In a Final Rulemaking, the Register of Copyrights has recommended, and the Librarian of Congress has adopted, an expanded phone unlocking exemption to copyright access control prohibitions.  The process known as unlocking involves the circumvention of access controls on wireless devices to allow them to connect to the network of a different mobile wireless carriers.  The unlocking exemption to the prohibition on circumvention of copyright protection systems for access control technologies is used to facilitate noninfringing uses both under section 117 of the Copyright Act and as a matter of fair use.  Every three years, the Copyright Office undertakes a rulemaking process concerning the anti-circumvention provisions of Chapter 12 of Title 17.  The adopted exemption is significantly expanded from prior years.

Under the exemption, computer programs that enable the below listed wireless devices to connect to a wireless telecommunications network, when circumvention is undertaken solely in order to connect to a wireless telecommunications network and such connection is authorized by the operator of such network, and the device is a used device.  The exemption defines a used device as one that has previously been lawfully acquired and activated on the wireless telecommunications network of a wireless carrier.

The following types of wireless devices are within the exemption:

  • Wireless telephone handsets (i.e., cellphones);
  • All-purpose tablet computers;
  • Portable mobile connectivity devices, such as mobile hotspots, removable wireless broadband modems, and similar devices; and
  • Wearable devices designed to be worn on the body, such as smartwatches or fitness devices.

Notably, the exemption excludes devices embedded in motor vehicles from the exemption for mobile connectivity devices by including the condition that the devices be “portable”.

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