DMCA exemptions: requesting permission to innovate (2011 CEA repost)

(Since a site redesign at the Consumer Electronics Association resulted in the posts I wrote for CEA’s Digital Dialogue blog vanishing, along with everything there older than last November, I’m reposting a few that I think still hold up. This one ran Dec. 16, 2011; it may help explain where the last few months of headlines about phone unlocking came from.)

One of the stranger rituals of U.S. tech policy is now unfolding in Washington: the triennial reassessment of the Digital Millennium Copyright Act’s “anti-circumvention” rules.

In this exercise, the Librarian of Congress considers granting exemptions to the DMCA’s ban on picking digital or electronic locks that control access to copyrighted works. The DMCA mandates this review because of the possibility–in retrospect, certainty–of companies abusing their immunity from customer interference with “digital rights management” systems to limit non-infringing uses.

DMCA exemption rulemakingYou may prefer to call this a “requesting permission to innovate” ritual.

In four earlier rounds of exemption proceedings–in 200020032006 and last year–Librarian James H. Billington has inconsistently expanded the range of DMCA exemptions, sometimes taking away earlier permissions.

He legalized hacking into Web-filtering software to inspect lists of blocked sites the first two times but didn’t renew that in 2006. The exemption granted in 2000 for defeating broken DRM mechanisms that wrongly deny access was then narrowed to a loophole for breaking obsolete or malfunctioning “dongle” hardware keys. (A related exemption, covering systems that require presenting an original copy of a program or game in a storage format that has become obsolete, arrived in 2003 but was not renewed in 2010.)

E-book customers won the right in 2003 to hack their DRM if it prevented the use of screen-reader accessibility software and have kept it since, but no equivalent accessibility exemption has been granted for movie viewers. And yet in 2010, the Librarian legalized ripping “protected” DVDs for fair-use criticism and commentary purposes, something still not allowed for DRMed e-books or music.

2006′s exemptions let you unlock a phone to use on a competing network, but 2010′s narrowed that to used phones. But last year’s proceeding also granted the right to jailbreak a phone to install the software of your choice–a big development for iPhone users.

Perhaps unsurprisingly, many of the 20 comments submitted in this year’s proceeding focus on preserving prior gains or ironing out inconsistencies.

For example, a group called the Library Copyright Alliance only wants to renew 2010′s DVD-ripping exemption, while the University of Michigan’s library seeks to have its protected class of students widened beyond those in “film and media studies.”

(Those links and all that follow point to PDF files.)

Public Knowledge wants to see the current DVD rule extended to cover “space shifting” to other formats, noting the increasing number of laptops without DVD drives.

A coalition of Telecommunications for the Deaf and Hard of Hearing, Gallaudet University and the Participatory Culture Foundation propose granting a broader exemption to make movie downloads, streams and discs accessible to those with hearing or sight impairments.

A group led by the International Documentary Association proposes to expand the same provision to cover Blu-ray discs and movie downloads and streams so that future filmmakers can incorporate fair-use excerpts in documentary or fictional works. A set of professors at the University of Pennsylvania and elsewhere make the same request for educational use and are echoed by the University of Rhode Island’s Media Education Lab.

The American Council of the Blind and the American Foundation for the Blind, meanwhile, want to maintain an exemption for making e-books accessible to readers with limited vision. The Open Book Alliance wants another for removing DRM from books that are already in the public domain.

Mobile devices figure in over a quarter of these submissions. Small wireless firms MetroPCS CommunicationsYoughiogheny Communications and a trade group called RCA – the Competitive Carriers Association all want to renew and expand 2010′s phone-unlocking exemption to cover mobile devices in general, not just phones. Consumers Union concurs.

The Software Freedom Law Center also favors allowing device owners to install the operating system of their choice. It also wants to permit desktop users to bypass any mandatory app stores–although neither Windows nor Mac OS X impose that restriction today.

The Electronic Frontier Foundation sent in an all-of-the-above brief backing exemptions for jailbreaking phones, tablets and video-game consoles and another set for unlocking DVDs, downloads and streams to extract fair-use clips.

Four submissions from individuals request blanket waivers on circumvention for personal use; a fifth seeks one for the narrow category of DRMed e-books in the Mobipocket format Amazon no longer supports on its Kindle readers.

We’ll have to wait until sometime in February to see which of these requests get a favorable hearing, or if any of 2010′s exemptions will disappear. That’s plenty of time to contemplate a broader question: If a far-reaching provision of a law carries such a high risk of collateral damage that an unelected official must drill holes into it every three years–and those holes seem to get bigger over time–shouldn’t we think about rebooting that rule?

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Weekly output: phone unlocking, iOS and Android video, Google Calendar sync, Tim Berners-Lee

Work finds me in Austin this weekend for the SXSW Interactive festival. I’ll have more about that over the next few days; for now, here’s what I have to show for myself, professionally speaking.

3/5/2013: Unlock And Load: White House Picks Phone Policy Fight, Disruptive Competition  Project

The White House surprised many people with its favorable response to a petition seeking the legalization of unlocking cell phones without carrier permission–it said “yes” and then endorsed the idea that carriers shouldn’t be denying service to unlocked phones from other operators. The latter is a somewhat novel idea in wireless but has been been the law in wired since the FCC’s underappreciated “Carterfone” ruling of 1968. But there are important caveats to the White House’s statement, and noting them helped push this post past 1,000 words.

3/9/2013: Work around video playback issues on your mobile device, USA Today

Like many of my USAT columns, this one started with a question from one of my relatives–my mother-in-law couldn’t watch a video of her grandson in her Yahoo Mail account on our iPad’s copy of Safari. The piece also has a tip updating advice I gave in November about sychronizing Google Calendar with an iOS device.

TBL BoingBoing post3/9/2013: Tim Berners-Lee: The Web needs to stay open, and Gopher’s still not cool., Boing Boing

The inventor of the Web had some interesting things to say in his talk at SXSW; after tweeting out highlights of the keynote, I pitched my editor at Boing Boing via Twitter direct message (making this my fastest salesmanship ever) and wrote up this recap later that afternoon.

On Sulia, you could have read me noting the White House’s phone-unlocking petition response (and, in retrospect, reading a little too much out of it) drawing a lesson for tech journalists from the outrage over EA’s botched SimCity launch, called out two still-absent features in Google’s updated Maps apps for iOS, and applaud the seemingly-impossible success of the free WiFi at SXSW.

Weekly output: new iPad, 4K, Web chat, DVD ripping, Facebook social apps

For some weird reason, this new tablet from Apple kept showing up in my work this week. How does that happen?

3/19/2012: The New iPad: A Super Screen and a Big Battery, Discovery News

When two different Discovery colleagues mentioned their interest in buying the new iPad, I opted for an unconventional product-review tactic: I offered to stand in line that Friday morning to make that purchase for them, on the condition that I get to spend a few days testing the hardware before turning it over. As a result, this is one of the few reviews of Apple’s latest tablet to feature photos taken of one new iPad with another.

3/20/2012: Retina displays, 4K TVs push pixel limits, CEA Digital Dialogue

My new-iPad coverage continued with a look at what its magical and revolutionary seriously impressive Retina display means for other handheld devices–and why TVs don’t need a similar beyond-high-def upgrade. This post involved way more math than usual and may have been the first time I’ve dealt with a tangent function since high school (if by “dealt with” you mean “plugged variables into a WolframAlpha equation form”).

3/23/2012: Spring Gleaning: Smartphones, Social Media and Tablets (Web chat), CEA Digital Dialogue

Unsurprisingly, the new iPad also prominently figured in this month’s Web chat. But I also got some good questions about secure browsing over public WiFi, a sluggish iPhone, problems syncing an iPad with iTunes over WiFi (I’m pretty sure that query came from one of my NASA Tweetup pals), rooting an Android phone, Windows 8’s clashing interfaces, phone screen sizes and my own uncertainty about what kind of phone to get next.

3/25/2012: Tip: How to copy a DVD to your PC, USA Today

The first item in this week’s column, recommending the open-source Handbrake for DVD ripping and revisiting my dislike of the Digital Millennium Copyright Act’s anti-circumvention clause, began with a query from my neighbor across the street. The second started with an exchange on the DC Tech Facebook group complaining about the Washington Post’s Social Reader app.

Internet 1, Big Copyright 0

Some 11 and a half years ago, I was mad enough about a story in the news that I stayed up until 3:57 a.m. (according to the timestamp on the file) to write a column about it. That issue was a case called Universal v. Reimerdes, in which a federal judge had ruled it illegal to distribute the DeCSS DVD-unlocking software.

I knew that the Digital Millennium Copyright Act’s “anti-circumvention” provisions made such a ruling possible. But it was something else to see it applied to a program with obvious fair-use potential–and to have people then act as if it were entirely feasible to halt the distribution of that file over the Internet. I just had to write about something so insultingly unfair and mind-boggingly stupid… assuming I could get the importance of it across to people who had never heard of DeCSS or the DMCA:

Last Thursday, a judge in New York City ruled that an obscure magazine called 2600, based in Middle Island, N.Y., can’t post an equally obscure program, DeCSS, on its Web site, or link to other sites that offer it. Few people have used this software, which unlocks a DVD movie’s encryption, and not many more seem to care.

They should. This lawsuit is all about the mix of fear and greed that is driving the entertainment industry to put tighter and tighter locks on its products–and whether consumers get to do anything about it.

That August 25, 2000 column in the Washington Post was the first of many copyright rants I’ve had occasion to write. A lot has changed since then–DeCSS, of course, never disappeared and has since been replaced by better software that I’ve used to make copies of my DVDs to watch on laptops without optical drives–but one thing had not. The entertainment-industry firms that had lobbied for the passage of the DMCA and cheered the DeCSS verdict had kept on getting their way in Washington. Never mind the larger size of the tech industry; at worst, Big Copyright might lose a round after an egregious overreach, but that setback would then go largely unrecorded.

That changed this week, thanks to a storm of protest over the Stop Online Piracy Act and its Senate counterpart, the Protect IP Act. Both would have turned the Internet’s Domain Name System into a censorship mechanism; the former would have also given copyright owners a financial kill switch for sites accepting user-generated content. And both looked set to sail through Congress until people noticed and started getting righteously fed-up, culminating in yesterday’s blackout protests at sites from Wikipedia to WordPress.com.

Those two bills have since taken a public beating–not just on tech-news sites, but on the evening news–and sponsors of each have been rushing to hit the Undo button on their support.  To judge from the more delusional press releases issued over the last 48 hours, I’m not sure that Hollywood even knows what hit it.

I would have liked to have seen this moment happen back in 2000, but this year will do.