Exemption for jailbreaking shows, again, that the DMCA works!

The Librarian of Congress and the Register of Copyright conducted another thorough review of requested exemptions to the DMCA and issued six new well-reasoned exemptions. ACT believes the exemptions issued demonstrate the flexibility of the DMCA to adequately protect copyright owners, provide incentives for new innovation, and enable consumers and innovators to utilize and enjoy copyrighted works.

The Librarian of Congress concluded the triennial rulemaking process and issued six exemptions to the DMCA’s prohibition on circumvention of technologies that control access to copyrighted works. Six classes of works were determined to be exempt- in other words, copyright users of these works can circumvent access controls of copyrighted works to make non-infringing uses.

The Librarian, upon the recommendation of the Register of Copyrights, has issued exemptions in each rulemaking since the enactment of the DMCA. These exemptions impacted only a small number of copyright users and went relatively unnoticed. However, a new exemption was added to the list yesterday and it had the tech world buzzing.

Owners of smartphones, basically iPhones, may now circumvent or “jailbreak” the access controls to the firmware in order to add and run interoperable third-party applications.

At first, this looked like a huge shift in policy. However, the analysis of the Copyright Office does not make any change in copyright policy. In short, the Copyright Office found that the iPhone firmware is a copyrighted work protected by Apple’s access controls. It then determined that jailbreaking to add interoperable applications not authorized by the iTunes App Store was a non-infringing use. The Copyright Office analyzed the proposed exemption under each of the four factors of fair use. It specifically mentioned the intent of Congress to encourage interoperability as enacted in the DMCA as a persuasive factor.

The exemption is not without restrictions though. It does not authorize copying of the firmware. And, iPhone users who jailbreak their phone will likely lose their warranty.

That said, this is still a big deal. Unlike previous exemptions, this one will impact a huge number of iPhone users and innovators. Jailbreaking an iPhone is done fairly easily which means people not technologically inclined can do it. And, this will undoubtedly spur new innovation in the applications marketplace.

Twelve years after being enacted and the DMCA is still working and evolving with technology the way it is designed to do.