Smashing the Shackles of Intentionally Dysfunctional Technology

By Terry Calhoun

Until last week, it hadn’t “clicked” inside my head that the Library of Congress could or would make specific exemptions to copyright laws. That might be because it d'esn’t do that very often, and it might be because the rulings can be pretty specific to defined groups of people. For example, one of the new exemptions permits film professors – only film professors – to legally break the CSS copy-protection technology on film DVDs in order to copy snippets for instructional use.

No, the ruling d'es not give professors permission to use such snippets under the fair use exemption that we already know about. They already had that right. This new exemption lets them, and only them, specifically break the copy-protection if they can. Even though fair use had previously let them use snippets, they were technically breaking the law by taking the snippets from protected DVDs. So they were in a catch-22 situation; able to use the materials for instructional purposes, but kept from actually doing so by technological Gordian knots.

As a group, the head librarian calls this latest ruling “Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works.”

The Librarian of Congress, on the recommendation of the Register of Copyrights, has announced the classes of works subject to the exemption from the prohibition against circumvention of technological measures that control access to copyrighted works. Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years.

1. Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

Well, that’s not quite true. There are software programs out there to break the DVD protection and the professors were already doing it, but they could have been sent to jail for doing so. Now they can breathe easier – not an insignificant consideration in this Patriot Act era.

“I am very encouraged by the fact that the Copyright Office is willing to recognize exemptions for archivists, cell phone recyclers and computer security experts,” said Fred von Lohmann, an attorney with the civil-liberties group Electronic Frontier Foundation. “Frankly I’m surprised and pleased they were granted.” (Read More…)

Yeah, it can get pretty complicated and weird inside copyright law. But this is, basically, good news. Essentially, the exemptions granted by the Library of Congress this time around – more exemptions than ever before at one time – are all against the weirdnesses that companies can get into when they use technology to constrain users in ways that thwart the functionality of the technology that is what customers purchase items for in the first place.

Another example of that is the technique cell phone carrier use to make the phones their customers utilize unusable with competing carriers. I’ve always wondered how they could get away with that. Why didn’t consumers rebel, since it is pretty obvious that the only reason a cell phone won’t work with just anyone’s phone service is because the company you bought it from stuck something in it to reduce its functionality. And this relies on the fact that “fixing” the phone so that it works better is basically illegal. Hmm. Here’s what the new ruling says about this:

5. Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

There’s quite a bit of cognitive dissonance around creating a wonderful communications tool and then putting blocks, locks, and knots in the way of maximizing what the customer can do with it. Now presumably, I could use my Sprint Treo 650 with a Nextel service plan. Oh, wait, I probably already could, because Sprint bought Nextel. So…now I could, if I wanted to, use my Sprint Treo 650 with a T-Mobile plan. The sound you hear is the smashing of technologically-induced shackles.

The industry user group that had argued against the exemption, CTIA –The Wireless Association, had argued that film professors could make snippets from unprotected videotape and other media, but professors argued that the highest quality was available only on DVD, and they won. And the Librarian of Congress agreed: “The record did not reveal any alternative means to meet the pedagogical needs of the professors.”

All in all, though, I gotta’ hand it to Librarian of Congress, James H. Billinton. He blasted through some artificialities and recognized some technical realities. Some of those would be, you think, obvious, but not when someone can make money by making it hard for you to play with your toys. Another part of the ruling that has implications not so clear:

2. Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

So, let’s think about this: I wonder if it’s okay, yet, to make VHS copies of movies on Beta tapes?

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