Fair Use Fridays: Jailbreaking Your Cell Phone is Legal - Maybe Some Mashups, Too

On July 20, 2010, the Librarian of Congress came out with regulations making jailbreaking of cell phones exempt from the prohibitions of the Digital Millenium Copyright Act.  17 USC 1201. Bypassing DVD protections to make a "criticism or comment" is, too.

A summary from the Copyright Office of the regs is italicized below.

A copy of the regulation here 

Recommendations of the Register of Copyrights here

Statement on Rulemaking of the Librarian of Congress here

It is important to note that just because it is not a violation of the DMCA to break into a DVD and take a piece of a motion picture for purposes of criticism or commentary, this does not means that what you take from the DVD will necessarily be a FAIR USE.

To determine whether your new use is fair, you will still have to satisfy the four factor test of the fair use doctrine.   For more on the fair use doctrine, embodied in 17 USC 107 look here.

Can someone please explain to me how it is LEGAL to put technological blocks in smartphones that destroy interoperability?   Isn't this anticompetitive, anti-consumer, illegal tying by monopolists and oligopolists?   If I buy a phone, shouldn't I be free to take a signal from whomever I like?

Tim Wu raises the issue in The Master Switch, reviewed here.

How mashups led to Hitler's Downfall, look here.

The Librarian of Congress has announced the classes of works subject to the exemption from the prohibition against circumvention of technological measures that control access to copyrighted works. Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) until the conclusion of the next rulemaking.


(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:


(i) Educational uses by college and university professors and by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos.


(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.


(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:

(i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.


(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and


(6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

Background


The Copyright Office is conducting this rulemaking proceeding mandated by the Digital Millennium Copyright Act, which provides that the Librarian of Congress may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works.


The purpose of this proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention of access controls. This page contains links to published documents in this proceeding.

The Notice of Inquiry in this fourth anticircumvention rulemaking requests written comments from all interested parties, including representatives of copyright owners, educational institutions, libraries and archives, scholars, researchers and members of the public, in order to elicit evidence on whether noninfringing uses of certain classes of works are, or are likely to be, adversely affected by this prohibition on the circumvention of measures that control access to copyrighted works.

The entire records of the previous anticircumvention rulemakings are available. The first rulemaking took place in 2000. The second was in 2003. The third was in 2006.

Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

United States Pirate Party Platform - Abolish the DMCA!

Logo of the United States Pirate Party
(courtesy Wikipedia)

To learn about joining the United States Pirate Party, go here.

Platform (courtesy Wikipedia)

The Pirate Party's platform centers around issues of intellectual property. "Like its international counterparts, the USPP’s main practical concerns are digital intellectual property and privacy laws—specifically, the abolition of a 1998 digital U.S. copyright law, the reduction of copyrights to 14 years (from 95 years after publication, or 70 years after the author’s death), and the expiration of patents that don’t result in significant progress within four years (as opposed to 20 years)."[3]

Reform of TrademarkTrademarks are abused around the world, in that they contain elements which are protected by either copyright or patent. A single protection for trademarks should exist, and fair use provisions made as with copyright. Trademarks should also not appear as the central issue on any dispute not arising from fraud.

Abolition of Digital Rights ManagementAll DRM and similar schemes do are to encourage people to find ways to prevent loss by circumvention. DRM is the key issue in the DMCA, and the chief reason that our population is now breaking the law en masse. DRM itself also inhibits the rights of artists to have their works experienced in as close to a live act as possible.

Right to PrivacyRegulatory bodies are, by their very nature, governing. They should therefore be prohibited from interfering in a person's private affairs. However, people should remember that their private affairs should remain private. Passwords, encryption, and other forms of electronic privacy should be afforded the same privileges as sealed envelopes.

Right to Government TransparencyThe population should at all times understand what a governing body is doing, with or to whom it is doing these things, and for what reasons. Though there is a need for national security for so long as there are enemies outside of our borders, there should never be any issue with ordinary citizens who need information. Likewise, the responsibility of citizens is to ensure that information which is of a sensitive nature is handled in a sensitive manner, so that it does not fall into the hands of those who would misuse such information to harm human life.

Reform of CopyrightCopyright is flagrantly abused around the world, has an unreasonable term length, and is used to prevent, rather than promote, innovation. This is directly counter to its stated intent in the beginning, of protecting authors' works. Additionally, the right of use should never be in question; merely the right to be credited. The term should be reverted to the 14 year term of the Copyright Act of 1790, with a right to renew for 14 additional years, at most.

Right to AssemblePeaceful assembly is guaranteed by our Constitutional First Amendment, just as free speech and free press is. Permits to protest should only be necessary if protests are planning to be disruptive (marching down streets, etc.). Police should not have a right to—though they are currently not prohibited from—disrupting the exercise of the expression of unpopular free speech.

This also covers community organization, where the political and other needs of a community sometimes requires localized political activism. People need to be able to know that what they believe can be supported; and they need to know that what they believe can be correct—or corrected.

Reform of PatentPatent is abused extensively around the world, has become the chief legal means to suppress innovation, and is largely to blame for stymieing technological progress. The practice of shelving a patent (failing to develop a patented idea which competes with one's own ideas instead of developing both and allowing innovation to spring from them) is abhorrent, and needs to be curtailed within the law. Patents which fail to be developed or have significant progress in any four-year term should be unenforceable.

Right to Free PressSpeech is protected under our Constitution, even unpopular speech, though action carries with it consequences. However, recent erosion of the First Amendment by inattentive lawmakers has led to a suppressive ideology that endangers journalistic freedoms (a necessary freedom in order to keep governments, political parties, and every other organization honest).

Underscored by recent events in St. Paul, reporters who are arrested by mistake for being in an area to report the news should have all charges summarily dismissed unless they were in fact doing damage or harm. This should be a standing policy in all city governments. Reporters form a necessary part of our government process, in bringing truth to the public.

News agencies which seek to misreport the news cannot be trusted to serve the best interests of the people, but there is a difference between news and entertainment. News agencies should have the freedom to decide which is which. However, news agencies should also be restricted from becoming the mouthpieces of special interest. One of the major issues is the limitation of small media outlets. Big media should not control 80% of the market; there should be a limit to the amount of the market that large networks control in any area.

Rejection of the Concept of Copyright infringement or "Online Piracy"Pirate Party Members hold the idea that sharing anything online is piracy is absurd on its face. Some say that actual piracy requires forceful and aggressive acts, committed against those who would keep a cargo safe from harm. The cargo in this case of this viewpoint is the freedom to act. Members would take it from those who jealously guard it for themselves and divide it amongst everyone in the country.

The Pirate Party wants to "raid" the law and "carry away" (repeal) laws which do not serve those on their metaphorical boat. The trick of it is: we're all in the same boat. It is in service to those on our boat (the Earth) that we aim to help.

Members are not willing to accept that file sharing should be banned (and will take steps, once party members are in office, to ensure that any laws in this regard are adamantly opposed, since in their perspective technology isn't the problem, but rather education about what its proper use is). On the other hand, we do agree that there is a significant amount of wrong being done to our rights in the name of protecting those whose sole aim for over 50 years has been the control and manipulation of human minds. Brainwashing our population is against our national interest in maintaining a democracy.

Abolition of the Digital Millennium Copyright Act and related subsequent provisions within copyright lawThe Digital Millennium Copyright Act of 1998 provided for legal repercussions for circumvention of copy protection, as well as making backup copies of any media illegal. This act has resulted in the intimidation, prosecution, and/or conviction of tens of thousands of people in our country—people who are otherwise law-abiding and who are not interested in being labeled thieves or crooks for doing what the internet was intended to do: share ideas. This is therefore a First Amendment issue, being freedom of expression, and we call for a repeal of this highly illogical and vertically-oriented law on the grounds that it is simply a bad law.




 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Bearcat Tire

In In re Outsidewall Tire Litigation, 2010 WL 2929626 (E.D. VA July 21, 2010), the court considered the question of whether a U.S. copyright owner could collect for infringements in China.   The court found that the Second and Ninth Circuits had permitted such recoveries where a predicate act of infringement had occured in the United States.   Here, a copyrighted tire design was copied in the U.S. then transported to China, where it was exploited.  The court permitted recovery of profits (not actual damages), even though the initial act of infringement fell outside the statute of limitations.

The court noted that both the Second and Ninth Circuits had permitted recoveries under similar circumstances and upheld the jury verdict.

The issue arose in the context of a motion pursuant to Rule 50 of the Federal Rules of Civil Procedure to determine whether the evidence adduced at trial was sufficient to support the jury's verdict.

Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling

(a) Judgment as a Matter of Law.
(1) In General.
If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
(2) Motion.
A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial.
If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment — or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged — the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
(c) Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial.
(1) In General.
If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial.
(2) Effect of a Conditional Ruling.
Conditionally granting the motion for a new trial does not affect the judgment's finality; if the judgment is reversed, the new trial must proceed unless the appellate court orders otherwise. If the motion for a new trial is conditionally denied, the appellee may assert error in that denial; if the judgment is reversed, the case must proceed as the appellate court orders.
(d) Time for a Losing Party’s New-Trial Motion.
Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered must be filed no later than 28 days after the entry of the judgment.
(e) Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal.
If the court denies the motion for judgment as a matter of law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment.

 Purchase Copyright Litigation Handbook from West here