Librarian of Congress Determines That "Jailbreaking" Smartphones Is Fair Use

The Librarian of Congress has announced a new regulation that exempts certain classes works from the provisions of the Digital Millennium Copyright Act (DCMA)'s anti-circumvention provisions. The exemptions offer new legal protections to consumers who wish to "jailbreak" their smart phones to permit the phones to run applications other than those approved by the phone's manufacturer.

The practice of jailbreaking has long subjected consumers to accusations of copyright infringement. As a result, the Electronic Frontier Foundation applied for the exemptions as part of the Congressionally mandated rulemaking process.

Apple responded to the request and opposed it, asserting that copyright law prohibits consumers from installing unapproved programs on its iPhones. The Librarian rejected that argument.

The rulemaking proceeding was mandated by the DCMA, which permits the Librarian of Congress to exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works, or "access controls." The Librarian of Congress, together with the Register of Copyrights, conducted rulemaking proceedings to determine whether there were particular classes of works as to which users were likely to be adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention of those access controls. They were required to (1) assess whether the implementation of access control measures diminishes the ability of individuals to use copyrighted works in ways that are not infringing, and (2) to designate any classes of works with respect to which users have been adversely affected in their ability to make noninfringing uses.

The Librarian of Congress ultimately determined that the DCMA's prohibition against circumvention of access controls for copyrighted works should not apply to six classes of works, and found that:

[W]hen one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been
approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability
are fair uses.

The new rule also provides new protection for certain amateur video remix artists, in order to adequately present the speech-related purpose of their uses. The exemption allows them to use short excerpts from specified DVDs, in order to create new, noncommercial works for purposes of criticism or comment, if the artist believes that the circumvention is necessary to fulfill the purpose of the comment or criticism.

The new regulation is available here.