U.S. Govt Okays Jailbreaking and Breaking Game DRM for Investigative Purposes

The Library of Congress’ Copyright Office looks into the Digital Millennium Copyright Act (DMCA) every three years in order to ensure that its harms are “mitigated.” The latest such inquiry has led to the establishment of legal protections for those who choose to jailbreak their cell phones, as well as for those who break protections on videogames in order to “investigate or correct security flaws.”

An AP story stated that the triennial investigation offers exemptions to the DMCA in order to “ensure that existing law does not prevent non-infringing use of copyrighted material.”

Other exemptions handed down included:

• allow owners of used cell phones to break access controls on their phones in order to switch wireless carriers.

• allow people to break technical protections on video games to investigate or correct security flaws.

• allow college professors, film students and documentary filmmakers to break copy-protection measures on DVDs so they can embed clips for educational purposes, criticism, commentary and noncommercial videos.

• allow computer owners to bypass the need for external security devices called dongles if the dongle no longer works and cannot be replaced.

The Electronic Frontier Foundation (EFF), who had requested a series of the exemptions, including the jailbreak provision, was overjoyed at the news. EFF Civil Liberty Director Jennifer Granick stated, “We are thrilled to have helped free jailbreakers, unlockers and vidders from this law’s overbroad reach."

From the Copyright Office’s ruling on the jailbreak exemption:

When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses.

More about the breaking protection of videogames provision:

The alleged underlying noninfringing use involved is twofold. First, purchasers of video games (including researchers) are engaged in noninfringing use when they install, access, and play authorized copies of such video games while further seeking to protect the security of their computers. Second, researchers in lawful possession of copies of games are engaged in noninfringing uses when they seek solely to research and investigate whether a video game, or the technological measure protecting it, creates security vulnerabilities or flaws. Professor Halderman asserted that such good faith research that does not cause or promote infringement generally constitutes fair use.

Halderman alleged that SecuROM may create security flaws or vulnerabilities. He referred to a number of articles and class action lawsuits suggesting that SecuROM may contain flaws or cause vulnerabilities. He further stated that a single definitive scientific study might quell the panic, protests, and litigation to what may turn out to be nonexistent or easily reparable faults.


Aggregating the evidentiary record, the proponents have shown that they need to be able to fix flaws that are identified in this class of works and they need to be able to investigate other alleged security vulnerabilities in this class.

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