New DMCA Anti-Circumvention Provisions Continue to Allow Smartphone “Jailbreaking”

The U.S. Copyright Office recently published its final rules regarding exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA).

The provisions prohibit attempts to sidestep technological measures employed by copyright owners to protect their works. However, in order to ensure that the public is still able to engage in noninfringing uses of copyrighted works, the Copyright Office is authorized to provide exemptions.

Every three years, the Copyright Office is required to reconsider and update its exclusions to the DCMA’s provisions. The latest rulemaking exempted the following classes of work:

  • Literary Works Distributed Electronically—Assistive Technologies: This provision exempts e-books that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies, provided that the copy is lawfully obtained by a blind or other person with a disability and the rights owner is paid for the price of the book.
  • Wireless Telephone Handsets— Software Interoperability: This provision exempts computer programs that enable wireless phones to execute lawfully obtained software applications for the sole purpose of enabling interoperability of the applications with computer programs on the phone. This process is known as “jailbreaking” the phone. The Copyright Office notably rejected a request to expand this exemption to tablet computers.
  • Wireless Telephone Handsets— Interoperability With Alternative Networks: This provision permits the circumvention of computer programs on mobile phones to enable them to connect to alternative networks—often referred to as ‘‘unlocking’’—if the service provider fails to respond to a request to unlock it within a reasonable period of time. Unlike prior rulemakings, this exemption now only applies to mobile phones acquired prior to the effective date of the exemption or within 90 days thereafter. The Copyright Office noted that “with respect to new wireless handsets, there are ample alternatives to circumvention.”
  • Motion Picture Excerpts— Commentary, Criticism, and Educational Uses: This exemption permits the circumvention of motion pictures on DVDs and delivered through online services for the purpose of film criticism and commentary. It specifically applies to the use of short portions for purposes of criticism and comment in noncommercial videos, documentary films, nonfiction multimedia e-books offering film analysis, and for certain educational uses by college and university faculty and students and kindergarten through twelfth grade educators.
  • Motion Pictures and Other Audiovisual Works—Captioning and Descriptive Audio: This exemption allows the circumvention of motion pictures and other audiovisual works contained on DVDs or delivered through online services to facilitate research and development of players capable of rendering captions and descriptive audio for persons who are blind, visually impaired, deaf, or hard of hearing.

All of the above exemptions will remain in place until the Copyright Office issues its next rulemaking in 2015.

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