Jonathan Zittrain Discusses Exemptions to the Digital Millennium Copyright Act with NPR’s “On the Media”

By TAP Staff Blogger

Posted on August 3, 2010


Last week the Library of Congress issued exemptions to the Digital Millennium Copyright Act (DMCA). This is something that occurs every three years. Back in 1998 when Congress passed the Digital Millennium Copyright Act it recognized that the law would need regular updates due to the rapidly changing technology. 

This year’s exemptions include:

  • the right to upload short DVD clips for non-commercial use;
  • enabling text-to-speech on an e-book, if that is the only edition available; and 
  • circumventing wireless telephone software for the sole purpose of enabling interoperability of applications, when they have been lawfully obtained, with the computer programs on the telephone.

The latter exemption has received the greatest attention. Basically, the ruling means folks won't have to fear legal repercussions if they want to disable the software Apple has loaded on their iPhones which is designed to control their ability to run non-Apple sanctioned software. For example, an online tool or game found in other parts of the internet beyond iTunes that is legally obtained can be loaded onto an iPhone that has undergone such tinkering -- aka, a jailbreak.

This past weekend, Brooke Gladstone, host and managing editor for “On the Media,” discussed jailbreaking and the real-life implications of the DMCA exemption with Harvard Law Professor Jonathan Zittrain during NPR’s “On the Media.”

Professor Zittrain says there are plenty of reasons to jailbreak.


There may be all sorts of applications, including ones that go against the business model of the curator, that people would want to run. So there are people who have submitted email management programs to run on something like the iPhone, and Apple, within its rights, has said, no, we're not going to allow it on the platform because we think it competes with our own mail program on the phone.

And so it may well be that as an iPhone user, you want to use something like that, and jailbreaking the phone would be the way to do it. Of course, another big reason to jailbreak the phone would be to try to use a different phone services vendor, to move from AT&T, say, to Verizon or something.

When asked what this decision means on a practical matter, for people who have smart phones, like the iPhone, Professor Zittrain responded:


It’s still not clear. The exception just provided to allow people to hack their phones doesn't itself directly apply to trafficking in the tools that let you do the hacking you were just told you can do.

So it’s a little bit like being told, okay, you’re allowed to chisel out a statue from this block of marble but we're not going to allow you a chisel. Even if you get the chisel, there’s still the issue, especially with phones, which are constantly talking back to the mother ship to enable their usage, that you’re voiding the warranty.

You could see the vendor of the phone saying, well, no update for you. Your phone isn't going to work anymore. So-called “bricking” could take place, where the phone is essentially turned into a brick.

This exception just allows game on. It allows the cat-and-mouse game to continue without the vendor of the phone trying to bring the courts to bear to stop you, but it doesn't mean they can't bring technology to bear.

In a closing point, Professor Zittrain states: “Here is an official of the United States government declaring that the activity by which you can use the phone however you like is legally protected. And that’s important.”

Download the show segment in mp3.
Read the full transcript.

TAP received permission from "On the Media" to reprint Jonathan Zittrain quotes for this post.