Competitive Carriers Association, TracFone Compromise on Cellphone Unlocking Exemption for DMCA
The Competitive Carriers Association (CCA) and TracFone jointly filed a revision with the U.S. Copyright Office that would alter a proposed exemption to Digital Millennium Copyright Act Section 1201 (DMCA) for unlocking cellphones to resolve TracFone’s concerns about the exemption’s original language. The exemption is one of 27 the CO is currently considering as part of its sixth triennial rulemaking process for Section 1201, which prohibits the circumvention of technological protection measures (TPMs). Other proposed exemptions include one that would allow smart TV owners to circumvent TPMs that prevent the installation of user-supplied software and one that would allow for circumventing DVD, Blu-ray and digital video TPMs for personal uses. Comments on the proposed exemptions, which were due May 1, were limited to responses to previous filings. New America's Open Technology Institute told CO in comments given to us before they appeared online that a proposed exemption on software security research should move forward (see 1505050051).
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The joint CCA-TracFone revision would change the cellphone unlocking exemption to exempt unlocking only if the cellphone’s owner has satisfied all legal obligations to the cellphone’s original wireless carrier, the cellphone wasn’t obtained through theft or fraud, and the unlocking isn’t occurring for an “unlawful purpose.” CCA “continues to believe that its proposed exemption regarding wireless handsets submitted in this proceeding is consistent with the Copyright Office’s mandate to allow circumvention where the public interest is served by permitting non-infringing use of the copyrighted material,” but wanted to resolve TracFone’s concerns that the original exemption might allow unlocking for fraudulent purposes. Consumers Union said it believes the original exemption doesn’t require revisions because it doesn’t leave carriers vulnerable to illegal phone trafficking.
The Electronic Frontier Foundation commented on six proposed exemptions, including two of the five related to jailbreaking electronic devices. One proposed jailbreaking exemption was for cellphones, while the other was for tablets and “all-purpose” mobile devices. The CO has previously concluded that modifying the firmware in one’s mobile phone in order to run lawfully acquired software is a noninfringing fair use. EFF noted that only BSA/The Software Alliance had filed in opposition to the proposed exemption for cellphones, while several public interest organizations had filed in support of the exemption. BSA “simply asserts without support that ‘[g]ranting the proposed exemption would harm the market for and value of copyrighted works,’ while not refuting EFF’s and other proponents’ substantial evidence to the contrary,” EFF said. Jailbreaking of tablets and other mobile devices encountered similarly little opposition, with only BSA, GM and the Alliance of Automobile Manufacturers filing against the exemption, EFF said. The Software Freedom Conservancy filed in favor of a proposal to exempt jailbreaking smart TVs, while LG Electronics noted that its smart TVs contain open-source platform software that allows for sharing applications in a way that renders the exemption unnecessary.
Public Knowledge countered objections to three proposed exemptions, including two it sought from the CO. One proposed exemption would allow circumvention of access controls on DVDs, Blu-rays and downloaded videos for the purpose of copying the content for personal uses, while the other would allow circumvention of firmware and software in 3D printers to allow the use of nonapproved “feedstock” in the printer. The DVD Copy Control Association (DVDCCA), the Entertainment Software Association (ESA), the MPAA and the RIAA were among the trade groups that opposed the personal use exemption (see 1503300053). Content copying for personal use is considered a fair use under “all applicable legal precedents,” including the U.S. Court of Appeals for the 9th Circuit’s 2013 decision in Fox Broadcasting v. Dish Network, as well as via the Sound Recording Act of 1971, Public Knowledge said. Space-shifting and format-shifting copying “do not deprive the copyright owner of a sale, but merely permit the owner of a copy to make use of it,” the group said.
The Authors Alliance, the American Association of University Professors and the Society for Cinema and Media Studies were among the entities that jointly countered objections to a proposed exemption sought by the Authors Alliance that would allow for circumvention of access controls on videos used in connection with multimedia e-books included on DVDs, Blu-rays and those downloaded online. The DMCA’s anti-circumvention provisions are “undermining” the potential for innovation in e-book technology and prevent multimedia e-book authors from accessing HD-capable formats like Blu-Ray and digital video, the joint comments said. DVDCCA, ESA, MPAA and RIAA raised concerns about the proposed exemption being overly broad, which the Authors Alliance and its joint commenters said could be easily remedied by structuring the exemption to cover circumvention only “for the purpose of fair use.” Suggested alternatives to the exemption, including licensing and screen capture software, aren’t viable remedies, the joint commenters said.