The Producer, the Librarian, and the Promise-Breaker

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.

Tom G Varik