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Remixers, Unlockers, Jailbreakers, Oh My!
Yesterday, EFF filed petitions (1, 2) with the Copyright Office seeking DMCA exemptions for three categories of activities that do not violate copyright laws, but that are still jeopardized by the DMCA's ban on bypassing technical protection measures used to control access to copyrighted works (i.e, DRM). The three exemptions are for:
- Noncommercial video creators (like YouTubers and vidders) who rip DVDs in order to use clips for fair use remixes;
- Cell phone owners who want to unlock their phones to use them on cellular networks of their choosing;
- Cell phone owners who want to "jailbreak" their phones in order to use applications of their choosing (e.g., iPhone owners who want apps from sources other than the iTunes App Store).
The exemption for remix video creators is necessary to protect fair use in a digital world where visual literacy (what Larry Lessig calls RW culture) is increasingly important. Today, if you rip a DVD, the MPAA takes the position that you've broken the law, even if you are making a video that comments on the latent racism in Disney films or the sexualized violence in 300. This is what free speech looks like in the 21st century, and a DMCA exemption is necessary if we want to avoid driving millions of amateur creators into the copyright underground.
The cell phone exemptions (unlocking and jailbreaking) are necessary to protect your "freedom to tinker" with products you own. Cellular carriers lock their phones not to protect their copyrights, but rather to discourage customers from switching carriers. This is not only anti-competitive, but puts millions of used cell phones into landfills each year. More recently, cell phone makers have started locking phones to a single source for applications -- which is why more than 350,000 iPhone owners have "jailbroken" their iPhones in order to get the apps they want, instead of just the ones Apple is willing to let them have.
Others are seeking exemptions for computer security researchers who want to investigate DRM on videogames (SecuROM, we're looking at you); documentarians, film professors, and media literacy educators who need to take clips from DVD; and consumers who have been left high and dry by vendors who retired their DRM authentication servers (e.g., Walmart, Yahoo, Microsoft). All of these proposals should appear on the Copyright Office website within a few days. Comments supporting or opposing the proposed exemptions are due by Feb. 2, 2009. Hearings will follow in the Spring, and the Copyright Office will announce its final determinations in October 2009, as the last set of exemptions expire.
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global minilinks for 2008-12-02
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Copyright Office Should Right DMCA Wrongs in Rulemaking
San Francisco - The Electronic Frontier Foundation (EFF) filed three exemption requests with the U.S. Copyright Office today aimed at protecting the important work of video remix artists, iPhone owners, and cell phone recyclers from legal threats under the Digital Millennium Copyright Act (DMCA).
The DMCA prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to protect copyrighted works. While this ban was meant to deter copyright infringement, many have misused the law to chill competition, free speech, and fair use. Every three years, the Copyright Office convenes a rulemaking to consider granting exemptions to the DMCA's ban on circumvention to mitigate the harms the law has caused to legitimate, non-infringing uses of copyrighted materials.
One proposal filed by EFF is aimed at protecting the video remix culture currently thriving on Internet sites like YouTube. The filing asks for a DMCA exemption for amateur creators who use excerpts from DVDs in order to create new, noncommercial works. Hollywood takes the view that "ripping" DVDs is always a violation of the DMCA, no matter the purpose.
"Remix is what free speech looks like in the 21st century, which is why thousands of noncommercial remix videos are posted to YouTube every day," said EFF Senior Intellectual Property Attorney Fred von Lohmann. "The DMCA wasn't intended to drive fair use underground."
Another proposal requests a DMCA exemption for cell phone "jailbreaking" -- liberating iPhones and other handsets to run applications from sources other than those approved by the phone maker. Hundreds of thousands of iPhone owners have "jailbroken" their iPhones in order to use applications obtained from sources other than Apple's own iTunes "App Store."
"It's not the DMCA's job to force iPhone users to buy only Apple-approved phone applications," said von Lohmann. "The DMCA is supposed to block copyright infringement, not competition."
EFF's third proposal asks for a renewal of an exemption previously granted for unlocking cell phones so that the handsets can be used with any telecommunications carrier. Carriers have threatened cell phone unlockers under the DMCA to protect their anti-competitive business models, even though there is no copyright infringement involved in the unlocking. Instead, the digital locks on cell phones make it harder to resell, reuse, or recycle the handset.
"Millions and millions of Americans replace their cell phones every year. EFF is representing three organizations that are working to make sure the old phones don't end up in the dump, polluting our environment," said EFF Civil Liberties Director Jennifer Granick. " Also, renewing this exemption will continue to help people who want to use their phones while traveling and will promote competition among wireless carriers."
The rulemaking proceeding will accept public comments regarding proposed exemptions until the deadline of February 2, 2009. The Copyright Office will then hold hearings in Washington, DC and California in Spring 2009. The final rulemaking order will be issued in October 2009.
For more on EFF's exemption requests:
http://www.eff.org/issues/dmca-rulemaking
For more on the anti-circumvention rulemaking:
http://www.copyright.gov/1201/
Contacts:
Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
fred@eff.org
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Change.gov Content Now Under Creative Commons License
In the last few days, President-elect Obama's transition team took a significant stride towards a more open government by licensing the content of Change.gov under a Creative Commons Attribution license. Using that license essentially means that the transition team is allowing others to freely share and remix what's posted there, provided that reposts are attributed to Change.gov. The move is a victory for the public and the many advocates for a more wired, participatory democracy.
It's also another reminder of the importance of Creative Commons, which affords creators an opportunity to opt for something less than Disney-style copyright restrictions. By embracing a CC license, the Obama team sets a valuable example for others in government, many of whom may have defaulted to "all rights reserved" without considering other options.
While Change.gov has experienced some growing pains, the transition team appears to be making a real effort to use the website as a legitimate location for its conversation with the American public. The preview post of the President-elect's planned weekly address (posted on Thanksgiving Day) includes links to multiple sources — an embedded YouTube video, a link to the same video posted to Yahoo! Video, and a high-resolution .mov file — with the Creative Commons license guaranteeing that the public can freely share, remix, comment, and report on the President-elect's statement.
The switch to Creative Commons licensing is encouraging and we hope that it is a herald of more pro-open government changes to come.
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EFF to Fight Against Telecom Immunity in Tuesday Hearing
San Francisco - On Tuesday, December 2, at 10 a.m., the Electronic Frontier Foundation (EFF) will challenge the constitutionality of a federal law aimed at granting immunity to telecommunications companies participating in illegal domestic surveillance.
At Tuesday's hearing, EFF will argue that the flawed FISA Amendments Act (FAA) improperly attempts to take away Americans' claims arising out of the First and Fourth Amendments, violates the federal government's separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law. Signed by President Bush earlier this year, the FAA allows for the dismissal of the lawsuits over the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court in September and is demanding that the cases be dismissed.
EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency. EFF has been appointed co-coordinating counsel along with the American Civil Liberties Union (ACLU) for all 46 outstanding lawsuits concerning the government's warrantless surveillance program.
Also Tuesday, in the afternoon, the court will hear the arguments on the future of Al-Haramain Islamic Foundation v. Bush, a case alleging that the government illegally wiretapped calls between the charity and its lawyers.
For more information about attending the hearing, please contact press@eff.org.
WHAT:
Hepting v. AT&T and other NSA telecommunications records lawsuits
WHEN:
Tuesday, December 2
10 a.m.
WHERE:
450 Golden Gate Ave., Courtroom 6
San Francisco, CA 94102
For more on EFF's case against AT&T:
http://www.eff.org/nsa/hepting
Contact:
Rebecca Jeschke
Media Coordinator
Electronic Frontier Foundation
press@eff.org
