When can I mess with my Smartphone?

Technology Protections for Copyright

The DMCA is designed to address several subjects, including “anti-circumvention” technology, which is basically how copyright is protected through technical means rather than by function of law. Some examples of anti-circumvention technology include digital rights management preventing you from making more than a certain number of copies of a work, smartphones assigned to particular cellular carriers, and devices only being able to use certain operating systems. 17 U.S.C. 1201(a)(1)(A) provides, in part, that ‘‘[n]o person shall circumvent a technological measure that effectively controls access to a work protected’’ by the Copyright Act. However, section (B) provides that there are to be exceptions to that rule, to be issued periodically based on a review of current technology.

Every three years since the passage of the DMCA, the Copyright Office reviews the practice of anti-circumvention technology, and issues exceptions to the anti-circumvention rule: things you’re allowed to do even though the IP owners don’t want you to. The last round of exceptions was issued in late 2012, and will run through late 2015. Since we’re around halfway through that period, I thought I’d do a little flashback.

The 2012-2015 Anti-Circumvention Exceptions

You may circumvent technological measures designed to protect copyright for the following purposes:

  • Ebook Reading Assistive Technologies
    Literary works distributed electronically, to permit blind and other persons with print disabilities to use screen readers and other assistive technologies;
  • Jailbreaking Smart Phones for Apps
    Computer programs on wireless telephone handsets, to enable interoperability of software applications (“jailbreaking”);
  • Unlocking Old Smart Phones to Switch Providers
    Computer programs on wireless telephone handsets that were acquired within ninety days of the effective date of the exemption (i.e. January 2013), for the purpose of connecting to alternative networks (“unlocking”)
  • Audiovisual Words Certain Fair Uses
    Motion pictures on DVDs or distributed by online services, for purposes of criticism or comment in noncommercial videos, documentary films, nonfiction multimedia ebooks offering film analysis, and for certain educational uses by college and university faculty and students and kindergarten through twelfth grade educators; and
  • Audiovisual Works Assistive Technologies
    Motion pictures and other audiovisual works on DVDs or distributed by online services, for the purpose of research to create DVD players capable of rendering captions and descriptive audio for persons who are blind, visually impaired, deaf or hard of hearing.

Takeaways

  • Assistive Technologies are okay
  • Jailbreaking and Unlocking Old Smart Phones is okay
  • Cracking DVDs for transformative Fair Use is okay
  • Jailbreaking and Unlocking tablets is not okay
  • Moving audiovisual works from DVD to tablet is not okay

The Register of Copyrights will revisit this issue over the next year and offer the next round of exceptions in late 2015. It doesn’t appear that any significant decisions have been issued concerning these new exceptions. I see this as a good sign, that the regulations were clear to business practitioners, and litigation wasn’t necessary to clarify how they apply to technology.

See also United States v. Reichert, 747 F.3d 445 (6th Cir. 2014) (affirming the criminal conviction based on trafficking of anti-circumvention technology , dissent discussing the purpose of the DMCA anti-circumvention exceptions review)

Listen to Me!

Last year I appeared on the Stack Exchange podcast episode 40, to discuss the DMCA, including the then-new anti-circumvention exceptions. You can listen to it here:

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