Surveillance State

For copyright activists, Christmas comes but once every three years: a chance to ask Santa for a new exemption to the much-hated Digital Millennium Copyright Act's prohibitions against hacking, reverse engineering, and evasion of digital rights management (DRM) schemes protecting all kinds of digital works and electronic items.

Judging from the list of 19 exemptions requested this year, some in the cyberlaw community are thinking big. (Disclosure: One of the DMCA exemption requests was submitted on behalf of this blogger by Harvard University's Cyberlaw Clinic.)The requests include the right to legally jailbreak iPhones to use third-party software, university professors wishing to rip clips from DVDs for classroom use, YouTube users wishing to rip DVDs to make video mashups, a request to allow users to hack DRM protecting content from stores that have gone bankrupt or shut down, and a request to allow security researchers to reverse-engineer video games with security flaws that put end users at risk.

Electronic Frontier Foundation uber-lawyer Fred von Lohmann told Wired News earlier this week that the government "has repeatedly dismissed any consumer-oriented fair uses, such as making backup copies of DVDs or video games, as well as requests for exemptions to enable copying DVDs to laptops and portable devices." He also told them that the DMCA exemption process is "hopelessly broken."

That depressing outlook doesn't seem to have stopped Lohmann from co-authoring two significant requests (PDF) to the copyright office for exemptions squarely targeted at members of the public.

The highlights
The 19 requests are too lengthy to blog, and so only the most noteworthy (to this blogger) have been presented here. Those wishing to read through the others can find all of the submitted exemption requests at the Copyright Office's Web site.

First, the EFF has asked that consumers be allowed to jailbreak or hack smartphones to run lawfully obtained third-party software on the devices. Such an exemption, if granted, would be great news for the estimated 1 million users who have hacked their iPhone, and risked the wrath of Steve Jobs as his engineers played cat-and-mouse to stop the jailbreaking. Such an exemption would also be fantastic news for Mozilla, which is currently prohibited by Apple's terms of service from bringing the popular Firefox browser to iPhone.

In the EFF's second request, the group has asked the Copyright Office to permit end users to circumvent the DRM protecting DVDs, for the purpose of creating noncommercial videos that fall squarely within the protections of fair use. While such circumvention is already trivially easy to do with tools such as Handbreak, it is technically illegal to do so. For the millions of YouTube users who remix and mash up snippets of copyrighted works (including Sen. John McCain), such an exemption would mean digital freedom.

In complementary filings, representatives from Duke University (PDF), the University at California at Berkeley (PDF), Middle Tennessee State University (PDF) and the Library Copyright Alliance (PDF) asked for a similar exemption for DVD ripping, but solely for professors who wish to create compilations of digital film clips for classroom use. A more limited professor exemption was granted back in 2006, but only for those teaching film studies. Both groups would like to see that exemption expanded to professors and K-12 teachers from all fields.

The Cyberlaw Clinic at Harvard University, representing this blogger, has asked (PDF) the Copyright Office to allow end users to circumvent the DRM protecting music, video, software, and games in the event that a central authenticating server is shut down. This has happened several times in the past few years, including Microsoft's MSN Music Store, Google's Video store, Yahoo Music, and Wal-Mart. The team also asked that researchers be permitted to reverse engineer functioning DRM stores (such as Apple's iTunes) before any shuttering is announced, for good-faith documentation purposes.

Finally, Professor J. Alex Halderman has expanded his successful "Sony Rootkit" 2006 request, and has asked (PDF) that security researchers be allowed to circumvent the DRM in digital works, software or games that create or exploit security vulnerabilities on the computers of end users. While his request is broad, the main focus is on DRM schemes such as SafeDisc and SecuROM, which are widely used in the video game industry (such as in Electronic Arts' Spore).

Next steps
During the next few months, the Copyright Office will allow members of the public to submit comments on the exemptions requested during this cycle. Later, in March, two public hearings will be held, in Washington, D.C., and California. There will likely be appearances by several public-interest groups and law school clinics speaking in support for their exemptions requests, while representatives from the recording, motion picture, and software industries are likely to show up to fight against such efforts to weaken the DMCA. At the very least, the hearings promise to be quite a spectacle.