Every three years the US Copyright Office via the Librarian of Congress reviews hot copyright issues to ensure that the copyright laws stay current as applied to specific technologies. The rulemaking statute was part of the 1998 Digital Millennium Copyright Act (DMCA). The Librarian’s rulemaking power comes from 17 USC 1201(a)(1). The Register of Copyrights provides recommendations about the specific questions that the Librarian can choose to enact. http://www.copyright.gov/1201/. Because findings are issued only every three years, yesterday’s decisions are especially interesting.
During this session, the Librarian inquired into whether “the prohibition on circumvention of technological measures that control access to copyrighted works is causing or is likely to cause adverse effects on the ability of users of any particular classes of copyrighted works to make non-infringing uses of those works.” One specific question for the Librarian was whether owners of smartphones can modify (“jailbreak”) their device to use unauthorized applications. The concept of “jailbreaking” involves modifying the OS of your smartphone to permit any number of modifications or customizations to the software.
Apple first argued in opposition that the rulemaking section of the statute did not protect unauthorized modifications to smartphones such as jailbreaking. This was because the section was only supposed to apply when the copyright owner’s interests aren’t harmed from the reported infringing activity. The substance of Apple’s argument however, was that “jailbreaking” a smart phone should result in copyright infringement which includes liability of up to $2500 USD per violation and possible jail time for willful infringement. Apple’s argument is that jailbreaking phones results in pirated intellectual property, decreased performance, and an increase in support costs for smartphone manufacturers. Moreover, no fair use argument existed according to Apple because jailbreaking a phone diminishes the value of the copyrighted works (in this case the OS). http://www.copyright.gov/1201/2008/responses/apple-inc-31.pdf.
Proponents of jailbreaking (the Electronic Frontier Foundation (EFF) amongst others) argued that jailbreaking a smartphone gives users ultimate choice over the phone and what applications that should be run on it. Using an industry analogy, the EFF argued that if a car manufacturer were to retain control over a vehicle after the sale and prohibit owners from adding aftermarket parts, the prohibitions would be considered by almost anyone to be wholly unreasonable. In addition, jailbreaking a smartphone is considered a fair use of the work that serves as an affirmative defense to actual copyright infringement.
The Librarian concluded in favor of smartphone owners, finding that circumvention of the copyright protections is permissible when “circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.” This means that those seeking to jailbreak their iphone or Android handsets can lawfully do so so long as they own the programs they are attempting to make compatible. This doesn’t mean that you should go out and jailbreak your phone, but you can at least go to sleep knowing that if you do choose to jailbreak your phone you are not a criminal at this time.
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