The DMCA and Circumvention vs. Trafficking

by on August 28, 2007 · 4 comments

Over at Ars Nate Anderson makes an important point that hadn’t occurred to me: The cell phone unlocking exception I mentioned in my last post applies only to the act of circumvention, not to trafficking in circumvention devices. That means that you’re safe if you unlock your own iPhone, but if you develop software or hardware to help others do so, you could wind up in legal hot water under the DMCA.

Of course, that depends on whether unlocking your cell phone is an act of circumvention in the first place. It’s not obvious that cell phone locks “effectively controls access” to a copyrighted work. Perhaps AT&T could argue that unlocking your phone is the first step toward pirating ringtones, but it should be possible to develop a hacking tool that enables carrier-switching without enabling ring-tone piracy.

In any event, this is almost certainly not the sort of situation Congress had in mind when they passed the DMCA.

  • Doug Lay

    >> In any event, this is almost certainly not the sort of situation Congress had in mind when they passed the DMCA.

    Indeed it’s not, and I expect that if an iPhone hacker can afford the court fight against Apple/AT&T lawyers, the DMCA will be held not to forbid their activities. As law professor (and DMCA supporter) Jane Ginsburg stated in a very recent interview, the DMCA was intended for DVDs and video games, not to lock down cell service.

    Of course, the logical next step for Apple/AT&T or others who want to use the DMCA to buttress their bundling arrangements would be to tie the locking down of cell service to the protection of some sort of copyrighted content served through the iPhone. Just use the same encryption key that protects “premium videos” served up over AT&Ts network for locking down the cell service, and the courts and Ms. Ginsburg will have to agree the DMCA applies.

  • Doug Lay

    >> In any event, this is almost certainly not the sort of situation Congress had in mind when they passed the DMCA.

    Indeed it’s not, and I expect that if an iPhone hacker can afford the court fight against Apple/AT&T; lawyers, the DMCA will be held not to forbid their activities. As law professor (and DMCA supporter) Jane Ginsburg stated in a very recent interview, the DMCA was intended for DVDs and video games, not to lock down cell service.

    Of course, the logical next step for Apple/AT&T; or others who want to use the DMCA to buttress their bundling arrangements would be to tie the locking down of cell service to the protection of some sort of copyrighted content served through the iPhone. Just use the same encryption key that protects “premium videos” served up over AT&Ts; network for locking down the cell service, and the courts and Ms. Ginsburg will have to agree the DMCA applies.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    In any event, this is almost certainly not the sort of situation Congress had in mind when they passed the DMCA.

    No it’s not, and that’s a good argument for not creating whole new rights when the old ones, tempered by some case law, could have served everyone quite well.

    The EU’s interpretation of ‘effective device’ is rather good: it seems that if something can be circumvented it is therefore not an effective device!

    Hat Tip: Groklaw

    Finnish court rules CSS protection used in DVDs “ineffective”

    In an unanimous decision released today, Helsinki District Court ruled that Content Scrambling System (CSS) used in DVD movies is “ineffective”. The decision is the first in Europe to interpret new copyright law amendments that ban the circumvention of “effective technological measures”. The legislation is based on EU Copyright Directive from 2001. According to both Finnish copyright law and the underlying directive, only such protection measure is effective, “which achieves the protection objective”

    http://enigmafoundry.wordpress.com/2007/05/27/exporting-restrictions-importing-poverty/

  • http://enigmafoundry.wordpress.com eee_eff

    In any event, this is almost certainly not the sort of situation Congress had in mind when they passed the DMCA.

    No it’s not, and that’s a good argument for not creating whole new rights when the old ones, tempered by some case law, could have served everyone quite well.

    The EU’s interpretation of ‘effective device’ is rather good: it seems that if something can be circumvented it is therefore not an effective device!

    Hat Tip: Groklaw

    Finnish court rules CSS protection used in DVDs “ineffective”

    In an unanimous decision released today, Helsinki District Court ruled that Content Scrambling System (CSS) used in DVD movies is “ineffective”. The decision is the first in Europe to interpret new copyright law amendments that ban the circumvention of “effective technological measures”. The legislation is based on EU Copyright Directive from 2001. According to both Finnish copyright law and the underlying directive, only such protection measure is effective, “which achieves the protection objective”

    http://enigmafoundry.wordpress.com/2007/05/27/e

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