New Media Rights has filed comments with the Copyright Office supporting three exemptions to the Digital Millennium Copyright Act’s anti-circumvention provisions. Similar to our 2009 comment to the Copyright Office, this comment supports the right to bypass anti-circumvention technologies to a) allow individuals to take control of the apps and services they use on their mobile devices, and b) allow creators and internet users to reuse video content for fair use purposes. Our 2012 comment also supports recommendations that these exemptions should be extended beyond their 2009 counterparts in two very important ways – we argue that jailbreaking should also apply to tablets and that the bypassing of anti-circumvention technology should include non-DVD sources.
The exemptions provide a safety valve for otherwise lawful behavior by consumers and creators. Specifically, NMR’s comments relate to Proposed Class 5, 7B, and 7C, as requested by the Electronic Frontier Foundation.
The Proposed Exemptions
Proposed Class 5 includes “[c]omputer programs that enable wireless telephone handsets ("smartphones") and tablets to execute lawfully obtained software applications, where circumvention is undertaken for the purpose of enabling interoperability of such applications with computer programs on the handset or tablet.”
Proposed Class 7B includes “[a]udiovisual works on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System, where circumvention is undertaken for the purpose of extracting clips for inclusion in primarily noncommercial videos that do not infringe copyright, and the person engaging in the circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use.”
Proposed Class 7C includes “[a]udiovisual works that are lawfully made and acquired via online distribution services, where circumvention is undertaken for the purpose of extracting clips for inclusion in primarily noncommercial videos that do not infringe copyright, and the person engaging in the circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use, and the works in question are not readily available on DVD.
Proposed Class 5: Jailbreaking of smartphones and tablets
Proposed Class 5 would renew the exemption for jailbreaking smartphones and extend the exemption to tablets. Jailbreaking is essential to ensure competition and innovation. Jailbreaking enables alternative app marketplaces, which provide a safety valve to censorship by OS makers, wireless carriers, and device manufacturers, who use their gatekeeping power to control what apps and services we can access. In addition, jailbreaking allows for increased customization that allows consumers to address security and privacy concerns instead of being forced to wait for the OS maker to address the issues. This exemption would allow consumers to continue to enjoy the benefits of jaibreaking their smartphones to lawful software, and extend these benefits to tablets.
Proposed classes 7B and 7C: Accessing video to reuse footage from DVDs and online sources
Proposed Class 7B, which allows circumvention of encryption on DVDs for purposes of reusing content lawfully, is an exemption that was granted before by the Copyright Office in 2009. However, existing exemptions have to be reargued every three years. The exemption is meant to allow creators, remixers, and vidders the ability to bypass DVD encryption technology to obtain high quality footage for the videos they create. The exemption extends only to videos that fall within the bounds of fair use and thus, this exemption is not as broad as many copyright holders argue. This exemption allows those who create and share videos that reuse existing content to defend themselves under fair use. Our comment includes the stories of creators who represent the wide array of social, political, and cultural commentary that this exemption would protect.
We also argues that it is necessary to allow circumvention to provide access to higher quality footage, which is both demanded by viewers and necessary to communicate a creator’s message. Many of the already legal methods to obtain the footage – including screen capture or analog capturing – are deficient.
Class 7C extends the same type of exemption in Class 7B to non-DVD sources of video footage. As more content becomes available solely online, it becomes more important for internet users and creators to be able to lawfully repurpose and reuse this source of material. There is an enormous amount of content not currently available on DVD. To ensure the basic right to post videos regarding current social events or hotly debated political topics, it is essential allow this exemption to legally access the most up-to-date footage. Having to wait for the material to come to DVD would cause many videos to be stale or wholly irrelevant. For these reasons, NMR supports extending this proposed exemption to non-DVD sources.
In sum, our comment represents numerous individual examples that support these three exemptions. The exemptions will not only benefit consumers, but are in harmony with the spirit, purpose, and law of the Copyright Act. Read the text of NMR’s comments to the Copyright Office.