San Francisco - The Electronic Frontier Foundation (EFF) won renewal of critical exemptions to the Digital Millennium Copyright Act (DMCA) in a ruling published today, including the upholding of jailbreaking rights for smartphones as well as new and expanded legal protections for video remixing.
"The DMCA creates a cloud of legal uncertainty over American consumers – whether they are tinkerers, artists, or just looking to make their gadgets work better," said EFF Intellectual Property Director Corynne McSherry. "The ruling from the Copyright Office today goes a long way towards mitigating some of the DMCA's most grievous harms."
Crucial support for the successful request on behalf of video remix artists – carving out new legal protection for this important art form – was provided by the Organization for Transformative Works (OTW). The OTW gathered evidence and presented testimony about the DMCA's adverse impact on several communities of remix creators, who use short clips from movies to build new creative works. The Copyright Office's decision broadens EFF's previously successful exemption request, which allows for taking short excerpts from DVDs in creating noncommercial works, by also protecting the use of clips from online streaming or downloading services.
"Remix videos are thriving on YouTube and other sites, offering dynamic criticism and commentary on popular movies as well as popular culture. It's a great example of how new technologies foster free expression, yet the anti-circumvention provisions of the DMCA endanger these important works," said McSherry. "We're thrilled that the Copyright Office broke new ground in protecting remix artists. We can't let misguided federal law block a new form of art and expression."
The Copyright Office also renewed EFF's exemption request that protects smartphone jailbreaking, liberating phone owners to run operating systems and applications from any source, not just those approved by the manufacturer. However, the Copyright Office declined to expand that exemption to tablets and video game consoles, arguing that the category of "tablets" is not well defined and that jailbreaking video game consoles might lead to more copyright infringement.
"If you bought your gadget, you own it, and you should be able to install whatever software you please without facing potential legal threats," said EFF Senior Staff Attorney Marcia Hofmann. "We're pleased the Copyright Office renewed our smartphone jailbreaking exemption request, but we're disappointed that it couldn't see that consumers deserve the same rights for all the gadgets they own. We'll be back with more exemption requests in the next rulemaking, and we're hopeful the Copyright Office will keep moving in the right direction."
The Copyright Office's rulemaking process is conducted every three years in order to mitigate the danger the DMCA poses to legitimate, non-infringing uses of copyrighted materials. The DMCA prohibits "circumventing" digital rights management (DRM) and "other technical protection measures" used to control access to copyrighted works. While the DMCA still chills competition, free speech, and fair use, today's exemptions help give consumers and artists protection from the law's extensive reach.
EFF would like to acknowledge the invaluable assistance of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley, in drafting the jailbreaking exemption requests.
For the full ruling from the copyright office:
For more on our exemption requests:
Senior Staff Attorney
Electronic Frontier Foundation
Intellectual Property Director
Electronic Frontier Foundation