What I don't understand is: how does the DMCA apply here at all? The DMCA's anti-circumvention clauses apply only to mechanisms which control access to a copyrighted work. I fail to see how jailbreaking a phone, tablet, game console, etc passes that test -- it's not controlling access to anything.
"The regulators said that the controls were necessary to prevent software piracy and differentiated gaming consoles from smart phones, which legally can be jailbroken:
[T]he record demonstrated that access controls on gaming consoles protect not only the console firmware, but the video games and applications that run on the console as well. The evidence showed that video games are far more difficult and complex to produce than smartphone applications, requiring teams of developers and potential investments in the millions of dollars. While the access controls at issue might serve to further manufacturers’ business interests, they also protect highly valuable expressive works – many of which are created and owned by the manufacturers – in addition to console firmware itself.
On the plus side, the regulators re-authorized jailbreaking of mobile phones."
It's so infuriating that the lawmakers just don't get it. If I buy a console, I should be free to root it and run Linux or whatever. There are already laws against piracy, we don't need to throw freedom out to stop it.
It is frustrating and at the same time one of the reasons why the traditional PC as we know it has a special position.
If you think about it, the traditional PC is one of the - and it's sad to say so - few devices where the hardware really is yours (one could argue that firmware is locked down etc, but i guess everybody knows what i mean).
There are not so many devices left that you can:
-) install custom software on
-) root without great efforts
Game consoles, Tablets, ebook Readers, and Smartphones (no matter if it's legal - still great effort to jailbreak it) - you are locked in everywhere...
> It's so infuriating that the lawmakers just don't get it.
It's you who doesn't get it. Despite the whole election facade, the government is not working for you or your benefit. It's working for the benefit of a very small minority, that cares not about your freedom, and believes that they are served by enforceable DRM.
To play the devil's advocate here, since there are already laws against assault and homicide, would you say that there should be no regulation of weapons?
And before you argue that weapons have no purpose except to break other laws, like jailbreaking there are many lawful or sporting uses of swords, firearms, explosives, etc.
We have laws against murder/assault, and we also have laws against making threats and reckless endangerment which I think should cover the other cases of bad things done with guns.
I'll go further and say that DUI laws are also redundant. Of course we don't want people driving drunk, but all we really need is some case law that establishes drunk driving as endangerment.
If it's legal to jailbreak it, shouldn't the company be oblige to provide an official way to do so? Why is it expected that the users come up with the means? What if it's next to impossible due to hardware encryption and whatnot.
It's already not trivial on most devices.
jbbeats had an interesting point before he fell into personal attacks so I will express it here with less vitriol.
Jailbreaking is explicitly not an intended use of the product, and a manufacturer shouldn't be expected to provide any support whatsoever to something which the explicitly do not intend as a use. There may be all sorts of unintended consequences to jailbreaking and its unfair to expect a manufacturer to have the resources to think of every possible use case.
To take a ridiculous example (without copying jbbeats) if you choose to cut your hair with a lawnmower, you should not be able to complain that the lawnmower manufacturer didn't make it easier for you to swap out the blades for ones that barbers use instead of the cutting grass variety. That I think would be an unreasonable burden to put on the manufacturer.
There also may be unintended consequences in the basic operations of the machine if it is used in a different use case. For example, maybe hair grease could acccumulate overtime to make the lawnmower dangerous overtime. Perhaps a rubber guard would prevent this. Now the lawnmower manufacturer is having to support optional rubber guards for each range of lawnmowers for those few people intending to cut their hair with it.
While I share your desire to make jailbreaking easier, I don't think a law is the right way to do this.
a manufacturer shouldn't be expected to provide any support whatsoever to something which the explicitly do not intend as a use.
Right, but no support is completely different from doing everything in your power to prevent it. If Jailbreaking is legal, there should be a “run arbitrary code & full access to file system” checkbox along with a “you are on your own, we won't support it” warning.
Since we are playing with crazy analogies here, the lawnmower manufacturer won't release a new model that makes it intentionally and artificially harder for you to switch the blades just so you don't cannibalize the sales of their hair trimmer.
If it's legal for me to carve a smiley face onto my garden gnome shouldn't the garden-gnome seller be oblige[sic] to provide an official way to do it? Why should I need to figure out how to use a chisel? What if the gnome is very fragile so I can't do it without breaking it?
Just as carving a garden-gnome is not intended, manufactured, or expected behavior, there's absolutely NO reason for a phone manufacturer to go out of their way to offer jailbreaking tools. Your statement is completely illogical. Just because it is legal for a user to do something does not mean a company should have to do it. Even if it is legal for a user to do something doesn't mean that they must be able to reasonably do it, it just means if they do there won't be legal ramifications. Your post reeks of self-entitlement and a deep misunderstanding of the actual issue in question.
Another ridiculous example to round it out: Since it is legal for me, as a user, to attempt to install visopsys (an operating system made by one man which is obviously incompatible with everything) on my macbook apple provide drivers and support for installing this OS even though supporting it would likely take thousands of developer hours and gain Apple nothing. Users likely won't be able to install it on their own and developing drivers for it is probably near impossible.
See how your argument is exactly the same as the above? Jailbreaking, just like that OS, is the product of users and as such need only be supported by users. If a company wants to support jailbreaking, such as google allowing chromebook unlocking, that's their prerogative, but there is NO reason to expect or insinuate that a company should actually provide support for some random operation a user has come up with that in fact is to the company's detriment.
Honestly, considering the quality of your argument, I question your ability to function in society. If you're not underage (on the order of 7 or so) I highly encourage you to check yourself into the nearest mental facility due to an obvious mental disability manifesting itself as borderline retardation. At the very least I encourage you to GET THE FUCK OFF HACKER NEWS FOREVER because reading your idiotic statements, opinions, and retard-spew is roughly as pleasant, and just as enlightening, as self castration while gargling shit. Save us all the pain of dealing with you and deal with yourself, fatally if necessary.
I accidentally upvoted you after your initial correct argument before reading on and discovering that you're a complete asshole. Trust me when I say that pretty much the entirety of HN will be much more glad to see tambourine_man stick around than anyone who talks the way you do.
Back on the subject, companies go out of their way to prevent certain usage scenarios. If that's suddenly against the law, it's only reasonable for them to provide a way out.
Actively preventing you from using a product to the fullest is very different from supporting unintended usage.
I don't know an incredible deal about law or anything but I was under the impression that the law was that: jailbreaking = legal, as opposed to not jailbreaking = illegal.
Unfortunately I am not as good with analogies as others are on here. I think polymatter's comment summed it up the best.
What about tablets? No dice. 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."
Read this not as "smartphones yes but tablets no" but as "smartphones yes but kindle no".
>The Librarian ruled that "the record lacked a sufficient basis to develop an appropriate definition for the 'tablet' category of devices, a necessary predicate to extending the exemption beyond smartphones." //
This just say secondary-legislation-fail to me. Like man this stuffs hard (we can't do it logically and satisfy industry) lets just not bother.
I used to believe, that legislators used a outdated model of intellectual property. Unfortunately I am wrong, after all if I buy a book I am allowed to modify the content, by writing in the margins or by tearing out pages. ( I may even make a collage, using several pages of the book.) At least as long as I do not sell or perform my modifications.
So I wonder, why I am not allowed to do the same things with software? Linking another library is simply not different than gluing the first half of Lord of the Rings to the second half of the Cryptonomicron.
Let's face it: the technological literacy of the average user of smartphones/tablets/game consoles/etc. is such that being a script kiddie makes people think they're digital superheroes. DRM and DMCA are more likely to be mistaken for sporting goods manufacturers, record labels, or any number of things other than being known for what they are. The community that this is relevant to is still a minority - a shrinking one - but a minority nonetheless. And while it is a reason and logically minded community by nature, legal protection acts typically have an emotional component from those lobbying for their creation, because it has to do with their security. And income security lobbyists in particular tend to disregard anything but black numbers or red numbers until forced to do otherwise. Right or wrong, it seems the higher the income, the squeakier the wheel. I think it's a Ben Franklin quote: "If you forego freedom in favor of security, you will eventually lose both." If there's a solution down the road, I hope someone finds it before someone else takes it to heart that irrationality doesn't respond to rationality - but fear - and does something to hurt what chance there is at more digital freedom for the rest of us. I'd very much like to be and remain in control of what is or isn't allowed on my expensive and increasingly necessary technological equipment.
I thought the exception for DVD ripping was interesting. There are many references to "video quality" as a persuasive factor. This point might be useful in further requests for exceptions sent the Register.^1 Strategy: Complain about low quality. Apparently, screen captures are "not good enough" but Blu-Ray is "too good".
Under the exception individuals are entitled to extract a small portion of the DVD for commentary, criticism or educational purposes. What if enough individuals independently choose unique excerpts, so that together they cover the entire motion picture? Sites could be set up to catalog which portions of a DVD have already been extracted and reviewed. Commentary might be something as simple as subtitles of the type vlc or mplayer can handle; these are nothing more than text files - removing subtitles is a matter of not loading the text file. Then one simply downloads all the clips and combines them into the full film using ffmpeg.
Implausible? What do you think?
1. Why are people not organising mass mailing campaigns to the Register to seek DMCA exceptions? Am I missing something here? It seems like she only receives a relatively small number of requests for exceptions considering the large audience of people affected by her decisions.
re: 1. I work at Public Knowledge, the group that requested the general DVD ripping exception. We did organize a campaign around our exemption request and included the response in our reply comments. Going forward, our plan is to push Congress to pass laws that make it explicitly clear that "space shifting" is fair use. Of course, for that we will need the help of a broad coalition of people, including here at HN.
When I was typing out 1. I was thinking of the response that SOPA got. It seemed like it mobilised people to make phone calls and send emails. I think that had an impact. I'm just guessing here. In any case, it would be very interesting to see how LOC would respond to a surge in constituent participation in the DMCA exception process.
So, you make that sound hypothetical, but if you look, the EFF actually did something like that for the tablet and video game console exemptions: the number of comments filed this year was thereby staggering (sufficiently many that they missed their deadline on publishing them and had to simply put up an apology for a few days as they continued to go through it all).
I have no idea whether many or even any of these individual comments were thereby read: many were from people not even in the US, many were difficult to understand in broken English... some were blank, and one was actually "the wrong PDF" (someone's University parking pass). Before seeing the pile that was sent in, I had made it my goal this year to read everything published, but when I got through the C's I just couldn't do it anymore and stopped.
They seem to have responded to it quite well, in that it wasn't a major issue in either direction: I didn't hear anything (although I was fairly disconnected and only indirectly getting information, so I might just not know) of any complaints; it didn't seem to help, however (in that neither of those exemptions were accepted).
"that they missed their deadline" <- For the belated record, when I said "they" in this phrase I meant "the copyright office" (not the EFF, for example).
The key is to mobilize people in a way that makes an impact without going to the well too often. In the case of this proceeding, we knew that the Copyright Office does not necessarily respond to numbers of people simply saying "do this do this." When we put out a call, we asked for (and received) specific stories from people explaining why they themselves wanted this exemption.
That is very different from the kind of action you want to take when Congress is considering something. As I mentioned before, the next step in this process is to push Congress to make it absolutely crystal clear to everyone - including the Copyright Office - that non-commercial personal copies of media are well within the bounds of fair use. We need to wait until after the election and the new Congress is in session next year, but once that happens we are going to be making a big push to get just that type of legislation. At that point I hope that you will rally around the push. Unlike the Copyright Office, Congress tends to be much more responsive to numbers of people simply telling them to act.
This sounds like interesting work. Indeed I think those submitting requests need to thnk carefully about how to make compelling arguments. I'm thankful for the work you and your team are doing. saurik: As I asked "Am I missing something here?", the answer is of course "I am", but I continue to learn. I'm glad to hear you're getting involved with this.
I think you are conflating the jailbreaking/rooting exemption and the carrier unlocking exemption. The exemption for jailbreaking phones will apply for the next three years (until it comes up for renewal again), while the exemption for unofficially carrier unlocking phones will only apply to phones purchased before January 2013.
Looking at the official statement about the unlocking exemption (pages 16-20 of https://s3.amazonaws.com/public-inspection.federalregister.g...), it sounds like the software on the phone controlling its access to the carrier is a copyrighted work. So if you want to circumvent protections against modifying it, you have to wrangle with the DMCA.
Silly me. And I thought that "effective technical measure" was against copying, not modification.
I'm no copyright scholar, but this seems like they lack jurisdiction about this, and/or are trying a power grab.
E.g., Bunnie Huang's NeTV device modifies an HDCP encoded signal in-flight, adding an image overlay. If what you state about unlocking is true, then the NeTV is also illegal, and the DMCA is even worse than everyone thinks.
I believe the problem with unlocking is that both copying and modifying require circumventing technological protection measures, and that modifying a program has legal ramifications similar to copying it - they're both fair use if you own the copy of the software and not fair use if you're just licensing it. Since the purpose of exemptions is to allow fair use, but it's unclear whether we own or license the baseband software on phones we own, the Copyright Office decided to approve but limit this exemption.
I'll show my work, since I'm not a copyright scholar either, just trying to interpret the official statement:
According to the summary on page 1, the questions are: (1) Are you circumventing a protection measure? (2) Is the measure protecting a copyrighted work? (3) Is your use of the copyrighted work non-infringing? [And according to pages 4-5, there's another question, although not directly relevant to your comment: (4) Is circumvention the only practical way to achieve the result of this use?]
The discussion of the unlocking exemption ("permits the circumvention of computer programs on mobile phones to enable such mobile phones to connect to alternative networks") starts on page 16. Page 17 includes an interesting bit about copyright:
"Proponents advanced several theories as to why “unlocking” is a noninfringing use, including that it does not implicate any copyright interests or, if it does, the conduct is permitted under Section 117 of the Copyright Act. In particular, proponents asserted that the owners of mobile phones are also the owners of the copies of the computer programs on those phones and that, as owners, they are entitled to exercise their rights under Section 117, which gives the owner of a copy of a computer program the privilege to make or authorize the making of another copy or adaptation of that computer program under certain circumstances, such as to permit the program to be used on a particular machine."
But then page 19 presents a concern: according to some legal precedents, the owner of the phone may not be the owner of the software, so he or she wouldn't have the right to modify it. It says "the Register was forced to conclude that the state of the law – and its applicability to mobile phone software – remains indeterminate." After some more discussion of licensing and ownership, it goes on to say "The Register therefore determined that some subset of wireless customers – i.e., anyone considered to own the software on their phones under applicable precedent – would be entitled to exercise the Section 117 privilege."
I believe all of this shows that the Copyright Office considered whether it had jurisdiction and decided that it did. I don't know enough about Huang's NeTV work to be able to guess about how the DMCA applies to it.
Let's start calling these "smartphones" and "tablets" what they are: computers.
It's not okay to tell someone what they can or cannot do with the 1's and 0's on their machines. DRM sucks and so do companies that would seek to restrict rights on how you can use your computer.
FWIW, during this same round, the Software Freedom Law Center was attempting to push an exemption covering "personal computing devices" (which I submitted supporting comments for, along with these exemptions) and failed (largely due to claims that the arguments were too speculative, and seemed quite hurt by Microsoft announcing a $99 "sign your own OS" option).
"The Register additionally observed that granting an exemption for such a sweeping class would be without precedent in the history of Section 1201 rulemakings."
One of the specific issues with relation to these classes is that they be narrowly defined so that it can be fully understood; I was at the hearing in LA when one of the people on the panel seemed almost angry, asking whether the "tablet" class applied to "e-readers", such as a Kindle he personally owned (and seemed to feel would benefit from not having such an exemption).
Agreed. I don't see how copyright comes into the picture if I buy a piece of hardware, erase whatever is in its memory, and put what I want there instead.
Of course, I could see hardware going the way of e-books: You don't own your phone/tablet/laptop, you merely license it from the Corporation who reserves the rights to control what you install or not and to erase it/take it back at any time.
I'm ok with DRM if it's confined to a particular application and the content it manages, like the Kindle app, for example. You can always choose not to install that app.
But I reject system-wide DRM for the same reasons you describe. More and more people interact online primarily through mobile devices so these rights are more important than ever.
The problem is an app-specific DRM scheme is impossible to implement. The user would be able to intercept any API calls the app makes to an external program, at the very least capturing/spoofing the signal to the I/O drivers. The only way to make a secure system in this sense is if the software can establish a chain of trust and be confident that it is not running on top of 'compromised' software. An solution to this, which I believe is common on phones with official support for rooting, is to have a cryptographiclly secure way for a software to verify it is running on a non-rooted stack (I assume through signatures). At least this way, the only thing that disabling the system-wide DRM will cost you are the apps that specifically request the system-wide DRM. A better solution that I have not seen implemented, is to be able to run both a rooted stack, and a provably non-rooted stack at the same time. I am not sure if this is technically feasible to do for the kernel (maybe with firmware support?), but it seems completly doable for userspace programs.
To make a really robust DRM system, perhaps. But DRM really just needs to put enough of a speedbump in front of the average user to make it less of a hassle to pay. iTunes Movies and the Kindle Store are both good examples of this.
Sure but consider Kindle ebooks, for example. Finding a pirated copy of a book, dealing with the hassles of torrenting or some kind of download site, manually loading the book over, risking all kinds of phishing scams or viruses on the sites that serve this stuff - this is all way too much hassle. I'm happy to pay the $10 for the book even though I know I don't have to.
Making money selling digital goods is all about making paying easier than stealing.
I don't believe that DRM deserves the credit because I have yet to observe any such deterrent effect, while conversely, I have heard of many who turned to piracy due to feeling cheated by DRM.
I'm just curious, but have you ever observed anyone give up and buy something because they failed to pirate it?
