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  

Best Business Book of the Year - The Master Switch By Tim Wu

Good business writing is really a delight.   And when a really talented, visionary writer takes on a business history, the result can be breathtaking.    Tim Wu has done just that, in a masterful, entertaining work that really should win a  best business book of the year.

Wu has taken the history of telephone - AT&T - of radio and RCA and walked us through those times in history when an "open" technology has become closed, and when a monopolist has been able to strangle free speech here in the land of the free.

Wu is a law professor and a specialist in intellectual property.  He is generally acknowledged to have coined the term "net neutrality".   But despite those scary geek credentials, he's written a vibrant work of business history that works in the Kronos myth.   This is an important, literate work and a must-read for anyone who wishes to understand the current Apple vs Google debate - I have never seen it explained so well, nor had I realized how much was at stake.

I laud Wu for not only laying out the history, but also having the guts to put out a solution, something that he calls the Separations Principle.   That is, the people who create the content shouldn't own the means of distribution and vice versa when it comes to the information economy.   I am sure he is right, I just didn't quite understand why he was so dismissive of antitrust law.

It always seemed to me that the way cell phones are sold in the US are illegal tying arrangements where consumers are forced to buy expensive cell phone plans to get a phone.   Stuck in a damned plan, you can't get out without getting charged a fortune and you can't get a good cheap new phone at the most competitive rate.    I remember vaguely that the US Tobacco trust used its cigarette machine patent abusively and ended up monopolizing ownership of tobacco farms - I thought this was all illegal tying, but this type of anticompetitive behavior is a commonplace today.   Owners of devices routinely thwart consumer freedom, free trade, and competition.   As Wu makes clear, Apple is the worst offender, thwarting all possibility of consumer freedom through technological gimmicks.

I am not sure how Wu's "Separation Principle" differs from the classic forbidden tying arrangement I learned in antitrust law, but it seems to me that many of the media conglomerates are misusing machines, patents, and copyrights in exactly that way.    Maybe we need the new theory, or maybe the Department of Justice and the FCC need a wakeup call and a knock on the head.

Wu's book is likely to be extraordinarily influential in telecommunications and information technology regulation in years to come.   But don't buy it for that reason.  Buy it because it is a rip-roaring good read and will help you understand and care about where we are headed next.

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

Free CLE: Tim Wu and the Master Switch on Doug Lichtman's IP Colloquium

AT&T Old Logo courtesy Wikipedia

Columbia professor Tim Wu discusses his new book The Master Switch on UCLA Prof Doug Lichtman's IP Colloquium here   If you are interested in net neutrality, antitrust law, technology history, business history, general theories of competition and the past, present and future of the internet.

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