
Jailbreaking now legal under DMCA for smartphones, but not tablets - zoowar
http://arstechnica.com/tech-policy/2012/10/jailbreaking-now-legal-under-dmca-for-smartphones-but-not-tablets/
======
daeken
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.

~~~
ari_elle
Quote from Wired article (linked below):

"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."

Source:

-) [http://www.wired.com/threatlevel/2012/10/dmca-exemptions-rej...](http://www.wired.com/threatlevel/2012/10/dmca-exemptions-rejected/all/)

-) <http://news.ycombinator.com/item?id=4699962>

I am aware that this does not fully answer your question, but this is at least
their justification.

~~~
krickle
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.

~~~
ari_elle
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...

Sad future ahead

~~~
crististm
I hope not. A few years ago I could not have found open hw that was decently
powerful.

Now I can - and this is improving.

------
tambourine_man
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
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.

~~~
tambourine_man
Nice.

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.

~~~
hfsktr
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.

------
ghoul2
It seems clear enough. Quote from the article:

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".

~~~
pbhjpbhj
> _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.

------
yk
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.

------
bluegeek
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.

------
seacond
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.

~~~
mweinbergPK
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.

~~~
seacond
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.

~~~
saurik
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).

~~~
saurik
"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).

------
britta
It sounds like this news would be more accurately titled "Jailbreaking
continues to be exempt for smartphones and non-exempt for tablets".

~~~
giftedmunchkin
Even that isn't strictly true, since the exemption for smartphones only
applies to phones purchased before January 2013.

~~~
britta
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.

~~~
beagle3
How does carrier unlocking figure out into DMCA? Is it in any way related to
copyrights?

I'm sure the librarian has an opinion, but how can they have jurisdiction?

~~~
britta
Looking at the official statement about the unlocking exemption (pages 16-20
of [https://s3.amazonaws.com/public-
inspection.federalregister.g...](https://s3.amazonaws.com/public-
inspection.federalregister.gov/2012-26308.pdf)), 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.

~~~
beagle3
> protections against modifying it

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.

~~~
britta
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.

------
clobber
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.

~~~
cageface
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.

~~~
gizmo686
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.

~~~
cageface
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.

~~~
Natsu
It takes exactly one smart person to break the DRM for everyone.

~~~
cageface
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.

~~~
gizmo686
Your not describing a DRM system, you are describing taking down distributors.

~~~
cageface
The point is that even a weak DRM system like Kindle's is sufficient to keep
most people on the right side of the line. It doesn't have to be perfect.

~~~
Natsu
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?

~~~
cageface
_I'm just curious, but have you ever observed anyone give up and buy something
because they failed to pirate it?_

I've done it myself many, many times.

~~~
Natsu
What did you fail to pirate?

