DMCA Section 1201 Exemptions Should Extend Beyond Mobile Devices, Say Consumer Advocates
Wireless associations and consumer advocates requested exemptions to allow for the circumvention of technological protection measures (TPMs) beyond mobile devices under Section 1201 of the Digital Millennium Copyright Act, in filings for the Copyright Office’s triennial rulemaking process Monday. The debate over DMCA Section 1201 has pitted some tech industry officials, who argue that TPMs help thwart piracy, against those who believe that Section 1201 inhibits consumer innovation (see 1409180021). The former group includes the Association for Competitive Technology and Entertainment Software Association; the latter, Public Knowledge and the Electronic Frontier Foundation (EFF). The filings, which weren't available on the Copyright Office's website, were advanced to us.
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President Barack Obama signed the Unlocking Consumer Choice and Wireless Competition Act into law in August (see 1408040085). It lets consumers unlock their mobile devices if they choose to switch service providers. CTIA said Monday it expects the Copyright Office to exempt software used to circumvent TPMs for mobile devices (see 1411030043).
The Competitive Carriers Association requested four separate exemptions for the Internet of Things, wireless handsets, tablets and mobile hot spots. CCA said unlocking a wireless device meets all four factors required for fair use. “Consumers who unlock wireless handsets may engage in one or more of several noninfringing uses of the copyrighted software or firmware that resides on their wireless handset and permits it to connect to networks,” it said. Unlocking a wireless device doesn’t create an “infringing ‘derivative work,’” said CCA, because such unlocking doesn’t change the “underlying mobile wireless device software.” Consumers should be allowed to “circumvent software or firmware locks on connected wearables and consumer machines that prevent the device from accessing the wireless network of the wireless device owner’s choosing,” CCA said.
EFF filed six separate exemption requests on DVD remixes, automotive repair, streaming remixes, automotive security research, video games and “jailbreaking” software for mobile devices. "The DMCA was supposed to help protect against copyright infringement, but it's been abused to interfere with all kinds of lawful activities that have nothing to do with infringement," said EFF Intellectual Property Director Corynne McSherry, in a news release Monday. "Software is in all kinds of devices, from cars to coffee-makers to alarm clocks,” she said. “If that software is locked down by DRM, it's likely that you can't tinker, repair, and re-use those objects without incurring legal risk."
Public Knowledge filed for two exemptions on DVD circumvention and 3D printing, it said in a news release Monday. “We’re asking the Library of Congress and the Copyright Office to return consumer rights that should never have been taken away in the first place,” said Sherwin Siy, vice president-legal affairs. “Copying albums from a CD to a personal device has been legal since before the introduction of the iPod in 2001,” he said. “There’s no reason people shouldn’t be able to do the same with their DVDs.”
“Consumers should have the right to maintain the useful life of their mobile phones and other mobile communications devices,” said Consumers Union. CU said that right should include exemptions for wireless devices used for phone calls, texting, email and Internet browsing. Such exemptions are in agreement with the new law and the Copyright Office’s request that wireless device exemptions be specific, said CU. Unlocking mobile devices is “noninfringing” because it “enables interoperability on multiple wireless networks, extending the life of a mobile device while allowing it to be used in ways that device manufacturers and carriers intended,” it said. Congress affirmed that view by passing the law, said CU.
Authors should be allowed to circumvent TPMs on DVDs and other digital film mediums, said the Authors Alliance in a joint filing with Bobette Buster, University of Southern California School of Cinematic Arts adjunct professor. Since the last triennial review, “the need for an exemption for multimedia e-book authors has only increased; new authorship tools, sophisticated digital distribution networks, and widespread consumer adoption of e-book readers mean that more authors than ever are poised to create multimedia e-books -- but TPMs prevent them from doing so at nearly every turn,” it said. The alliance and Buster requested a fair use exemption to use excerpts of films for authors’ e-books.
The American Foundation for the Blind asked for a renewal of the e-book exemptions given it in 2012, in joint comments with the American Council for the Blind and the Samuelson-Glushko Technology Law & Policy Clinic. “Renewal would continue to help people who are blind, visually impaired, or print disabled access the same educational, cultural, and political works embodied in ebooks that seeing people access without restriction every day,” they said. Anti-copying encryptions and “trusted player” encryptions were cited as the primary TPMs that interfere or prohibit the use of e-books for the blind, they said.