DMCA Exemptions Announced; Exemption For DVD Ripping Rejected; Phone Unlocking Going Away

from the ridiculous dept

It's that time again, when the Librarian of Congress and the Register of Copyright announce their triennial "rulemaking" on DMCA exemptions for the anti-circumvention clause. Just the fact that they have to do this every three years should show how ridiculous the anti-circumvention clause of the DMCA is. Basically, it's so screwed up that, every three years, the Librarian of Congress gets to randomly decide when the law can be ignored. Maybe... instead of doing that, you fix the law? There are some interesting exemptions, though they're limited. For example, people making "noncommercial" remix videos can apparently use clips from DVDs with specific limitations.

Motion pictures, as defined in 17 U.S.C. § 101, on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System, where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary because reasonably available alternatives, such as noncircumventing methods or using screen capture software as provided for in alternative exemptions, are not able to produce the level of high-quality content required to achieve the desired criticism or comment on such motion pictures, and where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) in noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia ebooks offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and kindergarten through twelfth grade educators. For purposes of this exemption, "noncommercial videos" includes videos created pursuant to a paid commission, provided that the commissioning entity's use is noncommercial.

In explaining this, they specifically call out the examples of remix videos as to why this should be allowed:

Creators of noncommercial videos provided the most extensive record to support the need for higher-quality source material. Based on the video evidence presented, the Register is able to conclude that diminished quality likely would impair the criticism and comment contained in noncommercial videos. For example, the Register is able to perceive that Buffy vs Edward and other noncommercial videos would suffer significantly because of blurring and the loss of detail in characters' expression and sense of depth.

Of course, it's not all good news. Public Knowledge had put forth a request for an exemption for being able to rip legally purchased DVDs for the sake of watching them on a computer or tablet. This is something that a ton of people already do, but which technically violates the anti-circumvention part of the DMCA. Unfortunately, this request was rejected -- even though it's already acknowledged as legal to do the same thing with CDs -- and, as PK's Michael Weinberg points out, even movie studio bosses seem to recognize that it should be legal to rip your own movies:

And the RIAA and the MPAA agree with you. In 2005, their lawyer (now the Solicitor General of the United States) assured the Supreme Court that "The record companies, my clients, have said, for some time now, and it's been on their Website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod."

Movie executives agree as well. Mitch Singer, the Chief Technology Officer of Sony Pictures Entertainment explained to author Robert Levine that the idea for the movie industry's UltraViolet program evolved out of Singer's own frustration with transferring movies between PCs in his home.

So do members of Congress. Earlier this year, Representative Darrell Issa did a IAmA on Reddit. Rep. Issa told Redditors that it was already perfectly legal to make personal copies of DVDs for their own use.

So what is the reasoning for the rejection? Well, they argue that space shifting might not be legal after all, despite all of the above. They claim that key cases involving the VCR and the mp3 player -- both of which were found to be legal -- do not "provide the legal basis for a broad declaration that space shifting of audiovisual works is a noninfringing use." Think about that for a second.

Also troubling: phone unlocking -- which was an exemption for the past few rounds -- will no longer be an exemption:

In 2006 and 2010, the Librarian of Congress had permitted users to unlock their phones to take them to a new carrier. Now that's coming to an end. While the new rules do contain a provision allowing phone unlocking, it comes with a crippling caveat: the phone must have been "originally acquired from the operator of a wireless telecommunications network or retailer no later than ninety days after the effective date of this exemption." In other words, phones you already have, as well as those purchased between now and next January, can be unlocked. But phones purchased after January 2013 can only be unlocked with the carrier's permission.

And politicians wonder why no one respects copyright any more.

Filed Under: anticircumvention, copyright, dmca, dvds, exemptions, fair use, movies, ripping

Only Hollywood Would Think That This 'Disc To Digital' Program Makes Sense

from the wow dept

Michael Weinberg, over at Public Knowledge, has an absolutely brutal takedown of Warner Bros. new "disc-to-digital" program, which lets you bring DVDs you already own into a store, who will then "handle the digital conversion" and give you back a digital file. Of course, Public Knowledge has been petitioning the Librarian of Congress for a rather simple exception to the DMCA's anti-circumvention provision that would let people rip their DVDs to digital files. And while the text of Weinberg's writeup is worth reading, it's summarized so nicely in this graphic, that we'll just post that instead: If you want to go through the text version of the takedown, head on over...

Filed Under: disc to digital, dmca, dvds, exemptions, ripping
Companies: warner bros.

MPAA: Ripping DVDs Shouldn't Be Allowed Because It Takes Away Our Ability To Charge You Multiple Times For The Same Content

from the um,-wow dept

It's that time again when the Librarian of Congress is considering special exemptions to the DMCA's anti-cicrumvention provisions. One of the key proposals, which we discussed earlier, was Public Knowledge's request to allow people to rip DVDs for personal use -- just as we are all currently able to rip CDs for personal use (such as for moving music to a portable device). The MPAA (along with the RIAA and others) have responded to the exemption requests (pdf) with all sorts of crazy claims, but let's focus in on the DVD ripping question, because it's there that the insanity of Hollywood logic becomes clear.

Effectively, the MPAA is arguing that there is no evidence that ripping a DVD itself is legal, and since anti-circumvention exemptions are only supposed to be for legal purposes, this exemption should not apply. Leaving aside the sheer ridiculousness of the fact that we need to apply for exemptions to make legal acts legal (I know, I know...), this is quite a statement by the MPAA. While it's true that there hasn't been an official ruling on the legality of ripping a DVD, the fact that CD ripping is considered legal seems to suggest that movie ripping is comparable.

But the bigger point is that the MPAA is arguing that because they offer limited, expensive and annoying ways for you to watch movies elsewhere, you shouldn't have the right to place shift on your own:

Copyright owners include with many DVD and Blu- Ray disc purchases digital copies of motion pictures that may be reproduced to mobile devices and computers pursuant to licenses. Blu-Ray disc purchasers can also take advantage of "Managed Copy" services that are scheduled to launch in the U.S. later this year. Movie distributors and technology companies are also making available services such as UltraViolet, which enables consumers to access motion pictures on a variety of devices through streaming and downloading. Many movies and television shows are also available online through services such as Comcast Xfinity, Hulu and Netflix, or websites operated by broadcasters or cable channels, which consumers can enjoy from any U.S. location with internet access. With all of these marketplace solutions to the alleged problem PK points to, it is unlikely that the presence of CSS on DVDs is going to have a substantial adverse impact on the ability of consumers to space shift in the coming three years.

Notice that almost all of these "market solutions" mean you have to pay multiple times for the same content -- and they ignore the fact that these offerings are all very limited and may not have the content on the DVDs people have. Public Knowledge has a quick summary of how these "solutions" are not solutions at all:

The MPAA had two specific suggestions. First, consumers could re-purchase access to a subscription service such as Netflix of Hulu. They did not dwell on the fact that 1) this would require you to pay again to access a movie you already own; 2) these services require a high speed internet connection in order to work; 3) There is a reasonable chance that the movie you own is not available on any of those services at any given time; and 4) MPAA member studios regularly pull videos that were once available on those services off of those same services.

The MPAA’s second suggestion was even less helpful. In their comments, they pointed to Warner Brothers’ DVD2Blu program. This program allows people to use their existing DVDs as a coupon towards the purchase of a handful of Warner Blu-Ray disks. They did not dwell on the fact that 1) this program is limited to Warner Brothers films; 2) the program is limited to 25 exchanges per household; 3) while some Blu-Ray disks include digital copies that can be moved to other devices, it is unclear how many of the disks in the DVD2Blu program include that option; 4) only 100 movies are included in the entire program; and 5) each exchange costs at least $4.95 plus shipping (which, for the record, is about as much as it would cost to buy the digital file from Amazon.).

When you think about it, this is really quite crazy. They're saying because they offer you an option to pay for a way too expensive, very limited option that might not really exist, you shouldn't have the right to rip your DVDs. This would be like the recording industry claiming you can no longer rip CDs because they offer a limited locked down selection of music in an online store. People would revolt at such a claim, and they should find the MPAA's ridiculous claims here equally as revolting.

If the MPAA stopped there, it would be crazy enough... but no, in the mind of Hollywood, they have to take it even further. They claim that because the ability to rip your DVD might take away their ability to keep charging you for the same content over and over again, that it goes against the purpose of copyright law. Seriously. They're actually claiming that their ridiculous "windows" are "new business models" that copyright law is designed to encourage:

In fact, granting PK’s proposed exemption would be directly counter to the purpose of this rulemaking. It would undermine emerging business models that increase access to creative works in precisely the manner Congress intended the DMCA to promote.

But that's pure bullcrap. The business models in question do not "increase access." They increase the ways in which you can pay. If they want to increase access, they would let you rip your damn movie.

It is clear that access controls have increased consumers’ options with respect to motion pictures in digital formats. The Register should not interfere with that progress. Instead, she should endorse it.

Up is down, black is white, day is night. Controls have increased consumer options? No freaking way. Controls have limited options... but have allowed the MPAA studios to set up tollbooths and charge people multiple times for content they legally had purchased the rights to.

Filed Under: circumvention, css, dmca, dvds, exemptions, fair use, ripping
Companies: mpaa

Channeling That Anti-SOPA Energy Into Getting Important DMCA Exemptions

from the sign-up-now dept

We've talked a bunch of times about the (somewhat ridiculous) process by which the public gets a shot, once every three years, to beg the US Copyright Office to throw the public a bone and grant "exemptions" to the ridiculous DMCA anti-circumvention clause. This process is completely backwards. The anti-circumvention clause is a disaster that should be dumped completely. It goes against the basic principles of fair use and leads to all sorts of ridiculous situations. The fact that the public needs to beg for fair use rights seems pretty crazy. Either way, it's that time again, and the EFF looks to be taking some of that fervent anti-SOPA (and now, anti-ACTA) energy and channeling some of it into convincing the Copyright Office to take these exemptions seriously. They've set up two sites:

• Jailbreaking Is Not A Crime
• Rip. Mix. Make.

Each site lets you sign on to an open letter to the head of the US Copyright Office, and hopefully, finally get the Copyright Office to recognize that there are other constituents beyond the legacy entertainment industry players.... It's sad and ridiculous that the public has to beg for its own fair use rights every few years, but if it must happen, we might as well channel some of that interest and excitement into the system under which we live today. The more impact that can be made there... the more likely it is that a proactive effort in the future will actually make a difference.

Filed Under: copyright, dmca, exemptions
Companies: eff, public citizen

Copyright Office Once Again Preparing To Throw Citizens A Fair Use Bone

from the please-sir,-may-I-have-some-rights dept

A few weeks ago, I was talking with one of my friends about copyright law and just what is legal for us and consumers to do with the movies, games, music and software we own. In that conversation, the topic of copying a movie from a DVD to her computer for use on her family's computers and tablets came up. I had the pleasure, or more accurately the displeasure, of trying to explain the nuances of copyright law and why making a copy of a DVD may not be legal. While it is generally accepted that copying a CD for home use is considered a fair use, the ability to do the same with a DVD has not been legally tested. For the most part, it remains illegal because the DMCA's anti-circumvention clause makes bypassing DRM, whether that DRM is effective or not, illegal. With the DMCA in place, it doesn't matter is you are copying that DVD for personal use, it is still illegal.

In response to public concerns over this portion of the DMCA, Congress added a process to the DMCA that allows citizens to petition the Copyright Office to seek an exemption. Every three years the Library of Congress and the Copyright Office team up to request, review and grant exemptions to the DMCA's anti-circumvention clause. Every three years, the American citizens get the chance to beg the government to re-grant rights they should have if it had not been for that clause in the DMCA. Every three years the Copyright Office gets to tell American citizens just what rights they are allowed to exercise and which they can't. We have already expressed why we think this process is completely bogus. So this year isn't really any different. But it is important to take a look at just what exemptions are being requested this year.

One of the most active consumer groups in this process is the EFF. They have requested exemptions all but one year in the process. The year it didn't submit a request was spent in protest over the insanity of the process. However, it has since won some important exemptions, specifically the right to jailbreak a legally purchased iPhone. This year, the EFF has decided to take it up a notch and request an exemption to jailbreak not only the iPhone, but also other smartphones, tablet computers and game consoles. It also seeks to have exemptions made for the breaking of DVD's CSS encryption for the purpose of extracting clips to be used in non-commercial videos.

Following suit on the idea of bypassing CSS encryption, we have both Public Knowledge requesting an exemption for space shifting of DVDs for home use and the Association of Research Libraries requesting an exemption for educational use of copied DVDs. Three requests for bypassing CSS encryption. Perhaps there is something there. The ability to bypass CSS encryption and copy DVDs to computers has existed for pretty much the entire life of DVDs, yet it is still illegal to do so.

Now remember, just because these requests are being made, it does not mean we are guaranteed to get these exceptions. Companies interested in blocking these requests can still add their own submissions in response. We can certainly expect the MPAA to object to any kind of exemption for bypassing CSS encryption that doesn't involve a video camera recording the TV. We can also expect objections from Sony and Nintendo who both hate the idea of people jailbreaking their consoles even for fair uses.

Regardless of what happens in the next few months (or two years if the last process was anything to go by), US citizens will be thrown a bone and given the semblance of fair use rights again, at least for the following three years when this whole process starts over. That is the biggest problem with this whole process. If something is worth making a temporary exemption, is it not also worth making that exemption permanent?

Filed Under: copyright, css, dmca, exemptions, fair use, movies

DMCA Exemption Process Highlights The Folly Of The DMCA

from the issuing-a-takedown-for-the-dmca-itself dept

Last week, of course, we paid a fair bit of attention to the latest round of DMCA exemptions, which come along every three years. It was surprising that the Copyright Office and the Library of Congress seem to keep moving the bar (slowly, slowly) towards a more consumer friendly approach, as compared to the early exemptions which never helped consumers at all. Still, the exemption requests that got rejected show how arbitrary the process appears at times.

A lot of folks have written up some pretty thoughtful analysis of the exemptions and the exemption process, and I wanted to highlight three of them here. The first two are similar. Peter Jaszi wrote a very detailed piece (and it's only part one!) highlighting some of the subtext of the exemptions this time around, including a subtle, but extremely important point, that the Copyright Office and the Librarian of Congress may be moving away from the problematic "four factors" fair use analysis (with the most emphasis on the fourth factor, "market impact") towards one where the key factor is whether or not a work is "transformative."

What are the most important take-aways from this passage? In my mind, there are three: First, the Copyright has subscribed fully to the proposition that in today's dominant jurisprudential approach to fair use, "transformativeness" rules. The four statutory factors remain important, of course, but the inquiry into whether and how borrowed material has been repurposed by the user tends to inflect, if not to determine, the analysis of each. And that's true across the board -- even with respect to the famed and feared factor four (market effect), where transformativeness can trump even a showing of lost licensing revenue. This enlightened understand of fair use helps not only to explain why the Recommendation came out as it did this time, but contains a strong suggestion about the kind of reasoning we can expect in future rulemakings.

This is actually a pretty big deal, as many of us have long believed that a transformative use should be a clear cut case of fair use, since it is a new creation (what copyright law is supposed to encourage). The second piece I wanted to highlight is by Larry Downes, which discusses the exact same part of the rulemaking, and how it ever so slightly moves the fair use needle, by noting that the fourth factor (the market impact) should be narrowly focused on the market for the specific work copied, not a larger product. That is, the reason the Copyright Office found jailbreaking a smartphone to be fair use was because it said the copying was only of the firmware, and the proper "market" to measure was not the overall iPhone market, but the market for the firmware alone. And, in that market, jailbreaking does not harm the market for the iPhone's firmware.

In granting the exemption, the Copyright Office rejected Apple's claim that jailbreaking harmed the market for the iPhone. The fair use analysis, the Register said, focuses on the market for the protected work, which in this case is the iPhone's firmware. Since the modifications needed to jailbreak the firmware don't harm the market for the firmware itself, the infringing use is fair and legally excused. It doesn't matter, in other words, that jailbreaking has a potentially big commercial impact on the iPhone service.

That distinction is the notable feature of this decision in terms of copyright law. Courts, and now the Copyright Office, are well aware that technology companies try to leverage the monopoly rights granted by copyright to create legal monopolies on uses of their products or services. In essence, they build technical controls into the copyrighted work that limits who and how the product or service can be used, than claim their intentional incompatibilities are protected by law.

While somewhat different in approach, it feels like Downes and Jaszi are each seeing the same basic thing -- the Copyright Office and the Librarian of Congress (along with a series of recent court rulings) have realized that the pure four factor test hasn't always been useful or applied properly. This does move the needle ever so slightly in a much better direction.

And, for that, we should be happy.

That said, it is worth noting that both of Jaszi and Downes' write-ups have to pick out these details through the legal minutiae. Taking a big step back to look at the forest, rather than counting the rings on a single downed tree, is Tom Lee, who wrote up an excellent analysis for The American Prospect, pointing out that the very fact that we have this slow and unwieldy exemption rule-making process should actually demonstrate the massive problems of the DMCA itself. Specifically, we should all be quite troubled that the government effectively gets to weigh in every three years on how you can use electronic equipment that you purchased:

It might seem strange for the government to attempt to regulate consumers' use of their electronics, then turn a blind eye toward violations. For that matter, the exemptions themselves might seem a bit arbitrary. Isn't it a little silly to permit jailbreaking an iPhone but not an iPod? Might any of the 25 other suggested exemptions have had merit? Doesn't this all reek of selective enforcement (albeit executed at a glacial pace)? And isn't it a bit ridiculous to rely on the librarian of Congress to mediate the tensions between rights holders, device manufacturers, and the IP-buying public?

The answer to all of these questions is yes. But it's worse than that. Proscribing circumvention technologies is a bad idea. This is true even if we immediately carve out reprieves from that restriction, and regardless of whether those reprieves are narrow in principle or wide in practice.

It's true that asking people not to violate copyright doesn't work very well, so it's understandable that rights holders invented DRM. But DRM doesn't work very well, either. Now we've invented a law to force people to pretend that DRM works. That law doesn't work, either, of course -- and it couldn't. The exemptions are a recognition of the fact that if the DMCA functioned perfectly, it would be intolerable. DRM is a lock that can be opened by software, and software is little more than an idea -- certainly the circumvention techniques, the substance of that software, are nothing more than ideas.

While there is the general progression (at a snail's pace) of smarter implementation of fair use, Lee's point is a really important one that gets lost in the shuffle. The very fact that we need a triennial exemption rule-making suggests that the law is ridiculously broken. It is, as Lee notes, a sort of charade. We all are supposed to pretend DRM works, and when it doesn't, we start playing by different rules. And since those rules sometimes get confusing, we need a referee to step in and issue specific exemptions? It's a game of regulatory theater, where people pretend that copyright law actually does something (i.e., protect content) that it does not do.

Filed Under: dmca, exemptions, fair use, transformative

MPAA Shows How Teachers Should Record Movies By Camcording Their TVs

from the ok-then... dept

As you probably know, every three years, the Librarian of Congress gets to review requests for special "exemptions" to the DMCA. It's a ritual every three years, and every three years most people hoping to get rid of some of the worst abuses of the DMCA are disappointed. Back in 2003 very few exemptions were issued, and in 2006 it basically extended the exemptions and added a few very, very narrowly defined and specific exemptions -- and did nothing for consumers. This year, the process is going on again with a variety of requests for exemptions.

But, of course, the process also has some requests in the other direction as well... The entertainment industry, for example, would like fewer examples. Kevin alerts us to some video of a recent hearing, where the MPAA actually (you have to see it to believe it) demonstrates how to use a camcorder to videotape a movie off a TV: Why would the MPAA show this? Because it wants to remove the (very narrow) exemptions that were granted in 2006 to media professors who wanted to copy clips of movies from DVDs for the purpose of education. But the MPAA wants the Library of Congress to take away that exemption, and is using this demonstration to show that a media professor shouldn't need to break DRM on DVDs, when they can go through the cumbersome process of recording the DVD via the "analog hole" of playing it on a TV and capturing it with a video camera.

Filed Under: analog hole, dmca, exemptions, recording, teachers, video

Rather Than Giving Banks A Patent Exemption, Why Not Fix The Patent System?

from the still-wondering... dept

Back in February, we wrote about how some folks in Congress had hidden a sneaky bit of legislation into a bill that would exempt banks from a particular patent on automated check scanning. This was a terrible abuse of Congressional power, that would only lead to more similar actions. But the real problem isn't Congress trying to protect banks from a bad patent (and rest assured, it's a ridiculously broad patent on an obvious idea), it's that they're trying to create a specific exception, rather than fix the entire system.

However, no matter how ridiculous this particular "exception" is, Tom Giovanetti's latest article complaining about it has numerous problems. First, he starts off by suggesting that traditional property and patents are similar, and that they're there to "protect the little guy." Unfortunately, patents and property are quite different, and patents were never designed to "protect the little guy," but to promote the progress, which again is entirely different. Giovanetti then claims that: "there is something heroic, even romantic, about the small inventor who comes up with a breakthrough idea." Yes, there is something romantic about it -- but perhaps that's why it's generally a myth. There are very few stories of small inventors coming up with breakthrough ideas. Most of the stories you can think of are actually revisionist history of those who actually copied the ideas of others, and were better marketers (and able to abuse the patent system to their own advantage).

So, yes, this particular exception is bad, even if it's for the right reasons. The patent itself is quite questionable and covers a broad and obvious topic. The company has done little to commercialize the offering itself and has been looking to sit back and cash in. But, the idea that this is an affront to "small inventors" making "breakthrough inventions" is a myth that's better left by the wayside. This is merely yet another example of a broken patent system and Congress' unwillingness to fix the root causes of the problem, preferring instead to treat the symptoms.

Filed Under: check scanning, congress, exemptions, patents