Summary: A librarian decides that iPhone users can jailbreak their phones. The Librarian of Congress exercise his rulemaking authority and determined classes of works that are exempt from DMCA prohibitions of circumventing security technologies on digital media. The basic principle is that access constraints should not preclude what would otherwise be fair use such as commentary, education or criticism. In addition to setting free the smartphones, the rules also extend a class to documentary filmmakers (and others, though those “others” are not discussed here).
By coincidence, a 5th Circuit ruling was issued at about the same time (July 26, 2010) confirming many of the principles inherent in the rulemaking by the Librarian of Congress. See MGE UPS Systems Inc v. Power Protc Svc LLC, et al.
Introduction
Marian the Librarian in Music Man notwithstanding, it is rare that decisions by a librarian generate vast amounts of commentary that can be fairly called “breathless exultation.”
Well, OK, so it’s the librarian who runs the Library of Congress. He’s in charge of copyrights. And it’s the iPhone.
In case you have been living in a cave for the past 48 hours: the Librarian of Congress ruled that jailbreaking a smartphone for two particular purposes does not cause liability under a particular section of the Digital Millennium Copyright Act (for the legal wonks, the ruling relates to Section 1201).
But wait there’s more: In addition to other “uses” that are now permitted, certain users can crack the Digital Rights Management program on movie DVDs for purposes that have always been considered fair use. And a teaser so you’ll read more: Documentary filmmakers now have a bit of freedom.
The Context
Before getting into a bit more detail, let’s consider the setting. The DMCA makes it a bozo no-no to crack the security codes preventing access to copyrighted material (let’s call that “jailbreaking”). However, DMCA also commands the Librarian of Congress every three years to review the impact of this section on Fair Use and to create classes of works exempted from prohibitions on jailbreaking. And that is just what he did (see the entire document—which is worth reading. See
http://www.copyright.gov/1201/2010/Librarian-of-Congress-1201-Statement.html.)
By ironic coincidence, a 5th Circuit opinion was issued that also provides common law basis for certain types of jailbreaking. You can find the opinion at http://www.appellaterecord.com/uploads/file/MGE.pdf.
How Fair Use Is Involved
Basically, the Librarian articulates a principle that he (OK, the Library of Congress) does not like technologies that, in blocking access, also preclude what would otherwise be “fair use.” In the case of the iPhone, it is personal, non-commercial use. In the case of movie DVDs, it is for education, commentary and criticism.
Jailbreaking Smartphones
The ruling enables users to jailbreak smartphones for two purposes. The first is to enable a user to download and use pretty much whatever applications that user wants to use. Google Voice, long prohibited from the iPhone, can now be used. This also means that you can create your own apps and use them on your iPhone (though why you would do that is anybody’s guess: the App Store works pretty well).
The second permitted use is somewhat more compelling. You can jailbreak a smartphone in order to use it on other networks. Yep. That got you to sit up. That’s right: You can now use your iPhone on the Verizon, T-Mobile, Sprint or other mobile networks.
What you cannot do: Well, you probably cannot make a business out of this. The decision by the Librarian of Congress rests entirely upon the use being personal and non-commercial.
Jailbreaking Movie DVDs
The Librarian also expanded a previously created class of works, in this case by adding the use by documentary filmmakers of short clips in their films that are commentary or criticism. Quoting from the website above, the rulemaking permits jailbreaking the DVD
when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
(i) Educational uses by college and university professors and by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos
It looks like documentary filmmakers could use these clips for commercial purposes. However, what this decision does not do is change the Fair Use doctrine and its accreted case law. In other words, when a filmmaker uses a clip from a DVD then he or she must still take the risk that the use of the clip will be protected by the Fair Use defense if the copyright owner files suit. (Remember: Fair Use is not a “permit” but only a defense if sued.)
Transactions & Strategy 