So What DMCA Exemption Requests Got Rejected?

from the the-flipside dept

Like many others yesterday, we covered the news that (surprisingly) the US Copyright Office and the Librarian of Congress granted some consumer friendly DMCA anti-circumvention exemptions for things like jailbreaking smartphones. But, very little coverage has been paid to what exemptions were requested and rejected. First up?

Subscription based services that offer DRMprotected streaming video where the provider has only made available players for a limited number of platforms, effectively creating an access control that requires a specific operating system version and/or set of hardware to view purchased material; and Motion pictures protected by antiaccess measures, such that access to the motion picture content requires use of a certain platform.

Specifically, this involved someone who asked for an exemption to, say, watch Netflix streaming, with a legit Netflix member account, on a non-approved platform, such as Linux. This was lumped in with another proposal to not just watch streaming content on Linux, but DVDs on Linux, where there might not be a CSS-licensed video player. Such requests have been tried in the past, and basically, the rulemaking effort here said "been there, rejected that," followed up with a "if you want to view the content, buy a "reasonably priced alternative" technology platform. How nice of them.

Lawfully purchased sound recordings, audiovisual works, and software programs distributed commercially in digital format by online music and media stores and protected by technological measures that depend on the continued availability of authenticating servers, when such authenticating servers cease functioning because the store fails or for other reasons; and

Lawfully purchased sound recordings, audiovisual works, and software programs distributed commercially in digital format by online music and media stores and protected by technological measures that depend on the continued availability of authenticating servers, prior to the failure of the servers for technologists and researchers studying and documenting how the authenticating servers that effectuate the technological measures function.

This seems like it should be a no-brainer for exemption. There are so many stories of various online music stores that had DRM that required "phoning home." These services died, and eventually the DRM servers were turned off leaving consumers blocked from accessing music they had legally purchased.

But, no... The Copyright Office shot that one down by saying that, Chris Soghoian, who made this request, failed to show "that the prohibition on circumvention of access controls either has produced, or is likely to produce, any adverse effects on noninfringing uses of the proposed class of works." Basically, the Copyright Office notes that, so far, in the cases where such servers have been shut down, the companies offered "full refunds" to buyers, so no harm, no foul. Of course, it brushes over the fact that it took enormous consumer backlash to force this response. So, because a bunch of complaining consumers get companies to pay up if they want to turn off their DRM servers, no circumvention should be allowed? That seems backwards.

Software and information recorded, produced, stored, manipulated or delivered by the software, that a forensic investigator seeks to copy, activate, or reverse engineer in order to obtain evidence in a court proceeding.

This, again, seems like a reasonable request. Forensic investigators may need to access and review data or software that is locked down with DRM or other technical protection methods. Making it infringement just to get around those protection measures, even for legal forensic investigations doesn't make much sense. But, of course, to the Copyright Office it's perfectly reasonable. Basically, the Copyright Office says "well, there's no evidence that this has ever been a problem, so why worry?"

Audiovisual works delivered by digital television (DTV) transmission intended for free, overtheair reception by anyone, which are marked with a broadcast flag indicator that prevents, restricts, or inhibits the ability of recipients to access the work at a time of the recipient’s choosing and subsequent to the time of transmission, or using a machine owned by the recipient but which is not the same machine that originally acquired the transmission.

Here, again, the Copyright Office basically says, "hey, there's no broadcast flag mandate, so why worry?" It claims that it's "highly speculative" as to whether or not broadcasters and copyright holders would look to use broadcast flags to restrict content. Of course, this ignores that various attempts have been used to do that, and now with things like Selectable Output Control, it's likely to happen again.

Audiovisual works embedded in a physical medium (such as Bluray discs) which are marked for downconversion or downresolutioning (such as by the presence of an Image Constraint Token ICT) when the work is to be conveyed through any of a playback machine’s existing audio or visual output connectors, and therefore restricts the literal quantity of the embedded work available to the user (measured by visual resolution, temporal resolution, and color fidelity).

Again, the Copyright Office is quick to recommend against including this, noting that there's no clear adverse impact on users or a clear "noninfringing use."

As mentioned in the original post, the Copyright Office also wanted to reject allowing ebooks to be read aloud for the blind, but the Librarian of Congress overruled the Copyright Office on that one point.

And, there you go. Many of the rejections were basically over situations where the Copyright Office said there was no real evidence of an actual problem, so nothing to worry about. Still, just the fact that many of these situations had to be proposed and were rejected shows how ridiculous copyright law is today. The fact that we have to go begging to the Copyright Office every three years for simple exemptions like this, which can (and often are) rejected, is not how modern society should work. Technology is changing how people can and do interact with content. This whole process (even the fact that it only happens every three years) has the whole thing backwards. We shouldn't have to ask for permission to use technology to do what it allows.

Filed Under: circumvention, dmca, exemption

Canada More Or Less Admits Its Copyright Reform Plan Is Driven By US, Following DMCA Exemption Rulings

from the why-wait-until-now? dept

With the Librarian of Congress issuing the latest round of DMCA anti-circumvention exemptions, many Canadians who were battling over the proposed anti-circumvention provisions in C-32, the proposed copyright reform bill, noted how the new exceptions were not found in the Canadian proposal. The key issue was the idea, as Canadian politicians (and the entertainment industry) had suggested, that such exceptions might not bring it into compliance with various treaties. However, with the US showing that such exemptions are allowed, apparently Canadian politicians are "reviewing" the rulemaking to see what "implications" there may be for C-32.

While I'm glad that Canadian politicians may be reconsidering their awful digital locks provision, it seems odd that it would take a US rulemaking for them to do so. After all, one of the key talking points by Canadian politicians is that this is a "made in Canada" approach to copyright, rather than being driven by the US. So, why would a US rulemaking matter? While it's good that this rulemaking is in a good direction, the fact that Canada didn't think to include similar exemptions in its copyright law until this rulemaking is more or less a confession that the copyright law was based on US rules and US interests, rather than Canadian interests.

Filed Under: canada, circumvention, copyright, digital locks, dmca, drm, rule making

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

from the didn't-expect-this dept

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.

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

Good News: Violating Terms Of Service Is Not Hacking; Bad News: Circumventing Weak Tech Blocks Might Be

from the some-good,-some-bad dept

We've been covering the ridiculous lawsuit that Facebook has been pursuing against Power.com for a while now, specifically worrying about how, if Facebook prevailed, it could mean that violating an online terms of service in accessing your own data, could make you a criminal. That outcome seemed ridiculous, but the way Facebook read federal computer fraud statutes, it was possible. Thankfully, the court has shot down that argument.

But it's not all good news. In the same ruling, the court did say that Power.com (an aggregator of data from various social networks) still may have violated computer hacking laws by changing its IP address. That's because Facebook had blocked Power.com's old IP address to try to block the site from accessing user account data. As the EFF explains:

In other words, it may be a crime to circumvent technological barriers imposed by a website, even if those measures are taken only to enforce the terms of service through code. There's nothing inherently wrong or unlawful about avoiding IP address blocking, and there are valid reasons why someone might choose to do so, including to sidestep anticompetitive behavior by other Internet services. As long as an end user is authorized to access a computer and the way she chooses doesn't cause harm, she should be able to access the computer any way she likes without committing a crime.

Of course, given the way the DMCA handles circumvention for copyright (it's not legal even if for legal uses), perhaps there's some precedent for this kind of ridiculous, totally counter-intuitive outcome.

Filed Under: circumvention, fraud, hacking, terms of service
Companies: facebook, power.com

Documentary Filmmakers Want DMCA Exemption; But Almost Definitely Won't Get It

from the unlikely dept

Every few years the US Copyright Office is supposed to review requests for exemptions to the DMCA. However, it rarely gives any serious exemptions. In fact, the process is such a joke that some have argued it's not worth participating in at all. None of the exemptions have ever favored consumers. They've always been extremely narrow. So, while it's nice that documentary filmmakers are asking for a DMCA exemption from the anti-circumvention clause so that they can get around the digital locks on movies for legal (non-infringing) uses of clips in their documentaries. As they say: "If you want to use material pursuant to fair use, you have to commit crime despite your constitutional right to do so." However, given the way the US Copyright Office tends to view these things, I find it highly unlikely it will allow this.

Filed Under: circumvention, dmca, documentary, exemption

Canadian DMCA Introduced; Digital Lock Provision Trumps Any And All User Rights

from the with-this-lock,-i-control-all dept

As was widely expected, Canadian politicians have introduced their version of the DMCA, dubbed the "Copyright Modernization Act" (or Bill C-32 if you want to get technical). Michael Geist runs down the good and the bad at the link above, but it appears there's a lot more that's bad than good. While the plan tries to add "balance" by extending fair dealing provisions just slightly wider than before (though, still pretty limited), it undermines that very concept with a heavy anti-circumvention clause. This is the worst aspect of the DMCA exported north to Canada. Basically, as long as a rights holder puts some form of DRM/copy protection on their work, all those exceptions go out the window. You can't circumvent, even for non-infringing reasons.

What this does is change the basic contours of copyright law. It gives the rights holders the ability to define the exceptions, and take away the right of users. It's this very aspect of the DMCA that needs to be fixed, not expanded to other countries. It goes against the core principles of copyright law, which include exceptions for the sake of important modes of expression. By letting the rights holder determine what is and what is not allowed as an exception, simply by letting the rights holder put any kind of digital lock (no matter how weak) is a travesty of copyright law. It's not copyright law at all, at that point. It's really a law to lockdown content away from the public, and to have the government declare a particular business model as supreme and protected by the government.

Filed Under: canada, circumvention, copyright, digital locks, dmca

Why Should Customs Officers Be Determining What Counts As A Copyright Circumvention Device?

from the border-patrol dept

Some of the earliest fears around ACTA concerned some of the earliest draft suggestions, that would increase the power of border patrol/customs officials to look for infringement at the border, including the possibility of searching your laptop or iPod for infringing content. While those provisions mostly seemed to drop out in the negotiations, it doesn't mean that there aren't still efforts to get closer to that sort of system. Mart Kuhn, at Public Knowledge, has an interesting post, looking at a bill in the Senate that would give customs the authority to determine if things crossing the border were "circumvention devices" as prohibited by the DMCA. Of course, as the article notes, determining what is and what is not a circumvention device is not particularly easy -- as various lawsuits have demonstrated. So it's quite questionable as to why anyone thinks border patrol agents should be involved in that process at all.

But a bigger issue is the same one at the heart of the debate over whether or not customs officials should have the right to search your laptop at the border. If the point of border patrol/customs is to prevent bad things from getting into the country, it's pretty ridiculous to try to prevent software at the border, because that software has already totally crossed over the border via the still mostly borderless internet. So this whole thing seems like a charade to look for more ways to take away basic privacy rights in favor of an entertainment industry that is so afraid someone might infringe that it doesn't realize trying to stop circumvention at the border won't do anything other than cause serious hassles for legitimate travelers.

Filed Under: border patrol, circumvention, copyright, customs

European High Court Will Examine DRM Anti-Circumvention Rules

from the free-speech-anyone? dept

A European directive from a few years ago included a DRM anti-circumvention clause that even made it illegal to host an "organized discussion" of techniques for circumventing DRM. That seemed excessively broad (and unfairly limiting) to Mikko Rauhala, who set up a discussion site where people could discuss CSS, the notoriously lame copy protection used on DVDs that has been broken for ages. He did it mainly to get the issue into court -- which it did. Two years ago, a Finnish court had an odd ruling on the case, in which it claimed circumvention was okay if the DRM was ineffective. That's because the directive specifically claims that it applies to "effective DRM." Of course, taken to its logical conclusion, one might think that means if you can break DRM, then you haven't violated the anti-circumvention language, because you've proven that the DRM is ineffective. It's a bit of a logical pretzel. So, while I agree that it's silly to make discussion of circumvention illegal, the legal reasoning was a bit twisted.

So, it came as little surprise a year later, when an appeals court overturned the lower ruling. However, from a free speech perspective, this was still quite troubling. Banning any organized discussion about a technology seems tremendously questionable. The good news (as found via Michael Scott) is that the case is now going to the European Court of Human Rights. One hopes they'll recognize this as a violation of basic civil rights. It's troubling enough that simply circumventing copy protection on legally purchased goods is considered breaking the law. It's much worse to say that even talking about it is against the law.

Filed Under: circumvention, copyright, css, drm, europe

Surprise! Net Censorship Circumvention Tools Sell User Data

from the just-when-you-thought-you-were-safe dept

As you may know, there are a number of circumvention tools used by businesses, activists and journalists seeking to avoid the Internet censorship efforts in countries like Saudi Arabia or China. What you probably did not know was that a number of the most popular tools willingly provide specific user data, including browsing history. Harvard researcher Hal Roberts revealed last week that DynaWeb, FreeGate, GPass and FirePhoenix all partake in the startling practice of selling user data.

These tools work by operating as virtual ISPs for the user in the censored country, so they have incredible amounts of information about the online practices of millions of users. As Roberts points out, the best way to avoid sharing this information, which authoritarian governments would love to have, is to not store it. Unfortunately, these projects have chosen to support themselves through the sale of data, thus potentially compromising their goal of Internet freedom. Although they claim to have "strict screening" before selling personally identifiable data, one can easily imagine leaks or errors.

While this shouldn't be entirely surprising - no system is perfect - it is a practice which should be corrected. And it should serve as a reminder that those wishing to remain anonymous online have an uphill battle.

Filed Under: censorship, circumvention, data sales

Mod Chips Found Legal In The UK

from the mod-away dept

For many years, we've wondered why some folks considered the process of mod chipping to be illegal. After all, if you own a device, why shouldn't you be able to modify it? It's not illegal to modify your computer, so why would it be illegal to modify a game console? Well, thanks to the DMCA in the US, the question wasn't entirely clear -- because console makers use encryption, they consider any modification to be a circumvention of that encryption, and the DMCA has that pesky anti-circumvention clause. In the US, it's become even more bizarre, with federal officials taking up the cause and fining mod chippers while claiming (seriously) that mod chipping was a national security issue.

Luckily, it looks like the courts in Europe are a lot more reasonable about all of this. A few years back, we noted that an Italian court ruled that mod chips were perfectly legal (Update: Well, darn. As a commenter notes, the Italian decision was later overturned). And, now, a tipster alerts us to the news that a UK appeals court has found the same thing, tossing out all of the charges against a mod chip seller, noting that mod chips do not circumvent copy protection systems. Not only that, but the defendant was awarded legal fees. This is a big deal, as the lower court had found the guy, Neil Higgs, guilty for selling mod chips he had imported from Hong Kong. So, now that's Italy and the UK that recognizes modifying your gaming consoles shouldn't be illegal. Anyone else?

Filed Under: circumvention, copyright, dmca, mod chips, uk