Gadget Jailbreaking Gets a Copyright Office Reboot

(CN) - While the general public cannot legally unlock tablets and game consoles, the Copyright Office agreed to uphold some exemptions for smartphone jailbreaking and video remixing.

Jailbreaking or unlocking allows users to install non-vendor-approved software on cellphones and other electronic devices.

But the Electronic Frontier Foundation (EFF) and other advocates of digital rights say that practice constitutes non-infringing use permitted under Section 117 of the Copyright Act.

They urged the Copyright Office to renew critical exemptions to the Digital Millennium Copyright Act as part of the rulemaking process it conducts every three years.

Ending previous jailbreaking exemptions, from 2006 and 2010, would lead to higher device prices, increased electronic waste, higher costs associated with switching service providers and widespread mobile customer "lock-in," according to the comments it submitted in December 2011.

It applauded the decision of the Copyright Office to uphold those exemptions this past weekend.

"The DMCA [Digital Millennium Copyright Act] creates a cloud of legal uncertainty over American consumers - whether they are tinkerers, artists, or just looking to make their gadgets work better," EFF intellectual property director Corynne McSherry said in a statement. "The ruling from the Copyright Office today goes a long way towards mitigating some of the DMCA's most grievous harms."

The decision also broadens a previous exemption that authorized the use of DVD excerpts in noncommercial works. Now clips are protected for use in online streaming or downloading services.

McSherry noted that "remix videos are thriving on YouTube and other sites, offering dynamic criticism and commentary on popular movies as well as popular culture."

"It's a great example of how new technologies foster free expression, yet the anti-circumvention provisions of the DMCA endanger these important works," she said in a statement. "We're thrilled that the Copyright Office broke new ground in protecting remix artists. We can't let misguided federal law block a new form of art and expression."

The Copyright Office declined to expand the jailbreaking exemption to tablets and video game consoles, however, arguing that jailbreaking consoles might lead to more infringement and that the "tablets" category is not well defined.

EFF attorney Marcia Hofmann disputed this finding. "If you bought your gadget, you own it, and you should be able to install whatever software you please without facing potential legal threats," Hofmann said in a statement.

"We're pleased the Copyright Office renewed our smartphone jailbreaking exemption request, but we're disappointed that it couldn't see that consumers deserve the same rights for all the gadgets they own," she added. "We'll be back with more exemption requests in the next rulemaking, and we're hopeful the Copyright Office will keep moving in the right direction."

New America Foundation's Open Technology Initiative, New Media Rights, Mozilla, Free Software Foundation and several hundred individuals joined the Electronic Frontier Foundation.

"While the DMCA still chills competition, free speech, and fair use, today's exemptions help give consumers and artists protection from the law's extensive reach," the foundation said in a statement.

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