Warden threw a party in the county jail.

July 26, 2010 10:43 AM

Has DRM just been dealt a crippling blow? "Today [the US Copyright Office has] designated six classes of works. Persons who circumvent access controls in order to engage in noninfringing uses of works in these six classes will not be subject to the statutory prohibition against circumvention."
posted by griphus (57 comments total)

It's kind of sad that just getting back the rights we had in the first place counts as a huge victory (but I'm happy for the victory nonetheless).
posted by Horace Rumpole at 10:45 AM on July 26, 2010 [13 favorites]

iPhone jailbreakers and Blu-ray rippers of the world unite?

This sounds so rational and obviously good that I must be missing the downside.
posted by rokusan at 10:45 AM on July 26, 2010 [12 favorites]

Great now somebody make DVD ripping as easy as iTunes is for CDs.
posted by 2bucksplus at 10:47 AM on July 26, 2010 [1 favorite]

It's kind of sad that just getting back the rights we had in the first place counts as a huge victory (but I'm happy for the victory nonetheless).

Especially when the rights in question are so braindead obvious. When I buy a device, I own the device and can open it when, if and how I please.
posted by DU at 10:50 AM on July 26, 2010

Great now somebody make DVD ripping as easy as iTunes is for CDs.

Handbrake -- this is how I copy DVDs I own so the kids can watch 'em on airplanes and in the car (on my video iPod) for trips.
posted by davejay at 10:51 AM on July 26, 2010 [5 favorites]

Handbrake is... well, it's not as easy as iTunes, but it's easier than EAC.
posted by box at 10:52 AM on July 26, 2010 [2 favorites]

> Has DRM just been dealt a crippling blow?

It only means you're allowed to hack away at DRM on your own time for your own benefit. You're not allowed to redistribute cracked works any more than you previously were.

You're allowed to jailbreak your iPhone with impunity, but the carrier and manufacturer are still allowed to deny service and support if you do. They simply can't go after you for restitution if you do it, something they never demonstrated an inclination to do.

It's more or less a legitimization of the status quo. As such, that's fantastic, but I don't see the world changing much as a consequence.
posted by ardgedee at 10:53 AM on July 26, 2010 [4 favorites]

You're allowed to jailbreak your iPhone with impunity, but the carrier and manufacturer are still allowed to deny service and support if you do. They simply can't go after you for restitution if you do it, something they never demonstrated an inclination to do.

I wonder if that was a chilling effect, though. Now that broken iPhones are not themselves illegal (I shake my head even typing that), they can band together and ask/demand service without fear of a retributive lawsuit.
posted by DU at 10:59 AM on July 26, 2010

I don't see the world changing much as a consequence.

Preventing corporations from being able to pick on individuals for breaking their DRM is a fine by me. Sometimes the most important decisions are the ones that make almost no noise.
posted by grubi at 10:59 AM on July 26, 2010 [1 favorite]

Defeating a lawfully obtained DVD’s encryption for the sole purpose of short, fair use in an educational setting or for criticism

This exception has been around pretty much since the DMCA was signed into law. Note that it's still illegal for you and I to rip our DVDs to our iPods. Also as I understand it, you need to figure out how to defeat the encryption yourself, i.e., you can't use Handbrake, as distributing decryption tools is still illegal.

The cell phone stuff is pretty stunning, though.
posted by dirigibleman at 11:06 AM on July 26, 2010

I don't see the world changing much as a consequence.

Baby steps, baby steps.
posted by new brand day at 11:07 AM on July 26, 2010

It makes so much sense it is hard to believe!

It does not go far enough, however. It would be great to see something along the lines of the Brazilian regulations on DRM.
posted by TheyCallItPeace at 11:08 AM on July 26, 2010

Meanwhile: Sen. DeMint introduces bill blocking net neutrality, perceived FCC overreach
protip: don't read the comments on that site
posted by !Jim at 11:10 AM on July 26, 2010

This is the way the DRM ends
This is the way the DRM ends
This is the way the DRM ends
Not with a bang but a mostly ignored press release.
posted by blue_beetle at 11:12 AM on July 26, 2010 [2 favorites]

> Preventing corporations from being able to pick on individuals for breaking their DRM is a fine by me.

I totally agree, and I don't meant to diminish the significance of it. Also, the reiteration and codification of Fair Use for criticism and education is also important and should, if nothing else, cut down on the volume of SLAPP-ish legal agitation on the part of the MPAA et al.

What I meant by my jaded-sounding comment earlier, though, was that this doesn't open up things to do that we haven't done before -- instead, it makes explicit the right to do so. I'm enthusiastically okay with that.
posted by ardgedee at 11:19 AM on July 26, 2010

protip: don't read the comments on that site

Wow. It's just about even money between people who think roads and schools are a result of spontaneous generation and/or divine intervention on the anti-neutrality side and people who spend their disposable income on the thumbtacks and string they use to play cat's cradle with the tabloid clippings wallpapering their apartments on other side.
posted by griphus at 11:19 AM on July 26, 2010 [3 favorites]

Preventing corporations from being able to pick on individuals for breaking their DRM is a fine by me. Sometimes the most important decisions are the ones that make almost no noise.

As far as I know this wasn't happening anyway though. Corporations know that suing individual customers is going to be a loss from a financial perspective, and if they sue people who are legitimately using their material they lose out on the PR objective of painting themselves as victims of pirates who have no legitimate right to use the material. Ever since DeCSS it's been obvious that once a DRM scheme is defeated there is no point in fighting it, so they have spent their efforts on designing more effective DRM systems rather than suing people. If they end up succeeding, that would make this kind of decision moot, because if a DRM scheme is effectively impossible to break users will not be able to use them in legal ways that the DRM was designed to prevent.
posted by burnmp3s at 11:21 AM on July 26, 2010 [1 favorite]

Also as I understand it, you need to figure out how to defeat the encryption yourself, i.e., you can't use Handbrake, as distributing decryption tools is still illegal.

Are you allowed to use a computer that you didn't design and build yourself for out of dirt?
posted by DarkForest at 11:31 AM on July 26, 2010 [1 favorite]

... for yourself ...
posted by DarkForest at 11:31 AM on July 26, 2010

protip: don't read the comments on that site

The irony of commenters on a website insisting on their right to have their comments published on why the FCC should let corporations control what they can visit on the Internet is positively delicious.
posted by l33tpolicywonk at 11:41 AM on July 26, 2010 [1 favorite]

I have ripped every DVD and music CD I have ever owned, for my own use.

In some states and countries, this has been illegal, which has always been ridiculous.
posted by rokusan at 11:47 AM on July 26, 2010 [2 favorites]

Great now somebody make DVD ripping as easy as iTunes is for CDs.

Free software for non-commercial purposes: Windows 9x through Win7 64bit: DVD Shrink for copying content of DVDs to personal harddrive, DVD Decrypter for burning back-up discs.

See VideoHelp's Tools section for a more extensive, cross-platform list of programs, ranging from programs for experts and people who want to learn more and control the process to simplified systems, but it's not all freeware.
posted by filthy light thief at 11:55 AM on July 26, 2010 [8 favorites]

Hey, so long as we're talking about ripping: how the hell do I make TMPEGEnc not use my processor so hard it boils over?
posted by griphus at 11:59 AM on July 26, 2010

Has DRM just been dealt a crippling blow?

Not quite, and the 1201 rulemaking procedure sill has its issues.

The distribution of anticircumvention tools is not affected by this rulemaking, even for uses that are determined to be legal here.

This exemption also only lasts for three years. (One thing I'm not quite sure about- this release was late, so I don't know if it's three years from this release or three years from when it should be. I'll have to go look at that up.) At the end of those three years, proponents of the exemption have to argue and provide evidence for its necessity so it can be reconsidered. Anyway, the entire exemption process can be quite cumbersome, and really needs to be reworked.

There are also some other interesting exemptions- one that was expanded on was an exemption for education. Whereas previously only film and media studies professors could take advantage of the exemption, now professors and students can. I'm quite happy about that one, despite its limitations. ^_^ Most people will still need to rely on fair use, though.
posted by cjovalle at 12:10 PM on July 26, 2010

Did you guys RTFA?

"Although the jailbreaking exemption is new, all the others are similar to the last set of exemptions, which were announced in November 2006."

So besides the jailbreaking thing, this has done exactly dick to DRM that hasn't been in place since 2006.
posted by Aizkolari at 12:11 PM on July 26, 2010

I wonder if that was a chilling effect, though

People who knew enough about it, who wanted to jailbreak and had a need to, and were capable of providing their own tech support, would have done so, with or without Apple's approval. As ardgedee notes, this only reinforces the status quo.
posted by Blazecock Pileon at 12:23 PM on July 26, 2010

This doesn't really change anything. The courts have already taken a dim view of companies attempting to use the DMCA for anti-competitive purposes. The Chamberlin Group tried to argue that the DMCA prohibited a competitor from interfacing with their garage door openers because it circumvented an anti-copying feature. They lost that case in 2003. Lexmark tried the same thing in 2005 with toner cartridges and lost.

Basically, if what you were going to do doesn't violate the DMCA, circumventing a device which prevents you from doing that doesn't either.

This has been known for years.
posted by valkyryn at 12:50 PM on July 26, 2010

DVD ripping...easy

Two steps: image with DVD Shrink, burn with ImgBurn. I suppose it's harder than doing everything with one program, but at least I don't have to fight with them about where to put my music every time I start them up (I really hated iTunes, so glad I don't have an iPod anymore).
posted by Jimmy Havok at 1:15 PM on July 26, 2010 [1 favorite]

"For educational purposes"... I foresee getting a lot of mileage out of this phrase from now on.
posted by quin at 1:29 PM on July 26, 2010

The fact that there exists a government sanction permitting you, the owner, to legally jailbreak your iThing is, I think, a lot less significant than how long and how hard Apple fought this sort of ruling.
posted by kafziel at 2:48 PM on July 26, 2010

Apple expressed a strong opinion on the subject but never filed lawsuits against the government or against people who jailbreak their phones. There was no "fight" in any rational sense.

As far as we know, they never fought end users or the Library of Congress on this issue, but if you have knowledge we don't, such as filings and similar evidence of legal activity, feel free to share.
posted by Blazecock Pileon at 4:38 PM on July 26, 2010

One thing I'm not quite sure about- this release was late, so I don't know if it's three years from this release or three years from when it should be. I'll have to go look at that up.

Yeah, I read that this'll be up for renewal in two years, since the ruling was late.
posted by new brand day at 4:53 PM on July 26, 2010

Blazecock Pileon: "Apple expressed a strong opinion on the subject but never filed lawsuits against the government or against people who jailbreak their phones."

It's difficult to file suit against people for doing something that you aren't quite sure is illegal or actionable, and where filing would be certain to attract some very determined allies for the defendant with the potential of losing a decision would create that would some very unwanted case law.

Apple did everything publicly possible within its power during the statutory review stage to attempt to have jailbreaking declared illegal:
Apple Says iPhone Jailbreaking is Illegal

Proposed Class #1: Computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset.
...
Apple is opposed to the proposed Class #1 exemption because it will destroy the technological protection of Apple’s key copyrighted computer programs in the iPhone™ device itself and of copyrighted content owned by Apple that plays on the iPhone, resulting in copyright infringement, potential damage to the device and other potential harmful physical effects, adverse effects on the functioning of the device, and breach of contract.

posted by meehawl at 5:24 PM on July 26, 2010

I wonder if that was a chilling effect, though. Now that broken iPhones are not themselves illegal (I shake my head even typing that), they can band together and ask/demand service without fear of a retributive lawsuit.

In order to stop you from using a jailbroken iPhone, they would have to stop you from using it on ALL networks, not just AT&T, since a jailbroken phone is an unlocked phone. They certainly can't sue you for jailbreaking an iPhone. What would they sue you for? It's not a violation of the DMCA.

Apple Says iPhone Jailbreaking is Illegal

Is Steve Jobs a lawyer now? Companies, not just Apple have a long history of declaring stuff they don't like illegal, with no actual basis. Nintendo used to (and probably still does) claim that all emulation is illegal, regardless of whether or not you're using legally obtained ROMs. That's obviously false and so is this jailbreaking thing.

Adding jailbreaking as an exemption just confirms what was already the case.
posted by delmoi at 6:12 PM on July 26, 2010

It's difficult to file suit against people for doing something that you aren't quite sure is illegal or actionable

So they expressed an opinion, but they didn't actually file any suits against people who were already jailbreaking, because it wasn't a fight they could win, correct?
posted by Blazecock Pileon at 6:19 PM on July 26, 2010

Blazecock Pileon, that's almost certainly due to a fear of losing. See the Ars article for details on their legal representations to try to prevent this exemption passing.

Having read your comments in general, I have a simple question for you: What are Apple's greatest three flaws?
posted by jaduncan at 6:26 PM on July 26, 2010

that's almost certainly due to a fear of losing.

Okay, no lawsuits were actually filed against the government or against any individual over the issue of jailbreaking. So, at least with respect to the LoC's announcement on its view of jailbreaking, among other copyright issues, we're basically not anywhere now that we weren't at yesterday.
posted by Blazecock Pileon at 6:40 PM on July 26, 2010

delmoi - there is no way to legally obtain a ROM image, unless you are physically copying from a physical NES cart that you legally own. (Downloading one you own doesn't count -- that isn't legal because the person who provided it doesn't have the right to do so.)

From Nintendo's Legal Site:

Can I Download a Nintendo ROM from the Internet if I Already Own the Authentic Game? [...] The backup/archival copy exception is a very narrow limitation relating to a copy being made by the rightful owner of an authentic game to ensure he or she has one in the event of damage or destruction of the authentic. Therefore, whether you have an authentic game or not, or whether you have possession of a Nintendo ROM for a limited amount of time, i.e. 24 hours, it is illegal to download and play a Nintendo ROM from the Internet.

I am not a lawyer, but I've been in the game industry long enough to get frustrated when people randomly though out comments like Nintendo's position about copyright infringement is "obviously false." It's the law - if you don't like it, change it.
posted by andreaazure at 6:41 PM on July 26, 2010

delmoi - there is no way to legally obtain a ROM image, unless you are physically copying from a physical NES cart that you legally own. (Downloading one you own doesn't count -- that isn't legal because the person who provided it doesn't have the right to do so.)

First of all, Nintendo doesn't own the copyright to all NES ROMS ever created. There are tons of 'homebrew' apps spanning tons of systems. One example (I just googled up) would be D-Pad Hero. It was Nintendo's position that even doing that would be illegal.

It's also possible that old game companies could release ROMs if they wanted too. I think that's happened with some Arcade ROMs for MAME.

Finally, you seem to be confusing the issue with copyright law. If you buy a book from a pirate bookseller, you're not breaking the law, because you're not the one making the copy. It's creating and distributing the work that is restricted. When you download something off the web (as opposed to using a torrent or other P2P app where you distribute as you download) you're not really distributing the work yourself, so you're in the clear

(Other people make an argument about how the computer has to actually make a copy as it downloads and saves it to disk, but that's a bit of a stretch).

But the point is, there are plenty of legitimate ROMs out there, or you can create your own for fun. Nintendo was making the claim that that, itself was illegal.
posted by delmoi at 7:40 PM on July 26, 2010 [1 favorite]

Nintendo's position about copyright infringement is "obviously false." It's the law

Again, you're just wrong. Or at least wrong about what Nintendo position was in the past. That emulation itself was illegal, regardless of what software you had loaded in the emulator, regardless of whether or not Nintendo owned the copyright for it.
posted by delmoi at 7:42 PM on July 26, 2010

andreaazure: "I am not a lawyer, but I've been in the game industry long enough"

Well, you haven't been paying attention for long enough. There was a time when Nintendo was actively taking down Snes9x and ZSNES. Their published claim at the time, (since retracted) was that all emulators were illegal, because they owned the copyright to the BIOS like things inside an SNES and perhaps even the design of the SNES itself. My suggestion to the authors (or at least Trepalium) was that GPL'ing the work would end that nonsense, and pretty much ever since they published the code there's been no such arguments from Nintendo.
posted by pwnguin at 7:45 PM on July 26, 2010

Handbrake is... well, it's not as easy as iTunes, but it's easier than EAC.
posted by box at 1:52 PM on July 26

OMG ILU! can't wait to try this out.
posted by liza at 7:46 PM on July 26, 2010

andreaazure, if it's really and obviously illegal why don't they simply site the passage of U.S. code or other law that prohibits it? Maybe with links, I mean we're on the freaking internet ferchrissake. The absence of citations of any actual laws smack of some heavy "interpretation" on Nintendo's part to me.
posted by XMLicious at 7:51 PM on July 26, 2010

ugh... "cite" and "smacks" those should be
posted by XMLicious at 7:54 PM on July 26, 2010

There was DRM before the DMCA, there will definitely continue to be DRM even with narrow exemptions from the DMCA.
posted by meta_eli at 8:20 PM on July 26, 2010

Apple’s Official Response To DMCA Jailbreak Exemption: It Voids Your Warranty
posted by homunculus at 8:55 PM on July 26, 2010

Apple’s Official Response To DMCA Jailbreak Exemption: It Voids Your Warranty

That's actually reasonable: Mess with your firmware or OS enough and don't expect us to fix it anymore. I mean, hardware has those silly foil stickers that mean the same thing: go ahead, but it's not our problem now.

Try hacking the OS on that computer that runs your car sometime and then take it in for service, see how much they like you.
posted by rokusan at 9:59 PM on July 26, 2010 [1 favorite]

rokusan: "That's actually reasonable...Try hacking the OS on that computer that runs your car sometime and then take it in for service, see how much they like you."

Except there are plenty of defects with the latest iPhone that are hardware related and have nothing to do with software. Does a jailbreak mean Apple's off the hook for a defective antenna (or some other hypothetical failure)?

In the car industry, we've passed laws allowing third parties to service your vehicle without voiding warranties, and it seems reasonable in most cases. Installing a new car radio is common, for example. Maybe installing a turbo charger or reflashing the fuel mixture chip is a bad idea, but I'm going to argue the smartphone processor is the in-car entertainment, and the separate processor driving the cell radio is the closest it gets to hardware that might be damaged if software is modified.

Installing Redhat Linux on a hard drive or Dell computer shouldn't void the power supply warranty, and it's entirely possible to design a phone that can easily be debricked. For example, if you upload a busted kernel or initrd to the n900, you can always reflash it with a known good image.
posted by pwnguin at 11:09 PM on July 26, 2010

I'm going to argue the smartphone processor is the in-car entertainment

The ARM is probably a bit more analogous to the car's engine. Without it, all that's left is the cell phone functionality. Seems fair that messing with it (overclocking, etc.) should void the warranty, where user modifications can cause irreparable damage.
posted by Blazecock Pileon at 11:49 PM on July 26, 2010

Mess with your firmware or OS enough and don't expect us to fix it anymore. I mean, hardware has those silly foil stickers that mean the same thing: go ahead, but it's not our problem now.

The difference is that if you mess with the hardware, you can screw things up that are expensive to fix. With mobile phones especially the RF equipment needs to be calibrated to the exact hardware configuration, so if you go in there with a soldering iron and they give your refurbished phone to someone else, there's a good chance it won't work properly. If the repair guys see the sticker is broken, they just scrap it rather than trying to fix it.

But with software, unless Apple is incredibly stupid about handling repairs, they are flashing every unit they get back to the factory state anyway. If they end up swapping phones for a refurb and some customer content is on there they can get sued, so generally the process is to wipe everything and overwrite every byte of the unit's memory. I doubt that they even check if a unit is jailbroken before they flash it, because doing so would take time and a minute per unit can mean huge amounts of money in warranty costs when you are repairing as many units as they do. So I'm guessing that they are publicly stating that it voids the warranty because they don't want users to do it, rather than because it actually increases their warranty costs.
posted by burnmp3s at 7:01 AM on July 27, 2010

I like the obsolete dongle clause.
posted by jessamyn at 7:28 AM on July 27, 2010

If Obsolete Dongle Clause isn't a band name, it should be.
posted by ardgedee at 8:40 AM on July 27, 2010 [2 favorites]

Apple did participate in the 1201 process and argued against the proposed exemption. They also argued that jailbreaking was illegal. The Copyright Office makes all of the comments available to the public, which is quite interesting.
http://www.copyright.gov/1201/2008/responses/apple-inc-31.pdf
posted by cjovalle at 8:45 AM on July 27, 2010

The ARM is probably a bit more analogous to the car's engine. Without it, all that's left is the cell phone functionality. Seems fair that messing with it (overclocking, etc.) should void the warranty, where user modifications can cause irreparable damage.

Good thing no one is talking about modifying the physical structure of the chip. Because seriously, running software on a CPU is not going to damage it.
posted by delmoi at 3:56 AM on July 28, 2010

Good thing no one is talking about modifying the physical structure of the chip.

Good thing I wasn't, either. But firmware can easily brick hardware. Linksys routers are an excellent demonstration of that fact.
posted by Blazecock Pileon at 5:01 AM on July 28, 2010

Blazecock Pileon: "Good thing I wasn't, either. But firmware can easily brick hardware. Linksys routers are an excellent demonstration of that fact."

You know why it's so easy to brick Linksys routers? Because the flashing interface requires a working network connection and webservice etc, all of which requires a working OS. Meanwhile, phones that flash by USB use direct access to the flash chip, no working TCP/IP stack or other stuff necessary. As long as you don't reflash whatever drives that function (I don't even know how or if it's possible), you're fine.

If you do flash the USB controller, well, I agree that's a warranty voiding move.
posted by pwnguin at 11:53 AM on July 28, 2010

Relative to the issue of console ROMs above, here is the relevant section of U.S. code that Nintendo didn't bother to link to for some mysterious reason:

...it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided... ...that such new copy or adaptation is for archival purposes only...

By my reading that's saying that what you've got when you own a cartridge is already merely a copy of the work and you can authorize someone else to make another copy for you. Not a "copy of the copy of the work the owner possesses" or anything like that - another copy or adaptation of the work, period. So yeah, it pretty much looks to me like Nintendo was talking out of their ass there.

A couple of other interesting things:

Copyright Issues Relevant to the Creation of a Digital Archive: A Preliminary Assessment - 2003, about libraries
The Right to Preserve - 2004 - libraries archiving digital works also including issues of emulation, from a UK perspective
posted by XMLicious at 8:33 PM on July 30, 2010