Published by LawTechie - May 15, 2013 - LawTechie

Internet lawIn reaction to the Library of Congress’s recent decision to make smartphone jailbreaking illegal, Rep. Zoe Lofgren (D-Calif.) has introduced a new law which would confirm that, under the Digital Millennium Copyright Act (DMCA), people can circumvent digital lock software so long as they are not doing so to infringe on copyrights.

The proposed Unlocking Technology Act of 2013 provides, in relevant part:

“It shall not be a violation of this section to circumvent a technology measure in connection with a work protected under [the Copyright Act] if the purpose of such circumvention is to engage in a use that is not an infringement of copyright…”

Recall that the DMCA makes it illegal to circumvent digital locks in order to “get to” the copyrighted content beneath such locks. The Library of Congress (likely after some prodding from phone company lobbies) then interpreted this to mean that circumvention of digital locks is always illegal, no matter the reasons for circumvention, because there is, after all, copyrighted software content existing under those locks.

In my opinion, the proposed Unlocking Technology Act is right on the money in that it clarifies what the DMCA was intended to do in the first place — namely, to protect copyrighted content from being infringed. The DMCA’s anti-circumvention provisions were never meant to protect against activities such as smartphone jailbreaking where the circumvention was made in order to make innocent use, rather than make infringing copies, of the software content underlying the digital locks.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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