Surprising New DMCA Exceptions: Jailbreaking Smartphones, Noncommercial Videos Somewhat Allowed
from the didn't-expect-this dept
Included in the rulemaking were exemptions that say jailbreaking smartphones is legal, saying:
"When 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."Separately, it approved getting around DRM on DVDs for use in non-commercial or educational video works. This is a blow to Hollywood, which in the past has tried to suggest that if educational institution want to use a fair use clip from a video, they should just set up a video camera on a tripod pointed at a TV screen playing the DVD. That said, the Copyright Office made it clear that these uses are very limited, and must be for purposes of "criticism or comment," and the maker of the new work must show that the circumvention is "necessary" to make the video work, saying "where alternatives to circumvention can be used to achieve the noninfringing purpose, such noncircumventing alternatives should be used." That seems extremely limiting, since you can almost always claim that some sort of alternative could be used.
The EFF also notes that the Copyright Office renewed one good exemption from a previous rulemaking, while clarifying what it covered, where it noted that unlocking a mobile phone to take it to another network is not violating the DMCA.
There were some additional classes approved, including video game DRM, in certain cases, where the DRM is being broken for the sake of security testing. They also approved getting around DRM in the form of computer dongles when those dongles are considered "obsolete," defined as "no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace." This one is also basically an expansion of an earlier ruling. The final one is also more or less a repeat of earlier rulemakings, concerning allowing ebooks to be read aloud for the blind -- even though the Copyright Office recommended against it, the Librarian of Congress included it anyway.
Separately, it is notable what was requested and rejected, but we'll do a separate post on that later.