The Digital Millennium Copyright Act (DMCA) 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:

B. Wireless telephone handsets—software interoperability

Computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset.1

In other words, for the next three years, it will be legal to jailbreak an iPhone but illegal to do the same to an iPad.

Ultimately, the Librarian justified its decision, and the concomitant and seemingly arbitrary distinction between smartphones and tablets, on the basis that the proposed "tablet" class was "broad and ill-defined," noting that "a wide range of devices might be considered ‘tablets’ notwithstanding the significant distinctions among them in terms of the way they operate, their intended purposes, and the nature of the applications they can accommodate."2 As the Librarian explained, "[i]n future rulemakings, as mobile computing technology evolves, such a definition might be more attainable, but on this record, the Register was unable to recommend the proposed expansion to tablets."3

Tablet owners desiring to jailbreak their devices, however, may not have to wait that long. An examination of the history of interoperability exemptions reveals a subtle shift in legal analysis suggesting that the jailbreaking conduct at issue may have been statutorily exempted under Section 1201(f) of the DMCA all along. This article examines that shift and explores the notion that litigation under Section 1201(f) may obviate the need for further interoperability exemptions in any future rulemaking proceedings.

Jailbreaking Smartphones

The Librarian endorsed an interoperability exemption for smartphones as a result of the 2010 rulemaking proceeding.4 In that proceeding, proponents of the exemption argued that any reproduction or modification of firmware incident to jailbreaking a smartphone was a non-infringing fair use under Section 107 of the Copyright Act of 1976.5 Instead of challenging the fair use argument head-on, however, opponents of the exemption argued, among other things, that the proponents had failed to demonstrate that another statutory exemption—the "reverse engineering" exemption, codified at Section 1201(f)—did not already permit the jailbreaking conduct at issue.6

Under Section 1201(f), "a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs."7

As the argument went, if the conduct at issue could be made to fit within the boundaries of 1201(f), then jailbreaking a smartphone was already legal. If jailbreaking was already permitted under Section 1201(f), the proposed exemption was unnecessary, and if it was not already permitted, argued the opponents, then "the existence of a statutory exemption addressing the same area of activity—interoperability of computer programs—should weigh heavily against granting the exemption."8

The Register unequivocally rejected the 1201(f) argument in making its recommendations to the Librarian: "an iPhone owner who ‘jailbreaks’ does not fall within the four corners of the statutory exemption in Section 1201(f)."9 As the Register explained, "[t]he iPhone owner is not the person who has identif[ied] and analyz[ed] those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs. Rather, the iPhone owner will be the beneficiary of that person’s efforts and will be using the means provided by that person to install and run the independently created application on his or her iPhone."

In approving the interoperability exemption, however, the Register ultimately found that the existence of Section 1201(f) weighed in the exemption’s favor, serving as evidence of Congress’ "commitment to permit and encourage interoperability between independently created computer programs and existing programs."10 As the Register explained, "it is difficult to imagine why Congress would…have wished to make it unlawful for others to use the tools [legalized under Section 1201(f)] for the purposes for which they were lawfully provided."11

Resurgence of Section 1201(f)

In the 2012 rulemaking proceeding, jailbreaking proponents proffered an interoperability exemption identical to the one endorsed by the Librarian in 2010, save for the inclusion of tablets to the proposed class of covered devices.12 Despite its ineffectiveness in the prior rulemaking proceeding, opponents of the exemption again argued, among other things, that "Congress already codified the contours of acceptable circumvention related to interoperability in Section 1201(f)."13

Notably, however, the Register markedly softened its position as to the applicability of Section 1201(f). Whereas in 2010 the Register was clear in stating that "an iPhone owner who ‘jailbreaks’ does not fall within the four corners of the statutory exemption in Section 1201(f)," in 2012 the Register characterized the statute as "arguably ambiguous." The Register went on to explain that it "could construe Section 1201(f) as covering proponents’ intended conduct, and thus decline to recommend the exemption," but cautioned that "a court may well disagree, subjecting a jailbreaker to potential liability."14 Thus, as the Register reasoned, "because it is unclear, at best, whether Section 1201(f) applies in this circumstance—that is, because the Register cannot determine with a reasonable degree of certainty how a court would decide the matter—the Register is compelled to proceed with an evaluation of the merits of [proponents'] case."15

As we know, the Register’s evaluation on the merits led to a recommendation, and ultimately a determination, that the exemption be renewed for smartphones but not extended to tablets. Importantly, however, the Register’s revised outlook on Section 1201(f) did not go unnoticed by the Librarian, who acknowledged the analytical shift in the final exemptions themselves.16 Thus, this trend toward a more expansive reading of Section 1201(f) seems to have opened a door to the idea that circumvention for purposes of interoperability—whether done to a smartphone, tablet, or otherwise—may already be legal.

Next Steps: 1201(f) Litigation

The table, as always, would appear to be set for litigation. The public is now staring down the barrel of three years during which it will be legal to jailbreak an iPhone but illegal to do the same to an iPad or an iPad Mini—a frustratingly arbitrary distinction to anyone familiar with such devices and their overlapping functionalities. What’s more, waiting at the end of the tunnel is another protracted rulemaking proceeding during which jailbreaking proponents will be forced to seek to renew the current exemption for smartphones and expand the exemption to encompass tablets with no guarantee that either outcome will come to pass. And even if either did, it would be another Band-Aid, only lasting for another three years. A favorable court decision regarding the applicability of Section 1201(f) promises a more permanent reprieve.

Further, any such decision would have the potential to affect more than just smartphones and tablets. In addition to excluding tablets, the Librarian also declined to recommend two proposed classes that would have exempted the jailbreaking of video game consoles and personal computing devices.17 Depending on the factual circumstances under which any such future litigation may arise and/or the breadth of the resulting holding, Section 1201(f) could potentially provide a statutory safe harbor for a varied assortment of would-be jailbreakers.

Finally, even a decision conclusively establishing the inapplicability of Section 1201(f) to jailbreaking conduct would serve a valuable function. Specifically, opponents of future interoperability exemptions would, at the very least, be foreclosed from arguing otherwise, as they have in the past two proceedings. This, in turn, would ensure that future proceedings are contested on more germane issues, ultimately facilitating more productive submissions from all interested parties.

Of course, litigation is not without its perils, particularly for the parties involved. And, opponents of the various interoperability exemptions considered during the most recent rulemaking proceeding have hypothesized that the decision to pursue regulatory exemptions in lieu of litigating under Section 1201(f) is part of a "broad strategy" to "disarm the DMCA" by "chip[ping] away at the protections Congress afforded copyright owners who employ access controls."18

Even if there is some truth to this assertion, though, it seems likely that any such strategy would have spawned from a regulatory environment that was far more rooted in its conviction that Section 1201(f) offered no protection to everyday jailbreakers. As such, it seems unlikely that today’s trend toward a more generous interpretation of the statute would go unnoticed or be ignored, particularly when there is seemingly so much to gain through a favorable litigation outcome.

Final Thoughts

It is impossible to know with certainty whether the time has arrived to litigate under Section 1201(f), and, if it has, whether or not that section is the magic bullet that jailbreakers have been waiting for. The possibility remains that interoperability advocates will opt to wait out the current period and try for another, broader exemption in 2015. But if the changing tides of the Register’s and Librarian’s opinions are any indication, this battle may be waged long before then.

Michael S. Elkin and Thomas P. Lane are partners at Winston & Strawn. Daniel Guisbond, an associate with the firm, assisted with the preparation of this article.

Endnotes:

1. Exemptions to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. pt. 201 (2012).

2. Exemptions to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. pt. 201 (2012).

3. Exemptions to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. pt. 201 (2012).

4. Exemptions to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 75 Fed. Reg. 43,825 (July 27, 2010).

5. Comment of the Electronic Frontier Foundation, Dec. 2, 2008, at 9-10.

6. Comments of Joint Creators and Copyright Owners, Feb. 2, 2009, at 36.

7. 17 U.S.C. §1201(f).

8. Comments of Joint Creators and Copyright Owners, Feb. 2, 2009, at 36.

9. Recommendation of the Register of Copyright, June 11, 2010, at 93-94.

10. Recommendation of the Register of Copyright, June 11, 2010, at 92.

11. Recommendation of the Register of Copyright, June 11, 2010, at 92.

12. Proposed Classes of Works (2012).

13. Comments of Joint Creators and Copyright Owners, Feb. 10, 2012, at 19.

14. Recommendation of the Register of Copyright, Oct. 12, 1012, at 71.

15. Recommendation of the Register of Copyright, Oct. 12, 1012, at 71.

16. "The Register concluded that it was unclear, at best, whether Section 1201(f) applies in this circumstance, so she proceeded to analyze the merits of the proposed exemption." Exemptions to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. pt. 201 (2012).

17. Exemptions to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. pt. 201 (2012).

18. Comments of Joint Creators and Copyright Owners, Feb. 10, 2012, at 25.