Updated US citizens can legally jailbreak and unlock their smartphones — notably Apple's iPhone — and videographers can circumvent copy protection to use short movie snippets for "criticism or comment".
This rulemaking decision by the US Copyright Office's Librarian of Congress to grant exceptions to the Digital Milleneium Copyright Act (DMCA) is a clear victory for the Electronic Frontier Foundation (EFF), which submitted a request for the three exceptions in late 2008, and an equally clear defeat for Apple and the Motion Picture Association of America (MPAA), which opposed them.
"By granting all of EFF's applications, the Copyright Office and Librarian of Congress have taken three important steps today to mitigate some of the harms caused by the DMCA," said EFF Civil Liberties Director Jennifer Granick in a statement. "We are thrilled to have helped free jailbreakers, unlockers and vidders from this law's overbroad reach."
MPAA spokesperson Elizabeth Kaltman told The Reg in an email: "The Librarian's decision unnecessarily blurs the bright line established in the DMCA against circumvention of technical protection measures and undermines the DMCA, which has fostered greater access to more works by more people than at any time in our history."
Apple did not immediately respond to our request for comment. *
The rulemaking decision that explains which type of activities are exempt from DCMA restrictions is admittedly written in legalese, but its implications are clear:
Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.
Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.
In addition to these two "wireless telephone handset" exemptions, the Copyright Office also allowed the disabling of DVD copy protection "when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment."
In December 2008, the EFF petitioned the Copyright Office, arguing for DMCA exemptions for jailbreaking (running "unapproved" apps on a handset), unlocking (connecting a handset to the wireless network of one's choosing), and circumventing DVD DRM for non-commercial use
The EFF argued that the DMCA unnecessarily infringed upon handset owners' "freedom to tinker", and blocked remix video creators from access to snippets of videos and movies that they wanted to use in creative, commentary-focused, or educational works.
Apple and the MPAA disagreed. In February 2009, Apple filed a 27-page rebuttal (PDF) to EFF's argument that jailbreaking be granted an exemption, arguing against the "host of bad consequences that will flow from it":
Apple is opposed to the proposed ... exemption because it will destroy the technological protection of Apple's key copyrighted computer programs in the iPhoneTM device itself and of copyrighted content owned by Apple that plays on the iPhone, resulting in copyright infringement, potential damage to the device and other potential harmful physical effects, adverse effects on the functioning of the device, and breach of contract.
At a rulemaking hearing in May 2009 in Palo Alto, California, Apple vice president of iPods and iPhone products and marketing Greg Joswiak argued against jailbreaking. He cited as dangers system instability, product safety (battery charging was one concern), possible invasion of privacy, viruses and malware, the inability to update software, and — of course — porn.
"When you modify and hack the iPhone OS, anything can go wrong," Joswiak said in the introduction to his 3,500-word statement.
EFF's counsel, Fred von Lohmann, countered Apple's argument in part by saying: "I have a Toyota. Toyota would, of course, prefer that I use nothing but authentic Toyota parts and Toyota dealers for service, and that they would also prefer that I not modify my Toyota in ways that might be dangerous to me. I appreciate all that, but it is my automobile at the end of the day."
The MPAA's counsel, Steve Metalitz, suggested in his remarks at that same hearing that educational institutions need not circumvent DRM, but that that they could instead merely film a clip "off a monitor" to acquire footage.
In response, UC Berkeley Assistant Professor Abigail De Kosnik noted: "As a teacher, one could copy entire passages of a book onto a blackboard and ask students to copy those words onto their notebooks, but this would simply be highly inefficient and not the most rapid means of teaching or learning available today. Asking us to 'film off' a monitor is akin to going back to copying whole passages to a blackboard, as my mother had to do in the Philippines in her village in the 1940s."
In the end, the EFF and its supporters won the day — you can read the full rulemaking statement by Librarian of Congress James Billington, which details the painstaking process that led to the decision, here (PDF). ®
In addition to the three EFF petitions, the Copyright Office also granted three additional exemptions to the DMCA, covering: "good faith testing for, investigating, or correcting security flaws or vulnerabilities" of DRM-protected video games, the need to circumvent software-protection dongles when the companies that supplied them are out of business and "if a replacement or repair is no longer reasonably available," and — finally — bypassing an ebook's DRM to enable a "read-aloud function or... screen readers that render the text into a specialized format."
Although Apple did not respond to our request for comment on the Copyright Office's rulemaking, they did provide The Cult of Mac with the following statement:
Apple’s goal has always been to insure [sic] that our customers have a great experience with their iPhone and we know that jailbreaking can severely degrade the experience. As we’ve said before, the vast majority of customers do not jailbreak their iPhones as this can violate the warranty and can cause the iPhone to become unstable and not work reliably.
It's up to you to decide whether or not jailbreaking will "severely degrade" your iPhone experience — that's a judgment call, after all. But it's up to Apple to decide whether doing so will violate your warranty — and their position is: "Yes, it can."