ArtsWatch: New Round Of Hack OKs Takes Effect

Librarian of Congress issues fourth rulemaking on permitted forms of digital hacking
August 02, 2010 -- 9:39 am PDT
By Philip Merrill /

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

On July 27 the fourth round of exemptions to the Digital Millennium Copyright Act's prohibition on hacking access controls took effect. (summary, Federal Register) Librarian of Congress James H. Billington issues exemptions every few years based on public input and recommendations from Register of Copyrights Marybeth Peters. These rules restrict which court cases can be filed under the DMCA for tampering with restrictions on access (but not restrictions on copying) and they do not directly address what constitutes copyright infringement.

The latest exemptions include:

  • Mobile phones: This round renewed the previous exemption for unlocking handsets from security binding them to a particular wireless network. It newly permits jailbreaking handsets so that mobile apps will be interoperable and can run on them. Electronic Frontier Foundation celebrated this as a win, and it is generally considered a defeat for the Apple iPhone business model. Although using unapproved software on an iPhone violates a consumer's contract and voids the manufacturer's warranty, Peters concluded current law is too unsettled for modification of a software copy on a personal handset to definitely be considered a form of copyright infringement. As with the other exemptions, the effect of this rulemaking prevents specific causes of action being used as a basis for lawsuits — so Apple is bound to fight with whatever means available, such as regular software updates or alternative bases for lawsuits.


  • e-books: Although it was included in the previous rulemaking, this year Peters did not recommend renewing permission to hack e-books in order to use read-aloud software or convert into braille because she felt proponents of the exemption failed to make an adequate evidentiary case. Billington added this to the new set of permissions and urged Congress to work with Peters to address e-book accessibility for the visually impaired.


  • DVDs: Superficially, the permission to hack DVDs' CSS security is broadened to all college teachers, documentarians and noncommercial videos, but Peters' elaboration is filled with tricky guidelines. Most of these defer to the fair-use defense against infringement claims so a new work must be created incorporating only a short excerpt used for comment or criticism, with some reason why a high-quality ripped clip is called for as opposed to a lower-resolution screen capture. For example, Peters did not believe a case had been made that K–12 teachers and students had a need for higher resolutions. The exemption is also confined to "motion pictures" as opposed to the broader category of audiovisual works. While noncommercial visual artists might celebrate their new permission to hack DVDs, they are still confined by fair use. Also, there is no mention of Blu-ray discs.


On July 20 the Federal Communications Commission released a report, divided by party lines, concluding for the first time that U.S. broadband Internet is not being deployed in a reasonable and timely fashion. Democratic commissioners hailed the report's improved fact-finding and the adjustment of the minimum speed defined as broadband from 200 Kbps/sec to 4 Mbps/sec, while dissenting Republican commissioners expressed suspicion that the report's findings were being skewed, potentially as a basis to support increased government regulation. All five commissioners expressed support for the goal of universal Internet service and were dissatisfied that between 14 and 24 million Americans live in areas without broadband access at home. The Republicans encouraged a narrower focus on helping households without service accompanied by consideration of whether they might best be served by wireless Internet. In other words, rural users beyond the reach of U.S. commercial broadband landlines deserve special help — how they can best get that help is part of the larger debate whether government or private-sector action is most effective.

On July 26 British regulator Ofcom released research showing that average broadband speeds over landlines increased from 4.1 Mbps/sec to 5.2 Mbps/sec in the UK over the last year — however, the gap between advertised speeds and actual speeds also grew. DSL Internet connections over phone lines had the worst gap in general performance, but cable lines were hardest hit during periods of peak traffic congestion. Ofcom revised its voluntary code of practice for Internet service providers to include a commitment to better communicate actual speeds to consumers and allow customers to escape their service contracts without penalty if the gap between advertised and actual speeds is too high. Ofcom Chief Executive Ed Richards said, "We are delighted that all major ISPs have signed up..." Separately on July 12, UK Prime Minister David Cameron was delighted by the release of the UK Digital Champion's report "Manifesto For A Networked Nation" — part of the Race Online 2012 initiative to be the "first nation where everyone can use the Web." profiled Las Vegas-based copyright enforcement group Righthaven on July 22. CEO Steve Gibson claims to be filing new infringement lawsuits daily against websites reposting newspaper stories owned by his clients.

From July 19–23 ArtsJournal hosted an online conversation about creative rights and artists in conjunction with Fractured Atlas, the Future of Music Coalition, and the National Alliance for Media Arts + Culture. The top-caliber panel of bloggers included former two-time Recording Academy Chairman Bill Ivey, who said, "In the big picture no single entity in the arts has emerged to speak for the American people in addressing the overarching need to balance marketplace forces against the public's legitimate interest in a vibrant, open cultural scene."


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