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By now, you’ve probably heard that the Library of Congress says you can jailbreak your iPhone. But there are other exceptions to the Digital Millenium Copyright Act (DMCA) that the Library of Congress created—and other people who are happy about these exceptions.
For instance, thanks to an expanded exception for motion picture DVDs, someone who lawfully acquires a lawfully made DVD that is protected by a Content Scrambling System (CSS) may circumvent the CSS for certain purposes. They can circumvent the CSS in order to take clips from the DVD so they can “create new works for the purposes of criticism and comment,” so long as they’re doing so for certain educational purposes, documentary filmmaking, or to create a noncommercial video. Apart from students, teachers and filmmakers, one group of people who will benefit from this exception is the Organization for Transformative Works. They advocated for this exception on behalf of vidders: fans of visual media who make videos using clips from the DVDs of television shows and movies and setting those clips to a background song. Their purpose is to use those clips to tell a story or make a criticism about the original work. Some of the videos they submitted as examples of transformative fair use are available here.
But there’s a limitation: the circumventing user must “reasonably believe that circumvention is necessary to fulfill the purpose of the use.” That means that if there is an alternative to circumvention, like video capture, the user must “reasonably determine” that the better quality of the clips taken from a DVD is needed for his or her purpose. Circumvention is only allowed when “required” in this sense.
The other exceptions are for getting around firmware meant to prevent you from using your phone on the wireless network of your choice, getting around video game encryption for the purposes of testing for security flaws (provided the information gained from these tests isn’t used for infringement), accessing computer programs protected by obsolete dongles, and literary works distributed in ebook format if all ebook editions prevent enabling the book’s read-aloud function or the rendering of the text into a disabled-accessible format. As you might imagine, that last exception is very important for visually impaired people’s access to books. Interestingly, the Library created that exception without a recommendation from the Register of Copyright to do so.
As for the famous jailbreaking exception, the Library described it as applying to “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.”
Everyone knows by now that this will let you modify Apple software to put third-party apps on your phone. Apple argued that jailbreaking was the making of an unauthorized derivative work. The Library’s analysis concluded that jailbreaking was a non-infringing fair use. Although advocates offered two other reasons for why jailbreaking should be allowed—first, that some jailbreaking is within the scope of Apple users’ licenses, and second, that the users own the particular copy of the firmware for their phone—the Library rejected the first one and didn’t reach a conclusion on the second one. Instead, it went with the fair use theory.
Why is jailbreaking fair use? First of all, it’s a modification for private, noncommercial purposes, which are innocent and often beneficial (because it promotes interoperability). Secondly, the Library aptly pointed out that it’s not an infringement of copyright to run a program on a computer despite the objections of the owner of the copyright in the computer’s operating system. Apple can’t stop you from running Windows on your Mac. The “nature of the copied work”—an operating system—is functional, and it is not part of a copyright-owner’s rights to control what runs on that operating system. Thirdly, while “jailbreakers” reuse the vast majority of the iPhone’s firmware (thus using a large “amount” of the copied work), the modification are very small. As the Library put it, “Where the alleged infringement consists of the making of an unauthorized derivative work, and the modifications are so de minimis,” the fact that jailbreakers “are using almost the entire iPhone firmware for the purpose for which it was provided to them by Apple” lessens the importance of the amount copied. And finally, the Library concluded that jailbreaking doesn’t cause the kind of economic harm that a fair use analysis should take into account.
But there’s a logical flaw in the second point of the Library’s fair use analysis. If there is no violation of copyright implicated at all, then what’s the need for the fair use analysis? If none of a copyright-owner’s rights are implicated, then the use is non-infringing even without getting into a fair use analysis.
The finer points of legal analysis aside, it’s good that the Library has started being more generous with its power to make DRM exceptions. These new rules are a much-needed step towards a more user-friendly, less cumbersome attitude to circumvention.