Copyright Office Expands Fair Use Exemptions For Jailbreaking Devices…Sort Of

by Mickey Huff
Published: Last Updated on

Every three years the Librarian of Congress allows individuals and other public interest nonprofits to petition to improve the regulations and exemptions involving personal devices and property concerning copyright infringements. These are submitted to the Copyright Office. Over the course of months of extensive briefs and hearings on the new rules for exemptions to the Digital Rights Management (DRM) circumventions laws, the Librarian of Congress has made a decision to accept third party usage of software for lawful fair use. Many people were arguing that they should have the same property rights with their computers and small personal devices as they do in their non-computerized devices. This would be to have the right to open, change, and improve the things they own in lawful ways.

This time around the Copyright Office announced the big news regarding the permission for jailbreaking phones and tablets, archiving and preserving video games, and remixing videos from DVD and Blu-Ray sources. However, Copyright is only granting the permission to use random, anonymously produced tools that one finds somewhere on the “Darknet” (like friend-to-friend, or Tor). So, as the new exemptions have emerged, they are limited in scope, they only apply to the end users; the people who physically do the tinkering, jailbreaking, or research, not the people who create the tools necessary to aid those lawful activities.

In addition to this backhanded expansion, Copyright made restrictive conditions on jailbreakers. For example, the Electronic Frontier Foundation asked for the right to jailbreak cars to improve informatics and address security vulnerabilities but Copyright made it clear that individuals have the ability to do so, provided that they: wait another year, look only at systems that do not interact with the entertainment system, and that a mechanic doesn’t break into the car – only the owner can. That last claim from Copyright is egregious. The same goes for the good news with abandoned video games, as one can only jailbreak games that require a server and that are PC games, no consoles allowed.

The reformed rules are lengthy, complicated, and perplexing, but it is exciting that these exemptions are enabling the public to educate and improve the underlying technology, and potentially keep us safer. This is a step in the right direction by Copyright for consumer rights, even though challenges persist.

Possibly a better more long-term solution would be to eliminate the necessity for this challenging rule making process. Moreover, trying to encourage lawmakers to support the efforts like the Unlocking Technology Act, which would limit the scope of the section 1201 of the Digital Millennium Copyright Act’s to copyright infringements.


Parker Higgins, Corynne McSherry, Mitch Stoltz, and Kit Walsh, “Victory for Users: Librarian of Congress Renews and Expands Protections for Fair Uses,” Electronic Frontier Foundation, October 27, 2015,

Cory Doctorow, “Librarian of Congress grants limited DRM-breaking rights for cars, games, phones, tablets, and remixers,” Boing, Boing, October 27, 2015,

Student Researcher: Mariah McHugh (San Francisco State University)

Faculty Evaluator: Mickey Huff (Diablo Valley College)