EFF says ..... Victory! From Jailbreaking Phones to Fixing Your Car, Users' Rights to Tinker Reaffirmed

This from the EFF, updating the earlier and somewhat brief report by the CopyKat. 

"In a major victory for digital rights, the Librarian of Congress granted all of the DMCA exemptions that EFF and our supporters requested. Quick refresher: the DMCA as written creates legal uncertainty around circumventing technical restrictions on copyrighted works, and directs the Librarian of Congress to grant special, temporary exemptions every three years.

The new exemptions mean that the following types of technological tinkering are explicitly lawful, at least for the next three years:

- Jailbreaking cell phones, tablets, and other portable computing devices to run third party software;

- Ripping DVDs and Blu-ray video that you own in order to create fair use remixes and analysis;

- Preserving video games and running multiplayer servers after publishers have abandoned them;

- Security research and modification and repairs on cars (and tractors!).

We're thrilled with this outcome. At the same time, a critical long-term solution is to eliminate the need for this onerous rulemaking process by reforming the broken law that threatens these activities in the first place."

And even more here! https://www.eff.org/deeplinks/2015/10/victory-users-librarian-congress-renews-and-expands-protections-fair-uses

Nintendo games more than just 'computer software'

In November 2008 the Dutch branch of video game producer Nintendo took action against several Dutch resellers of R4 flash cards and mod chips which were intended for use on Nintendo DS, DSi and Wii products. Both the flash card and the mod chip neatly circumvented Nintendo's console technology which was supposed to stop the use of illegally copied and/or unauthorised software. Nintendo’s claims were based both on copyright and trade mark infringement, though in the end the latter turned out to be unnecessary. Dutch copyright lawyers were all curious to see whether the copyright infringement would be argued in respect of ‘computer software’ or for a ‘work protected by copyright in general’, since a video game has elements of both.

Giving judgment on 21 July 2010, the Court of The Hague said it was the element that demanded the producer's most creative efforts that should be decisive as to what sort of work was to be protected: here it was general protection as a copyright work, rather than 'computer software' which was more appropriate. Why was this? Said the Court, Nintendo’s submission pointed to an extensive creative process in which elements such as the storyline, the characters and text (collectively referred to as 'the design') are created – or at least outlined – before the software programming can even begin. Since the programming had to be fitted to the video game designed, the resulting game program was subordinate to the design.

Having ascertained what sort of work it was that Nintendo sought to protect, the next question was: which is the legal provision that protects it? Article 29a of the Dutch Copyright Act turned out to be the most suitable weapon. This Article provides that it is unlawful to circumvent measures that are intended to prevent or restrict acts regarding works protected by copyright, if those acts are not permitted by the producer or its successor. Since the flash cards and the mod chips dodged Nintendo's data copy protection, Article 29a was infringed. The fact that the protective measures by Nintendo were designed to prevent all unauthorised use, whether unlawful or not, was simply irrelevant, though the Court added that Article 29a did not measures that were more far-reaching measures than strictly preventing copyright infringement. Nor was the Court impressed by the defence plea that Nintendo was abusing its powers, since Nintendo does actually grant licences to other producers.

As a result of infringing Article 29a the defendants were ordered not to import, distribute, sell or carry out any commercial activity with the flash cards or mod chips, on pain of a penalty of EUR 10,000 per day or EUR 1,000 per product. Better still for Nintendo, destruction was ordered for all flash cards and mod chips in the defendants' possession. Nintendo still has damages to come, plus the costs of the proceedings. The Court was silent on the trade mark infringement claim: Nintendo no longer had an interest in it that would exceed the legal measures to which it was entitled, based on copyright infringement.

The 1709 Blog thanks Willem Leppink (partner/advocaat, Ploum Lodder Princen, Rotterdam) for this information.

Do you dare to play this game – can you hack it?

You are ‘C’, a.k.a. head of MI6. You are playing a game of evasion, a game where you have no equals. That is, not until now. It’s time, time for you to come face to face with your nemesis . . . ‘Z’.

Go deep into the Copyright, Designs and Patents Act 1988 and there you will find ‘Z’ – a.k.a. ‘the Z sections’.

Yesterday Mr Justice Floyd considered section 296ZD in the summary judgment of Nintendo v Playables. It’s a case that examines the UK’s law regarding circumvention of copyright protection – and whether there’s a difference in the law when it is computer programs that are being copied, or other copyright works.

It all began with a customs seizure of 165,000 devices – devices that are used by those who enjoy playing a game of cat and mouse with Nintendo. Here’s how to play:

1. Illegally download games from the internet (instead of paying £20–£30 per game).
2. Copy games on to illegal device.
3. Slot device into Nintendo DS.
4. DS checks games are genuine – device gives DS the all clear.
5. Play!

Once the judge had resolved concerns about the fact that this uncontested summary judgment application came before him after the parties had partially settled, he easily granted summary judgment finding infringement under ss. 296 and 296ZD.

Sections 296 and 296ZD

These sections outlaw making or selling means for circumventing technological measures that protect copyright. Section 296 applies where the copyright being infringed is in computer programs. Section 296ZD applies where other types of copyright are being targeted.

Floyd J held that s. 296ZD was applicable in this case (as well as s. 296) because ‘although that which is stored on the card is a computer program, the game includes graphic and other works the copying and use of which is controlled by the ETM.’ (Don’t most computer programs involve some copyright material apart from code?)

On the face of it s. 296 requires that the defendant knows the circumventing technology will, at some point, be used to infringe copyright. However, this reading should be questioned as the section implements the Computer Programs Directive, which does not require the defendant to have this knowledge. Under s. 296ZD, by contrast, it’s clearly immaterial whether the defendant (‘C’) knew the device would be used for infringing copyright.

Playables’ export sales

In Sony v Ball, Laddie J held that ss. 296 and 296ZD would not apply where the devices were used abroad. Floyd J went along with this for s. 296 as it applies where the defendant knows devices would be used to make ‘infringing copies’ (i.e. copies that infringe UK copyright). However, the ‘infringing’ language is missing from s. 296ZD, so Floyd J, reluctantly departing from Laddie, held that s. 296ZD would apply to exported devices.

Under this line of reasoning, it would seem that had Parliament correctly implemented EU law, s. 296 might also apply to exported devices….

The judge’s view gives UK law in relation to copyright-protection devices a kind of extra-territorial effect that is not present in normal authorization of copyright infringement (where the copyright infringement that has been authorized must take place in the UK).

Now for a game of s. 16…

Presumably because these devices can be used for playing home-made games, the judgment makes no mention of Playables authorizing copying of Nintendo’s games but there was still some scope for an old-fashioned game of s. 16 copyright.

Playables, it was held, was authorizing the copying of the ‘NLDF’ security code from the device to the DS’s RAM. It isn’t mentioned, but aren’t the devices also sold holding an illicit copy of the NLDF?

When a user puts the device into the console, the DS’s boot-up software is copied into the DS’s RAM. Floyd J was not quite ready to grant summary judgment – it seems because legal Nintendo cards would have the same effect. Surely, however, even though the two copies are identical, one is authorized and the other isn’t?

As for the Nintendo Racetrack Logo, the judge said it was ‘so rudimentary that I consider that it is arguable that copyright does not subsist, particularly as what it is relied on is a modification of a pre-existing work’. Once you’ve experienced the state-of-the-art game of ‘Z’, a game of s. 16 can start to seem a bit basic and old-hat.

Obsolete dongles to become history?

Thanks are due to my friend and fellow blogger Miri Frankel (IP Finance) for drawing my attention to a recent statement by the Librarian Congress relating to classes of works to be exempted from the statutory prohibition under the Digital Millennium Copyright Act (DMCA) against circumventing technological means that prevent access to it. Miri suggests that the two exemptions that will have the biggest impact are likely be (i) the unlocking of phones in order to use otherwise inoperable apps and to use them on other carriers' networks and (ii) circumventing DVD security in order to use materials for educational purposes, comment or criticism. The statement reads thus, in relevant part:

"Statement of the Librarian of Congress Relating to Section 1201 Rulemaking

Section 1201(a)(1) of the copyright law requires that every three years I am to determine whether there are any classes of works that will be subject to exemptions from the statute’s prohibition against circumvention of technology that effectively controls access to a copyrighted work. I make that determination at the conclusion of a rulemaking proceeding conducted by the Register of Copyrights, who makes a recommendation to me. Based on that proceeding and the Register’s recommendation, I am to determine whether the prohibition on circumvention of technological measures that control access to copyrighted works is causing or is likely to cause adverse effects on the ability of users of any particular classes of copyrighted works to make noninfringing uses of those works. The classes of works that I designated in the previous proceeding expire at the end of the current proceeding unless proponents of a class prove their case once again.

This is the fourth time that I have made such a determination. Today I have designated six classes of works. Persons who circumvent access controls in order to engage in noninfringing uses of works in these six classes will not be subject to the statutory prohibition against circumvention.

... it is important to understand the purposes of this rulemaking, as stated in the law, and the role I have in it. This is not a broad evaluation of the successes or failures of the DMCA. The purpose ... is to determine whether current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways. The DMCA does not forbid the act of circumventing copy controls, and therefore this rulemaking proceeding is not about technologies that control copying. Nor is this rulemaking about the ability to make or distribute products or services used for purposes of circumventing access controls, which are governed by a different part of section 1201. ...

The six classes of works are:

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances: (i) Educational uses by college and university professors and by college and university film and media studies students; (ii) Documentary filmmaking; (iii) Noncommercial videos

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if (i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and (ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and

(6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format ..."

My initial scepticism that the US approach to technological circumvention and copyright has somewhat evaporated of late, when I contrast the flexible functionality of the position in the US with the principled paralysis of Europe. Am I alone?