2012 DMCA Rulemaking

The Digital Millennium Copyright Act prohibits "circumventing" digital rights management (DRM) and other "technological measures" used to protect copyrighted works. While this ban was meant to deter copyright infringement, many have misused the law to chill competition free speech and fair use. Every three years the U.S. Copyright Office convenes a "rulemaking" to consider granting exemptions to the DMCA's ban on circumvention to mitigate the harms the law has caused to legitimate non-infringing uses of copyrighted materials.

In the 2012 rulemaking, EFF asked the Copyright Office to protect the "jailbreaking" of smartphones, electronic tablets, and video game consoles – liberating them to run operating systems and applications from any source, not just those approved by the manufacturer. EFF also asked for legal protections for artists and critics who use excerpts from DVDs or downloading services to create new, remixed works. These exemptions build on and expand exemptions that EFF won in the 2009 rulemaking proceeding for jailbreakers and remix artists.

In October 2012, the Copyright Office renewed the exemption for smartphones in their final rulemaking, but did not extend it to other devices. The Copyright Office also reaffirmed the exemption for video remix, and expanded it to allow use of clips from online services.

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