TLDR: This changes nothing.

Today the Librarian of Congress announced new rules promul­gated pursuant to the Librarian’s rule­making authority under the Digital Millennium Copyright Act to exempt certain actions from the prohi­bition against circum­vention of copyright protection systems found in 17 U.S.C. §1201. The “anti-​​circumvention provision” states:

No person shall circumvent a tech­no­logical measure that effec­tively controls access to a work protected under this title.

The Librarian is required by §1201 to make a deter­mi­nation every three years as to whether any exemp­tions from this prohi­bition are necessary in order to preserve access to copy­righted works. In the words of the Librarian, his task is to determine

whether the prohi­bition on circum­vention of tech­no­logical measures that control access to copy­righted works is causing or is likely to cause adverse effects on the ability of users of any particular classes of copy­righted works to make nonin­fringing uses of those works.

There are six new excep­tions announced today:

1. Educational, docu­mentary, and noncom­mercial users may now break CSS protection on DVDs in order to extract portions of motion pictures.

   This is something educators and critics have been doing for quite some time. At least, the educators at my film school did it all the time, and encouraged us as students to do so for assign­ments. For example, one assignment was to take a film and cut a trailer for it. I chose AI: Artificial Intelligence, which was newly released on DVD at the time, and with which I was a little obsessed, having taken part in the extra­or­dinary, genre-​​defining arti­ficial reality game promoting its theatrical release. I used DeCSS to extract the entire film, then edited together a pretty decent trailer. Did this infringe on Dreamworks’ copyright? No. Use of excerpts of copy­righted material for educa­tional or critical use is permitted under fair use doctrine. Was it criminal at the time? Yes. The Digital Millennium Copyright Act’s anti-​​circumvention provision made it a crime to access copy­righted material for fair use purposes if that material was protected by an anti-​​copying tech­nology. The DVD was protected by CSS, and the use of DeCSS to circumvent that protection was criminal, even though the under­lying use of the copy­righted material was not. DeCSS’s rela­tionship with the DMCA has been distilled into the concept of the illegal prime number: a numerical repre­sen­tation, in the form of a large prime, of the DeCSS method.

   This provision means that, when I finally get around to finishing my compre­hensive analysis of James Cameron’s Avatar, the post will include screen grabs from the film relevant to the points I will make. Such screen grabs for use in criticism were illegal before today, despite the fact that they are not now nor have ever been a violation of any copyright.

   This rule specif­i­cally mentions only DVDs. It does not mention, and therefore does not include, circum­vention of Blu-​​Ray copy protection schemes. Expressio unius est exclusio alterius.

2. Wireless phone users may now circumvent software protec­tions on their phones that prevent the phone from executing software.

   This is effec­tively directed at Apple’s App Store for the iPhone. The new rule says only what it says, however, and what it says is that it is no longer a violation of the statute to circumvent Apple’s not-​​App-​​Store-​​approved software block. It does not say that doing so is no longer a breach of contract, or that Apple has to tolerate it in any way. All it says is that the government will not put someone in jail for hacking their own phone to run whatever software they want it to run.

3. Wireless phone users may now also circumvent software protec­tions on their phones that prevent the phone from operating on a wireless network.

   Just as with number 2, the new rule merely states that it is not a crime for a wireless phone user to hack his own phone in order to let it operate with a network other than the one for which it was designed. It doesn’t say Apple has to continue to support off-​​network iPhones, or that T-​​Moble has to tolerate jail­broken iPhones on its network.

4. Users may now circumvent video game copy protection software (e.g., SecuROM) for security inves­ti­gation purposes.

   I am not familiar with the real-​​world case to which this exemption applies. If someone knows, please share in the comments. My under­standing of the provision is that it allows a computer user or computer network operator to circumvent software that prohibits game data from being accessed from outside the context of game-​​play, so long as the user or operator is doing so for the purpose of testing the game data for malware, and so long as the results of such inves­ti­ga­tions are main­tained in a way that does not promote or facil­itate improper circumvention.

   I think the non-​​infringing use being impaired by the anti-​​circumvention provision here is the use of the copy­righted game data in deter­mining whether the game poses a threat to system or network security.

5. Users of computer software access-​​protected by a hardware dongle may circumvent the access-​​protection system when their dongle malfunc­tions, so long as the dongle system is obsolete and no longer supported by the manufacturer.

   If you buy some software (or a CD with music on it, or a DVD with a movie on it), you own your copy. If it inter­op­erates with the seller’s network, the seller can dictate the terms under which that inter­op­er­ation may take place, but the seller has no moral or legal right to dictate how you will use non-​​interoperating software (including CDs or DVDs, which don’t require ongoing commu­ni­cation with the publisher to continue to function). Before the Internet picked up, some software companies wanting greater control over use developed hardware dongles which, when attached to a computer system, would allow the software to operate. This allowed companies a way of enforcing the “one work­station” restric­tions in their software licenses. Nowadays, this kind of func­tion­ality is done over the Internet. For example, when you install a copy of Windows 7, it has to be “activated” by contacting Microsoft’s servers over the Internet before it will fully function. Many companies that once used dongles to enforce “one work­station” licenses now use the Internet acti­vation method, and no longer support their older dongles.

   Those companies would probably prefer that users with broken dongles be forced into buying an updated version of the software, but since these are not software products that rely on regular manu­fac­turer inter­op­er­ability, the manu­fac­turer has no moral or legal authority to require the user to upgrade. The user is entitled by his original purchase to continue accessing the copy­righted software he purchased. If the dongle breaks and the manu­fac­turer won’t supply him with a replacement because it is outdated, he can now circumvent the dongle and continue using his software.

   Contractually, if the license agreement antic­i­pated a stand-​​alone software model, then that copy of the software is the buyer’s to use forever so long as he likes. Even if the agreement contained a provision saying “you agree not to bypass the dongle, and if your dongle ever breaks and we decide not to replace it, you will have no recourse but to upgrade,” I don’t think a court would find breach if you did bypass a broken and obsolete dongle. Morally and legally, you are still entitled to use the software you purchased. Even though I don’t think a court would find breach in such a case, I do think that you have still broken a promise in that situation. It’s just not a promise related to copyright. It’s essen­tially a promise to make a future purchase under certain condi­tions and at an unde­ter­mined price.

6. Vision-​​impaired eBook owners may circumvent eBook copy protection systems when those systems interfere with acces­si­bility software.

   This one is pretty straight­forward and doesn’t require any further explanation.

Now here’s what I think. I think that all of the activ­ities now exempted from §1201 have been going on for quite some time, and that what had previ­ously been an exercise of pros­e­cu­torial discretion has now been condensed to written rules. That is a move towards objec­tivity in the law, and therefore a Good Thing.

The Big Deal of the Day seems to be numbers 2 and 3 and how they apply to Apple’s iPhones, which are locked into the AT&T wireless network. But the truth is these new rules will not change anything about the jail­breaking situation. We have seen extensive, long-​​standing, and universal pros­e­cu­torial discretion exercised against bringing criminal charges against jail­breakers. Never once have I heard of a jail­breaker being charged under §1201, and could find no such pros­e­cu­tions in my research. (If someone else has found such a pros­e­cution, please share in the comments.) All that has changed with respect to the iPhone situation is that jail­breakers no longer need to rely on pros­e­cu­torial discretion. They now have a written rule.

Morally, a jail­breaker is still a promise-​​breaker. He’s not a thief, however, because he bought his phone and it is his to do with as he pleases. He can stick it in a blender [Warning: graphic content] if he so chooses, and Apple has no right to object.

Also note how 2 and 3 are different from the situation in 5. The iPhone software is not stand-​​alone. It inter­op­erates. Because it has to contin­ually commu­nicate with Apple in order to function, Apple can, morally and legally, set the terms by which that exchange takes place. Apple can rightly refuse to inter­op­erate with jail­broken phones. If Apple can devise a way to make its software completely shut down when a phone is jail­broken, it would be entirely within its rights to do so both under the license agreement and in terms of property rights.

Why? In the case of the iPhone, the user owns the phone, which inter­op­erates with the producer (Apple) to provide func­tion­ality. By jail­breaking his phone, the user breaks his promise to abide by the producer’s terms of inter­op­er­ability. He can keep his phone, but the producer no longer has to provide software inter­op­er­ability. By jail­breaking, the promise-​​breaker tells the producer he no longer wants the producer’s software according to the terms of their agreement, which is just the same as saying he no longer wants the software.

§1201 is and has always been bad for property rights. Specifically, bad for the property rights of the purchasers of copy­righted works. For one, it is vague and broad. It is an attempt to crim­i­nalize activity that can have both legit­imate and ille­git­imate purposes. The attitude behind §1201 is the same attitude that would ban bittorrent tech­nology alto­gether because it can be used to violate copyright. Or that bans possession of locksmith’s tools alto­gether because they might be used to break into a house. Or that bans teaching of chemistry alto­gether because the knowledge might be used to poison someone. There are bound to be both legit­imate and ille­git­imate uses of every kind of knowledge or tech­nology. Banning a tech­nology because it could be used for an improper purpose violates the rights of people who would put the tech­nology to proper use.

§1201’s attempt to crim­i­nalize certain kinds of knowledge is a reaction to the failure of security through obscurity. Security through obscurity will always be defeated by the Streisand Effect—the more you try to suppress knowledge, the more wide­spread that knowledge will become. Obscurity is not a viable way to protect intel­lectual property anyway, because the intel­lectual property is itself the infor­mation that must be kept secret. If, for example, the enter­tainment industry wants a foolproof way of protecting their products from econom­i­cally signif­icant copying, the tech­nology to do so has been around for decades. It is called analog, and it is still, in my opinion, the most graceful solution to piracy.

So I am not at all unhappy to see §1201 being eroded by more and bigger excep­tions. I would prefer to see it disappear alto­gether. But the Librarian’s newest rules don’t really change anything on the jail­breaking front. They remove a minimal, hypo­thetical threat of pros­e­cution for an act that, while immoral and a breach of contract, should never have been considered criminal in the first place.