anonymous Coward, 26 Jul 2010 @ 2:50pm
        
        Re: Re: Re: Re: This is the one that surprised me ...
        ...er, penalties for infringment, that is. Prepositional phrase placement FTL.
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  - Anonymous Coward, 26 Jul 2010 @ 4:03pm
    
    Re: Re: This is the one that surprised me ...
    You be wrong.
    
    If people can do it, that is proof enough there is a way to do it.
    
    Is just engineers don't understand how it happens and so are unable to devise a device for that purpose at the moment.
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  - Hephaestus (profile), 27 Jul 2010 @ 6:07am
    
    Re: Re: This is the one that surprised me ...
    "it will never be able to read a book in a dramatic fashion like many books on tape do."
    
    Actually the inflections are the last thing that text to speech actually need. If inflections are encoded into the book as a tag you can get by the this. Do I think that they will be able to do this without actually tagging the text, not in the near term, long term however yes.
    [ link to this | view in chronology ]
    - Shawn (profile), 27 Jul 2010 @ 6:57am
      
      Re: Re: Re: This is the one that surprised me ...
      Which would be different than text to speech. If a publisher wants to change their actor read audio book business to a mechanically read audio book by marking up the text so the machine sounds more human that is fine, but that still goes beyond what the Library of Congress just allowed here.
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- Anonymous Coward, 26 Jul 2010 @ 1:47pm
  
  Re: This is the one that surprised me ...
  The technology would need to make massive leaps to replace a human voice that is actually voice acting. I have yet to listen to a book on tape that was read in a monotone voice with no voice acting or emotion whatsoever which is the best that text to speech is barely able to achieve at the moment.
  [ link to this | view in chronology ]
- chris (profile), 26 Jul 2010 @ 1:57pm
  
  Re: This is the one that surprised me ...
  It surprised me in that it cuts into, and perhaps will ruin, the market for books on tape, as the technology of text to speech matures.
  
  listen to something read by jim dale. that market is perfectly safe.
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- Elie (profile), 26 Jul 2010 @ 2:35pm
  
  Re: This is the one that surprised me ...
  A valid point, the software to do text to speech is a lot better than it used to be (my Kindle does a better job than my old Mac LC running OS 6, for example), but as an avid listener of audiobooks, the acting a professional reader gives in the audiobooks far outweighs what a computer can do. You can hear the difference. I don't think inflection will be mastered by software anytime in our near future. At least, not for the purposes of reading our audiobooks.
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Bob, 26 Jul 2010 @ 1:31pm

Jail breaking iPhones ok'd
Steve Jobs probably has a death grip on his iPhone as he calls his team of lawyers...oh wait...never mind.
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- Jeremy7600 (profile), 26 Jul 2010 @ 2:41pm
  
  Re: Jail breaking iPhones ok'd
  If he did he might "hold it wrong". He would have to send himself a berating email to "hold it differently", and after 23 days, hold a press conference and try to take down all the other phone manufacturers at the same time as he does himself. (Apples forums would have to be scrubbed of all mentions of this happening, etc etc etc)
  
  Oh wait, that sorta already happened!
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RadialSkid, 26 Jul 2010 @ 2:37pm

Huh huh...you said "dongles."
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Anonymous Coward, 26 Jul 2010 @ 2:54pm

The video game DRM exemption is still a bit vague for me. I've got a game that uses Securom, but to protect my computer from the problems it was confirmed to cause (confirmed by Sony DADC who made the thing), I use a cracked .exe file to play the game, which I purchased prior to knowing about Securom issues (but which soon raised their ugly heads).

Am I in violation or not?
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Anonymous Coward, 26 Jul 2010 @ 4:03pm

Expect a plethora of paid politicians to condemn these exemptions.
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Valkor, 26 Jul 2010 @ 4:07pm

Star Wars episode III review?
Hopefully this will encourage that lunatic at Red Letter Media on Youtube to start work on his review of Star Wars episode III. Too soon won't be soon enough, if you ask me.
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- Eugene (profile), 26 Jul 2010 @ 5:20pm
  
  Re: Star Wars episode III review?
  See, now there's a man who's educating people if ever I saw one
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AJ, 27 Jul 2010 @ 6:27am

Still don't know....
I still can't figure out if ripping my DVD's to my media center, and using an extender to watch them on any of my tv's is infringing or not. I own all the DVD's I've ripped, and I am not sharing them, but i still can't help but wonder if I've broken the law in some way....
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btr1701 (profile), 27 Jul 2010 @ 7:33am

Terrified
I feel scared and vulnerable without my walled garden.

Someone make it stop!
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Rekrul, 27 Jul 2010 @ 9:04am

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."

How about when the DRM needs to be broken just to get the game to play on a modern system, and the company is no longer interested in helping you, or the developers have gone out of business?
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Mlschafer, 28 Jul 2010 @ 6:36pm

Another Victory for Consumers
The last few months have been one giant headache for cell phone manufacturers and service providers and one giant victory for consumers. On June 15, San Francisco passed a city ordinance requiring all cell phone retailers to display in the store the rate (SAR) at which their phones’ radiation is absorbed into the body. A month later, the Federal Communications Commission and the Wireless Assocation, a coalitition of service providers, began a blog war over the FCC’s May “bill shock” research. Finally, Monday marked an equally unpleasant rule making decision by the Library of Congress, which enables cell phone users to “unlock” their phones for use on other networks.

While it is unclear exactly how the situation in San Francisco will resolve it itself in the future, whether the bill shock issue will be readdressed by the CTIA, or the future scope of the Copyright Office’s final rule, one thing is clear. Consumers are ending up on the winning side of these decisions, and judging from industry press releases, it is not happy about it.

Read More: http://bit.ly/cxAsnW
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lrobbo (profile), 29 May 2012 @ 4:05pm

A genuine victory for consumers, who would ever have thought it!
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fodder99 (profile), 30 Jun 2012 @ 10:05am

Its good to see the small guy win now and again.
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