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    Fight For Your Right For Fair Use

    David Abrams, Chilling Effects Clearinghouse, July 27, 2010

    Abstract: The Library of Congress has released a list of six circumstances in which circumvention of copyright access controls will not be a violation of the Digital Millennium Copyright Act (DMCA). In addition to limited exceptions for security testing of video games and dealing with obsolete hardware dongles, these include "jailbreaking" an iPhone to run user software, circumventing restrictions on connecting a used mobile phone to an alternate wireless network, removing CSS protection from a DVD to extract small portions for the purpose of criticism or comment and enabling read-aloud access to electronic books where there is no other way to get similar functionality.

    The DMCA prohibits a user from circumventing access controls on a copyrighted work, even if the intended use would qualify as fair use and therefore not be a violation of the owner's copyright. Thus, for example, while you have the right to use small portions of a copyrighted work for comment or criticism, it may be illegal to obtain that snippet of the copyrighted work if doing so would entail breaking a copy protection scheme added to the work by the copyright holder. However, there is a provision in the DMCA which allows the Librarian of Congress to create exceptions to this prohibition where a person would be "adversely affected by virtue of such prohibition in their ability to make non-infringing uses of that particular class of works." These exceptions only last three years and must be renewed by reapplying to the Library of Congress. The Librarian has just released the latest set of circumvention exceptions which apply to six separate sets of circumstances. Two of the exceptions relate to security/vulnerability testing and instances where the access control device is broken and no replacement exists. However, the remaining exceptions will be welcome news to wireless phone owners, to a limited group of people commenting or critiquing DVDs and to vision-impaired persons.

    The first exception relating to wireless phones is targeted at iPhone owners. It allows use of computer programs that circumvent access controls on wireless telephone handsets in order to enable interoperability of software applications with computer programs on the telephone handset, commonly known as "jailbreaking" the iPhone. At the request of the Librarian of Congress, the Register of Copyrights examined the issue and determined that jailbreaking a phone "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" likely constitutes fair use.

    In addition, the Register determined that allowing the use of jailbreaking programs would not adversely affect the market for the copyrighted programs, i.e. the iPhone operating system, because the user of such jailbreaking programs must purchase the iPhone with Apple's software on it in order to jailbreak it. This means that an iPhone user should find it easier to obtain a program to jailbreak his or her phone and may use it secure in the knowledge that no DMCA violation has occurred. This is a significant loss in Apple's attempt to control all iThings. [Note that while this decision allows the use of an iPhone jailbreaking program, it is still a separate violation of the DMCA, 1201(a)(2), to supply such programs.]

    The second wireless phone exception applies not only to smartphones such as the iPhone, but to wireless phone providers who use software or firmware "locks" to prevent the phone owner from switching to a competing network. Here the Register noted that the access controls were put in place not to protect the rights of copyright holders, but rather "to keep consumers bound to their existing networks." Therefore, the Register recommended that the owner of a used mobile phone be allowed to use a computer program to circumvent any access controls that prevent changing the wireless carrier.

    The Register also expanded slightly an existing exemption to allow "college and university professors and university film and media studies students" to circumvent the CSS protection system on movie DVDs to incorporate short portions of the movie into new works "for the purpose of criticism or comment." This exemption now also applies to documentary filmmakers and makers of noncommercial videos, including fan vidders. The exemption does not apply to elementary and secondary schools, where the Register felt that lower resolution screen capture of the work would be adequate.

    The Register considered, but rejected, exemptions on circumventing access controls that limit the types of devices DRM protected streaming video can be played on, exemptions for circumventing access controls on music where the authenticating server is no longer available, circumventing the "broadcast flag" that limits time-shifting of certain off-the-air broadcasts and circumventing access controls that limit high-resolution video on Blu-Ray players unless the HDMI hand-shaking-protocol is used.

    Interestingly, the Register recommended to the Librarian of Congress that it not grant an exception to allow read-aloud of ebooks, but the Librarian chose not to follow the recommendation and allowed the exception. This narrow exception applies only when there is no other way to purchase rights to listen to the book. Thus, a blind Kindle user may bypass access controls to listen to an ebook only if no one is willing to sell him or her a read-aloud version. This suggests that a copyright owner could effectively prevent this exception from being applied by offering a read-aloud version for an absurdly high price. Hopefully, the bad press from such a strategy will dissuade such tactics and content owners will decide instead to offer read-aloud versions at reasonable prices to prevent widespread adoption of access circumvention software.

    While the exemptions are a positive step, the fact that American consumers have to petition the government to obtain the right to access copyrighted media when the intended use is perfectly legal is a sad state of affairs. It is even sadder that the number of exceptions granted is so limited and that they last only three years (previous exemptions, such as the right to circumvent to archive obsolete software formats, expired because no one came forward to plead their case in this round). Consumers are still beholden to content owners as to what media they can listen to and watch, when they can enjoy it and on what devices they can play it on and companies continue to use the anti-circumvention clause of the DMCA not to protect copyrighted works, but to stifle competition.


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