26
Oct
gavel

Good news, bad news, and really bloody ridiculous news, Android fans. Today, the latest round of DMCA exemptions has been passed and if you've ever jailbroken or rooted a phone, you'll be happy to know that this will continue to be legal. At least, for your phones. If, however, you want to gain su access to your tablet, you're fresh out of luck. Also, phones purchased after January 2013 cannot be legally unlocked for use on a carrier that didn't give you explicit permission. Yeah, it's kind of a mess.

Wait, What Are DMCA Exemptions?

A brief intro, for the uninitiated: the Digital Millennium Copyright Act, signed into law in 1998, has a certain set of rules concerning circumvention of DRM. This is the part of the DMCA that makes it illegal to make a copy of a DVD you purchased legally for use on your computer or tablet. Despite being able to do the very same thing with a CD, it's against the law for movies because studios choose to encrypt the video, and getting around that encryption is a violation. It's a very bizarre, somewhat self-contradicting system.

However, every three years, the Librarian of Congress issues a set of exemptions to those rules, in a small attempt to try to keep up with technology. Each set of new rules must be re-argued triennially if the exemptions want to stick around. Last time, back in 2010, it was deemed legal for end users to circumvent restrictions on their phones for jailbreaking - or rooting - purposes. It was also now explicitly legal to unlock your phone to use it on a new carrier. As you can see, the process is largely reactionary instead of preventative and puts the consumer in an awkward "guilty until argued innocent at the next meeting as far away as three years from now." But we're not here to talk about that. Let's discuss what will and won't be legal for the next few years.

Can I Root My Phone?

In short, yes. And you were also allowed to do that since 2010. Just to make it completely, explicitly clear, though, here is what the Librarian says is now legal:

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.

Translated: as long as you're not using (or creating) root tools to do anything illegal, it's fine to enable your phone to run things that the manufacturer or carrier didn't intend. For those wondering, that whole "lawfully obtained software applications" means that rooting your phone doesn't magically make it legal to pirate apps. Also, the exemption only covers enabling new software to run. Circumventing existing software to, we'll say, allow a phone to run on another carrier will not be legal. More on that in a bit.

Notice the very particular language concerning "telephone handsets" though...

Can I Root My Tablet?

Not unless the manufacturer specifically allows you to. This is where things kinda start to hit the fan. According to the Librarian, the proposed definition of "tablet" was too ill-defined for the office to be able to expand the exemption. And I quote:

On the other hand, the Register concluded that the record did not support an extension of the exemption to “tablet” devices.  The Register found significant merit to the opposition’s concerns that this aspect of the proposed class was broad and ill-defined, as 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.  For example, an ebook reading device might be considered a “tablet,” as might a handheld video game device or a laptop computer.

The main issue, as you can see, is not necessarily that the Register felt that tablets were somehow in a different class of device than smartphones and that consumers had fewer rights. It's that the case being made (chiefly by the EFF a few other consumer-advocacy groups) failed to adequately describe what a "tablet" is. The Library couldn't allow exemptions to the rule without risking more wide-spread effects than it intends.

Before you get upset, keep in mind that being very careful about what language is used in laws is important to our legal system. Overly broad rules can harm citizens in serious ways, so a lack of adequate language is, in principle, a good reason to hold back. However, this also means that a.) the burden is on the EFF to come up with a satisfying proposal to allow the exemption, and b.) we won't be able to look at this issue again until 2015 at the earliest.

Can I Unlock My Cellphone To Use It On Another Carrier?

Only if you buy the phone before January 26th, 2013. The exemption is going away for the next three years. The only caveat is that you have 90 days after the implementation of the new laws (which occurs on October 28th) to buy a phone and unlock it against the carrier's wishes. After that, and until 2015 at least, you'll need their approval. This actually ends a previous exemption that did allow the process. So, what happened?

Well, according to the Librarian, since the last round of exemptions, "case law has evolved." In fact, it didn't take too long. The last recommendation was released in July of 2010. In September of the same year, the case of Vernor v. Autodesk was successfully appealed. The new ruling stated that when you purchase a piece of software, you are merely licensing it and don't necessarily own the copy. This has a major implication for the first-sale doctrine. When you purchase a physical good, you are legally allowed to resell it (hence craigslist). If you purchase a license for a piece of software, however, you are not necessarily allowed to hawk your old wares. This mainly targets people who buy software in bulk and flip it for a profit, but the implications can undermine the claim that unlocking a phone qualifies as fair use.

That's not all though. The Register also argued that it may not even be necessary to allow users to unlock their phones:

The Register further concluded that the record before her supported a finding that, with respect to new wireless handsets, there are ample alternatives to circumvention.  That is, the marketplace has evolved such that there is now a wide array of unlocked phone options available to consumers.  While it is true that not every wireless device is available unlocked, and wireless carriers’ unlocking polices are not free from all restrictions, the record clearly demonstrates that there is a wide range of alternatives from which consumers may choose in order to obtain an unlocked wireless phone.  Thus, the Register determined that with respect to newly purchased phones, proponents had not satisfied their burden of showing adverse effects related to a technological protection measure.

In short, if you want an unlocked phone, you can buy one now. You don't need to break the law in order to accomplish this. Unfortunately for us, this does matter. Part of the reason for these exemptions is to allow for things that aid consumer choice and innovation. If said choice already exists (in some form), the argument can be (and in this case was) made that the exemption is not necessary.

What Does This Mean For Me?

Disclaimer: I am not a lawyer. Nothing I say here should be taken as legal advice nor expert opinion. I'm just good at reading things on the internet. That being said, here is what's likely going to change: a few things, but not a whole lot. For starters, it's worth pointing out that jailbreaking, aka rooting, tends to happen whether it's legal or not. If you're worried about getting arrested because you installed superuser on your Galaxy Tab 10.1, I sincerely doubt this will occur. Partially because, well, that would take an obscene amount of investment to track people down, and no one cares that much.

What will likely happen is that manufacturers that want to go after people who create the tools to root devices will have an easier time of it. If they choose. This is likely to be much more problematic in the iOS world since Apple is vehemently opposed to the idea of jailbreaking, however Android manufacturers could choose to pursue legal action against developers who crack open their devices. Maybe. It's good news, though, that we see so many companies embracing the open source community more and more. Perhaps some amiable relations will help keep lawsuits at bay. Still, we wouldn't be surprised to see it become a bit harder to find the resources you need.

Unlocked phones, though, will be the big problem. Since carriers now have a bit more control over what's allowed on their network, they may try and enforce it more strictly. This doesn't affect already-unlocked devices, of course. If you buy a Galaxy Nexus on the Play Store and it's able to run on the network, you shouldn't have a problem. However, AT&T has no requirement to help you use your brand new GS3 on T-Mobile. Similar to root tools, this might also make it easier for carriers to pursue legal action against people who create software to unlock phones.

There is one exception, though:

The Register concluded after a review of the statutory factors that an exemption to the prohibition on circumvention of mobile phone computer programs to permit users to unlock “legacy” phones is both warranted and unlikely to harm the market for such programs.  At the same time, in light of carriers’ current unlocking policies and the ready availability of new unlocked phones in the marketplace, the record did not support an exemption for newly 21 purchased phones.

If you happen to have an older or "legacy" phone that is unlikely to receive an unlock code from the carriers, exemptions will be made that allow you to circumvent the software on those devices. It's a small saving grace, but a welcome one for the second-hand phone market.

Conclusion

So, there you have it. You can still root phones, you can't root tablets that don't specifically allow it, and unlocking your phones without carrier approval will go back to being illegal at the end of January. That's how it will be for the next three years at least. While it's not all bad news, it certainly does feel like a bit of a loss. Unfortunately, despite the attempt to keep the law up to date—when you consider that most of the DMCA that was signed in 1998 is outdated and hasn't been revisited since, a three-year review process seems downright speedy—we're still stuck in a world where we can't define "tablets" for the purposes of running unapproved software until 2015 at the earliest. This is problematic.

Fortunately, we still have root-friendly tablets in the form of the Nexus 7 and, soon, the Nexus 10. While we're not fond of the "you have a few options, so just deal" approach, it is true that there are some slates that you can crack wide open without having to violate the DMCA.

Though, at this point the DMCA is so broad, so minute, and covers so many things it's not prepared to handle, violating it is a bit like speeding: everyone's done it at least a little, even if they were unaware.

Eric Ravenscraft
Eric is a snarky technophile with a taste for the unusual. When he's not obsessing about Android, you can usually find him obsessing about movies, psychology, or the perfect energy drink. Eric weaves his own special blend of snark, satire, and comedy into all his articles.

  • http://www.facebook.com/people/Timothy-Cordova/724980166 Timothy Cordova

    Very informative! It's crazy how many people try to have a say over what we do or don't do.

  • Tom

    so another example of the free land of the USA having less rights than europe?

    if someone creates a tool to sim unlock a phone and it works on all phones of that type - how are (eg) ATT going to go after them if they're in China? or any country where it's not illegal to unlock your phone?

    • http://twitter.com/misterE33 Mr E

      Likely, they won't. However, those of us fortunate to live in the ol' us of a are apparently fair game.

    • Asphyx

      I guess we missed the section where they also changed the constitution to go from
      "We the People in order to form a more perfect Union"
      to
      "We the Union in order to form a more perfect People"

    • JG

      I don't know if they could go after the Chinese developer per say (though I'm sure they can figure some way to get them via international trade agreements, etc)... But there would be nothing preventing them from causing the use (and possibly even possession) of said software in the US to be illegal.

  • Cuvis

    The ruling on tablets is bullshit. Frankly, users should not be prevented from running lawfully-obtained programs on any platform. Yes, incluxing e-readers and game consoles, if the devices allow for it.

    • http://twitter.com/misterE33 Mr E

      + 1 !

  • Mihkel Tiidus

    All mobile phone, legistlation and service provider related articles should have a descriptive property called "applies to region", cause right now most of the disconcerting news about what's going on in the US in regards to this news at hand here or any other similar story has nothing (probably) to do with the folks living elsewhere in the world. Whenever I see a similar title where users' freedoms are at stake I immediately start scanning the article only to discover - phew, US only.

    • DCMAKER

      this is a US website you know......

      • Tom

        really? i see UK centric articles on here too you know. a lot of sites actually realise that people outside of the US exist and have content relevant to those people. shock! the US is not the centre of the universe - it's only about, what, 5-6% of the planets population?

  • Sugoi Baka

    LOL! They are delusional. I bought it, which means I own it, which means I will be rooting it, hacking it, unlocking it and doing whatever else I want when I want.

    • http://twitter.com/misterE33 Mr E

      I agree with that, except I see the point if you then use it to do illegal things...which would still be illegal anyway However, just having root so that you can make backups or install a custom theme, etc? Doesn't make sense.

      • Bobby Phoenix

        To me it's like anything else. You can buy a gun to shoot targets. Perfectly legal. You use it to rob a bank. Illegal. What's new? My phone I root. (Well that's all I do, so this doesn't affect me. I just run custom ROMs. I don't unlock or use tablets.)

    • DCMAKER

      exactly....if i am only leasing it than i want to be able to return it after two years for my money back :P

      • Rob

        Right? It's sort like that f***ing nonsense with DIRECTV that they "sell" you a DVR for $199 - but you NEVER FREAKING OWN IT. Lawyers! Ugh!

      • http://btwnworlds.tumblr.com/ Lou G

        Or at least an item of equal value. I'm looking at you price reduced nexus 16 gb. lol.

    • PINJ

      Thats Like Saying You Bought A Movie So Its Yours Not Theirs... And Sir/Mam, If You'd Use Any Second Of My Movies Without My Permission There Will Be War. And With War I Mean Steven Spielberg/George Lucas With Indiana Jones In Southpark War

      • Freak4Dell

        Don't worry. Nobody wants to watch your movies. If you can't type properly, I can only imagine how much you butcher other things in life, like making movies.

  • moelsen8

    ridiculous.

  • Ryan Young

    So, if my tablet gets an OTA update that crashes and reboots alot (TF101) it's illegal to root to get to a stable rom. I expect it to happen with JB like it did with ICS. (because my JB roms are sucking the same way right now)

    Meanwhile I miss out on whatever I need the tablet to be reliable for because I'm not allowed to fix it. I have to wait 3 months for a real fix. And if one of the OTAs break it to the point of having to send it in, (which I pay for shipping) I have to do that, and then continue to wait for a stable OTA.

    If they did care to come after me for rooting my tablet in August, would I be protected by the Ex post facto law? Or is the wording on the old "you can jailbreak your device" actually "you can jailbreak your _phone_"?

    • http://twitter.com/misterE33 Mr E

      It sounds like you would be safe on any existing devices, or anything sold within the specified period after the new law goes into effect. For the next 3 years after that, though, then you're not supposed to root... right?

      I still don't really get the blanket ruling on tablets, given that most of them are really just big phones, and more likely wifi only.

    • Nick Wells

      It actually seems based on the wording that because there is no valid definition to a tablet at this time, they wouldn't even know to press charges. There is no way to say "Well the user broke DRM by doing this on a tablet" because then the court would have no definition of a tablet. I believe that because it's a broad term, it works both ways in the courts.

  • http://twitter.com/misterE33 Mr E

    I would say the root thing is a bigger issue than unlocking for other networks, personally, so that's kind of a win for phones. The tablets ruling is strange. Personally, I would almost say tablets should be allowed to be "more" open, or at least Wifi ones -- who cares, right? However, it sounds like it was partly due to ereaders and such. Like, I could kind of see where they're coming from if they don't want people to "jailbreak" their kindles and nooks and such, and even ipads, which are already made to live in a walled garden. Android is a peculiar beast though, and is probably more akin to a full PC, where you can kind of do anything with it. In that sense, they should place more restrictions on "hacking" specific apps, like the kindle or nook reader apps -- sure, that's fair to be illegal to exploit them to gain access to paid content, etc.

    • http://papped.webatu.com papped

      The cell phone unlocking actually affects a larger range of people and platforms though...

  • Mike C.

    Luckily this only applies to the US. In Europe, when you bought the device it is yours. No one is going to stop you from rooting, jailbreaking, or unlocking. And the carriers can not ban devices from their net unless there are technical reasons for it (which I have never heard of).

    • John O’Connor

      so essentially, in the U.S, we do not "own" the software we purchased (although this "licensing" concept has been around for a long time) but now we essentially DO NOT OWN the devices we have purchased?? This is borderline preposterous. next they will be telling us that we are only "licensed" to use our Television so long as it is connected to APPROVED devices. If it is mine (and it is a PHYSICAL OBJECT) and I paid for it, I should feel free to do with it what I wish.

      If I choose to embed my tablet into the wall of my bathroom and set up a streaming server from my cable box, that is my right! (ABSURD EXAMPLE, I KNOW)

      • Nick Wells

        ...I must now eventually do this...Thanks for the idea, John!

  • http://twitter.com/misterE33 Mr E

    So -- thinking about this more -- since it's legal to root your phone, how is it that OEMs/cell providers can invalidate your warranty for it? Or can they? And then were does installing a custom rom fit into this?

    • Tom

      you can overclock your CPU but that doesn't mean if it fries that you can claim on your warranty. not a perfect analogy though, maybe a better one would be buying a PC from dell. if you install linux on it instead of windows then they won't support you and if you need to return it due to a hardware fault then you'd better put it back they way they gave it to you (they wont install windows on it again for you so they can test it - they'll return it to you as is).

      i think the diff is that when rooting came about on android, there were loads of people overclocking their phones and things like that (i did it tbf) and i don't think they have a way of telling if you've done that and that's why it won't work anymore (or reboots all the time or whatever).

      • tardburger

        your analogy's are both horrible. Installing linux on a dell won't void your warranty tard

        • Tom

          that's the point you simpleton. a smart phone is a computer at this point and you should be free to install whatever you like on there (within licensing limits of course) just like on a PC bought from dell.

          p.s a company like dell will (generally) support the PC the way it was when you purchased it. if you install linux on it and send it back due to some type of fault - they'll send it back to you as it's not in a state they are willing to test in.

          I suppose your username is quite apt.

  • eccles11

    First they came for the jailbreakers, I did not speak out, for I did not own an iPhone
    Then they came for the Rooted Tablets, I did not speak out, for I did not own a tablet.
    Then they came for the network unlocks, I did not speak out, for I bought my phone outright.
    Then they came for the Nexus devices and there was no one left to speak out for me.

    • Tyler

      Anti-flag?

      • eccles11

        Martin Niemöller in fact written in 1930s Germany sans the phone reference

  • Asphyx

    Let them come after me for rooting my Xoom!
    When they realize they are going to lose all that data I keep buying from them they will refuse to press charges!

  • TechGuy21

    like we need permissions from DMCA to root or hack our stuff. they funny

  • Benjamin Sicard

    Good news for Nexus.

  • Freak4Dell

    People actually pay attention to this crap? The only concern I have when rooting is losing my warranty, and even that is just a 2 second thought. I've never thought about whether it was illegal, and it wouldn't make any difference to me if it was.

    The SIM unlock thing is complete bullshit. I'm guessing carriers will start using this as a reason not to give you the unlock code for phones. For most Android and dumbphones, that's not a huge deal, because you can get the code for a buck on eBay, but that will pose some problems for iPhone users.

  • http://papped.webatu.com papped

    So the DMCA is useless, that's the gist of it...

  • Tyler

    Well CDMA phones such as my DroidX don't use unlock codes or anything like that so it doesn't seem like it or any other cdma phones apply to this new law. Even if it does, I'll still do it.

  • Chahk Noir

    tl;dr version: stick to Nexus brand and stay away from carrier crap.

  • John O’Connor

    this will be sad for the CDMA market and aftermarket. I know that many people will purchase phones made for sprint or verizon and utilize them on a smaller carrier (because the smaller carrier phone selection sucks) That was probably one of the few good things about carriers not a part of the Big 4...

    And as everyone knows there are no "unlocked phones" available to CDMA network users as it is already and this pretty much squashes the albeit minor choice one had left to move to a prepaid or regional carrier from verizon or sprint and keep their "decent" device.

  • http://codytoombs.wordpress.com/ Cody Toombs

    Interesting question about a loophole. What about (the devices we refer to as) tablets that include a cellular radio. Since the Library of Congress doesn't clearly identify them as tablets, and the only thing TRULY separating them from being a typically identified handset is that they are larger (they have cellular radio, a microphone, screen, battery, they can be used to make calls, even if abnormally), why can't those be defined as "telephone handsets"?

    Remember, before calling me an idiot, remember that I'm looking for an easily argued loophole. If the only significantly identifiable difference is size and no included (out of the box) 'phone' app, I can't see a defensible argument for why tablets can't be rooted.

  • bobbutts

    Vote with your dollars for Nexus devices.

  • http://www.facebook.com/profile.php?id=1745689461 Hal Motley

    This is BS that it has taken this long and that they disallow tablets because iOS jailbreaking was DMCA approved years ago.

  • Mike

    So can you unroot a tablet?

  • John Hathaway

    This reminds me of the MLA: "Let's just change things every time we meet just to justify meeting."

  • undarated

    Hell its now Jan 27 and I have been contemplating on rooting my transformer prime. Well guess what? I'm doing it anyway.

  • http://profile.yahoo.com/JJRZ4V6N477HM2MVURRZSKXJMY EddieT

    If this illegal issue bothers you, and you want to have the option to be able to unlock a device you believe you paid for and own, then sign this official Petition and pass it along:
    https://petitions.whitehouse.gov/petition/make-unlocking-cell-phones-legal/1g9KhZG7 .

    There's still time! 10 days left to get 100,000 minimum signatures.. At present, there is 66,000 sigs.. Please pass this petition link around to help make a difference! And, btw you don't have to reside in the USA to sign, and if u need to create an account u don't have to put any identifying info in it

    • Rooting

      Umm that talks about unlocking, as in from a carrier, not rooting.

  • http://profile.yahoo.com/JJRZ4V6N477HM2MVURRZSKXJMY EddieT

    this is on topic: please google:
    "white house petition make unlocking cell phones legal"

    and sign it. we need 100,000 signatures, before Feb 23rd, but at present we're only at 67k. About(dot)com and a majority of the major Tech Press is urging us to act now

  • Giggety68

    Pshhhhh that's bogus I can do whatever I want with my nexus 7 if I bought it its mine I don't care if I can't root it I will still root regardlessly of the law it's my device I can do whatever I want with it