• You Can Jailbreak Phones But Not Tablets: New DMCA Rules Roll Back Fair Use in Favor of Software Owners’ Rights
  • February 21, 2013 | Author: Thomas C. Carey
  • Law Firm: Sunstein Kann Murphy & Timbers LLP - Boston Office
  • The Digital Millennium Copyright Act (DMCA) bans the circumvention of technological measures that restrict access to works that are copyright-protected.  E-books, music, movies and software all benefit from this legal protection, which does not require copying of the protected material to trigger a violation; merely accessing the work without authority is illegal under the DMCA.

    When Congress passed this law in 1998, it created a safety valve to guard against the possibility that the law had become too favorable to content owners.  That safety valve is a process by which the Copyright Office can adopt exemptions to the DMCA.

    Every three years, the Librarian of Congress revises the exemptions in an effort to account for advances in technology. Over the course of the first four cycles, the list of exemptions to the DMCA steadily grew.  A new set of rules went into effect on October 28, 2012, and they mark the first time that the scope of the exemptions has narrowed rather than widened.

    The big issues in this rulemaking cycle were jailbreaking, space shifting and the unlocking of cellphones and other devices.  The new rules are as noteworthy for what they omitted as for what they included.

    Jailbreaking.  This term refers to the practice of circumventing technologies that restrict users of electronic devices from running programs not sold or approved by a particular controlling entity.  For example, Apple and Google have built such controls into their iOS and Android operating systems.

    In 2010, the Copyright Office (a part of the Library of Congress) approved an exemption from the DMCA to permit the circumvention of such controls on cellphones and the installation of non-approved apps.

    In 2012, the Electronic Frontier Foundation and others proposed the renewal of this exemption and its extension to tablets and video game consoles.  Others proposed an extension of this exemption to cover the operating systems of personal computers. While the Register of Copyright continued the jailbreak exemption for another three years, she declined to extend the exemption to tablets, video game consoles or personal computers.

    In her rulings, the Register had to explain why jailbreaking should be permitted with cellphones but not with other devices.  The Register said that the proponents had offered up a fuzzy definition of “tablet” and failed to satisfy their burden of proving that the exemption requested would not result in infringement.

    As to video game consoles, the Register noted that they have technological controls that protect not only the hardware but the games themselves, and that the production cost of a game is far higher than that of a cellphone app.  Thus, the potential for economic harm to the content owner is more substantial.

    The discussion of personal computers focused on Windows 8, which makes it difficult to switch operating systems.  Microsoft says that it maintains its locking system as an anti-virus measure.  For a nominal fee, Microsoft will license vendors of alternative operating systems to permit users to switch operating systems.  On that basis, the Register was persuaded that there is not really a problem of locking PCs, and declined to adopt a rule directed to this issue.

    Space Shifting.  In 1984, the Supreme Court, in a 5-4 ruling, held that a consumer could record a TV show on a VCR in order to be able to watch the show at a more convenient time.  This concept of time shifting was the basis of proposals submitted in late 2011 to permit space shifting - the copying of content from one device to another.  For example, the proposal would have permitted the circumvention of controls built into a DVR to permit copying a movie onto an iPad.

    The Register declined to adopt this exemption, saying that DMCA rulemaking was not the forum for breaking new ground in the law of fair use, and that the availability of content on a wide range of devices suggests that access to content is not a problem that requires a space shifting exemption.

    Unlocking.  The most surprising result of this round of rule-making involved an exemption adopted in 2010 that permits owners of smartphones to “unlock” them - that is, to make them usable on a network other than that of the company from which the user bought the phone.

    In this case, the Register adopted a rule that continues the exemption - but only for phones purchased brfore January 26, 2013.  The Register cited two reasons for phasing out this rule.

    First, she noted the wide availability of cellphones that are now for sale without locks that prevent network switching.  Second, she noted that the 2010 rule was premised in part on section 117 of the Copyright Act, which permits owners of copies of software to adapt the software to work with a particular device.

    The Register noted the recent decision in Vernor v. Autodesk, which we discussed earlier, in which a Court of Appeals held that consumers may in certain circumstances be treated as licensees of software, not as owners of a copy, in which case, the Register said, section 117 would not be available to the consumer as a basis for unlocking the cellphone.

    Other Issues.  The new rules include exemptions that encourage the development of technologies that would permit blind and deaf consumers to enjoy audio versions of visual content or dubbing of audio content.  While this rule permits research and development, it does not permit the deployment of the technology, which has yet to evolve.

    Rules pertaining to movies, television shows, news broadcasts and other video content were hotly contested, but the rules that were adopted are not groundbreaking.

    The issues at play in the debate over the rules (and the resulting decisions) included:

    1. Decryption of Blu-Ray content (not allowed because most Blu-Ray content is also available in DVD format, which can be decrypted for limited purposes)

    2. Decryption of clips of DVD content for commercial purposes (not allowed)

    3. Expansion of the 2010 exclusion to all audio visual content (not allowed)

    4. Expansion of the exclusion to use of clips in fictional works (not allowed)

    Instead, the Copyright Office adopted narrowly tailored exemptions that permit limited decryption of DVDs and electronically distributed video content for purposes of criticism, commentary, documentaries, e-books offering film analysis, and for educational purposes in film studies.

    These exemptions require use of screen capture technology where it is sufficient, and require the person who is circumventing the access control technology to evaluate new technologies that may become available that may be sufficient for the purposes of the criticism, etc. and that do not involve decryption.  Decryption is permitted only if no reasonable alternative exists at the time.

    Conclusion

    The Copyright Office is taking a conservative view of its rulemaking mandate under the DMCA.  In nearly every case, it ignored the advice of the National Telecommunications and Information Administration (a branch of the Commerce Department), which recommended the adoption of much broader exemptions.

    The resumed prohibition on unlocking cellphones—essentially phasing out an exemption adopted in 2010 — is the first elimination ever of a previously adopted DMCA exemption.  Thus, the 2012 rulemaking process was a triumph for content and software owners and a setback for those who wish to expand the boundaries of fair use.