New DMCA Exemptions Permit Cell Phone Jailbreaking and Unlocking

No matter what one’s political orientation might be, it’s really hard to complain about the Library of Congress, and today its Copyright Office demonstrated that Americans still have some rights to their digital devices and media. You see, the Copyright Office is charged with authorizing and reviewing exceptions to the much-maligned Digital Millennium Copyright Act of 1998, and does so every three years.

On July 26, the Copyright Office announced a half-dozen new exemptions to the DMCA, and high on its list was the blessing of two practices: “jailbreaking” cell phones to allow their owners to install software applications that aren’t authorized by the manufacturer, and “unlocking” them to allow phone owners to switch carriers.

Then there were two victories for the concept of fair use: The first allows for a limited circumvention of the Content Scrambling System used to protect DVDs, while the second permits the bypass of access controls on certain ebooks for the purpose of executing read-aloud functions or enabling the use of “screen readers that render the text into a specialized format.”

According to the Copyright Office, CSS can lawfully be bypassed “solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism and comment,” and this exemption is further limited to three classes of use (again, I’m quoting from the official statement):

“i) Educational uses by college and university professors and by college and university film and media studies students; ii) Documentary filmmaking; iii) Noncommercial videos.“

(Unfortunately, this exemption still does not permit other forms of CSS bypass that ought to be covered by an ordinary interpretation of fair use. My favorite example of this is the all-too-common situation where I have lawfully acquired a motion picture on a lawfully made DVD, and I wish to view the motion picture on a portable device for personal, noncommercial use. As the law stands today, I have to buy that movie twice; first on the DVD, second, on my device.)

The Copyright Office also announced that protections on video games could be legally circumvented to investigate or correct security flaws, and that computer owners were permitted to bypass external dongles in cases where the dongle “is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace.”

The new rules will be published in the Federal Register on July 27, and will be reviewed at the next rulemaking session, which is expected to take place in 2013. The Copyright Office’s statement is available in its entirety, with supporting materials, at the copyright.gov Website.