It’s Not Just About Jailbreaking Your iPhone…

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Last week’s DMCA exemptions seem like a victory for users, but they really uncover a problem with our whole approach to DRM, copyright, and regulation.

Last week, the U.S. Librarian of Congress released several exemptions to the Digital Millennium Copyright Act (DMCA) anti-circumvention provisions, which carved out new protections for users who participate in what the Library of Congress views as non-infringing or fair use activities. The headline news item of the ruling was about jailbreaking iPhones. Turns out, for the next three years, consumers who circumvent DRM on their iPhones to install unapproved applications are cool. (Well, kind of. This is a limited exemption, applicable only to the customers themselves and for non-infringing uses. Also, it’s going to void your warranty. Alas!) But exemptions were not limited to the iPhone issue – the Library of Congress also granted exemptions that allow people to crack the CSS on DVDs to produce non-commercial videos for some specific purposes; exemptions relax DRM to enable text-to-speech on e-books (again, there are limitations on this exemption); and renewals of three exemptions issued in 2006 related to dongles and security testing on video games.

Photo Courtesy Edward Faulkner (http://www.flickr.com/photos/eaf/2675102200/)

Much celebration ensued on the internets. Compared to previous Library of Congress rulings, this one seemed pretty liberal.  Totally wild!  And in the week that has followed, the blogosphere has spent a lot of time parsing the ruling. But I can’t help but feel disappointed that we’re not spending more time talking about the big picture here, and this whole exemption process.

The Digital Millennium Copyright Act became law in 1998, criminalizing technology designed to circumvent digital rights management (DRM) on copyrighted works. But there’s a specific provision in the act that allows the government to grant exemptions from laws against circumvention for non-infringing uses of copyright works. This means that the government recognizes – to some degree – that unchecked DRM is not a good thing.

But their solution for this? A revision of the DMCA exemptions every three years. By the Librarian of Congress. So, if there’s some activity that you feel should be granted an exemption, you have to submit a proposal to the Registrar of Copyrights, support your case through public comments and hearings, and wait up to three years to see if the Library of Congress agrees with you. And if an activity has already been granted an exemption, it must be resubmitted every three years for review. Which means that it’s possible that we could actually be talking about iPhone jailbreaking and text-to-speech again in 2013. In the meantime, innovation accelerates, users find new ways to circumvent DRM, and industries relying on DRM continue to falter.

The DMCA exemption process seems comically inadequate and reactionary. The onus is on users to make specific cases for exemptions, the review cycle is sluggish, and no one really understands all the implications of the narrow (and, frankly, rather arbitrary) rulings. It further exacerbates the split between anti-DRM movements and adamant copyright holders. And it underscores the point that the government is regulating consumer use of technology – while granting people the right to make specific violations of that regulation. What’s more, this government has appointed the Library of Congress (huh?) as the body that arbitrates all of these issues.

This is not just about being able to jailbreak your iPhone.  We need a new conversation about DRM and consumer ownership/use of technology in this country. A common sense dialogue that doesn’t villainize copyright holders or criminalize users – most of whom don’t even want to infringe upon anyone’s copyright, but are seeking more ownership over their products. I want the Librarian of Congress to spend more time thinking about who should be the U.S. Poet Laureate and less time developing IP policy to determine a narrow set of limited exemptions to the DMCA. We need a more holistic and realistic approach to copyright and fair use – and I don’t think we can wait three years to create it.

So, Zeitgeisty folks: what do you think about the DMCA exemption process and how it mediates DRM issues? Are there other viable solutions? How do we create the path to a smart and civil dialogue about this issue?

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