Home Fair Use Legalized, Says EFF

Fair Use Legalized, Says EFF

New exemptions have been added to the the Digital Millenimum Copyright Act (DMCA), a U.S. copyright law that criminalized attempts to bypass copyright, access control technologies or digital rights management (DRM) measures. The exemptions now provide protections for “fair use” in several different circumstances, the most notable of which is the (now legalized!) process of jailbreaking a phone, a popular activity among iPhone owners in particular.

The term jailbreaking refers to hacking a smartphone in order to gain access to additional features or install unapproved applications. However, it is only one of the many new protections announced today. Also included are protections that would allow owners to use their mobile devices on different wireless networks – a practice known as “unlocking” a phone – plus exemptions that allow breaking of copyright protection mechanisms on both videos and games, exemptions that make e-books more accessible, and finally, exemptions that allow bypassing external security measures on computers in specific circumstances involving dongles.

See also Why Fair Use is Not Just Acceptable, It’s Essential for the Future

The advocacy group EFF has been lobbying for these changes for some time due to the overly broad language used previously in the DMCA legislation, which seemingly requires an ongoing list of “exceptions” for so-called fair use activities in order to stay current with the rapidly-changing technology of the Internet era.

“The Copyright Office and Librarian of Congress have taken three important steps today to mitigate some of the harms caused by the DMCA,” said Jennifer Granick, EFF’s civil liberties director, in regard to today’s changes. “We are thrilled to have helped free jailbreakers, unlockers and vidders from this law’s overbroad reach.” (We believe she means “video creators” there – “vidders” is a new one for us, too.)

Specifically, today’s exemptions include the following:

  • Permission for cell phone owners to break access controls on their phones in order to switch wireless carriers or “jailbreak” their device
  • Permission to break technical protections on video games to investigate or correct security flaws
  • Permission for college professors, film students and documentary filmmakers to break copy-protection measures on DVDs so they can embed clips for educational purposes, criticism, commentary and noncommercial videos
  • Permission to enable an e-book’s read-aloud function or use a screen reader with the e-book, even when built-in access controls prevent this
  • Permission for computer owners to bypass the need for external security devices called dongles if the dongle no longer works and cannot be replaced

This is Bigger than iPhone

Apple claimed that jailbreaking an iPhone allowed people to install unapproved (and often pirated) applications and therefore should not be permitted. The Copyright Office rejected this claim saying that jailbreaking is actually fair use.

Although the EFF reports that over 1 million iPhone owners are suspected of having jailbroken their devices, the bigger (though initially less glamorous) news may be the new permissions for creative types to break copyright in order to include clips of other works into their videos and films. By previously not permitting this activity (legally), the law has stifled the ability for artists to tell their stories and for educators to simply do their jobs without fear of repercussions. Although at first this may mean a lot more “fan-made” videos don’t get yanked down from YouTube as quickly as before, we expect to see in the near future, as the EFF does, some “amazing works” of art resulting from this change.

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