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New DMCA Rule Limits What You Can Do and Mystifies Too

Nuh uh uh! Don’t touch that iPad. Or your Nook. Or that DVD, and maybe your smartphone too.
As of today (Oct. 28, 2012) what some would call “tampering” with those digital doodads of the digitari will be officially illegal.

On Thursday the librarian of Congress issued a Final Rule that prohibits largely on copyright grounds jailbreaking, rooting, and ripping the millions of digital devices that help define daily life. Technically, the Final Rule is born from the general status of the DMCA that makes it illegal to tamper with any scheme to manage digital rights. There are some exceptions, including those announced in today’s ruling. The rule was promulgated by  Librarian of Congress James H. Billington–who, before his appointment in 1987, was a historian with little if any apparent legal or technical background The rule attempts to clarify those exemptions although it does little to make sense of them. (Click here for complete text of “Exemption to Prohibition of Circumvention of Copyright Protection Systems for Access Control Technologies.)

OK to Jailbreak Phones–For Now–But Not Tablets

The ruling permits the circumvention of “computer programs that enable wireless telephone handsets to execute lawfully obtained software applications.”  But you can’t do the same thing on tablets.  The reason?  The librarian is not sure what is and isn’t a tablet.

He 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. For example, an e-book reading device might be considered a ‘tablet,’ as might a handheld video game device or a laptop computer.”

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(Similarly, an Etch-A-Sketch might be considered a “tablet”, but nothing in the ruling clarifies whether it is permissible to jailbreak one Etch-A-Sketch drawing by shaking it to replace the drawing with a different one.)

If You’re Going to Unlock Your Phone, Better Do It Soon

Although the Final Rule came with little advance warning, it does give you a two-month notice that beginning in 2013, unlocking your cell phone so you can use it on a different carrier will become illegal. Yes, you bought the phone. You own it. But,  according to Billington, you do not own the software inside the phone.

As is the case with most software, rather than buy it, you lease the software from its developer on terms set out in the ubiquitous End User License Agreement. Unlocking a phone by modifying or swapping out the software it runs on is an infringement of copyright unless you first get the permission of the phone’s manufacturer.

But you can unlock your phone if it was originally purchased from a wireless network or retailer before today or until 90 days from now, you can knock yourself out fooling around with the code. Replace the code’s chip with a Junior Mint if you like.  It’s purposeless but legal.

Documentary on T-Rex? OK.  007 Movie from DFW to LAX? No Way!

Say you bought a DVD of the latest James Bond flick. It would be perfect to rip it for your iPad to watch on that flight from Dallas-Ft. Worth to L.A. It would be perfect–but wrong, according to Congress’s librarian.

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Billing did however make exceptions that will affect tens of people. You can rip a DVD if you use part of it in a noncommercial video, or to conduct research into improving the visual and audio capabilities of DVD players for the benefit of persons who are blind or deaf.

But there is no exception for space-shifting, moving the DVD’s contents from its original disk to some medium that allows it to be watched on another device, such as a iPad, which lacks a DVD drive. Even the RIAA, the bulldogs of the recording industry, has said space shifting is “perfect lawful”.  Michael Weinberg of Public Knowledge, was quoted in Ars Techica saying that the ruling “flies in the face of reality”.

Comment, and Not Just to Us

What’s your reality like?  Tell us in the comments below.  Or if you’d like to sound off to someone closer to the heart of the matter, email Jacqueline C. Charlesworth, Senior Counsel  to the Register of Copyrights, at [email protected]  and Christopher S. Reed, Senior Adviser for Policy & Special Projects at [email protected] .

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6 Responses to New DMCA Rule Limits What You Can Do and Mystifies Too

  1. Silver Fang October 29, 2012 at 7:00 am #

    My reality is that I spaceshift music to my computer. These new rules are completely unfair and spit in the face of my cyber liberties.

  2. Brian Burgess October 29, 2012 at 10:13 am #

    This is messed up. Obviously the lines between tablet and phone are blurring, but when I buy a device I can do whatever i want with it…imo. Does the DMCA say I cannot build my own PC? Hacking, rooting, Jailbreaking is what helps innovation.
    Anyway, I doubt this will hold any weight in the end…or hope not, but still frustrating for sure.

  3. rockdahouse October 30, 2012 at 4:25 am #

    Does this count for CDs as well? So if i buy a CD I can’t rip it into iTunes to put on my iPod?

  4. Henry Barnett October 30, 2012 at 8:10 am #

    So, whilst Jailbreaking may be illegal now and may contnue to be illegal, where does unlocking a mobile phone fit in? All (?) phone companies allow unlocking providing you go the route that your phone company requires. Example: iPhone – contact your phone company and give IMEI, they contact Apple, some time later they give you the OK and instructions, you restore it using iTunes and a new SIM card. Surely if Apple say it is OK what is to stop them continuing to allow it? AND what if say Orange UK or Orange France say OK at the end of your contract or after so many months we will allow you to unlock your phone. What a mess!

    PS I’d never want to be known as the plonker who introduced rules that could never be followed or even understood. (I’ve glanced through the “Rules” and I am lost 🙂

    • Austin Krause October 30, 2012 at 9:06 am #

      I think this is the main problem we have with current lawmakers. Most of them don’t even understand the rules that they are introducing. And even worse, they don’t understand how these rules affect their constituents.

      From what I’ve seen, most of these types of laws come into effect by Copyright Company XYZ handing a representative a pre-written bill and asking for them to sign it in as their own, and on the side a hefty campaign contribution is allotted to them for their efforts. It’s not bribery, it’s “lobbying.” This doesn’t necessarily make the representative “dirty” or anything of the sort. Most often the law suggestion is made to them by a highly technical department of company XYZ with papers and evidence suggesting that it would be good for the economy and the country in general. From the represenative’s perspective it is a win-win. They are told and believe that the new law benefits their constituents (even if it doesn’t in reality), and they get paid to bring it into effect.

      I normally never follow this type of stuff but now that I’m living in D.C. is is difficult to avoid it.

      • shaun October 6, 2013 at 10:23 pm #

        One wonders how the GPLv2 interacts with this. The simple solution: DELETE EVERYTHING ON THE PHONE and install your own stock OS. Or better yet, buy a phone with the stock OS.
        How they can prevent rooting when some manufacturers will even ship the phone with ‘rooting instructions’ is beyond me. And don’t those idiots realize that the phones ship with an option to run any app (including the same you can run by rooting) with the raw APK.
        Well, I guess with rooting now illegal, the Android devs will probably start working on a proper user prermission system that actually uses the fact that a user is at his phone and lets you, for instance, just give permission to modify the firewall.
        And on the lobbying, I’m looking into a solution.

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