Is the U.S. Copyright Office Changing Its Stance on Jailbreaking?

Every three years, the U.S. Copyright Office reconsiders exclusions to the Digital Millennium Copyright Act’s provisions prohibiting the circumvention of technological measures that control access to copyrighted works.

As explained by the Copyright Office, “the purpose of this proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make non-infringing uses due to the prohibition on circumvention of access controls.”

Since the passage of the DMCA, the Copyright Office has granted numerous exceptions.  For example, in 2010, the Office decided that cell phone “jailbreaking” — the popular term for removing built-in restrictions on the use of a device — should be exempt.

However, the controversial practice is up for debate again this year.  In recent hearings, the Copyright Office heard arguments in favor of expanding the exemption as well as arguments in favor of eliminating it altogether.

Jesse Feder, director of international trade and intellectual property for the Business Software Alliance (BSA), spoke out against jailbreaking, arguing that the practice enables piracy.

“Jailbreaking is a precondition for installing pirated software,” he said. “Technological protection measures are central to a distribution system that benefits consumers, independent app developers and third-party content creators, as well as developers of mobile operating systems.”

Meanwhile, the Electronic Frontier Foundation (EFF) called for expanded protections for jailbreaking.

“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,” EFF Intellectual Property Director Corynne McSherry said in a statement last year after the EFF filed comments with the Copyright Office.  ”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.”

I will, of course, keep you updated on any exceptions announced by the Copyright Office during this latest rulemaking.

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