IP Alerts

November 7, 2018

In 1998, the United States Congress enacted the Digital Millennium Copyright Act (DMCA). One of the most controversial provisions in the DMCA has been the anti-circumvention measures, which make unlawful the reverse engineering of technological measures that are used to prevent access to copyrighted works. In recognition of the potential for the overreach of this particular provision, Congress provided an exception to the prohibition on reverse engineering under which proponents can request an exemption to this prohibition in cases where the prohibition is likely to hurt users’ ability to make non-infringing uses of particular classes of copyrighted works. These exemptions are temporary for three years.

A variety of exceptions have been granted over the years, including, for example, certain compilations of internet locations blocked by filtering software, certain computer programs protected by dongles, certain video games in formats that have become obsolete, and certain ebooks.

On October 26, 2018, in a final rule published by the U.S. Copyright Office and the Library of Congress, the Librarian of Congress renewed exceptions for certain people who

• repair digital devices, including automobiles, agricultural mechanized vehicles, commercial vehicles, and home appliances,
• use video clips,
• jailbreak and modify smartphones and all-purpose mobile devices, or
• conduct security research to investigate and correct flaws on certain devices.

In regard to jailbreaking, the Librarian has renewed and expanded a prior exemption for gaining access to the operating system of a smartphone or all-purpose mobile computing device to install and execute software that could not otherwise be installed or executed on that device or to remove preinstalled software that could not otherwise be removed. The Librarian has expanded this exemption to include voice assistant devices such as Apple HomePod, Google Home, and Amazon Echo.

In explaining the decision, the Librarian noted that while piracy of streaming content is a significant concern, there was insufficient evidence to conclude that allowing jailbreaking of voice assistants created a greater risk of piracy than exists concerning other devices for which an exemption has previously been granted.

Of additional note, the Librarian expanded other exemptions as well. For example, the exemption for automobiles, agricultural mechanized vehicles, commercial vehicles, and home appliances now permits third parties to reverse engineer for purposes of diagnosis, repair, and lawful modification, while previously only the owner benefitted from this exemption.

For more information on this final rule, please contact Fitch Even partner Thomas F. Lebens, author of this alert.
 

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