<videovortex> EFF Wins New Legal Protections for Video Artists, Cell Phone Jailbreakers, and Unlockers

Johan Oomen joomen at beeldengeluid.nl
Tue Jul 27 00:31:50 CEST 2010

More analysis from arstechnica.com:


t: @johanoomen

Op 26-07-10 23:16, Joomen at beeldengeluid.nl <JOomen at beeldengeluid.nl>

> http://www.eff.org/press/archives/2010/07/26
> Rulemaking Fixes Critical DMCA Wrongs
> San Francisco - The Electronic Frontier Foundation (EFF) won three critical
> exemptions to the Digital Millennium Copyright Act (DMCA) anticircumvention
> provisions today, carving out new legal protections for consumers who modify
> their cell phones and artists who remix videos ‹ people who, until now, could
> have been sued for their non-infringing or 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."
> The exemptions were granted as part of a statutorily prescribed rulemaking
> process, conducted every three years to mitigate the danger the DMCA poses to
> legitimate, non-infringing uses of copyrighted materials. The DMCA prohibits
> "circumventing" digital rights management (DRM) and "other technical
> protection measures" used to control access to copyrighted works. While the
> DMCA still chills competition, free speech, and fair use, today's exemptions
> take unprecedented new strides towards protecting more consumers and artists
> from its extensive reach.
> The first of EFF's three successful requests clarifies the legality of cell
> phone "jailbreaking" ‹ software modifications that liberate iPhones and other
> handsets to run applications from sources other than those approved by the
> phone maker. More than a million iPhone owners are said to have "jailbroken"
> their handsets in order to change wireless providers or use applications
> obtained from sources other than Apple's own iTunes "App Store," and many more
> have expressed a desire to do so. But the threat of DMCA liability had
> previously endangered these customers and alternate applications stores.
> In its reasoning in favor of EFF's jailbreaking exemption, the Copyright
> Office rejected Apple's claim that copyright law prevents people from
> installing unapproved programs on iPhones: "When one jailbreaks a smartphone
> in order to make the operating system on that phone interoperable with an
> independently created application that has not been approved by the maker of
> the smartphone or the maker of its operating system, the modifications that
> are made purely for the purpose of such interoperability are fair uses."
> "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."
> EFF also won a groundbreaking new protection for video remix artists currently
> thriving on Internet sites like YouTube. The new rule holds that amateur
> creators do not violate the DMCA when they use short excerpts from DVDs in
> order to create new, noncommercial works for purposes of criticism or comment
> if they believe that circumvention is necessary to fulfill that purpose.
> Hollywood has historically taken the view that "ripping" DVDs is always a
> violation of the DMCA, no matter the purpose.
> "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.
> On EFF's request, the Librarian of Congress renewed a 2006 rule exempting cell
> phone unlocking so handsets can be used with other telecommunications
> carriers. Cell phone unlockers have been successfully sued under the DMCA,
> even though there is no copyright infringement involved in the unlocking.
> Digital locks on cell phones make it harder to resell, reuse, or recycle the
> handset, prompting EFF to ask for renewal of this rule on behalf of our
> clients, The Wireless Alliance, ReCellular and Flipswap. However, the 2009
> rule has been modified so that it only applies to used mobile phones, not new
> ones.
> "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."
> Along with the exemptions that EFF championed, several other DMCA exemptions
> were expanded, granted or narrowed including one for documentary filmmakers
> and college-level educators, as well as some for security researchers.
> For the full rulemaking order:
> https://www.eff.org/files/filenode/dmca_2009/RM-2008-8.pdf
> For more on the DMCA rulemaking:
> http://www.eff.org/issues/dmca-rulemaking
> Contacts:
> Jennifer Stisa Granick
>  Civil Liberties Director
>  Electronic Frontier Foundation
>  jennifer at eff.org
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