On Thursday the librarian of Congress issued a Final Rule that prohibits largely on copyright grounds jailbreaking, rooting, and ripping the millions of digital devices that help define daily life. Technically, the Final Rule is born from the general status of the DMCA that makes it illegal to tamper with any scheme to manage digital rights. There are some exceptions, including those announced in today’s ruling. The rule was promulgated by Librarian of Congress James H. Billington–who, before his appointment in 1987, was a historian with little if any apparent legal or technical background The rule attempts to clarify those exemptions although it does little to make sense of them. (Click here for complete text of “Exemption to Prohibition of Circumvention of Copyright Protection Systems for Access Control Technologies.)
OK to Jailbreak Phones–For Now–But Not Tablets
The ruling permits the circumvention of “computer programs that enable wireless telephone handsets to execute lawfully obtained software applications.” But you can’t do the same thing on tablets. The reason? The librarian is not sure what is and isn’t a tablet. He found “significant merit to the opposition’s concerns that this aspect of the proposed class was broad and ill-defined, as a wide range of devices might be considered ‘tablets,’ notwithstanding the significant distinctions among them in terms of the way they operate, their intended purposes, and the nature of the applications they can accommodate. For example, an e-book reading device might be considered a ‘tablet,’ as might a handheld video game device or a laptop computer.” (Similarly, an Etch-A-Sketch might be considered a “tablet”, but nothing in the ruling clarifies whether it is permissible to jailbreak one Etch-A-Sketch drawing by shaking it to replace the drawing with a different one.)
If You’re Going to Unlock Your Phone, Better Do It Soon
Although the Final Rule came with little advance warning, it does give you a two-month notice that beginning in 2013, unlocking your cell phone so you can use it on a different carrier will become illegal. Yes, you bought the phone. You own it. But, according to Billington, you do not own the software inside the phone. As is the case with most software, rather than buy it, you lease the software from its developer on terms set out in the ubiquitous End User License Agreement. Unlocking a phone by modifying or swapping out the software it runs on is an infringement of copyright unless you first get the permission of the phone’s manufacturer. But you can unlock your phone if it was originally purchased from a wireless network or retailer before today or until 90 days from now, you can knock yourself out fooling around with the code. Replace the code’s chip with a Junior Mint if you like. It’s purposeless but legal.
Documentary on T-Rex? OK. 007 Movie from DFW to LAX? No Way!
Say you bought a DVD of the latest James Bond flick. It would be perfect to rip it for your iPad to watch on that flight from Dallas-Ft. Worth to L.A. It would be perfect–but wrong, according to Congress’s librarian. Billing did however make exceptions that will affect tens of people. You can rip a DVD if you use part of it in a noncommercial video, or to conduct research into improving the visual and audio capabilities of DVD players for the benefit of persons who are blind or deaf. But there is no exception for space-shifting, moving the DVD’s contents from its original disk to some medium that allows it to be watched on another device, such as a iPad, which lacks a DVD drive. Even the RIAA, the bulldogs of the recording industry, has said space shifting is “perfect lawful”. Michael Weinberg of Public Knowledge, was quoted in Ars Techica saying that the ruling “flies in the face of reality”.
Comment, and Not Just to Us
What’s your reality like? Tell us in the comments below. Or if you’d like to sound off to someone closer to the heart of the matter, email Jacqueline C. Charlesworth, Senior Counsel to the Register of Copyrights, at jcharlesworth@loc.gov and Christopher S. Reed, Senior Adviser for Policy & Special Projects at creed@loc.gov . PS I’d never want to be known as the plonker who introduced rules that could never be followed or even understood. (I’ve glanced through the “Rules” and I am lost :) From what I’ve seen, most of these types of laws come into effect by Copyright Company XYZ handing a representative a pre-written bill and asking for them to sign it in as their own, and on the side a hefty campaign contribution is allotted to them for their efforts. It’s not bribery, it’s “lobbying.” This doesn’t necessarily make the representative “dirty” or anything of the sort. Most often the law suggestion is made to them by a highly technical department of company XYZ with papers and evidence suggesting that it would be good for the economy and the country in general. From the represenative’s perspective it is a win-win. They are told and believe that the new law benefits their constituents (even if it doesn’t in reality), and they get paid to bring it into effect. I normally never follow this type of stuff but now that I’m living in D.C. is is difficult to avoid it. Comment Name * Email *
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