TLDR: This changes nothing.

Today the Librar­ian of Con­gress announced new rules pro­mul­gated pur­suant to the Librarian’s rule­mak­ing author­ity under the Dig­i­tal Mil­len­nium Copy­right Act to exempt cer­tain actions from the pro­hi­bi­tion against cir­cum­ven­tion of copy­right pro­tec­tion sys­tems found in 17 U.S.C. §1201. The “anti-​​circumvention pro­vi­sion” states:

No per­son shall cir­cum­vent a tech­no­log­i­cal mea­sure that effec­tively con­trols access to a work pro­tected under this title.

The Librar­ian is required by §1201 to make a deter­mi­na­tion every three years as to whether any exemp­tions from this pro­hi­bi­tion are nec­es­sary in order to pre­serve access to copy­righted works. In the words of the Librar­ian, his task is to deter­mine

whether the pro­hi­bi­tion on cir­cum­ven­tion of tech­no­log­i­cal mea­sures that con­trol access to copy­righted works is caus­ing or is likely to cause adverse effects on the abil­ity of users of any par­tic­u­lar classes of copy­righted works to make non­in­fring­ing uses of those works.

There are six new excep­tions announced today:

1. Edu­ca­tional, doc­u­men­tary, and non­com­mer­cial users may now break CSS pro­tec­tion on DVDs in order to extract por­tions of motion pictures.

   This is some­thing edu­ca­tors and crit­ics have been doing for quite some time. At least, the edu­ca­tors at my film school did it all the time, and encour­aged us as stu­dents to do so for assign­ments. For exam­ple, one assign­ment was to take a film and cut a trailer for it. I chose AI: Arti­fi­cial Intel­li­gence, which was newly released on DVD at the time, and with which I was a lit­tle obsessed, hav­ing taken part in the extra­or­di­nary, genre-​​defining arti­fi­cial real­ity game pro­mot­ing its the­atri­cal release. I used DeCSS to extract the entire film, then edited together a pretty decent trailer. Did this infringe on Dream­works’ copy­right? No. Use of excerpts of copy­righted mate­r­ial for edu­ca­tional or crit­i­cal use is per­mit­ted under fair use doc­trine. Was it crim­i­nal at the time? Yes. The Dig­i­tal Mil­len­nium Copy­right Act’s anti-​​circumvention pro­vi­sion made it a crime to access copy­righted mate­r­ial for fair use pur­poses if that mate­r­ial was pro­tected by an anti-​​copying tech­nol­ogy. The DVD was pro­tected by CSS, and the use of DeCSS to cir­cum­vent that pro­tec­tion was crim­i­nal, even though the under­ly­ing use of the copy­righted mate­r­ial was not. DeCSS’s rela­tion­ship with the DMCA has been dis­tilled into the con­cept of the ille­gal prime num­ber: a numer­i­cal rep­re­sen­ta­tion, in the form of a large prime, of the DeCSS method.

   This pro­vi­sion means that, when I finally get around to fin­ish­ing my com­pre­hen­sive analy­sis of James Cameron’s Avatar, the post will include screen grabs from the film rel­e­vant to the points I will make. Such screen grabs for use in crit­i­cism were ille­gal before today, despite the fact that they are not now nor have ever been a vio­la­tion of any copyright.

   This rule specif­i­cally men­tions only DVDs. It does not men­tion, and there­fore does not include, cir­cum­ven­tion of Blu-​​Ray copy pro­tec­tion schemes. Expres­sio unius est exclu­sio alterius.

2. Wire­less phone users may now cir­cum­vent soft­ware pro­tec­tions on their phones that pre­vent the phone from exe­cut­ing software.

   This is effec­tively directed at Apple’s App Store for the iPhone. The new rule says only what it says, how­ever, and what it says is that it is no longer a vio­la­tion of the statute to cir­cum­vent Apple’s not-​​App-​​Store-​​approved soft­ware block. It does not say that doing so is no longer a breach of con­tract, or that Apple has to tol­er­ate it in any way. All it says is that the gov­ern­ment will not put some­one in jail for hack­ing their own phone to run what­ever soft­ware they want it to run.

3. Wire­less phone users may now also cir­cum­vent soft­ware pro­tec­tions on their phones that pre­vent the phone from oper­at­ing on a wire­less network.

   Just as with num­ber 2, the new rule merely states that it is not a crime for a wire­less phone user to hack his own phone in order to let it oper­ate with a net­work other than the one for which it was designed. It doesn’t say Apple has to con­tinue to sup­port off-​​network iPhones, or that T-​​Moble has to tol­er­ate jail­bro­ken iPhones on its network.

4. Users may now cir­cum­vent video game copy pro­tec­tion soft­ware (e.g., SecuROM) for secu­rity inves­ti­ga­tion purposes.

   I am not famil­iar with the real-​​world case to which this exemp­tion applies. If some­one knows, please share in the com­ments. My under­stand­ing of the pro­vi­sion is that it allows a com­puter user or com­puter net­work oper­a­tor to cir­cum­vent soft­ware that pro­hibits game data from being accessed from out­side the con­text of game-​​play, so long as the user or oper­a­tor is doing so for the pur­pose of test­ing the game data for mal­ware, and so long as the results of such inves­ti­ga­tions are main­tained in a way that does not pro­mote or facil­i­tate improper circumvention.

   I think the non-​​infringing use being impaired by the anti-​​circumvention pro­vi­sion here is the use of the copy­righted game data in deter­min­ing whether the game poses a threat to sys­tem or net­work security.

5. Users of com­puter soft­ware access-​​protected by a hard­ware don­gle may cir­cum­vent the access-​​protection sys­tem when their don­gle mal­func­tions, so long as the don­gle sys­tem is obso­lete and no longer sup­ported by the manufacturer.

   If you buy some soft­ware (or a CD with music on it, or a DVD with a movie on it), you own your copy. If it inter­op­er­ates with the seller’s net­work, the seller can dic­tate the terms under which that inter­op­er­a­tion may take place, but the seller has no moral or legal right to dic­tate how you will use non-​​interoperating soft­ware (includ­ing CDs or DVDs, which don’t require ongo­ing com­mu­ni­ca­tion with the pub­lisher to con­tinue to func­tion). Before the Inter­net picked up, some soft­ware com­pa­nies want­ing greater con­trol over use devel­oped hard­ware don­gles which, when attached to a com­puter sys­tem, would allow the soft­ware to oper­ate. This allowed com­pa­nies a way of enforc­ing the “one work­sta­tion” restric­tions in their soft­ware licenses. Nowa­days, this kind of func­tion­al­ity is done over the Inter­net. For exam­ple, when you install a copy of Win­dows 7, it has to be “acti­vated” by con­tact­ing Microsoft’s servers over the Inter­net before it will fully func­tion. Many com­pa­nies that once used don­gles to enforce “one work­sta­tion” licenses now use the Inter­net acti­va­tion method, and no longer sup­port their older dongles.

   Those com­pa­nies would prob­a­bly pre­fer that users with bro­ken don­gles be forced into buy­ing an updated ver­sion of the soft­ware, but since these are not soft­ware prod­ucts that rely on reg­u­lar man­u­fac­turer inter­op­er­abil­ity, the man­u­fac­turer has no moral or legal author­ity to require the user to upgrade. The user is enti­tled by his orig­i­nal pur­chase to con­tinue access­ing the copy­righted soft­ware he pur­chased. If the don­gle breaks and the man­u­fac­turer won’t sup­ply him with a replace­ment because it is out­dated, he can now cir­cum­vent the don­gle and con­tinue using his software.

   Con­trac­tu­ally, if the license agree­ment antic­i­pated a stand-​​alone soft­ware model, then that copy of the soft­ware is the buyer’s to use for­ever so long as he likes. Even if the agree­ment con­tained a pro­vi­sion say­ing “you agree not to bypass the don­gle, and if your don­gle ever breaks and we decide not to replace it, you will have no recourse but to upgrade,” I don’t think a court would find breach if you did bypass a bro­ken and obso­lete don­gle. Morally and legally, you are still enti­tled to use the soft­ware you pur­chased. Even though I don’t think a court would find breach in such a case, I do think that you have still bro­ken a promise in that sit­u­a­tion. It’s just not a promise related to copy­right. It’s essen­tially a promise to make a future pur­chase under cer­tain con­di­tions and at an unde­ter­mined price.

6. Vision-​​impaired eBook own­ers may cir­cum­vent eBook copy pro­tec­tion sys­tems when those sys­tems inter­fere with acces­si­bil­ity software.

   This one is pretty straight­for­ward and doesn’t require any fur­ther explanation.

Now here’s what I think. I think that all of the activ­i­ties now exempted from §1201 have been going on for quite some time, and that what had pre­vi­ously been an exer­cise of pros­e­cu­to­r­ial dis­cre­tion has now been con­densed to writ­ten rules. That is a move towards objec­tiv­ity in the law, and there­fore a Good Thing.

The Big Deal of the Day seems to be num­bers 2 and 3 and how they apply to Apple’s iPhones, which are locked into the AT&T wire­less net­work. But the truth is these new rules will not change any­thing about the jail­break­ing sit­u­a­tion. We have seen exten­sive, long-​​standing, and uni­ver­sal pros­e­cu­to­r­ial dis­cre­tion exer­cised against bring­ing crim­i­nal charges against jail­break­ers. Never once have I heard of a jail­breaker being charged under §1201, and could find no such pros­e­cu­tions in my research. (If some­one else has found such a pros­e­cu­tion, please share in the com­ments.) All that has changed with respect to the iPhone sit­u­a­tion is that jail­break­ers no longer need to rely on pros­e­cu­to­r­ial dis­cre­tion. They now have a writ­ten rule.

Morally, a jail­breaker is still a promise-​​breaker. He’s not a thief, how­ever, because he bought his phone and it is his to do with as he pleases. He can stick it in a blender [Warn­ing: graphic con­tent] if he so chooses, and Apple has no right to object.

Also note how 2 and 3 are dif­fer­ent from the sit­u­a­tion in 5. The iPhone soft­ware is not stand-​​alone. It inter­op­er­ates. Because it has to con­tin­u­ally com­mu­ni­cate with Apple in order to func­tion, Apple can, morally and legally, set the terms by which that exchange takes place. Apple can rightly refuse to inter­op­er­ate with jail­bro­ken phones. If Apple can devise a way to make its soft­ware com­pletely shut down when a phone is jail­bro­ken, it would be entirely within its rights to do so both under the license agree­ment and in terms of prop­erty rights.

Why? In the case of the iPhone, the user owns the phone, which inter­op­er­ates with the pro­ducer (Apple) to pro­vide func­tion­al­ity. By jail­break­ing his phone, the user breaks his promise to abide by the producer’s terms of inter­op­er­abil­ity. He can keep his phone, but the pro­ducer no longer has to pro­vide soft­ware inter­op­er­abil­ity. By jail­break­ing, the promise-​​breaker tells the pro­ducer he no longer wants the producer’s soft­ware accord­ing to the terms of their agree­ment, which is just the same as say­ing he no longer wants the software.

§1201 is and has always been bad for prop­erty rights. Specif­i­cally, bad for the prop­erty rights of the pur­chasers of copy­righted works. For one, it is vague and broad. It is an attempt to crim­i­nal­ize activ­ity that can have both legit­i­mate and ille­git­i­mate pur­poses. The atti­tude behind §1201 is the same atti­tude that would ban bit­tor­rent tech­nol­ogy alto­gether because it can be used to vio­late copy­right. Or that bans pos­ses­sion of locksmith’s tools alto­gether because they might be used to break into a house. Or that bans teach­ing of chem­istry alto­gether because the knowl­edge might be used to poi­son some­one. There are bound to be both legit­i­mate and ille­git­i­mate uses of every kind of knowl­edge or tech­nol­ogy. Ban­ning a tech­nol­ogy because it could be used for an improper pur­pose vio­lates the rights of peo­ple who would put the tech­nol­ogy to proper use.

§1201’s attempt to crim­i­nal­ize cer­tain kinds of knowl­edge is a reac­tion to the fail­ure of secu­rity through obscu­rity. Secu­rity through obscu­rity will always be defeated by the Streisand Effect—the more you try to sup­press knowl­edge, the more wide­spread that knowl­edge will become. Obscu­rity is not a viable way to pro­tect intel­lec­tual prop­erty any­way, because the intel­lec­tual prop­erty is itself the infor­ma­tion that must be kept secret. If, for exam­ple, the enter­tain­ment indus­try wants a fool­proof way of pro­tect­ing their prod­ucts from eco­nom­i­cally sig­nif­i­cant copy­ing, the tech­nol­ogy to do so has been around for decades. It is called ana­log, and it is still, in my opin­ion, the most grace­ful solu­tion to piracy.

So I am not at all unhappy to see §1201 being eroded by more and big­ger excep­tions. I would pre­fer to see it dis­ap­pear alto­gether. But the Librarian’s newest rules don’t really change any­thing on the jail­break­ing front. They remove a min­i­mal, hypo­thet­i­cal threat of pros­e­cu­tion for an act that, while immoral and a breach of con­tract, should never have been con­sid­ered crim­i­nal in the first place.

Here they all are, in (almost) one playlist:

Now go buy Aphrodite, on sale today!

(No, I didn’t get a free copy, or any­thing else at all from Kylie or her record company.)

“I Believe in You”, from her com­pi­la­tion album, Ulti­mate Kylie, (2004).

Kylie’s new stu­dio album, Aphrodite goes on sale Tues­day July 6th.