Tuesday, July 27, 2010

Legal Commentary: Jailbreaking and the Library of Congress

If you've been following the techno-libertarian movement that's basically centered around BoingBoing.net, you'll know that one of their central tenets is that "If you buy something, you should own it." This has been their central argument against DRM (where you buy music, and the music determines your rights), and also against End User License Agreements, where you basically agree to whatever the company wants you to agree to in order to use that product you bought.

This has been part of their disdain for Apple, who basically tell you to jump off a cliff if you want to fix your iPhone/iPod/iPad/etc. yourself.

One of the more recent reasons against letting you pop open your phone and look at its innards, either in a software or a hardware manner, is because of Apple's relationship with AT&T. The exclusive deal with the iPhone obligated both parties to do whatever is possible to prevent "jailbreaking"; modifying an iPhone to work with other networks.

Well, no longer, Apple:
The Electronic Frontier Foundation won regulatory approval for three exemptions to the Digital Millennium Copyright Act, including one that covers jailbreaking smartphones.

The Copyright Office of the Library of Congress agreed with the EFF's argument that jailbreaking phones to allow the installation of unapproved software constitutes fair use.

While the ruling applies in theory to any smartphone, the only manufacturer mentioned is Apple, which wrote to voice its objections to the exception, saying the iPhone's restrictions are necessary to protect consumers. The Library rejected Apple's arguments, saying that "if Apple sought to restrict the computer programs that could be run on its computers, there would be no basis for copyright law to assist Apple in protecting its restrictive business model."

As a practical matter, jailbreakers -- including this reporter -- haven't been facing any legal threats up until now. Still, it's nice to have the government's explicit blessing.

As part of the same announcement, the Copyright Office also gave its blessing to video editors who use excerpts of copyrighted movies in online mashups.
You'll notice, by the way, that that is a huge shift in legal precedent -- previously, the inclusion of a 1 second clip of The Simpsons on a television in the background of a documentary was considered infringement. Now, the Copyright Office is stating unequivocally that the use of a clip of film for non-profit purposes (specifically online mashups) is parody, and therefore fair use.

Really, jailbreaking or not jailbreaking is not the important part of this story. The important part of this story is that a consumer advocacy group (Electronic Frontier Foundation) was able to create a broadening of fair use through the Library of Congress' Copyright Office.

Not being connected to them, I don't know exactly how easy this was relative to the other two paths -- Congressional legislation and court rulings. I'm guessing, however, that it was easier than both.

Congressional legislation, as we've all seen, is a grueling process that allows a lot of special interest money -- and the anti-fair-use lobby tends to be much larger than the pro-fair-use lobby. And Congress has inertia about just about everything, especially in these combative times.

Court rulings are a more even playing field, but they can be expensive, and they crucially need a convincing test case -- a case in which it was clear someone's rights were infringed by a crackdown on jailbreaking. There just aren't any actual damages yet, since the reporter observes that this is mostly a theoretical battle. Therefore it would be hard to get a case into a court.

I'm sure there are difficulties with the Library of Congress approach, but it's worth noting that -- as when the Library of Congress accepted the Americans for the Blind request for exceptions to copyright for the visually impaired -- agencies whose jobs including interpreting the law are also places to push for change.

Banks know this -- and that's the uncertainty at the heart of the Financial Reform bill.

Environmentalists know this -- and that's why there's a lot of talk of the EPA having to take action in the absence of a Climate bill.

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