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Government says DMCA can't stop jailbreaking, unlocking

Two actions a rebuke to Apple; third a win for video artists

By Paul McNamara on Mon, 07/26/10 - 1:13pm.

Score this one 3-0 in favor of the Electronic Frontier Foundation over the corporate interests that have used the Digital Millennium Copyright Act (DMCA) to shackle and intimidate smartphone users and Internet video artists.  

From the EFF press release:

"By granting all of EFF's applications, 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. "We are thrilled to have helped free jailbreakers, unlockers and vidders from this law's overbroad reach."

The exemptions were granted as part of a statutorily proscribed rulemaking process, conducted every three years to mitigate the danger the DMCA poses to legitimate, non-infringing uses of copyrighted materials. The DMCA prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to control access to copyrighted works. While the DMCA still chills competition, free speech, and fair use, today's exemptions take unprecedented new strides towards protecting more consumers and artists from its extensive reach.

The first administrative ruling makes clear that users are within their rights to modify cell phone software so that the device will run applications other than those approved by its maker, say, Apple, and procured from sources other than the manufacturer's proprietary source, say Apple's App Store.

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The copyright office said: "When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses."

The second ruling will prevent carriers from using the DMCA as a hammer to prevent customers from "unlocking" their phones so that they can switch to a carrier other than which, say, Apple, requires to them to use, or to hinder hardware reselling or recycling.

As for the third:

EFF also won a groundbreaking new protection for video remix artists currently thriving on Internet sites like YouTube. The new rule holds that amateur creators do not violate the DMCA when they use short excerpts from DVDs in order to create new, noncommercial works for purposes of criticism or comment if they believe that circumvention is necessary to fulfill that purpose. Hollywood has historically taken the view that "ripping" DVDs is always a violation of the DMCA, no matter the purpose.

In other words, it seems as though the Internet is once again an official safe haven for "Hitler finds out" parodies.

(Update: You can read the ruling here.)

(Update 2: Nate Anderson at Ars Technica gets deeper into the details here.)

(Update, 3:15 p.m.: No word from Apple; will be interesting to see company's reaction.)