Exemptions to Copyright Law Revised for Video Mash-Ups and Smartphone Jailbreaking and Unlocking

By J. Bradford Currier and Marty Stern

Revised exemptions have been issued by the Copyright Office of the Library of Congress, allowing consumers to create video “mash-ups” for certain non-commercial purposes and use unauthorized software to “jailbreak” their smartphones, while prohibiting consumers from “unlocking” wireless phones purchased after 2012 in order to change carriers. The revised exemptions were adopted under provisions of the Digital Millennium Copyright Act, which authorize the issuance of exemptions every three years to the DMCA’s prohibition on the circumvention of technological measures that are employed by copyright owners to protect their works.

The revised exemptions allow consumers to use short clips of movies and television shows, whether from DVDs or online distribution services such as YouTube, to create “mash-up” videos for criticism or commentary and for certain educational uses. However, the revised exemptions continue to prohibit the unauthorized copying of copyrighted DVD material for playback on a device which does not contain a DVD drive. The Librarian of Congress indicated that the copyright owner typically has the legal authority to decide whether its material can be used on a certain device and copyright law not guarantee access to copyrighted material in a user’s preferred format.  

The revised exemptions continue to permit consumers to use software unapproved by their vendor on their smartphones by enabling the interoperability of the non-approved application, a practice known as jailbreaking. The Librarian found that the jailbreaking exemption, first established in 2010, was necessary in order to preserve consumer choice and prevent anti-competitive software restrictions. However, the exemption will remain limited to smartphones and will not extend to tablets, gaming consoles, or other devices. As the line between smartphones and tablets, among other devices, continues to blur, this exemption may result in some consumer confusion. 

While the revised exemptions preserve smartphone jailbreaking, consumers soon will be prohibited from unlocking phones to enable them to operate on wireless networks different than the networks originally assigned to the devices, eliminating an exemption in place since 2006. Devices purchased before January 26, 2013, may still be legally unlocked by the user, but devices bought after that date may be unlocked only with the carrier’s permission. The Librarian suggested that the sunset of the unlocking exemption will have minimal impact on consumers, as many carriers have flexible policies regarding unlocking, or sell phones already unlocked.

In a provision supported by consumer advocates and content providers, the revised exemptions allow users to disable or circumvent technologies that interfere with so-called “read-aloud” or screen reader applications that facilitate disabled access to e-book devices. Consumers must still purchase an authorized copy of the literary work before implementing such assistive technologies. The Librarian stated that such an exemption was necessary in light of the growing use of e-readers as a primary means of distributing literary works.

The revised exemptions implement a number of the proposals issued by the Copyright Office late last year, as well as the recommendations of the Department of Commerce. The Copyright Office received hundreds of comments on the proposed revisions, with consumer advocates arguing for more relaxed copyright exemptions for personal devices and content owners seeking stringent protections against piracy and infringement. 

The revised exemptions take effect immediately and will remain valid until the Copyright Office’s next DMCA review in 2015.

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