The Digital Millennium Copyright Act makes it illegal to try and get around digital rights management schemes. Congress did however give the Librarian of Congress the power to grant exemptions. The latest list of exemptions, in force for the next three years, was announced on Thursday. The new exemptions take effect October 28.
The new batch of exemptions illustrate the fundamentally arbitrary nature of the DMCA’s exemption process. For the next three years, you’ll be allowed to jailbreak smartphones but not tablet computers. You’ll be able to unlock phones purchased before January 2013 but not phones purchased after that. It will be legal to rip DVDs to use an excerpt in a documentary, but not to play it on your iPad. None of these distinctions makes very much sense. But Congress probably deserves more blame for this than the Librarian of Congress.
The main exemptions iPhone and iPad users will be interested in are the rules that allow circumvention of “computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset.” So, jailbreaking is allowed for iPhones just as it was under the 2010 rules.
How about tablets, like the iPad? Nope. The Librarian “found significant merit to the opposition’s concerns that this aspect of the proposed class was broad and ill-defined, as a wide range of devices might be considered ‘tablets,’ notwithstanding the significant distinctions among them in terms of the way they operate, their intended purposes, and the nature of the applications they can accommodate. For example, an e-book reading device might be considered a ‘tablet,’ as might a handheld video game device or a laptop computer.”
The Librarian found that “the record lacked a sufficient basis to develop an appropriate definition for the ‘tablet’ category of devices, a necessary predicate to extending the exemption beyond smartphones.” Um, OK.
In previous revisions, the Librarian allowed users to unlock their phones to take then to a new carrier. Not under the new rules. Any phones purchased after January 2013 can only be unlocked with the carrier’s permission.
The Librarian cited two factors for the change. One is a 2010 ruling that said when you purchase software, you do not actually own it, you merely license it. The Librarian argued that this undermines the claim the unlocking your phone is fair use.
Secondly, the Librarian found that there were more unlocked phones on the market than three years ago, and that most wireless companies have liberal policies for unlocking their handsets.
So, for the next three years, it’s OK to jailbreak your iPhone, but not your iPad. And don’t even try to unlock that shiny new iPhone you might buy in January.
Arbitrary? What do you think? Let us know in the comments section below.
