Winning Some Battles in the Copyfight
Some good news came from the battlefield that is media and technology policy recently: some important fair use rulings that help to hold off the ever expanding clutches of copyright. Through a nice (if small) corrective built into the generally heinous Digital Millennium Copyright Act, every three years the Library of Congress rules on exemptions to the anti-circumvention clause that makes it illegal to break technological protections on copyrighted material. Here are the new exemptions:
- Ripping clips of DVDs for educational purposes and use in documentary and noncommercial works is now allowed under the law. This extends the previous exemption enjoyed only by lucky film and media studies instructors and their classroom uses to recognize more instructors, non-classroom uses, and students. Make sure to check out Jason Mittell’s posts here and here for details and what this means for academics. Beyond that, this ruling is also a big victory for those documentary filmmakers and remix video artists who have to crack encryptions on the existing material they transform for criticism and commentary.
- It’s also now legal to jailbreak your phone, opening up its operating system for other mobile networks and applications. This ruling is most specifically about unlocking the iPhone for use with carriers other than AT&T and to run apps other than those available on Apple’s tightly controlled iTunes App Store, which is an important limitation on the power that device producers like Apple can have over users.
- Users also now have the right to crack digital rights management in order to run screen-readers on ebooks. Many publishers technologically restrict the use of text-to-speech functions on computers and devices like the Kindle, so allowing for getting around this is especially key for promoting accessibility for people with print and visual disabilities.
- The ruling also allows for academic security research on video game DRM, in response to concerns over some specific security vulnerabilities.
The legal recognition of these fair uses is a very encouraging development— the result of a lot of great work by organizations like the Electronic Frontier Foundation, American University’s Center for Social Media, the Organization for Transformative Works, the Society for Cinema & Media Studies, and others. As Jonathan Zittrain and others point out, though, there are still a number of technological and legal hurdles that remain in the way of these uses— not least, of course, are the technical skills necessary to pick the locks in the first place. And this is all only good for another two years, when these exemptions will have to be defended at the next review.
The Library of Congress’s ruling is even more encouraging, though, when taken along with two other recent court decisions on copyright. The first case made some headlines: in June, a federal court threw out Viacom’s $1 billion copyright infringement lawsuit against YouTube. The summary judgment ruling took a good strong reading of the “safe harbor” provision of the DMCA, finding that Google only hosts others’ content on YouTube and therefore can’t be held liable for the actions of its users. The second case went relatively unnoticed: the day after the LOC announced its exemptions, a federal appeals court ruled that breaking DRM just to access a piece of software isn’t illegal under the DMCA’s anti-circumvention rules. While a rather abstruse case involving medical system software and dongles (yes, dongles), the decision sets a pretty clear and substantial fair use precedent: breaking technological protections on a work is legal as long as the use you make of it is legal. These cases, though, are likely far from over— expect to see appeals to the Supreme Court in both. Nonetheless, in the fight for a more balanced approach to copyright regulation (and especially in light of some really scary stuff on the horizon), it’s nice to have some victories to celebrate.
Danny, thanks for this. I wonder whether these exceptions came about because the big media companies simply didn’t show up and didn’t think they needed to do anything, or whether they did (and if they did, how much of a fight such provisions received, &/or whether some were yielded without a fight)? In other words, I’m trying to work out whether a bunch of forces caught the beast while it was sleeping, whether the beast suffered a defeat, or whether the beast might’ve got a little bit nicer. Do you know which is the case?
I think it’s a big battle that no one going to take part, it’s everyones works not just big medias.
I’m not entirely sure what to attribute it to, but my sense is that, in the case of DVDs at least, it’s just been chipped away long enough. The LOC basically said that enough evidence has accumulated (after 12 years!) of both the negative effects of the DMCA and that fair use circumvention hasn’t, after all, destroyed the market for DVD sales (shock!).