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“Fair Use” is not a defense to Anticircumvention under the DMCA

Today’s case discussion is directly related to yesterday’s story about the Open Kinect project and the potential legal ramifications. Even though the Copyright Librarian declared in July that jailbreaking iPhones was allowable under the DMCA, a judge in California stated that doing the same thing to an XBox would not have the same protection.

There is no blanket fair use defense under the Digital Millennium Copyright Act (DMCA). The closest approximation is in 17 U.S.C. §1201(a)(1) which allows the Copyright Librarian to declare specific exemptions every few years, which are then listed in the statute as guidance.

Drafters of the DMCA attempted to strike a balance between particular exemptions that would fall under “fair use” in the broader sense, and restricting general defenses that could apply to actions which might be otherwise legal for other types of infringement under the Copyright Act. This means that unless there is an exception that applies specifically to what you are doing or what you intend to do, then if the action you want to take is prohibited by the DMCA, that action is barred.

For the anticircumvention provision to apply, there needs to be underlying copyrighted material protected by a technological measure. The Copyright Act in 17 U.S.C. §107 defines “fair use” as a defense for copyright infringement, and not a generally applicable legal defense for all aspects of intellectual property. Therefore, fair use can be used by an alleged infringer to defend against a charge of copyright infringement, or that the use they made of the underlying copyrighted material was of enough benefit to society to offset the potential harm caused to the copyright holder.

Does this mean that users should be able to jailbreak their XBoxes? Hard to say. I’m inclined to say yes, but game consoles do not yet have the same necessary status as cellular phones, even if they are proprietary hard drives with some special bells and whistles on them. I was not surprised by this judge’s ruling, and I would not necessarily think that the judge ruled the wrong way.

Is the legal difference between a smart phone and a game console one of semantics? Perhaps, but until you can carry a game console around and make phone calls through it, I don’t think that the US judicial system will consider them within the same category of necessity. When the infraction is defined strictly, with very limited loopholes, then attempting to use a narrowly defined exception for a slightly different set of circumstances would probably fail. It would make a great test case, but courts are more likely to be conservative when handed a strictly-interpreted statute.

Posted in Wednesday: Current Issues.