Copyright regulators rejected on Thursday proposals to make it lawful for people to copy DVDs for personal use or to jailbreak videogame consoles to run custom software.
The ruling hands yet another loss to digital rights groups who are waging an ongoing campaign to chip away at the scope of a law that limits citizens’ rights by treating copyright owners’ encryption techniques as sacrosanct.
Every three years, the U.S. Copyright Office entertains requests to create temporary loopholes in the Digital Millennium Copyright Act, which makes it unlawful to circumvent encryption technologies in items that you buy.
It’s all part of a long-running showdown between the big copyright holders who view the world as divided into creators and consumers, and a coalition of librarians, digital rights groups, disability activists and hackers who seek to preserve a world where people can repurpose, upgrade and build upon the devices and media they legally buy — just as hackers, painters and culture jammers had done for decades before the DMCA was adopted in 1998.
Librarian of Congress James Billington and Register of Copyrights Maria Pallante rejected the two most-sought-after items on the docket, game-console modding and DVD cracking for personal use and “space shifting.” Congress plays no role in the outcome.
The regulators said that the controls were necessary to prevent software piracy and differentiated gaming consoles from smart phones, which legally can be jailbroken:
[T]he record demonstrated that access controls on gaming consoles protect not only the console firmware, but the video games and applications that run on the console as well. The evidence showed that video games are far more difficult and complex to produce than smartphone applications, requiring teams of developers and potential investments in the millions of dollars. While the access controls at issue might serve to further manufacturers’ business interests, they also protect highly valuable expressive works – many of which are created and owned by the manufacturers – in addition to console firmware itself.
On the plus side, the regulators re-authorized jailbreaking of mobile phones.
On the downside, they denied it for tablets, saying an “ebook reading device might be considered a tablet, as might a handheld video game device.” We don’t suspect Apple or Google would sue anybody for jailbreaking their tablets, as they never sued anybody for jailbreaking mobile phones even before regulators first approved jailbreaking in 2010.
That said, when the only difference between a Galaxy Note and a Android tablet is an inch and a radio that can handle voice and data channels, it’s a pretty odd line to draw.
Digital-rights group Public Knowledge blasted the decision forbidding DVD cracking to enable consumers the ability to make copies of their DVDs so they can be watched on various devices in different platforms.
The group had asked regulators to grant consumers the lawful right to make copies of DVDs for personal use, a request the Motion Picture Association of America strongly opposed. While plenty of programs exist to decrypt the so-called content-scramble-system encryption on DVDs, the decision against making it lawful means the mainstream public must live under Hollywood’s rules.
“Today’s decision flies in the face of reality. The register and the librarian were unable to recognize that personal space shifting is protected by fair use. This has implications beyond making personal copies of motion pictures on DVD,” said Michael Weinberg, a Public Knowledge vice president. “Under this view of the law every personal non-commercial space shift is a violation of copyright law. That means, according to the Copyright Office, every person who has ever ripped a CD to put on her iPod is a copyright infringer.”
All told, following the DMCA’s adoption in 1998, more than two dozen exemptions have been granted. They are allotted if regulators are convinced consumers are “adversely affected in their ability to make non-infringing use due to the prohibition on circumvention.”
The regulators for the first time, however, authorized DVD circumvention “to make use of short portions of the motion pictures for the purpose of criticism or comment.”
The DMCA dictates that “no person shall circumvent a technological measure that effectively controls access to a work protected under this title” — language that, for example, blocks a DVD owner from copying a disc they’ve lawfully purchased. Because such copying can fall under the rubric of fair use, the law effectively nullifies some consumers’ rights.
Regarding video-game modding, the Electronic Frontier Foundation had made that ill-fated request, which was staunchly opposed for piracy reasons by game makers. The outcome means it’s still unlawful — a civil or criminal fine — to hack a gaming console to run other software — which can range from Linux to home-brew games to pirated games.
The EFF said it was necessary to allow the so-called homebrew community of game developers to play their games on the machines, while also allowing researchers to use the consoles like computers in the furtherance of science.
But during a public hearing in May, and reaffirmed in orders made public Thursday, the regulators were wary. They suggested scientists could use computers for their research, and homebrew gamers can play those, too, on their computers. And modding game-consoles opens then up to play pirated games as well, ones that have been unlawfully decrypted and can easily be downloaded from peer-to-peer networks.
DMCA exemptions, which are proposed by the public, expire every three years and must be reauthorized.
When it came to leaving intact the 2010 decision authorizing smartphone jailbreaking — to acquire root access to the phone — the regulators said consumers have a fair use right to do so to run whatever apps and software they wish.
The government also reaffirmed decisions allowing for the unlocking of mobile phones so they may run on compatible networks of choice — but only until January. Timothy Lee over at Ars Technica explains the government’s change of heart.
The Librarian cited two key factors. One is a 2010 ruling that held that when you purchase software, you don’t actually own it. Rather, you merely license it according to the terms of the End User License Agreement. The Librarian argued that this undermined the claim that unlocking your own phone was fair use. Also, the Librarian found that there are more unlocked phones on the market than there were three years ago, and that most wireless carriers have liberal policies for unlocking their handsets. As a result, the Librarian of Congress decided that it should no longer be legal to unlock your cell phone without the carrier’s permission.
The authorities also reauthorized circumvention of e-books, a benefit for the seeing impaired so they may enable read-aloud functions.
The DMCA was conceived as the United States’ implementation of an international copyright treaty called WIPO. Hollywood pushed for the bill to protect its intellectual property from being infringed on a massive scale, and secured the troubling anti-circumvention rule that generally prevents consumers from bypassing copy protection schemes.
But history has shown that the far-more beneficial element in the law is a provision that provides internet service providers, hosting companies and interactive services near blanket immunity for the intellectual property violations of their users — a provision responsible for opening vast speech and business opportunities — realized and unrealized.
Blogs, search engines, e-commerce sites, video and social-networking portals are thriving today thanks in large part to the notice-and-takedown regime ushered in by the much-maligned DMCA. When the DMCA was enacted, these innovations were unheard of, embryonic or not yet conceived. Now, Google has grown into one of the world’s largest companies, and its video-sharing site YouTube has left an enduring mark on public discourse.