US Copyright Act: Consumer Advocates vs Media Industry on Jailbreaking

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The US Copyright Office institutes a triennial (every three years) review of the Digital Millennium Copyright Act, a key piece of United States Code (Section 1201, Title 17).

The Code prohibits circumvention of ‘technical protection measures,’ and prohibits “trafficking” in certain circumvention technologies, including manufacturing, importing, offering to the public, providing, or otherwise trafficking in certain circumvention technologies, products, services, devices, or components.”

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Interested parties can submit comments, including requests for exemptions, at any time. The eighth triennial review period, covering 2018-2021, has been underway, and the public comment period closed on February 9th.

Exceptions to the rules

In 2018, circumventions were made available to people who repair devices, people who make mash-ups using video clips, and allowed the ability to modfy voice assistant devices.  Exceptions are also available to other classes of devices, such as mobile and wearable devices

The Electronic Frontier Foundation requests further exceptions

In 2020, the Electronic Frontier Foundation (EFF) submitted a proposal to expand the range of circumventions allowed in 2018, to add video streaming devices.  Officially, they reason that it would make it possible for consumers to customize retail streaming devices.

But on less ‘official’ channels, some of the reasoning seems frivolous.  Recent (2021) comments on the EFF’s Twitter feed include “The ability of people to jailbreak and put their own software on devices is an important one that has allowed people to do a lot of cool and interesting things,” (Kurt Opshal, Deputy Executive Director and General Counsel, EFF) and “‘Jailbreak’ is a very appropriate description. I feel like I’m imprisoned by these walls. The vision of open source and open hardware is difficult to sell to a technologically illiterate and politically naive consumer. Fight the good right, EFF! Increase our digital freedom!” by another user.

The media industry responds

In response, the Motion Picture Association, jointly with The Alliance for Recorded Music and the Entertainment Software Association, weighed in with opposition.  Their premise is that jailbreaking is an invitation to rights infringement, which deprives creatives, media companies and distributors of their ability to make a livelihood.

“The proposed expanded and new exemptions would cover a wide array of access controls,” said the MPA response.  “…these access controls enforce terms and conditions of use … that increase the availability of motion pictures at affordable prices through access- based business models,” and cites many examples of access through legitimate channels.

Why it matters

This battle seems couched in terms of stereotypes: the age old battle between fist-pumping revolutionaries and greedy corporations. Both sides have a point. EFF wants consumers to have more say over devices, content and services; including rights to fair use.

But once valuable content is broken out of its legitimate chain of distribution, there’s no guarantee that rights holders would be compensated for the value of their works, especially if subjected to unmanaged re-distribution.

Further reading

Read comments submitted jointly by the Motion Picture Association, the ESA and the ARM.

See all comments submitted to the US Copyright Office, in opposition to circumvention of technological measures that protect copyrighted works.  These are for all classes of copyrighted material, including audiovisual works, literary works, software and data.

Read a backgrounder about the triennial legal review process of Section 1201 Title 17, by the US Copyright Office.  It identifies reasoning against, and benefits of, circumvention.

See the 1201 Triennial Review proceedings home page (all years, including 2021)

See the 2021 proposal submitted by EFF

See the 2018 final rule (In the US Federal Register)

See full EFF 2018 position article

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