DMCA Attorney Update: Jailbreaking For Cell Phones Still Legal, But Not For Tablets

By Eric Misterovich

The US Copyright Office, in its triennial rulemaking, has renewed its position that cell phone jailbreaking is legal while continuing its prohibition against other forms of jailbreaking, such as the jailbreaking of tablets for the sake of interoperability. The Copyright Office’s new exemptions specifically exclude tablets:

 

This exemption is a modification of the proponents’ proposal. It permits the circumvention of computer programs on mobile phones to enable interoperability of non-vendor-approved software applications (often referred to as “jailbreaking”), but does not apply to tablets—as had been requested by proponents—because the record did not support it.’

The Copyright Office reviewed the exception for cell phones and, in continuing the exemption, recognized that the evidence within the record did not demonstrate that the exemption led to significant piracy:

 

While Joint Creators raised concerns about pirated applications that are able to run on jailbroken devices, the record did not demonstrate any significant relationship between jailbreaking and piracy.

The Copyright Office, however, declined to recognize an exemption for table devices, finding the proposal to be “broad and ill-defined.” In short, the Copyright Office expressed its concern that numerous devices could be considered tablets, which would lead to an uncontrolled expansion of the exemption:

 

For example, an ebook reading device might be considered a “tablet,” as might a handheld video game device or a laptop computer.

The exemptions will remain in place for three years, at which time the Copyright Office will review them again.

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