US Copyright Office approves phone jailbreaking and video remixes

Tablets and consoles still locked down

By Iain Thomson in San Francisco • Get more from this author

Posted in Law, 27th October 2012 00:28 GMT

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The US Copyright Office has published the latest exceptions to the Digital Millennium Copyright Act (DMCA) and it's good news for phone jailbreakers and video remixers, who are now legal – well, until 2015, at least.

The terms of DMCA lockdowns are reviewed every three years, and the Electronic Frontier Foundation (EFF) is claiming victory after it successfully petitioned for exemptions in the current round of changes.

In particular, the EFF asked that owners of smartphones, tablets, and games consoles should be allowed to do what they like with the devices they purchase, changing the operating system or software to suit themselves. In a partial victory for those owners, the Copyright Office ruled that smartphones can legally be jailbroken, which is good news for modders. But if you own a fondleslab, you're out of luck.

"The Register concluded that the record did not support an extension of the exemption to 'tablet' devices," the ruling said. "The Register found significant merit to the opposition's concerns that this aspect of the proposed class was broad and ill-defined, as a wide range of devices might be considered 'tablets,' notwithstanding the significant distinctions among them in terms of the way they operate, their intended purposes, and the nature of the applications they can accommodate."

In legalese, this means that someone in government can't decide exactly what a tablet is. Clearly the combined adverting and market segmentation efforts of Apple, Android, and Microsoft haven't had much of an impact on the fusty folks at the Copyright Office.

"If you bought your gadget, you own it, and you should be able to install whatever software you please without facing potential legal threats," said EFF senior staff attorney Marcia Hofmann in a statement.

"We're pleased the Copyright Office renewed our smartphone jailbreaking exemption request, but we're disappointed that it couldn't see that consumers deserve the same rights for all the gadgets they own. We'll be back with more exemption requests in the next rulemaking, and we're hopeful the Copyright Office will keep moving in the right direction."

The smartphone ruling came despite representations from the Wireless Asociation, formerly the Cellular Telephone Industry Association (CTIA). It argued that jailbreaking should not be allowed because users buy handsets, but don't necessarily own the software that runs them. The industry pressure group also warned that jailbreaking broke the current business model of operators subsidizing handsets.

Games console owners who want to tinker are also going to be stymied. The Copyright Office report records that the Entertainment Software Association (ESA) and Sony "vigorously opposed" jailbreaking, saying consoles are "the center of an intellectual property ecosystem." Those objections seem to have worked, with the new ruling saying there was no compelling case for allowing console jailbreaking.

In a move guaranteed to delight video editors and the creators of cute cat or child videos the Copyright Office ruled that it is legal to use music or clips from copyright media for personal or educational use. Politicians will also love this for their campaign clips.

"Remix videos are thriving on YouTube and other sites, offering dynamic criticism and commentary on popular movies as well as popular culture," said EFF Intellectual Property director Corynne McSherry. "It's a great example of how new technologies foster free expression, yet the anti-circumvention provisions of the DMCA endanger these important works," .

"We're thrilled that the Copyright Office broke new ground in protecting remix artists," she said. "We can't let misguided federal law block a new form of art and expression." ®

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