In an act of stunning contradiction and irrationality, the Library of Congress ruled last week that, while it’s acceptable for iPhone or smartphone owners to “jailbreak” (to crack hardware limitations in order to install software not authorized by the device manufacturer) their phones, it is illegal to do so to an iPad, tablet computer or gaming console. Why one and not the other? Well, because they said so. So there. Also, if you’ve ever ripped a DVD or Blu-ray you’ve purchased to store on a media server, you’re also breaking the law, even if you only intend to keep those files for personal use while you still own the hard copy. The last vestiges of “Fair Use” have been tossed to the wayside.
The Digital Millennium Copyright Act passed in 1998 severely limited the rights of consumers to modify electronic or software products they’ve purchased, allegedly to prevent piracy. For example, the DMCA expressly forbids the cracking of any encryption on a DVD or Blu-ray disc, because that’s what pirates do when they want to bootleg a movie. Likewise, some naughty users jailbreak phones, tablets or game consoles in order to install bootleg software and apps. These are all big no-nos that the government wants to stamp out.
However, the DMCA ignores the possibility that some consumers may have perfectly reasonable, non-infringing reasons for wanting to bypass a disc’s encryption, such as moving the content to a home media server for personal use – or may simply want to use the electronic devices they’ve purchased in a way the manufacturers hadn’t considered. After all, once you’ve paid for an item, shouldn’t you be allowed to use it however you want, so long as you don’t receive illegal profits from the result?
According to the Library of Congress, no. Anyone who uses a product in a manner that it wasn’t explicitly designed for must be a criminal. Based on recommendations from the U.S. Copyright Office, the Library of Congress has the power to review the DMCA and grant exemptions. This year’s rulings make no sense at all.
The jailbreaking of smartphones was first granted an exemption to the DMCA back in 2010. While the Library of Congress extended that ruling last week, requests to apply the same exemption to tablet computers or game consoles were denied. How is one different than the other? The Librarian, “found significant merit to the opposition’s concerns that this aspect of the proposed class was broad and ill-defined, as a wide range of devices might be considered ‘tablets,’ notwithstanding the significant distinctions among them in terms of the way they operate, their intended purposes, and the nature of the applications they can accommodate. For example, an e-book reading device might be considered a ‘tablet,’ as might a handheld video game device or a laptop computer.”
In other words, the Library doesn’t want an exemption that might be granted to a “tablet” to be interpreted to apply to other similar tablet-like devices. I still fail to see how this is any different than smartphones. If you’re allowed to jailbreak an iPhone, are you not also allowed to jailbreak an iPod Touch? What about so-called “phablet” devices such as the Samsung Galaxy Note that fall midway between a smartphone and a tablet? Are those legal or illegal? And why has the Library of Congress decided that it’s OK to install bootleg software on a smartphone anyway? Shouldn’t it be all or nothing?
The situation with movie software makes even less sense. It’s illegal to crack DVDs and Blu-rays to watch on a different device or platform, but it is legal to copy a movie for use in a documentary film (“to make use of short portions of the motion pictures for the purpose of criticism or comment”). So, if you want to rip the disc to watch on your computer, with no intention of receiving profits from this action, you’re breaking the law. However, if you want to use pieces of someone else’s copyrighted material in a work that you fully intend to sell for profit, that’s perfectly fine. Isn’t that the exact opposite of the intent behind the DMCA in the first place?!