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Copyright Office Rules in Favor of Fair Use and Consumer Freedom

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It is not everyday that the U.S. government sides with jailbreakers. But, last week, the Librarian of Congress and Copyright Office did just that. Although the "jailbreaking" involved converting one's iPhone or other mobile device to allow it to run both mobile service and third-party applications of the consumer's choice, the new law is no less remarkable than a successful escape from a maximum-security prison. The law marks a decisive victory for American consumers and a firm rejection of attempts to use the Digital Millennium Copyright Act (DMCA) to achieve market control that copyright law was never meant to protect.

The DMCA was enacted in 1998 at the urging of Hollywood studios and the music industry, which feared piracy of their works on the Internet. The basic theory of the DMCA was simple: copyright holders should get extra legal protection for the technological measures--so called "digital locks"--they use to restrict access to or copying of their copyrighted works. The "anti-circumvention" provision under the DMCA makes it illegal for people to circumvent these digital locks, or to share tools that can be used to unpick the locks protecting copyrighted works.

While the theory of the DMCA was justifiable, in practice it hasn't worked so well. First, in some areas, such as in music, many industry leaders decided on abandoning digital locks altogether. Ironically, it was Apple CEO Steve Jobs who championed the movement to "open" music files in a now famous Feb. 6, 2007 letter titled, "Thoughts on Music."

The second failing of the DMCA is more worrisome. As critics feared, the DMCA has the potential of undermining people's ability to engage in legitimate fair use activities. What the Copyright Act permits people to do, the DMCA could just as easily forbid by "locking" them out of lawful activities. Even worse, some companies attempted to use the DMCA as a weapon to seek market power over functional items--such as garage door openers and printer cartridges--that copyright law was never meant to protect. As preposterous as it may sound, companies effectively tried to "copyright" their functional devices and business methods through the backdoor of the DMCA.

Luckily, Congress foresaw some of these potential abuses. In enacting the DMCA, Congress set up a rulemaking procedure by which the Librarian of Congress, with consultation with the Register of Copyrights, can create 3-year exemptions to the DMCA anti-circumvention provision. The most recent exemptions, the fourth in the line of rulemakings, are the most significant yet.

Two of the six exemptions deal with mobile phones. The Librarian renewed the 2006 exemption that allows people to circumvent encryption on their phones so they can switch to another cellphone service provider--from AT&T to Verizon, to use the Register of Copyrights Marybeth Peters' specific example. In rejecting Apple's arguments to use the DMCA to support its exclusive service with AT&T, the Register explained that "mobile phone locks prevent consumers from legally accessing alternative wireless networks with the phone of their choice."

The "jailbreaking" exemption goes even further in protecting consumer choice. It allows people to circumvent the technological measures on their iPhones or other mobile devices, in order to allow the devices to run third-party software applications of the user's choice--even against the wishes of Apple or the device manufacturer. By using encryption on the iPhone, Apple tries to stop people from running third-party apps that Apple hasn't approved. However, the Register again rejected Apple's arguments that the DMCA should be allowed to facilitate Apple's restrictive efforts. In this case, the argument for fair use in jailbreaking iPhones was "compelling and consistent with congressional interest in interoperability."

For many, it may seem confusing to think of iPhone usage as presenting a copyright issue. After all, people are buying the iPhone to use them, not to pirate their software. So what's the beef? Well, the beef is really over a business tactic, not the protection of copyrighted works. As the Register of Copyrights noted, "the amount of copyrighted work modified in a typical jailbreaking scenario is fewer than 50 bytes of code out of more than 8 million bytes, or approximately 1/160,000 of the copyrighted work as a whole." Whether Apple should be allowed to employ restrictive business tactics for its iPhone (or iPad, for that matter) is a much different question than whether Apple should get legal protection under the DMCA for that restrictive end. Put simply, "if Apple sought to restrict the computer programs that could be run on its computers, there would be no basis for copyright law to assist Apple in protecting its restrictive business model."

The other key exemption recognized by the Librarian is a "remix" exemption that expands a prior exemption for circumventing the encryption on movies on DVDs, in order to make a fair use of a film. The new "remix" exemption applies not only to "educational use in the classroom by media studies or film professors," as was the case under the previous exemption, but now also to documentary filmmaking and noncommercial videos--the latter class popular among "vidders." The "remix" exemption is limited, though, to "relatively short portions of motion pictures" for use in creating a new work "for purposes of criticism or commentary."

These three DMCA exemptions, which were proposed by the Electronic Frontier Foundation, provide an important reminder: the DMCA was enacted to serve the purposes of copyright law, with all of its checks and balances--and not the other way around.

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