New DMCA Exemptions Allow Users and Third Parties to Repair Electronic Devices

The U.S. Copyright Office Recently Published its Final Rules Regarding DMCA Exemptions

The U.S. Copyright Office recently published its final rules regarding exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). It is now legal to “jailbreak” your Amazon Alexa, unlock your new iPhone, and repair your own smart appliance without running afoul of U.S. copyright law. It is also now legal for third-party businesses to perform repairs on certain electronic devices without facing potential legal liability.

Section 1201 of the DMCA

Section 1201 of Title 17 prohibits attempts to sidestep technological measures employed by copyright owners to protect their works. For instance, section 1201 makes it illegal for a person to decrypt a DVD containing a copyrighted movie or to bypass a password control to access a subscription video streaming service. However, in order to ensure that the public is still able to engage in non-infringing uses of copyrighted works, the DMCA authorizes the Copyright Office to provide certain exemptions. Every three years, the Copyright Office is required to reconsider and update its exclusions to the DMCA’s provisions.

Copyright Office’s Latest Section 1201 Rulemaking

As highlighted by the Copyright Office, the proposals received in its latest rulemaking reflected the growing pervasiveness of the Internet of Things. “Like the 2015 rulemaking, this proceeding saw numerous requests to access copyrighted software contained in consumer products and other devices and systems,” the Copyright Office wrote in its Section 1201 Rulemaking. “Proponents of these exemptions do not wish to access such software for its creative content, but instead are seeking to study, repair, or modify the functionality of the device or system itself.”

Highlights of the new DMCA exemptions include the ability to unlock both new and old smartphones, tablets and similar devices. Users can also jailbreak and repair smart devices, ranging from smart watches to home systems. The right also extends to third parties who can perform repairs on behalf of the owner.

The exemption for good faith security research was also expanded. The exemption, first enacted in 2015, was previously limited to devices or machines primarily designed for use by individual consumers (including voting machines), motorized land vehicles, and medical devices designed for whole or partial implantation in patients, along with corresponding personal monitoring systems. The exemption was also limited to research on lawfully acquired devices and applied only to circumvention done solely for the purpose of good faith security research. It also required that the research be carried out in a controlled environment designed to avoid harm to individuals or the public, that the information derived from the research be used primarily to promote the security or safety of the devices or their users, and that the circumvention not violate any applicable law, including the Computer Fraud and Abuse Act of 1986.

Based on arguments that security researchers have a legitimate interest in conducting good faith research on devices and systems beyond those enumerated in the 2015 exemption, the amended exemption removes the limitation to specific devices, and additionally allows security research on a computer, computer system, or computer network with the authorization of the relevant owner or operator. The amended exemption no longer requires the research be done in a “controlled” environment, but it retains the requirement that the device be lawfully obtained, and the requirement that the circumvention not violate other laws.

Below is a full list of the new DMCA exemptions:

• Excerpts of motion pictures (including television programs and videos) for criticism and comment: For educational uses, including by college and university or K-12 faculty and students, by faculty of massive open online courses (MOOCs), and by educators and participants in digital and literacy programs offered by libraries, museums and other nonprofits; for nonfiction multimedia e-books; for uses in documentary films and other films where the use is in parody or for a biographical or historically significant nature; and for uses in noncommercial videos
• Motion pictures (including television programs and videos), for the provision of captioning and/or audio description by disability services offices or similar units at educational institutions for students with disabilities
• Literary works distributed electronically (i.e., e-books), for use with assistive technologies for persons who are blind, visually impaired or have print disabilities
• Literary works consisting of compilations of data generated by implanted medical devices and corresponding personal monitoring systems
• Computer programs that operate the following types of devices, to allow connection of a new or used device to an alternative wireless network (“unlocking”): cellphones; tablets; mobile hotspots; and wearable devices (e.g., smartwatches)
• Computer programs that operate the following types of devices, to allow the device to interoperate with or to remove software applications (“jailbreaking”): smartphones; tablets and other all-purpose mobile computing devices; smart TVs; and voice assistant devices
• Computer programs that control motorized land vehicles, including farm equipment, for purposes of diagnosis, repair, or modification of the vehicle, including to access diagnostic data
• Computer programs that control smartphones, home appliances, or home systems, for diagnosis, maintenance, or repair of the device or system
• Computer programs for purposes of good faith security research
• Computer programs other than video games, for the preservation of computer programs and computer program-dependent materials by libraries, archives, and museums
• Video games for which outside server support has been discontinued, to allow individual play by gamers and preservation of games by libraries, archives, and museums (as well as necessary jailbreaking of console computer code for preservation uses only), and preservation of discontinued video games that never required server support
• Computer programs that operate 3D printers to allow use of alternative feedstock

Notably, it is still illegal to distribute jailbreaking software and other tools designed to circumvent copyright protection. Also, the right to repair does not extend to all electronic devices, with video game consoles notably absent.

The new DMCA exemptions took effect on October 28, 2018, and they will remain effective until the completion of the next rulemaking in 2021. To understand how the new DMCA exemption may impact you or your business, we encourage you to contact an experienced intellectual property attorney.

If you have any questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, William R. Samuels, at 201-806-3364.