Calling All iPhone Developers: Support EFF's DMCA Exemption for Jailbreaking

Call To Action by Fred von Lohmann

iPhone application developers have until February 2, 2009 to submit comments to the Copyright Office in support of EFF's proposal for a DMCA exemption for iPhone owners who want to "jailbreak" their iPhones to gain the freedom to install applications of their choice. If you're an iPhone app developer, and you have a story about your frustration with Apple's chokehold over iPhone apps, please share it with the Copyright Office. Legalizing jailbreaking is a critical step in loosening Apple's grip and creating an open market for iPhone applications.

Apple uses "software locks" to prevent applications other than those sold from the iTunes App Store from running on the iPhone. The process of modifying an iPhone to run applications from other sources is known as "jailbreaking" (this is different from "unlocking," which generally refers to modifying an iPhone to operate with a different network carrier). Although hundreds of thousands of iPhone owners have already jailbroken their phones, Apple is likely to argue that the act of jailbreaking violates the DMCA's ban on circumventing software locks. In an effort to lift this legal cloud, EFF has proposed that the Copyright Office grant a 3-year exemption from the DMCA to permit jailbreaking.

Apple's shackling iPhone owners to the iTunes App Store has nothing to do with protecting Apple software from piracy. Instead, it's all about limiting competition and innovation on the iPhone platform. For example, Apple has refused to approve iPhone apps that compete with Apple's own software, such as Mail, Safari, and iTunes. Apple has also censored ebooks from the App Store. And developers of iPhone VoIP applications have also encountered inexplicable delays in app approval.

So, if you're an iPhone developer, and you are frustrated with Apple's iPhone app approval process, please consider sharing your experience with the Copyright Office and supporting EFF's proposed DMCA exemption for jailbreaking.

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Remixers, Unlockers, Jailbreakers, Oh My!

Legal Analysis by Fred von Lohmann

Yesterday, EFF filed petitions (1, 2) with the Copyright Office seeking DMCA exemptions for three categories of activities that do not violate copyright laws, but that are still jeopardized by the DMCA's ban on bypassing technical protection measures used to control access to copyrighted works (i.e, DRM). The three exemptions are for:

• Noncommercial video creators (like YouTubers and vidders) who rip DVDs in order to use clips for fair use remixes;
• Cell phone owners who want to unlock their phones to use them on cellular networks of their choosing;
• Cell phone owners who want to "jailbreak" their phones in order to use applications of their choosing (e.g., iPhone owners who want apps from sources other than the iTunes App Store).

The exemption for remix video creators is necessary to protect fair use in a digital world where visual literacy (what Larry Lessig calls RW culture) is increasingly important. Today, if you rip a DVD, the MPAA takes the position that you've broken the law, even if you are making a video that comments on the latent racism in Disney films or the sexualized violence in 300. This is what free speech looks like in the 21st century, and a DMCA exemption is necessary if we want to avoid driving millions of amateur creators into the copyright underground.

The cell phone exemptions (unlocking and jailbreaking) are necessary to protect your "freedom to tinker" with products you own. Cellular carriers lock their phones not to protect their copyrights, but rather to discourage customers from switching carriers. This is not only anti-competitive, but puts millions of used cell phones into landfills each year. More recently, cell phone makers have started locking phones to a single source for applications -- which is why more than 350,000 iPhone owners have "jailbroken" their iPhones in order to get the apps they want, instead of just the ones Apple is willing to let them have.

Others are seeking exemptions for computer security researchers who want to investigate DRM on videogames (SecuROM, we're looking at you); documentarians, film professors, and media literacy educators who need to take clips from DVD; and consumers who have been left high and dry by vendors who retired their DRM authentication servers (e.g., Walmart, Yahoo, Microsoft). All of the proposals have been posted on the Copyright Office website. Comments supporting or opposing the proposed exemptions are due by Feb. 2, 2009. Hearings will follow in the Spring, and the Copyright Office will announce its final determinations in October 2009, as the last set of exemptions expire.

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Do You Need An Exemption from the DMCA?

Announcement by Fred von Lohmann

Every three years, the U.S. Copyright Office undertakes a rule-making to consider whether the DMCA's ban on circumventing technological protection measures (e.g., DRM and other "access control" restrictions) is interfering with noninfringing uses of copyrighted materials. The Copyright Office has announced that those interested in requesting a DMCA exemption for the period 2009-2012 must submit their proposals to the Copyright Office by December 2, 2008 (there will be an opportunity in February to support or oppose the proposals, but the proposals have to be made in December).

Do you think you might need a DMCA exemption? Before you answer, you should read the Copyright Office's final report in the 2006 rule-making carefully. As we pointed out in 2005, the Copyright Office has repeatedly dismissed any consumer-oriented fair uses, such as making backup copies of DVDs or video games, as well as requests for exemptions to enable copying DVDs to laptops and portable devices. The Copyright Office also rejected EFF's efforts to secure exemptions in 2003 to allow circumvention of DVD region coding by legitimate DVD owners, to skip "unskippable" DVD advertisements, and to access public domain materials on DVDs. All in all, we stand by our 2005 assessment that the DMCA rulemaking process is hopelessly broken when it comes to addressing noninfringing digital consumer fair uses.

However, the 2006 rule-making showed that other kinds of exemptions may be granted, where circumvention is necessary for noninfringing activities like classroom teaching (e.g., film professors using DVD clips), computer security research (e.g., regarding copy-protected CDs), archiving and preservation (e.g., preserving video games and multimedia software), maintaining obsolete systems (e.g., malfunctioning or obsolete "dongles" for software), and promoting interoperability (e.g., cell phone unlocking).

If you are engaged in noninfringing activities that have been tripped up by the DMCA's anti-circumvention provisions, and would be interested in a DMCA exemption for 2009-2012, let us know by October 31. We've got some ideas of our own (including renewing the cell phone unlocking exemption for you iPhone unlockers!), but we're eager to hear from other user communities that may have been overlooked.

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An Australian Perspective on DMCA Rulemaking

Deeplink by Gwen Hinze

As we explained in our report, "DMCA Triennial Rulemaking: Failing the Digital Consumer," the DMCA's triennial rulemaking process has been a conspicuous failure when it comes to addressing the legitimate concerns of American digital consumers. The rulemaking was created by Congress as a "safety valve" to craft exceptions to the DMCA to permit noninfringing uses of DRMd media. (The latest rulemaking is going on right now before the Copyright Office, with a final report due in October.)

In a highly-anticipated report, an Australian parliamentary committee criticizes many aspects of the U.S. rulemaking process, rejecting it as a blueprint for a similar Australian process. The report will be of interest to other countries seeking a sensible way to respond to the U.S. effort to export its unbalanced DMCA regime through recent free trade agreements (FTAs).

Thanks to a free trade agreement with the U.S. that came into force in January 2005, Australia is in the process of re-writing its own Technological Protection Measure law to "harmonize" with the U.S. DMCA. The AUS FTA allows Australia to enact its own "safety valve" procedure to approve 4 year exceptions to the general prohibition on circumventing DRM. The parliamentary committee report provides recommendations on how to draft the Australian legislation that will set up that procedure. It follows an extensive public consultation, where, not surprisingly, entertainment industry lobbyists urged the Australians to ape the U.S. rulemaking process, and Australian academics, librarians and public interest groups called for a more careful approach.

The Australian parliamentary committee identified the flaws in the U.S. procedure, opting to go its own way. In particular, the report criticizes the following aspects of the US rulemaking procedure:

• The report takes aim at a flaw in the foundation of the DMCA rulemaking enterprise: it authorizes exceptions for acts of infringement, but not for the necessary tools. The report goes so far as to say that this is "a lamentable and inexcusable flaw" that "verges on absurdity," transforming any exceptions that might be granted into "little more than empty promises."
• The U.S. Copyright Office requires that all proposed exceptions identify a "class of works" without reference to any characteristics of the users of the works. This puts noninfringing users (e.g., educators wanting to extract clips from DVDs) in the perverse position of having to argue for unnecessarily broad exceptions (e.g., all movies released on CSS-protected DVDs). The Australian report rejects this approach, explicitly recommending that use-based exceptions be permitted.
• The U.S. Copyright Office requires that those seeking DMCA exceptions demonstrate that the adverse impact of DRM on their noninfringing uses is "substantial". The Australian report rejects this view, concluding that "any adverse impact that can be credibly demonstrated to exist or have existed should be enough."
• According to the Australian report, if DRM has not yet had an adverse impact on a noninfringing use, proponents of an exception need only show that the adverse impact is "reasonably forseeable." The U.S. Copyright Office approach, in contrast, requires those seeking DMCA exceptions to show, by a preponderance of evidence, that adverse impact is likely. The Australians reject the "preponderance" standard, noting that "[s]uch a threshold virtually requires the proponent of the exception to prove the case beyond doubt before the relevant circumstances have arisen."
• The Australian report notes that even "individual or isolated incidents of alleged adverse impacts" should be considered, and explicitly contrasted its view with that of the U.S. Copyright Office. The report was particularly scathing of the Copyright Office's dismissive attitude toward consumer inconvenience, specifically deriding the notion that consumers should be expected to buy a different DVD player for every DVD region if they want to enjoy foreign DVDs they have legitimately acquired. It specifically notes that financial imposts that are incurred, or likely to be incurred, to make a non-infringing use of a work due to DRM are pertinent for the "credible demonstration of an adverse impact".

The entire report is required reading for any interested in how our trading partners should respond to the on-going U.S. effort to export the DMCA.

As Australian academic Kim Weatherall notes in her excellent summary, the report also makes thoughtful recommendations about how to avoid some of the problems experienced in the U.S. under the overbroad DMCA, including the need to retain a nexus between anti-circumvention sanctions and copyright infringement, and mechanisms for addressing anti-competitive and non-copyright-related uses of DRM such as region-coding on DVDs. Good news indeed.

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DMCA Triennial Rulemaking: Failing Consumers Completely

Deeplink by Fred von Lohmann

December 1 is the last day to submit proposals (by 5p EST) to the Copyright Office seeking a 3-year DMCA exemption for noninfringing activities that are otherwise squelched by "digital rights management" (DRM) restrictions.

As we mentioned back in October, Congress has instructed the U.S. Copyright Office to consider every three years whether we need temporary exemptions to the DMCA's blanket ban on circumventing "technological protection measures" (aka DRM) used to lock up copyrighted works.

EFF has participated in each of the two prior rulemakings (in 2000 and 2003), each time asking the Copyright Office to create exemptions for perfectly lawful consumer uses for digital media that are encumbered by DRM restrictions. For example, we asked that DVD owners be allowed to skip those "unskippable" ads at the beginning of DVDs. We asked that people who bought copy-protected CDs be allowed to get them to play on their computer. We asked that consumers be allowed to bypass region coding to play a DVD purchased in another part of the world. The Copyright Office rejected all of these proposals.

This year, we are not submitting any proposals. Where consumer interests are concerned, the rulemaking process is simply too broken. For example:

• No Tools. You can get an exemption for acts of circumvention, but the Copyright Office lacks the power to legalize circumvention tools. So, unless you are an engineer, a computer scientist, or can afford to hire them, you're not likely to be able to take advantage of any exemptions granted.

• Impenetrable Complexity, Impossible Burdens. In order to effectively participate in the rulemaking, you need to wade through >200 pages of bureaucratic legalese and have graduate level understanding of copyright law. You have to persuade the Copyright Office that your activity is noninfringing and gather evidence that demonstrates a "substantially adverse effect" on noninfringing uses beyond "mere inconveniences or individual cases."
• "Mere Inconvenience" = Ignoring Consumers. Where consumers are concerned, the Copyright Office discounts their concerns as "mere inconveniences." So region coding is no problem, according to the Copyright Office, because you could just buy a separate DVD player from every region. Copy-protected CDs are no problem because you can play them on CD players, even if they won't work in your computer. Where the copyright industries are concerned, in contrast, the Copyright Office presumes that DRM is the only thing that stands between them and financial ruin.

We have assembled a short report documenting why we believe the process is so broken that we have decided not to propose any exemptions this time. (We may support narrower, non-consumer proposals made by others during the reply period, which closes on Feb. 2, 2006.)

If you want to see meaningful DMCA reforms intended to protect the kinds of fair uses that consumers care about, it will have to come from Congress. Fortunately, the DMCRA, H.R. 1201, is pending before Congress right now and would go a long way toward fixing the DMCA/DRM mess (although not all the way, as it fails to address the ban on circumvention tools). Be sure to write your member of Congress urging her to cosponsor it!

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Want to Take a Bite Out of the DMCA? Now's the Time

Deeplink by Gwen Hinze

As part of the Digital Millennium Copyright Act (DMCA), Congress instructed the U.S. Copyright Office to consider every three years whether we need exemptions to the DMCA's blanket ban on circumventing "technological protection measures" (aka Digital Rights Management or DRM) used to lock up copyrighted works. So if you want to make a legitimate use of a piece of media, but have been turned back by DRM and the DMCA, now is your chance to take your case to the Copyright Office and try to make the world a happier and safer place for the next three years. As two-time-successful-exemption-requester Seth Finkelstein says: "The lawsuit you prevent may be your own."

Read on for more info about the process, pitfalls and deadlines.

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