As of Tuesday, it is now legal to jailbreak your smartphones, tablets, smart watches and smart TVs. Although many people were not even aware that jailbreaking technology was illegal, it was indeed against federal law to alter your personal devices. In 1998 Congress enacted the Digital Millennium Copyright Act (“DMCA”) to implement certain provisions of the WIPO Copyright and WIPO Performances and Phonograms Treaties. Among other things, title I of the DMCA prohibits circumvention of technological measures employed by or on behalf of copyright owners to protect access to their works. In short, users were technically not permitted to break the technology for their own personal use, circumventing the manufacturer’s software to install things that the manufacturer did not create or want on the device.
However, the DMCA also contained a provision that permitted the US Copyright Office to make exemptions to the law. The Copyright Office has now done just that, issuing a ruling that granted several exemptions to the DMCA. Although the Copyright Office has previously granted smartphone jailbreaking an exemption, tablets were left out of its 2012 ruling. With the most recent ruling, the Copyright Office extended the exemption to cover “smartphones and portable all-purpose mobile computing devices,” like tablets and smartwatches, and smart TVs.
Smart TV Exemption
The exemption for smart TVs is important because smart TVs are quickly becoming the norm in most American households. Just like tablets and smartphones, smart TVs come with various apps and interactive entertainment features. The same is true of smartwatches. U.S. law has traditionally been slow to adapt to the complexities of new technology. Technology is governed by U.S. Copyright, Patent and Trademark law, which can make for some awkward definitions and oversight.
Video Games Exemptions
The Copyright Office also made other significant exemptions. Users now have an exemption for bypassing restrictions on video games where the copyright owner (video game maker) has shut down a server that was required to launch a game and permit local gameplay. Museums, libraries and archives may now ignore copy protection measures in order to preserve a game in its archives. These changes show that U.S. law is finally recognizing the historical significance of video games.
Limited Motor Vehicle Exemption
The Office has granted a limited exemption for motor vehicle owners to bypass software restrictions if it is necessary to diagnose, repair or legally modify a motor vehicle. However, the exemption stops short of permitting software restrictions to be bypassed simply to modify the infotainment systems of the vehicle. That means it’s okay to modify the software if your car has a problem, but you cannot modify the car’s software engineering for entertainment purposes. The Copyright Office likely was motivated by the complex regulations applicable to motor vehicles, because it also outlawed any attempt to bypass software restrictions to violate laws by the Department of Transportation and the Environmental Protection Agency.
DVDs and Blu-rays – Limited Exemptions
The Copyright Office also reviewed requests by educators and filmmakers to use copyrighted material:
- They granted teachers the ability to bypass access controls on DVDs to create clip montages.
- E-book authors are allowed to unlock Blu-rays in order to bring audiovisual aspects to film analysis.
- Documentary filmmakers may circumvent access controls to splice older works into newer ones.
- Fictional filmmakers sought the same exemption as documentarians, but their proposal was rejected.
These latest rulings by the Copyright Office are not permanent. The DMCA makes the exemptions effective for three years. When they expire, the Copyright Office will begin another round of review. In making the rulings, the U.S. Copyright Office considers feedback from a variety of outside interests, including users, copyright holders, manufacturers and advocacy groups.