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Interoperability Exemptions Under The DMCA

By Michael S. Elkin and Thomas P. Lane

The Digital Millennium Copyright Act (DMCA), 17 U.S.C. '512 prohibits the circumvention of digital rights management technologies and other similar content access or copy restrictions on copyrighted works. As such, it has long been understood that the circumvention of computer programs to enable interoperability of non-approved software applications ' a practice commonly referred to as “jailbreaking” ' was forbidden under the DMCA.

When Congress passed the DMCA in 1998, however, it also empowered the Librarian of Congress, upon the recommendation of the Register of Copyrights to grant limited, periodic exemptions to the law. The fifth and most recent set of exemptions, implemented as of Oct. 28, 2012, and remaining in effect for the next three years, contains one quirk that has generated significant interest in the intellectual property community: the Librarian opted to permit jailbreaking of smartphones but not of tablets. The exemption, which legalizes the process of enabling software interoperability only for “wireless telephone handsets,” reads:

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