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More legal reasons to circumvent electronic locks

The U.S. Copyright Office on Monday gave documentarians, amateur video remixers and smart phone application developers wider latitude to circumvent electronic locks on DVDs and mobile phones, as long as they're not infringing any copyrighted material protected by the locks. The long-delayed ruling -- the librarian of Congress was supposed to issue it last October -- was quite a leap in comparison to the narrow exemptions granted in previous years, which were limited mainly to security researchers and film schools.

The biggest beneficiaries may be documentary filmmakers and iPhone software developers. The former gained permission to circumvent the Content Scramble System software on DVDs to copy short portions of copyrighted motion pictures for non-infringing uses. In an interesting twist, the copyright office extended the exemption to anyone making a documentary, not just members of a recognized group of filmmaking professionals. 

The ruling on DVDs was a defeat for the Motion Picture Assn. of America, ...

... which argued that filmmakers and amateur videographers were adequately served by analog copying techniques. But it didn't throw the door open to rampant circumvention; the exemption only applies to the ban on circumventing electronic locks (adopted by Congress in the 1998 Digital Millennium Copyright Act), not to copyright law in general. In other words, it would still be illegal to copy a scene from "The Wedding Crashers" DVD and post it on YouTube.

Nor did the ruling affect the prohibition on making and distributing the software needed to circumvent electronic locks. Such tools are widely available online, however.

Documentarians, who were supported by a team from USC's Intellectual Property and Technology Law Clinic and Beverly Hills entertainment attorney Michael C. Donaldson, argued that the prohibition on copying even portions of DVDs forced them to seek permission from copyright holders for every snippet of footage they sought to reuse -- even for material in the public domain. The result was not just expensive and time-consuming, but it also occasionally put them at the mercy of the people they were exposing or ridiculing.

The ruling freed documentarians from "the high price extracted by rights holders, or the high price of possible criminal prosecution, when they need to reach public domain material or material to be used pursuant to fair use," Donaldson said. "All they have to do is follow a few simple rules and they can copy such materials from commercially available DVDs."

Although the ruling didn't offer a checklist of do's and don'ts, the version submitted to the Federal Register requires filmmakers to have a "lawfully acquired" copy of the DVD, be making a new work for the purposes of criticism or comment, and have "reasonable grounds" for believing that the circumvention is necessary to create that work. The last requirement is significant -- it's the copyright office's attempt to limit the exemption to projects that require better picture quality than could be obtained by analog copying techniques (e.g., pointing a camcorder at a TV screen while the DVD plays).

The exemption for documentarians was also extended to all college and university classes (not just film and media studies, as was previously the case) and to amateur filmmakers creating non-commercial works. But amateur filmmakers may not be helped much, given that the exemption is limited to works of commentary or criticism that cannot reasonably be expected to achieve their goals with lower-quality copying techniques.

The smart phone exemption was sought by the Electronic Frontier Foundation mainly to protect those who add unauthorized applications to their iPhones. Apple's software on the phone is designed to reject applications that the company hasn't approved, effectively giving Apple a chokehold over applications development. Many iPhone users have tried to get around that bottleneck by using software tools that circumvent the iPhone's authentication process, allowing their phones to run applications from any source.

Apple argued that jailbreaking violated its copyrights as well as the anti-circumvention provisions of the Digital Millennium Copyright Act. But the copyright office concluded that such efforts should be exempted because the copyright act allows electronic locks to be circumvented for the sake of interoperability, and that the alterations made to Apple's copyrighted operating system were a fair use. Apple's objections weren't aimed at protecting its copyrights, the office said, but rather its device sales: "The fact that the person engaging in jailbreaking is doing so in order to use Apple's firmware on the device it was designed to operate, which the jailbreaking user owns, and to use it for precisely the purpose for which it was designed (but for the fact that it has been modified to run applications not approved by Apple) favors a finding that the purpose and character of the use is innocuous at worst and beneficial at best."

The Electronic Frontier Foundation said that removing the threat of liability for jailbreaking would help iPhone owners and developers seeking an alternative outlet to the iTunes Store. But the prospects for unauthorized apps remains sketchy at best, given Apple's ability to render them unworkable by updating the iPhone's operating system.

The copyright office also gave security researchers a new exemption covering the electronic locks on video games, replacing the previous one for audio discs. It also extended an exemption that allows mobile-phone locks to be circumvented for the purpose of letting users switch wireless networks.

-- Jon Healey

Healey writes editorials for The Times' Opinion Manufacturing Division.

 
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