By Erin Wright Lothson

The Digital Millennium Copyright Act (“DMCA”) was passed in 1998 and makes it illegal to circumvent digital rights management protections, including software. Given the rapid pace at which technology changes, Congress also granted the Librarian of Congress the power to issue exemptions to the DMCA every three years. The latest round of exemptions were issued on October 28, 2012.

The Librarian issued a variety of exemptions regarding time-shifting DVDs, which involves making a copy to enjoy at some later point in time or on an incompatible device, and unlocking your cell phone to make it accessible to join another carrier, among others.

The Librarian also issued an exemption concerning “jailbreaking” your smartphone. Most cell phones have protective software that only allows “authorized” software to run on the device. The process of jailbreaking involves bypassing the software so you can run unauthorized software on your smartphone. The term “jailbreaking” refers to circumventing an iPhone whereas the term “rooting” refers to circumventing an Android, although both refer to the same process. Jailbreaking became popular as people sought to obtain software or other downloads that were unavailable on Apple’s App store, and remains so today.

The irony is that the Librarian issued an exemption making it permissible to jailbreak your smartphone, but decided not to issue the same exemption for tablets. Many people were left scratching their heads as tablets and smartphones have become almost interchangeable in terms of functionality. However, the Librarian reasoned that the definition of “tablet,” as proposed, was too broad and might encompass technology beyond a traditional tablet, such as an e-reader, tablet PC, or hand-held video game.

For now, people are free to jailbreak their smartphones to download software beyond the software authorized for their iPhone or Android, but not so when it comes to your iPad or other personal tablet. The Librarian’s exemption will be in place for another three years, at which time it remains to be seen whether the Librarian will re-visit the issue or whether the Librarian will be forced to address the next and latest technology.