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Librarian of Congress Still Clueless About Linux; Groks Jailbreaking - Updated
Monday, July 26 2010 @ 01:35 PM EDT

There are new anticircumvention rules from the US Copyright Office. Several are very good changes, such as allowing you to bypass a technological protection measure to use snips from a movie or video if your purpose is educational or for comment or criticism, and there's more flexibility for phone apps if interoperability is the goal:
“When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses,” the Copyright Office stated.

“It’s gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability,” commented Electronic Frontier Foundation senior staff attorney, Corynne McSherry.

Keep in mind that copyright infringement is separate from DMCA analysis, so you still have to be careful about staying within the fair use boundaries when making a documentary. But at least now you can legally access. And while you can jailbreak your iPhone with respect to the DMCA, there's remains the issue of breaking the warranty. Also, while it's not criminal, there is still a EULA to consider.

But Linux got bonked on the head again. They essentially ruled that if you want to access DVDs or streaming videos, like with Netflix's "Watch Instantly" service, you have to buy a PC or an Apple computer or a DVD player. I wonder why they don't see that this situation is identical to the jailbreaking a smartphone, or should be? What's the difference? Linux users want to view movies too, and all they want is interoperability so they can. I wonder how Hollywood would like it if the government told them that to make their movies they couldn't use Linux but instead had to use a Windows PC or an Apple computer? Hollywood uses Linux to make their movies, but they oppose letting us view their products on Linux? Why? If the government is going to regulate operating systems and compel citizens to buy certain vendors' products as opposed to the ones we want to use, I think it should at least be consistent. Actually, I don't think any government should compel use of any private company's products, and I wish that argument had been presented. Maybe next time.

I'll show you the relevant language in the document Determination of the Librarian of Congress and Text of the Regulation [PDF].

It begins on page 9:

IV. Other Classes Considered, but Not Recommended

A. Subscription based services that offer DRM-protected streaming video where the provider has only made available players for a limited number of platforms, effectively creating an access control that requires a specific operating system version and/or set of hardware to view purchases material; and Motion pictures protected by anti-access measures such, that access to the motion picture content requires use of a certain platform.

Two proposals sought designation of classes of works that would allow circumvention of technological protection measures in order to provide access to motion pictures on platforms other than those authorized by content providers or their licensees.

Megan Carney proposed a class of works in order to allow circumvention of DRM-protected streaming videos offered by subscription based services, where the provider has made players available only for a limited number of platforms. She argued that this restriction of viewing options effectively constitutes an access control by requiring a specific operating system version and/or a set of hardware to view purchased material. She sought to use Netflix's "Watch Instantly" streaming video feature, which installs digital rights management and runs only on certain platforms of computer software and hardware. "Watch Instantly" is included, at no charge, in the monthly Netflix membership, but Carney said that she is unable to use it because she does not own a computer that operates on a compatible platform (PCs running Windows or Apple computers with Intel chips). Carney proposed that the Librarian designate a class or works in order to allow a user in her situation to create a separate program to circumvent the DRM on the streaming service system in order to view streaming video content made available by Netflix.

Another proponent, Mark Rizik, proposed a class of works to allow the circumvention of motion pictures on DVDs protected by the CSS access control system, which requires the use of a certain platform for access. Specifically, Rizik would like to view, on a Linux-based computer that does not have a CSS-licensed video player, DVDs that are only viewable on CSS-licensed players. Rizik sought designation of a class in order to permit the creation of an unencrypted digital copy of the DVD by decrypting and extracting contents of the DVDs for personal viewing purposes on Linux operating systems.

The Motion Picture Association of America, Time Warner, and a coalition of copyright industry trade associations (the "Joint Creators") opposed these requests. NTIA has advised that it believes that the record does not support granting the requests.

The proponents of both classes of works sought to circumvent the access controls because, they contended, it is too expensive to acquire the hardware and software with the minimum requirements necessary to view motion pictures on the distribution mechanism of their choice. They also argued that there are no reasonable, noninfringing alternatives to circumvention for those wishing to engage in the activity affected by these platform requirements.

Similar classes to those proposed by Carney and Rizik have been requested and denied in the past three rulemakings. Although the streaming video proposal presents a new factual situation, the Register concludes that the legal arguments are fundamentally similar to the proposals relating to the viewing of DVDs on computers with Linux operating systems that were advanced in the previous three rulemakings, when these proposals were rejected. Likewise, arguments for the streaming video and Linux classes fail for fundamentally the same reasons as the earlier Linux proposals, and the Register cannot recommend that the Librarian designage either of these proposed classes of works.

In these rulemakings, proposed classes have regularly been rejected in cases where a user who wished to engage in a noninfringing use of a work using a different device. The same principle applies here. Alternative means exist to gain access to and view the motion pictures that Carney and Rizik wish to view after circumventing access controls. In any event, it is unclear from the record regarding streaming videos what is actually prohibiting Carney from being able to access the Netflix "Watch Instantly" feature and , in particular, whether the technological issue is centered around an access control. It cannot be discerned from the record whether Carney cannot gain access due to digital rights management or due to software and/or hardware incompatibility.

Regarding DVD circumvention, many operating systems on the market enable authorized access to the works contained on CDD-protected DVDs. Moreover, CSS-compatible DVD players are in fact available for some Linux systems.

Further, many alternatives exist for both Carney and Rizik, including other streaming video alternatives and online content download sites. There are many reasonably-priced alternatives that may fulfill consumers' wants and needs, including purchasing a DVD player. Mere consumer inconvenience is not sufficient to support the designation of a class of works. The statute does not provide that this rulemaking is to enable the most convenient method of consuming video content. The proponents have merely advanced requests in order to satisfy their convenience and preferences as to how they would like to access media and have failed to demonstrate a need for remedial action. Accordingly, the Register cannot recommend the Librarian designate either proposed class in light of the alternatives that exist in the marketplace today.

So. They tell us to buy another operating system. Thou shalt use proprietary software. And thou must use Intel chips. Is that the government's role? If we want to use Netflix, we have to have two operating systems, one just for that, and we are compelled to use Intel? I wonder if a different legal argument were made if it might be successful, namely that the government should not be in the position of forcing citizens to spend money to have two operating systems just to be legal. And how does it happen that Intel chips get endorsed like this? I hope those investigating Intel look into this. Are there agreements that compel Intel use? Nor should a government aid certain vendors to make money by such compelling of citizens to buy their products. Nor should the government endorse products or enable certain companies to make competing products less desirable in the market.

I mean, to think about how silly this is, turn it around. Let's say the US Copyright Office said you could only view movies and DVDs on Linux. Imagine if they told protesters using Microsoft and Apple that Linux is free, so they can just download it and dual boot, so there's no problem. Can you imagine the uproar? From Microsoft, for starters. They fight like pit bulls when any government suggests using Linux too, and when they say they will only use Linux, what does Microsoft do? Well, legally they argue it's prejudicial. Why isn't this similarly prejudicial?

Of course, Netflix and Hollywood could do the right thing and solve this in the marketplace by making their works available to Linux users. Hollywood seriously needs to think about its use of Linux while making it impossible for Linux users to enjoy the resulting works. They use Linux because it's the best tool they can find. So do we.

And those of you who think we have to compromise and include non-free elements in Linux distributions, please notice that because some have, it helped to destroy the effort by Carney and Rizik to help Linux users be on a level plain with Windows and Apple users. You are not helping by making it harder for nonLinux users to understand the issue. Just be proprietary, their answer is, and if you agree, you are certainly not helping those of us who seriously want to use a really free and open operating system. Please think about it.

Update: Here's an interesting decision from Courthouse News that may bear on this discussion, in the case of MGE UPS Systems v. GE:

"Without showing a link between 'access' and 'protection' of the copyrighted work, the DMCA's anti-circumvention provision does not apply," Judge Emilio Garza wrote.

"The owner's technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing."

If that's so, why can't Linux users view movies on DVD? This is a 5th Circuit decision of a Texas case, so it's not applicable in other circuits necessarily, and there could be a further appeal, but the logic is certainly compelling. Here's the decision [PDF]. A bit more, from the decision:
GE/PMI argues that MGE’s dongle does not actually prevent copying of MGE’s software, but merely prevents access to the software. Once that access is breached, there are no barriers to copying the software. Accordingly, GE/PMI argues that MGE’s software is “freely accessible” within the meaning of the DMCA because the dongle does not block the type of “access” the DMCA is designed to prevent. Furthermore, though the MGE software in GE/PMI’s possession “was modified” to eliminate the need for a dongle, MGE has not presented evidence that a PMI employee initially modified the software.

One of Congress’ purposes behind enacting the DMCA was targeting the circumvention of technological protections. See Davidson & Assocs. v. Jung, 422 F.3d 630, 639–40 (8th Cir. 2005). The DMCA’s anti-circumvention provision states, “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” 17 U.S.C. § 1201(a)(1)(A). To “circumvent a technological measure” means to “descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” Id. § 1201(a)(3)(A). “Effectively controls access to a work” means that “the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.” Id. § 1201(a)(3)(B). GE/PMI does not contest that MGE’s software was a work protected under Title 17 of the Copyright Act.

The DMCA does not describe the type of “access”-controlling technological measure required to invoke the DMCA’s protections, and this is an issue of first impression in this Circuit. MGE proposes a definition from a Fifth Circuit non-DMCA case that discussed copyright issues and determined “access” t0 include “an opportunity to view the copyrighted work.” Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 113 (5th Cir. 1978) (citing 3 M. NIMMER, COPYRIGHT § 13.02(A) (1978)). Reading this definition alongside definitions from Merriam-Webster’s dictionary and Black’s Law Dictionary, MGE concludes that “access” means “viewing, making use of, or using the protected work.” MGE argues that dongles prevented access to its software and that without using both this hardware key and its corresponding password, a user cannot view, gain access to, or make use of the software.

However, MGE advocates too broad a definition of “access;” their interpretation would permit liability under § 1201(a) for accessing a work simply to view it or to use it within the purview of “fair use” permitted under the Copyright Act. Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners. See Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1202 (Fed. Cir. 2004). The Federal Circuit, in analyzing the DMCA’s anti-circumvention provision, concluded that it “convey[s] no additional property rights in and of themselves; [it] simply provide[s] property owners with new ways to secure their property.” Id. at 1193–94. Indeed, “virtually every clause of § 1201 that mentions ‘access’ links ‘access’ to ‘protection.’” Id. at 1197. Without showing a link between “access” and “protection” of the copyrighted work, the DMCA’s anti-circumvention provision does not apply. The owner’s technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing. Id. at 1204; see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 547 (6th Cir. 2004) (finding no DMCA anti-circumvention liability where an authentication sequence in a printer microchip blocked one form of access (printer function) but permitted free access from other avenues (for example, anyone who purchased that brand of printer could download a copy of the program)).

Here, MGE has not shown that bypassing its dongle infringes a right protected by the Copyright Act. MGE’s dongle merely prevents initial access to the software. If no dongle is detected, the software program will not complete the start-up process. However, even if a dongle is present, it does not prevent the literal code or text of MGE’s copyrighted computer software from being freely read and copied once that access is obtained; there is no encryption or other form of protection on the software itself to prevent copyright violations. Because the dongle does not protect against copyright violations, the mere fact that the dongle itself is circumvented does not give rise to a circumvention violation within the meaning of the DMCA.

Moreover, the DMCA’s anti-circumvention provision does not apply to the use of copyrighted works after the technological measure has been circumvented, targeting instead the circumvention itself. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 443 (2d Cir. 2001). MGE cites no evidence that a GE/PMI employee or representative was responsible for altering the Pacret and Muguet software such that a dongle was not required to use the software. Without proving GE/PMI actually circumvented the technology (as opposed to using technology already circumvented), MGE does not present a valid DMCA claim. See id. (“[T]he DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred.”).

Because the DMCA does not apply to mere use of a copyrighted work, and because MGE has not shown that GE/PMI circumvented MGE’s software protections in violation of the DMCA, the district court did not err in granting GE/PMI’s Rule 50(a) motion dismissing MGE’s DMCA claim.

And here's a reminder about the scope of the jailbreaking allowance from The Atlantic's coverage:
While the copyright ruling provides protections for jailbreakers, the people who make the tools to do it are not similarly guarded from legal action. That's just how the provision was structured, Granick said, and was not a specific decision of the Copyright Office.

The regulation also cannot prevent Apple from playing hardball with would-be jailbreakers or making their phones difficult to crack.

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