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SFLC urges Copyright Office to recognize user freedoms

Aaron Williamson testified before the U.S. Copyright Office on Tuesday, in support of SFLC's proposed exemption to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). The exemption, if granted, would make it legal for owners of personal computing devices to circumvent DRM for the purpose of installing alternative operating systems and applications.

Here is Williamson's opening statement, in its entirety:

My name is Aaron Williamson. I am an attorney with the Software Freedom Law Center, where I represent copyright owners—free and open source software developers who distribute software freely to the public under generous terms. I am here in support of exemption number 4, for "Computer programs that enable the installation and execution of lawfully obtained software on a personal computing device, where circumvention is performed by or at the request of the device's owner."

This exemption is an expansion of the mobile phone jailbreaking exemption granted after the 2009 rulemaking. That exemption was granted on July 26, 2010, and since, the market for applications has expanded uninterrupted. Apple, the primary opponent of the exemption, has now seen more than 25 billion applications sold in its App Store. The Android market has sold well over 10 billion. And as intended, the exemption has bolstered the market for applications that aren't approved by Apple for inclusion in the App Store—Cydia, a third-party store available only to owners of jailbroken devices, has been accessed through 50 million different iOS devices.

When the 2009 rulemaking began, smartphones were new. The iPhone had only been released the previous year and the first Android phone was 2 months old. Now, a mere 3 years later, a majority of Americans own smartphones. This incredible growth spurred the introduction of other types of mobile computing devices that have themselves become ubiquitous in the last 3 years. The iPad, for example, was introduced on April 3, 2010, 4 months before the Librarian of Congress granted the jailbreaking exemption. Today, over 67 million have been sold. The Amazon Kindle, in its infancy during the 2009 rulemaking, has been through 6 different models and by the end of last year was selling a million units per week.

These new devices—along with video game consoles, personal music players, set-top boxes, smart watches, and a host of other new personal computing platforms—have in a very short time supplanted the personal computer for a number of common uses. Perhaps the best example of this can be seen right here in this room. At the technology demonstration hearing, I counted at least 3 people taking notes on their iPads rather than on a laptop. But people are using personal computing devices like tablets and smartphones in place of their personal computers for most common computing tasks: they read email on smartphones and e-book readers, browse the web and produce art on iPads, and track the progress of their exercise routine on smart watches that talk to their smartphones, which sync to their tablets. The personal computer had a good run, but the personal computing device is ascendant.

But just as Apple and the iPhone produced the momentum behind this wave of new devices, they also set a trend that endangers innovation. The lock-down that Apple imposed on the iPhone, which prevented users from installing any software that hadn't been pre-approved by Apple and ensured that Apple would face no competition to its star applications, is now an industry standard.

Android phones are largely considered more “open” devices than iPhones, but nearly every Android phone available prevents users from replacing the operating system, or from accessing select functionality. All mass-market e-readers are locked down almost identically to the iPhone, prohibiting the installation of non-approved applications and after-market operating system software. The same is true for videogame consoles.

These locks have become so ubiquitous on mobile computing devices in the last 3 years that they have found their way back to traditional personal computers, a class of devices previously quite open to third-party innovation. Microsoft is leading the way in this: recognizing that the smaller, lighter computers of the future will run on the ARM architecture—the favorite platform for mobile devices—rather than Intel chips, Microsoft recently mandated that any ARM-based Windows device must irreversibly prevent users from installing unapproved operating systems. This policy applies not only to Windows phones and tablets, but also to the new class of ultralight notebooks already being produced by vendors such as Qualcomm and ASUS. Microsoft is also taking a page from Apple's App Store book, and will only allow the next generation of Windows applications, called “Metro” applications, to be sold through the Windows store.

These locks are often billed by operating system vendors as security features, but their primary purpose and effect is to impede competition. Personal computers were fertile ground for innovation in the application and operating system markets because people were free to innovate on top of the hardware available to them: they didn't need to make deals with hardware vendors in order to produce a competing software product. The locks imposed on new devices close this route to innovation, which is the route taken by most of the software success stories of our time: Microsoft, Apple, and Google made their first millions building software for available hardware, unimpeded by any effort by the hardware or operating system vendor to stop them.

As we heard at the technology demonstration hearing, Mozilla cannot count on having the same opportunity to enter the mobile operating system and mobile browser markets. They were able to build their Boot2Gecko operating system because this proceeding made it legal for them to gain administrative access to modern smartphones to test it on. They were able to produce a stable version of the Firefox browser for Android for the same reason. But, while every other mobile operating system vendor has adapted their operating systems to tablets after tackling smartphones, Mozilla will have trouble doing the same, because while tablet computers are essentially identical to smartphones except in their size and marketing, it is not legal to circumvent the same locks on tablets that it is on smartphones. The same goes for e-book readers, personal music players, and the whole next generation of devices we have yet to see.

In this way, locks serve to protect incumbents—who have relationships with hardware manufacturers that are unavailable to upstarts—from competition from new entrants like Mozilla.

I expect that the first thing you noticed about this exemption is that it appears to be quite broad, but I believe it is only as broad as necessary to enable innovation on the new generation of computers. The devices that are replacing personal computers are not susceptible to simple categorization, something which was made apparent at the hearing for the tablet computer exemption proposed by the Electronic Frontier Foundation. The line between a tablet and an e-book reader, for example, is arbitrary. Both are hand-held computers, usually larger than a phone and smaller than a laptop, with a prominent display. What makes the iPad a tablet and the Kindle Fire an e-book reader is entirely a matter of the software installed on each by the manufacturer.

The same is true for the line between a smartphone and a tablet. The primary distinction is size—many tablets even contain cellular antennas identical to those in phones. Tablets are usually bigger, but new devices like the Samsung note have largely erased that distinction. The applications available for each are essentially identical.

I could go on, but the point is that these devices are all personal computers with different inputs and outputs and default configurations. They are used for a set of tasks that overlaps broadly from one device to another. The justifications for—and the interest in—jailbreaking each of them are the same as they are for smartphones.

Addressing each new type of device piecemeal via this process not only doesn't make any sense, it would critically burden innovation, leaving follow-on innovators like Mozilla a minimum of 3 years behind incumbents in producing software for new devices. To understand this, we can look at the iPad. It was released during the last notice-and-comment process and by the time of the ruling, over 3 million had been sold, with all the same restrictions as the iPhone. The devices were nearly identical, and all of the same reasons to grant an exemption applied on the day it was released, but nonetheless hopeful developers had to wait 3 years to even ask. This is not how innovation happens.

Finally, the exemption's inherent limitations foreclose unintended consequences. It allows circumvention only for the installation of licensed software—not even for modification of the restricted software—and only on hardware owned by the user. I urge you to grant proposed exemption #4, which is well within your authority in this rulemaking and is essential to innovation in the modern computing age. Thank you.

The Software Freedom Law Center responded on Friday to comments submitted in the DMCA exemption rulemaking process by the Business Software Alliance, Recording Industry Association of America, Motion Picture Association of America, and several other content industry groups. SFLC's full reply is here; it begins with this summary:

In our initial comments, the Software Freedom Law Center voiced a self-evident proposition: the owner of a computer should decide what software to run on it, regardless of the form that computer embodies. This proposal was echoed by the subsequent comments of dozens of organizations and individuals, for whose unsolicited support we are deeply grateful.

Against common sense and public opinion stands a single submission, the comments a group of content industry associations who represent neither the manufacturers producing computing devices nor the users who buy them. Where we affirm the right of device owners to improve their devices, accommodate the needs of disabled persons, and ensure their own security, these groups respond with a single nonsequitur: a concern for copyright infringement that the exemption would neither enable nor encourage.

The red herring of “piracy” obscures the respondents' true purpose, to control the secondary market in operating systems and applications. They do not make this purpose explicit because it is baldly anticompetitive: as the Federal Circuit warned and the Ninth Circuit acknowledged, the content industry's reading of 17 U.S.C. § 1201(a) “would allow companies to leverage their sales into aftermarket monopolies, in potential violation of antitrust law.” Their comments in this rulemaking would themselves implicate antitrust laws were they not shielded by the Noerr-Pennington doctrine.

When the Digital Millennium Copyright Act's anticircumvention provisions were first enacted, respondents reaped a windfall. The law gave them an effective power of prior restraint, presumptively banning all manner of lawful activity where technological protection measures were used. It is no surprise, then, that they have never met an exemption that they didn't oppose—here, they call even limited accommodations for blind and deaf persons “unnecessary.” They should not be allowed to extend their already-substantial control to copyrighted software produced by others.

SFLC's exemption would have neither the legal nor the practical effect of encouraging infringement; rather, it would protect innovation in the secondary market, promoting the production of new copyrighted works and the security of users. DMCA § 1201(a)(1) is concerned with unauthorized copying of copyrighted works. But where, as here, it is used not to prevent infringement but to control the secondary market in computing hardware or software, its reach must be curtailed.

SFLC Asks Copyright Office to Let Users Choose Their Software

The Software Freedom Law Center submitted comments yesterday to the U.S. Copyright Office proposing an exemption from the Digital Millennium Copyright Act's anti-circumvention provisions. If granted, the exemption would ensure that owners of personal computing devices have the right to install whatever software they choose on their devices.

SFLC's request responds to a growing trend among mobile device manufacturers to lock users out of their own devices by controlling application distribution channels and preventing replacement of devices' operating systems. In its comments, SFLC says these practices were first broadly seen on mobile phones but are now commonplace on tablets and other mobile devices, and may soon extend to personal computers via PC "app stores" and the Unified Extensible Firmware Interface (UEFI) specification's "secure boot" provision.

"People must have the right to control the software running on devices they own," said SFLC counsel Aaron Williamson. "That right is essential to the continued development of free and open source software and is foundational to our privacy, security, and freedom, online and off."

The requested exemption would expand on similar protections, requested by the Electronic Frontier Foundation in 2009, that apply only to mobile phones. It would not only broaden those protections to reach all personal computing devices but would clarify that users can replace their devices' operating systems as well as install their choice of applications.

• Read SFLC's comments
• Learn more about the exemption process

Software patents increasingly threaten both large technology firms and independent developers. Naturally, this has caused uncertainty in the free software community. To help free and open source software developers better understand patents, the real risks they pose, and the limits to their reach, the Software Freedom Law Center is publishing on its website the Community Distribution Patent Policy FAQ.

SFLC prepared the FAQ earlier this year in collaboration with the Debian project to address common questions from community developers concerning the effects of the patent system on their work for community distributions. The FAQ has been available on Debian's site for some time; however, since its contents may be useful to other FLOSS projects, SFLC has added it to its resources for developers.

SFLC hopes that this FAQ will serve as an educational aid to the members of the community as they seek to better understand patents.

The FAQ is not a substitute for legal advice; developers with specific concerns should consult an attorney. (Volunteer FLOSS developers and nonprofit projects can write to help@softwarefreedom.org.)