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

[Johan Oomen]

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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