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EFF pushes to make jailbreaking legal for all

Business & GovernmentNews
by Staff Writer
, 07 Dec 2011News

The Electronic Frontier Foundation has announced that it is looking to widen exemptions to the Digital Millennium Copyright Act in order to make 'jailbreaking' or 'rooting' legal for all consumer devices.

The process of obtaining escalated privileges on consumer devices - known as 'jailbreaking' for Apple's iOS devices and 'rooting' for Google's Android platform - is popular: devices treated in this way allow customisation and utilisation above and beyond that intended by the item's creator.

A jailbroken iPhone, for example, allows third-party software to be installed that would never make it through Apple's stringent App Store approval process. A rooted Android device can add Google Market access where none exists, which is especially useful on locked-down devices like Amazon's Kindle Fire or the originally webOS-based HP TouchPad.

The EFF, which works under the tagline "defending your rights in the digital world," has already won a major fight in the right to jailbreak: previously, the group convinced the US Copyright Office to legalise the jailbreaking of iOS-based devices which had been previously unlawful under the controversial Digital Millennium Copyright Act.

Now, the advocacy group is asking for that exemption to be extended - and it has no smaller target in its sights than every single 'smart' consumer device on the market.

"The DMCA is supposed to block copyright infringement, but instead it can be misused to threaten creators, innovators, and consumers, discouraging them from making full and fair use of their own property," explains EFF intellectual property director Corynne McSherry. "Hobbyists and tinkerers who want to modify their phones or video game consoles to run software programs of their choice deserve protection under the law. So do artists and critics who use short excerpts of video content to create new works of commentary and criticism. Copyright law shouldn't be stifling such uses – it should be encouraging them."

Every three years, the Copyright Office convenes to consider such exemptions to the DMCA - and in particular the sections on the unlawfulness of circumventing digital restrictions management technology and "other technical protection measures," even when such circumvention is to permit execution under the 'fair use' doctrine or other legitimate purposes.

"We were thrilled that EFF won important exemptions to the DMCA in the last rulemaking," explains EFF senior staff attorney Marcia Hofmann. "But technology has evolved over the last three years, and so it's important to expand these exemptions to cover the real-world uses of smartphones, tablets, video game consoles, DVDs, and video downloads."

The DMCA's supporters, meanwhile, argue that exemptions such as those requested by the EFF open the net for rampant piracy. With Sony continuing to clamp down on a 'jailbreak' for its PlayStation 3 console which, while originally designed to simply restore the 'Other OS' functionality removed in a firmware update, allows users to play copied or downloaded games without payment, that's an argument that isn't without its merits.

In addition to the jailbreaking exemption, the EFF has also asked for legal protections for artists and critics who use excerpts from DVDs or downloading services to create 'remixed' works.

Thus far, the Copyright Office has not commented on the EFF's request.

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