American Anti-Circumvention Laws Becoming More Liberal?

The US might be one party pushing for tougher copyright rules internationally through ACTA (Anti-Counterfeiting Trade Agreement), but the laws surrounding anti-circumvention appear to be getting looser these days. It may very well be a sign that the toughest anti-circumvention rules around might not be in everyone’s best interest.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

ACTA, about two weeks ago, made headlines over its more recent leak. We did a quick read-through at the time and discovered some very tough anti-circumvention laws embedded in the text. While the US is, no doubt, pushing for tougher copyright rules abroad, it makes the two latest developments on anti-circumvention laws within the US all the more interesting.

According to the Courthouse News Service on Friday, a court ruling found that the mere act of breaking a digital lock is not, in and of itself, an infringement. From the report:

“Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the (Digital Millennium Copyright Act’s) anti-circumvention provision,” Judge Garza wrote for the New Orleans-based court.

“The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.”

This is a very interesting court ruling even though it relates to physical devices from General Electric. Coincidentally, though, new rules surrounding copy protection was issued by the Librarian of Congress at the US copyright office. During a review thanks to Section 1201, the ruling designates six new classes of non-infringing activities:

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System 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, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;

(ii) Documentary filmmaking;
(iii) Noncommercial videos

(2) 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.

(3) 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.

(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:

(i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and

(6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

CrunchGear commented that this essentially means that it’s not illegal to bi-pass the CSS of a DVD for the purpose of Fair Use. They also suggested that this ruling also means that it is no longer illegal to jail-break your phone.

Overall, though, it’s really nice to see something legally happen that seems to give American citizens a little breathing room. A positive development in American law that favors regular citizens, particularly in copyright related issues, really doesn’t happen that often with all the copyright term extensions just being handed to big copyright corporations to name one example.

Apple Furious With Development

It’s no surprise that some companies are furious with this development. Apple (CNet) over this news, saying in a statement that they oppose this new development with regards to cell phones.

“Apple is opposed to the proposed Class #1 exemption because it will destroy the technological protection of Apple’s key copyrighted computer programs in the iPhoneâ„¢ device itself and of copyrighted content owned by Apple that plays on the iPhone,” Apple said in a statement, “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. The proponents of the exemption have also not satisfied their burden of proof of showing harm to non-infringing uses of the copyrighted works protected by the technological protection measures on the iPhone. In addition, because Congress has already explicitly addressed circumvention for interoperability in Section 1201(f) of the Digital Millennium Copyright Act (DMCA),4 the Copyright Office should not create interoperability exemptions outside that statutory structure, at least without a clear showing of specific and significant harm, which has not been put forth here.”

Let’s face it, the law is not stopping people from jail breaking their phones. The only thing the law does is create more copyright criminals who feel that their rights with what they legally pay for is far too narrow.

In fact, according to PCMag, Apple is enjoying record breaking profits:

Apple reported a net profit of $3.25 billion on revenue of $15.7 billion, both of which shot up dramatically from a year ago, when Apple reported profits of $1.83 billion on revenue of $9.73 billion.

So really, cry me a river. It’s not like Apple can’t weep on spare thousand dollar bills laying around the office.

EFF Welcomes the Move

The Electronic Frontier Foundation (EFF) is currently applauding this development, calling this a victory for people who would otherwise be sued for what would otherwise be considered fair use activities.

“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 Jennifer Granick, EFF’s Civil Liberties Director. “We are thrilled to have helped free jailbreakers, unlockers and vidders from this law’s overbroad reach.”

“Copyright law has long held that making programs interoperable is fair use,” confirmed Corynne McSherry, EFF’s Senior Staff Attorney. “It’s gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability.”

“Noncommercial videos are a powerful art form online, and many use short clips from popular movies. Finally the creative people that make those videos won’t have to worry that they are breaking the law in the process, even though their works are clearly fair uses. That benefits everyone — from the artists themselves to those of us who enjoy watching the amazing works they create,” added McSherry.

As for the phone jailbreaking exceptions:

“The Copyright Office recognizes that the primary purpose of the locks on cell phones is to bind customers to their existing networks, rather than to protect copyrights,” said Granick. “The Copyright Office agrees with EFF that the DMCA shouldn’t be used as a barrier to prevent people who purchase phones from keeping those phones when they change carriers. The DMCA also shouldn’t be used to interfere with recyclers who want to extend the useful life of a handset.”

Overall, it sounds like a very positive development within the US. There’s actually a new hint of fairness within one of the most controversial copyright law in the world, the Digital Millennium Copyright Act (DMCA).

Drew Wilson on Twitter: @icecube85 and Google+.

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