DMCA Begins to Join 21st Century

People are relieved. In what has quickly become one of the mainstream tech media’s darling stories of the day, the U.S. Library of Congress has apparently woken up to find itself a decade into the 21st century and has released an updated list of allowed circumventions that do not qualify for punishment under the Digital Millennium Copyright Act’s (DMCA) anti-circumvention clause. In a nutshell, you can rip (DeCSS) movie clips for fair use, you can jailbreak your iPhone (whether it be to install software or to hop providers), you can hack video games (for “good faith” security purposes, mind you, and consoles seem to be excluded), you can bypass hardware dongles that have become obsolete (fairly narrow ruling here), and you can enable read-aloud for ebooks, even if the publisher is still living in the Dark Ages and has flipped a bit to disable it.

In a little more detail, the 6 new rules are:

1. You can circumvent CSS in order to digitize short clips of movies IFF you have an educational use, are making a documentary, or are making a noncommercial video. Nothing is said about archival purposes, and they explicitly cite DVD, but it’s believed that archival is already covered under DMCA, and that Blu-Ray would be covered by logical extension.
2. You can circumvent wireless telephone access controls (“root” or “jailbreak” them) in order to install other software. This finding seems to directly target Apple (and maybe Google), who doesn’t like it when people jailbreak the phone. Mind you, there’s nothing here that would prevent them from bricking your jailbroken phone in an upgrade… they just can’t sue you about it under DMCA (makes reading contracts all that much more important).
3. You can install an alternative image (firmware or software) on wireless telephones to enable them to connect to a provider. It’s not completely clear what this is about, but it seems that it could address a couple different scenarios. First, it may be talking about unlocking a phone to allow it to be used on an alternative carrier’s network. Or, second, it may be talking about installing an alternative OS on the device (such as replacing Windows Mobile with Android).
4. Circumventing access controls (e.g. DRM) for security testing of locally installed video games is permitted, assuming the testing is performed in good faith. The wording would seem to exclude gaming consoles, and may also exclude network-based testing of gaming sites.
5. Hardware dongles can be circumvented IFF the dongles are obsolete (pertains to: “Court Backs Dismissal of Digital Copyright Claim“) This would not, however, seem to allow one to bypass dongles for products like EnCase when the product still exists and can be upgraded accordingly (i.e. if you can replace the dongle, then you must do that rather than circumvent the control).
6. Circumvention of access controls is permitted with ebooks in order to enable read-aloud functions or using screen readers to put the text into an alternative format.

Additional coverage:

• The DMCA vs “Reverse Engineering” Software
• TechCrunch: Now Legal In The U.S.: Jailbreaking Your iPhone, Ripping A DVD For Educational Purposes
• EFF Wins New Legal Protections for Video Artists, Cell Phone Jailbreakers, and Unlockers