New DMCA ruling: jailbreaking of smartphones legal starting 2013, but not for tablets

October 27, 2012

    (Tablet PC from Shutterstock)

    Law and policy can be confusing things, especially when you consider the dichotomy between the spirit of the law and the letter of the law. While the 1998 Digital Millenium Copyright Act (DMCA) aimed to curb copyright infringement and policy, an interesting backlash is that legal circumvention constituting fair use has become limited.

    Case in point: there is always the question of software ownership, such as whether you are free to re-sell apps and other digital content that you have bought in the first place. It seems we now have a clearer answer.

    To clarify fair use principles, the Librarian of Congress grants exemptions on these issues, which are valid for three years. For instance, in 2010 the Librarian allowed read-aloud functionality for e-books for access by the disabled if there are no alternative means for access by the blind.

    For the 2013 to 2015 period, though, the Librarian has issued a somewhat confusing policy, which will affect smartphone and tablet owners. Ars Technica has quite a technical and policy-oriented discussion on the matter, which pertains to jailbreaking (or rooting, in the case of Android devices), network-unlocking and content ripping. You can check out the source link for the discussion, but for the impatient, here’s a summary.

    Jailbreaking/rooting. Starting January 2013, you can legally jailbreak or root your smartphone, which may include the iPhone or any Android phone. This was the same case as in the 2010 rules. However, this time, the ruling is explicit that the jailbreaking is only legal for “the sole purpose of enabling interoperability of [lawfully obtained] applications with computer programs on the telephone handset.”

    Meanwhile, tablets are a different thing altogether. The Librarian of Congress says 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.” The worry here is that other tablet-like devices may be defined as a tablet, and therefore enjoy the same DRM circumventions. These may include laptops, e-book readers, and even handheld videogame devices.

    In short: you can legally root your smartphone but not your tablet.

    Phone unlocking. In the 2006-2009 and 2010-2012 periods, the Librarian permitted the unlocking of phones with the purpose of switching to another carrier. Starting 2013, this will come with a provision. Users can only arbitrarily unlock phones purchased before January 2013. Phones bought after that date will require the original carrier’s permission before you can legally unlock these.

    This change in ruling came from the Librarian’s view that software is not actually owned by the user upon purchase, but you are only granted rights and licenses under the EULA. As such, unlocking a phone (which is essentially software in nature) without the consent of the original carrier is no longer in fair use.

    In short: starting 2013, you need to ask explicit permission from your carrier before legally unlocking your phone.

    Content ripping. Another interesting point of contention for smartphone and tablet owners is the concept called “space shifting.” There’s always the question of whether it’s legal to rip a DVD for viewing on your smartphone or tablet. According to the Librarian, it will be legal for video content to be ripped only for the following: noncommercial videos, documentaries, non-fiction multimedia e-books offering film analysis, and educational purposes in film studies by students.

    Another exemption is for disabled access, meaning ripping content into a medium that can render the content in a way accessible to the blind or deaf.

    The Librarian does not allow space-shifting — or ripping so you can watch a DVD video on another device. However, there is a big caveat here. The Librarian says there is no court that has proved this is covered within fair use.

    However — and this is a big “however” — a fair use ruling can only be ruled by a court of law. But the courts of law would usually only view an act as within fair use if there is an exemption. So there is a circularity involved, and by default, ripping is illegal.

    In short: this implies that anyone who has copied a CD or DVD into a portable media player has already infringed on the publisher’s copyrights.

    Isn’t this a broken system or what?

    Comments

    • http://www.facebook.com/profile.php?id=100000338649747 Omario Amriky

      WTF?

    • http://twitter.com/Illmatic_AC Fred 忍び

      I bought the phone, I should be able to do whatever the hell I want with it.

      • MasterMuffin

        Kill people and steal?

        • Rostro

          That’s doing something with something or someone else using your phone as a tool.

          • MasterMuffin

            He said that he can do whatever the hell he wants with it, so that includes killing and stealing

            + this was just a bad joke I always say to my friends when they say they can do whatever they want :)

        • http://twitter.com/Illmatic_AC Fred 忍び

          wow…your level of ignorance is appalling.

          • MasterMuffin

            Thank you :D

        • wlmeng11

          Kill people with a phone.
          Sounds about right.

          • MasterMuffin

            People get mad and offended about stuff so easily, they have even disliked your comment -.- mine has 21 dislikes :D I really can’t understand why there are so many people that get so angry and lose their sense of humor when they see just one comment!

        • DMCA is Pussy

          Fortunately that is still deemed legal under DMCA.

          • zeth006

            Except the DCMA concerns contract law, not criminal law.

    • dave blevins

      Not just broken but trash !!

    • Ean Europ

      And once again big money wins over the rights of consumers in the USA. Land of the free… Not really.

    • sf

      are they going to enforce this rule outside US of A

    • john

      I do not understand the term “jailbreaking”. Does this include custom roms?

      • mjj09

        Anything requiring rooting the device.

    • http://twitter.com/MysteryMannnnn Mystery Man

      Amazon got their way I see

    • Caleb Allen

      Haha funny. How do they expect to enforce this?

    • F*** DMCA

      This bullshit. “Laws” like these are not meant to be followed.

    • darkangel

      so, and you know there’s a posted speed limit too,

    • DMCA is PUSSY

      Well as a community we should not buy things that we feel we have to Jailbreak. Buy a device bring it home if you need to root it bring it back and state the reason for return is becuase you could not do the things you wanted to do with it legally. Return it Boom theyll get the message.

    • Redz

      Lol. I guess this one is gonna be of those “Well technically it’s illegal, but everyone does it anyway” things. I mean a *lot* of people aren’t going to follow this.

    • James Merrill

      Wow, a whole bunch of new regulations that nobody will ever care about or follow.

    • Darrel

      I don’t care :) They can’t stop me..

    • Adam Koncz

      Android is an open source operating system. How can it be illegal to root it?

    • Malnilion

      You guys are wrong on the whole rooting portion. First of all, rooting != jailbreaking. Second, it’s not illegal nor will it be illegal to root/jailbreak your own device, but distributing the method for tablets and other non-phone devices may be (see: geohot, though that case was untested in court so there’s no precedent). Third, I don’t even know why I’m taking my time replying to this garbage post. If you guys won’t even read your sources, you are clearly not doing due diligence and are misleading your readers. Read the damn original pdf (linked in the ars technica article) instead of extrapolating your information from another poorly worded article.

    • http://www.facebook.com/elizondojohn John Elizondo

      fuck no i need CM10 on my nexus 7, android is open source so there is nothing wrong with it

    • commonsense805

      Does anyone really care what this “law” is? I will jailbreak and/or root any device I dang well please. I bought the product I can do with the product what I want. Only exception is if I am physically hurting someone by doing it.

    • horizon

      so I’m allowed to jailbreak WP phone now ?

    • Qliphah

      The tablet exemption is bull shit. What if your tablet has 3G? Not to mention most tablets aren’t even carrier specific so whats the harm, it’s as if the “librarian” didn’t even have a clue what he was looking at.

      Also why is a librarian the one who makes this decision? Shouldn’t this be on the ballot as by the current numbers the vast majority of us have cell phones now.

    • johnjon

      good looking out hommie a-nigga would’nt wan want to goet cought-outt fuckin wit the law aight!!!

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