Fair Use (Partially) Trumps DMCA

Good news on the intellectual property front this week.
First, the Library of Congress conducted its triennial review of intellectual property law and its effect on the sincere sharing of information. This week, the LoC announced some new exemptions in several areas that bode well for fair use. They fall into four basic categories:
1. Films and DVDs may have their digital encryption broken for educational use, including, but not limited to, classroom-viewing and excerption in the furtherance of academic work.
2. Wireless phone customers are free to “jailbreak” their phones – allowing them to un-tether themselves from the tenuousness of one network to work with others. This provision also allows smart-phone users to develop, download, and execute applications which may or may not be permitted by the phone’s manufacturer or specific cellular network.
3. Copy encryption may be broken on video games if the purpose is to; 1) recover lost accessibility (i.e., you lose the manual but bought the disc, and can’t get a new manual) and 2) examine such encryption for security flaws. This is becoming a big deal as the “virtual worlds” of gaming (such as World of Warcraft and Second Life) expand radically.
4. Copyright protection of e-books may be circumvented when a device fails to display the book properly or, as in the case of #3 above, access to the book is lost although ownership is not in question.
Following on this good news, the Fifth Circuit Court of Appeals ruled that in no uncertain terms, circumventing copy-controls is justifiable under the paradigm of fair use. In essence, “the bottom line here appears to be that if a consumer breaks through the [digital rights management] on some software, what they do after that is the crucial determinant of whether they’ve run afoul of the DMCA.”
These are significant chinks in the draconian power of the Digital Millennium Copyright Act (DMCA). The DMCA made it effectively illegal to circumvent any encryption/anti-copy mechanism, regardless of the utility, morality, and legality of the situation. The idea was to make new technologies opaque, so consumers must rely on the proprietary “knowledge” of the corporate innovator to subsist.
In two instances now – and within less than a week of each other – two federal acts have weakened the scope and scale of the DMCA’s chilling effects. It’s probably best that Congress nor the FCC needed to be involved.
Most of the press has been over the “liberation” of cell phones, and some companies (like Apple) pledge that if you try to free your iPhone, you’ll void your warranty. But let’s see just how fast terms of service change in the face of user-led innovation.