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.


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.