Every three years, the U.S. Copyright Office reconsiders exclusions to the Digital Millennium Copyright Act’s (DMCA) provisions prohibiting the circumvention of technological measures that control access to copyrighted works.
The Copyright Office states that “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. One of the major exceptions was granted 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
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.”
The Copyright Office upheld the controversial practice this past year. However, tablet computers have not been granted the same broad exemption. The Federal Register says that since the category of tablets is difficult to define it would be dangerous to issue a blanket exemption. With the ever-increasing size of phones (I personally own a Galaxy Note II) it seems arbitrary to make the distinction based on whether a device has a radio and earpiece or not.
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– Ex astris, scientia –
I am and avid amateur astronomer and intellectual property attorney. As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +