The U.S. Copyright Office’s triennial rulemaking process under Section 1201 of the DMCA is the mechanism by which the Copyright Office grants—or declines to grant—exemptions from the prohibition against circumventing technological protection measures. The Copyright Office’s decision to renew the cell phone jailbreaking exemption while declining to extend it to tablets generated significant attention because it drew a sharp distinction between two functionally similar devices based on evidentiary sufficiency rather than technical reality.
Section 1201(a)(1) of the Digital Millennium Copyright Act prohibits the circumvention of a technological measure that effectively controls access to a copyrighted work. This provision is what makes ‘jailbreaking’—modifying a device to run software not approved by the manufacturer—potentially illegal, because such modifications typically require circumventing firmware encryption and access controls.
Congress recognized that the blanket prohibition could have unintended consequences, so it authorized the Copyright Office to grant exemptions every three years after a public rulemaking process in which proponents must demonstrate that the prohibition causes adverse effects on non-infringing uses of copyrighted works.
The Copyright Office renewed the exemption for cell phone jailbreaking, finding that the evidence in the record continued to support it. The renewed exemption permits circumvention of computer programs on mobile phones to enable interoperability of non-vendor-approved software applications—the practice commonly known as jailbreaking—when done for the purpose of running applications the carrier or manufacturer has not approved.
Critically, the Copyright Office found that the evidence did not demonstrate a significant relationship between jailbreaking and piracy. The entertainment industry had argued that jailbroken devices were used to run pirated applications, but the record evidence was insufficient to establish that this was a meaningful consequence of the exemption.
The Copyright Office’s decision to exclude tablets from the exemption came down to evidentiary and definitional problems. The proponents of a tablet exemption asked for a broad rule covering devices that could be characterized as tablets, but the Copyright Office found this proposal ‘broad and ill-defined.’
The core problem was the definition of ‘tablet.’ The Copyright Office noted that under a broad definition, ebook readers, handheld gaming devices, and laptop computers could all qualify as tablets. An exemption that applied to all such devices would represent an uncontrolled expansion of circumvention rights that the record did not support.
The Copyright Office did not find that jailbreaking tablets was harmful—it simply found that there was insufficient evidence in the record to support the specific breadth of the proposed exemption. This is an important distinction: the absence of an exemption does not mean jailbreaking tablets is necessarily illegal; it means the copyright office declined to affirmatively legalize it in that rulemaking cycle.
In later rulemaking cycles, the Copyright Office has addressed the tablet question with greater specificity. The 2015 rulemaking granted a limited exemption for jailbreaking of mobile computing devices, including tablets, under more narrowly defined conditions. The scope of permissible circumvention continues to evolve with each three-year rulemaking cycle.
For individual users, the cell phone jailbreaking exemption means that modifying your own device to run non-approved software is not copyright infringement. For developers who create tools to facilitate jailbreaking, the analysis is different: creating and distributing circumvention tools is a separate violation under Section 1201(a)(2) that is not covered by the user exemption.
Questions about DMCA compliance, software development, and technological protection measures are complex and often fact-specific. Revision Legal’s internet and copyright attorneys advise developers and businesses on DMCA risk and compliance. Contact us today.
The Copyright Office conducts its Section 1201 rulemaking every three years. Parties seeking exemptions must submit formal petitions, provide evidentiary support, and participate in a public comment process. The Copyright Office then issues its determinations, which take effect for the subsequent three-year period. Exemptions granted in one cycle must be re-petitioned in the next; they do not automatically renew.
This structure means that users and developers who rely on a circumvention exemption face ongoing uncertainty. An exemption that exists today may be narrowed, modified, or not renewed in the next rulemaking cycle if the supporting evidence changes or if the opposition presents more compelling arguments. Conversely, exemptions that were denied previously—like the tablet jailbreaking exemption—can be granted in later cycles with better evidentiary records.
One of the most significant areas of Section 1201 exemption development has been security research. Cybersecurity researchers who discover vulnerabilities in software and hardware systems often need to circumvent access controls to conduct their research. Without a Section 1201 exemption, this circumvention—even for beneficial security research—is technically illegal.
The Copyright Office has granted security research exemptions in multiple rulemaking cycles. The current exemption permits circumvention of access controls for good-faith security research in specific categories of devices and software, subject to conditions including responsible disclosure of discovered vulnerabilities. This exemption has been particularly important for automotive security research, medical device security, and research into consumer electronics.
Distinct from jailbreaking, the DMCA also addresses phone unlocking—the circumvention of carrier locks that prevent consumers from using a phone on a different carrier’s network. The Copyright Office has granted and renewed unlocking exemptions for consumer phones, allowing individuals to unlock phones they own for use on other carriers. Congress also enacted the Unlocking Consumer Choice and Wireless Competition Act in 2014, which temporarily legalized unlocking and directed the Copyright Office to address it through the rulemaking process.
The practical distinction between jailbreaking (running non-approved software) and unlocking (switching carriers) is important. Both involve circumvention of access controls, but they serve different purposes and have been treated differently in the exemption process.
For developers building tools that assist with jailbreaking, unlocking, or other forms of circumvention, the DMCA’s anti-trafficking provisions—17 U.S.C. § 1201(a)(2) and (b)(1)—create separate liability. A developer who creates and distributes a jailbreaking tool is not protected by the user exemption that permits jailbreaking of personal devices. The anti-trafficking provisions prohibit making, selling, or distributing any technology primarily designed to circumvent access controls, regardless of whether the individual use would be exempt.
This distinction is critical: a consumer who jailbreaks their own phone under an exemption is not liable. A company that sells a jailbreaking tool to that consumer may still violate Section 1201(a)(2). Legal advice from a copyright attorney is essential before building or distributing any circumvention technology, even technology designed to assist with exempt activities.
Revision Legal’s internet and copyright attorneys advise both software developers and device users on DMCA compliance and circumvention law. Contact us today to discuss your situation.
Section 1201 and its exemptions continue to evolve through the Copyright Office’s triennial rulemaking. Stay informed about the current scope of exemptions that apply to your devices and activities. Contact Revision Legal’s copyright attorneys for guidance.
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