Goofy, but with little real impact

You’ve certainly read about that notorious decision by the Librarian of Congress that made it illegal for a cell phone owner to “unlock” a cell phone so that it can be used with a different carrier. But that same decision, which came out last October, contains other elements, including some that apply more directly to our business.

As background, the Digital Millennium Copyright Act (DMCA) makes it illegal to “circumvent” technological access controls that protect against copyright infringement. But that law allows the U.S. Copyright Office, every three years, to recommend exemptions. The Copyright Office reports to the Librarian of Congress, so that’s where the decision is actually made.

In 2006, and again in 2010, the Librarian permitted the circumvention of firmware protection in wireless handsets in order to permit switching to an alternative wireless network.

But evidently things have changed. Some carriers are now concerned about “large scale phone trafficking operations” that buy large quantities of pre-paid phones, unlock them, and resell them in foreign markets. For U.S. consumers, unlocked phones are now widely available for sale, and the major carriers willingly provide the unlocking codes for newly purchased phones. But that is not necessarily the case for “legacy” phones. So this time around, unlocking by the user without the OK of the cellular carrier is permitted only for cell phones that were acquired from a carrier or a retailer prior to February 2013, not for newly-produced phones. The decision may seem a little goofy, but probably won’t have any real practical impact.

Another element of the decision has to do with “jailbreaking,” the use of non-vendor approved software applications. In 2010, the Librarian decided it was permissible for owners of smart phones to circumvent access controls that prevented the use of non-vendor approved software.

The target here was Apple, which has strict rules for programs approved for sale through its “App Store,” the only authorized source of iPhone and iPad applications. This circumvention had been approved in 2010, and was again approved this year. Surprisingly, however, the request to extend this policy to “tablets” was rejected. The primary reason was that the Librarian did not know how to distinguish between a tablet, a laptop PC, an ebook reader and a handheld video game device.

Next time around, an appropriate definition for the “tablet” category of devices will be needed.

However, a similar request applying to video game consoles was rejected. For example, Sony’s PS3 employs a series of technological protections so that the console can only install and run authenticated, encrypted code, but not homebrew games. Sony is suing a person who created a method to jailbreak the PS3. Similarly, there are over 450 independently created games and applications for Nintendo’s Wii available on the homebrew site But Sony and others claimed that these jailbreaking methods support the widespread distribution of illegal pirate copies of games. It seems that access controls on gaming consoles protect both the console firmware as well as the video games and applications that run on the console as well.

Another element of the decision deals with assistive technologies such as screen readers that allow blind users to read “ebooks.” Some ebooks apparently contain access controls that prevent the use of “read aloud” capabilities, or prevent the rendering of text into specialized formats. The Librarian decided that it will be permissible to circumvent those protections in order to make electronic literary works accessible to blind readers or others with disabilities, as well as to produce and distribute copies of literary works in specialized formats for disabled readers.

Another element deals with DVDs that are protected by the Content Scrambling System (CSS) and Internet-delivered videos using other copy protection systems. There is a need for players that render closed captions or video description derived from these protected videos. The players must be able to merge commercially accessible video content with “aftermarket” captions and descriptive audio streams that are created by parties other than the copyright owner.

Circumvention of CSS and other copy protection systems will be permitted to get access to the “playhead,” that is, the technical timing information embedded in content that would allow proper synchronization of captions and descriptive audio with the underlying video content. The Librarian found that the timecode information is metadata that is not protectable under copyright laws. (It is not clear whether this would be a general policy applicable to other metadata, because all of these decisions are based on very specific requests and very specific facts.) There were numerous other requests that were rejected. For example, the Librarian rejected a request to allow circumvention for the purpose of “space shifting,” the copying of DVDs and Blu-ray discs to permit viewing on laptops and tablets. That request has previously been submitted, and rejected, in 2003 and 2006. While the Supreme Court decided that “time-shifting” is permissible, no court has ever made a decision on “space-shifting.” Some of these decisions may be relevant to the cable TV business, particularly those dealing with accessibility issues. Some may be relevant to programming rights negotiations.

But they’re all interesting to us, because they all deal with gadgets, and we love gadgets.