Copyright Office exempts jailbreaking, noncommercial use of DVD samples from DRM anti-circumvention requirements

Section 1201 of the Digital Millennium Copyright Act (DMCA) prohibits circumvention of technical measures that copyright holders use to to control access to their copyrightable works.  Anti-circumvention technologies may include items such as encryption and other digital rights management (DRM) measures. 

Section 1201 exempts several activities from the anti-circumvention requirement.  The statutory exemptions include the use of certain tools for encryption research, security testing, and other activities.  In addition, every three years, the U.S. Copyright Office publishes a list of additional exemptions to the anti-circumvention requirement.  This week, the Copyright office published six exemptions for 2010.  The list includes two new exemptions:

  1. Noncommercial DVD sampling:  for DVDs that are protected by content scrambling systems (CSS), the ruling allows circumvention of the CSS to use a short portion of the DVD content for (i) educational purposes by college and university professors or film studies students; (ii) documentary filmmaking; and (iii) noncommercial videos. 
  2. “Jailbreaking”:  circumvention for the purpose of enabling interoperability of computer programs on a wireless telephone handset.

The jailbreaking exemption has received much attention, as it may permit the use of iPhone or other handset apps that haven’t been sanctioned by the device’s supplier.  However, although the process of “jailbreaking” no longer violates copyright law, the act may void the manufacturer’s warranty on the phone. 

The Copyright Office’s 2010 list also removed some exemptions that were present in 2006.  For example, an exemption governing sound recordings whose DRM created security flaws was not renewed in 2010.  The Copyright Office also declined to renew an exemption permitting access to software and videogames that were distributed in now-obsolete formats.

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