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What the New DMCA Ruling on Jailbreaking Actually Says

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The U.S. Copyright Office today clarified how it plans to enforce the Digital Millennium Copyright Act, making new exemptions for things like jailbreaking iPhones and ripping DVDs.

It might be exciting to think that it’s now legal to jailbreak iPhones (s AAPL) for the purpose of installing software not approved by Apple or switching wireless carriers. But “jailbreaking is legal” is not what the ruling said. It simply said that jailbreaking is not a violation of copyright law.

The Copyright Office rejected Apple’s arguments that purchasers of its iPhone software cannot copy and modify it because of the DMCA’s rules against circumventing DRM. The recommendation found that jailbreaking is indeed fair use, and further said Apple is trying to co-opt fair use for the purposes of competitive advantage.

Here are a couple of key quotes from the 250-page recommendation:

Ultimately, Apple’s position with respect to harm to the market for and value of its
firmware boils down to Apple’s conclusion that “the value of the iPhone, and hence the software
embedded in it, is substantially diminished when the integrity and functionality of that software is
compromised by jailbreaking, when Apple is left to deal with the problems that ensue, and when
the positive feedback loops enabled by the App Store and the iPhone Developer Program are
compromised.” The Register [Copyright Register Marybeth Peters] concludes that these concerns are not what the fourth fair use factor is intended to address.

Apple’s objections to the installation and use of “unapproved” applications appears to have nothing to do with its interests as the owner of copyrights in the computer programs embodied in the iPhone, and running the unapproved applications has no adverse effect on those interests. Rather, its objections relate to its interests as a manufacturer and distributor of a device, the iPhone.

But just because the Copyright Office didn’t believe Apple’s arguments about the DMCA doesn’t mean there aren’t other legal issues with jailbreaking. Here are some highlighted in the recommendation:

  • The Copyright Office wouldn’t rule on whether the purchaser of an iPhone owns the copy of the software on the device, recommending instead that this be addressed by new laws, not regulations. This distinction could have further implications on who has the right to modify an individual phone’s software.
  • It also said Apple’s ability to legally restrict what applications can run on its computers is not a copyright law, recommending that this criticism should be referred to elsewhere, perhaps to antitrust investigators.
  • And further, iPhone purchasers may be bound by state contract laws between purchasers of smartphones, manufacturers and service providers. Copyright law is not the only way Apple can keep its users in check; it can still void warranties and take other measures to enforce contracts.

The Electronic Frontier Foundation, which was Apple’s main opponent in the Copyright Office’s deliberations, said that more than 1 million iPhone owners have already jailbroken their handsets. Many more will probably do so now that it’s thought to be legal. But the problem is it’s not necessarily legal — yet.

Update: Apple has officially commented on the news, noting that jailbreaking still voids your warranty, but it has not prosecuted jailbreakers in the past.

Apple’s goal has always been to insure that our customers have a great experience with their iPhone and we know that jailbreaking can severely degrade the experience. As we’ve said before, the vast majority of customers do not jailbreak their iPhones as this can violate the warranty and can cause the iPhone to become unstable and not work reliably.

Feature image courtesy Flickr user subcircle.

17 Responses to “What the New DMCA Ruling on Jailbreaking Actually Says”

  1. @Hamranhansenhansen
    If anything this make people buy the iphone more because they know they can do more with it. If it wasn’t for being able to jailbreak, i would have never bought an iphone. And trust me there are tons of people like me.

  2. Flashfox why are you comparing apple to tmobile? Tmobile is not a phone manufacturer and apple doesn’t sell cell service. Tmobile wants you to break your phone so you buy a new one.

    • Flashfox

      Good question… I do so because T-Mobile openly supports rooting of Android and WinMo phones by hosting forums specifically targeted towards users like me. Apart from Motorola, none of the other phone OEMs objected (at least not officially). It will be interesting to see if and when T-Mobile offers the iPhone, if “jailbreaking” posts will be permitted.

      As for T-Mobile’s motives… well, what can I say? It seems useless for me to try to debate your rational behind your statement.

  3. Ronald Stepp

    Oh, so what we intentionally do with our own phone voids the warranty, but when apple designs a defective anntenna and builds it into the phone, that DOESN’T void the warranty?

    Or making us stick with a carrier which doesn’t provide any 3G coverage in large parts of the country and mediocre to poor non-3G coverage also DOESN’T void the warranty?

    Thanks apple.

  4. pb1994

    I really don’t see why people are making such a big deal about this. I doubt it will change anything. Apple was never going to sue end users for jailbreaking phones – that would be suicide. They’ll just go on “not supporting” the jailbroken software if you try to get warranty support. Why should they have to support jailbroken code? Its not part of the product they sold you.

  5. Jailbreaking is a process that allows iPad, iPhone and iPod Touch users to run third-party unsigned code on their devices by unlocking the operating system and allowing the user root access. Once jailbroken, iPhone users are able to download many extensions and themes previously unavailable through the App Store via unofficial installers such as Cydia. A jailbroken iPad, iPhone or iPod Touch is still able to use the App Store and iTunes.
    approved by law or not, i’ll do it, according to tutorails in ifunia iphone column.

  6. This is proceeding as it should: with give and take in the courts and legislatures, each step further refining what’s legal and what’s not.

    The next move is clearly Apples. My guess is they’ll push back on the warranty and support front, making it increasingly difficult for those with jail-broken phones to receive updates and warranty service. It would be nearly impossible for third-parties to serve up the updates themselves as this would clearly be in violation of copyright.

  7. “But the problem is it’s not necessarily legal — yet.”

    This seems backwards to me–in the absence of a case that it’s illegal, it’s legal. It looks like the only arguments for “illegality” are contractual–but breach of contract isn’t “breaking the law,” it’s breaking a private agreement; remedies are limited to what’s in the contract.

  8. Hamranhansenhansen

    Many more will probably do so now that it’s thought
    to be legal.

    I seriously doubt that there are any people who wanted to jailbreak their phone but did not do so because of the murky legality. The fact that it’s legal may even remove some of the appeal.

  9. Flashfox

    Good news indeed and not just for iPhone users. This is how I always saw it… it is more of a business decision (protectionism) rather than a copyright issue.

    I was always amazed at T-Mobile’s approach and openness to “rooting” of their Android phones. They even host support forums on their site purely dedicated to this. They do post a caveat (don’t call us if you break your phone), but their approach is open versus Apple’s “don’t you dare touch this or I’ll sue you” one.

    • Hamranhansenhansen

      “[T-Mobile] do post a caveat (don’t call us if you break your phone)”

      Except it’s different for iPhone. iPhone is not just some here-today, gone-tomorrow T-Mobile phone, it’s a platform that sells as its major feature that you are under Apple’s wing, you’re not out on your own auditing apps for malware and running anti-virus scanners or any of that. Apple is just selling a whole different product than all other phone makers and tech companies, and it’s a product that regular people, typical consumers, like better than the alternatives.

      Jailbroken phones run wide open, no security at all. When there was a worm created for jailbroken iPhones, it was reported as an “iPhone worm”, not a “jailbroken iPhone worm.” If there is a botnet of jailbroken iPhones, it will be reported as an “iPhone botnet.” The entire community will be affected, even though 99.9% are invulnerable to it. So there is a high price to pay for the whole community so that tinkerers can play with the guts of their phone.

      And iPhone jailbreakers do go to Apple for support, they do complain online when an Apple OS update breaks their phone, they are not all the leet hackers they like to think they are.

      And if you want to tinker with your phone, all the other phones are there for you. There is only 1 phone for non-tinkerers. And the energy that is around Cydia would be appreciated by other phone makers and their user communities.

      • Peacetrain

        Hamranhansenhansen, I don’t understand your cost-to-community point. If you don’t root your phone then you enjoy whatever protection, if any, your app market operator provides. You’re ‘invulnerable’. Are you saying that the cost to the community is in reputation? That rooters may damage the reputation of the brand, and therefore fewer phones will be sold, or perhaps fewer to good people? Do you really think that this will ultimately diminish your experience with your phone? Maybe some of the utility of having a phone is hearing it talked about favorably. Is that the damage to the community–that the phones aren’t as well liked? Please elaborate.

      • Flashfox

        Where do I start??? What makes the iPhone so different than say Android or Windows Mobile based devices?

        A “jailbroken” iPhone is nothing different than a “rooted” Android device. You unlock the device’s full potential, install applications from other than approved sources (i.e The Market). You risk infecting and corrupting your Android based phone and spreading this to others.

        I have “rooted” my G1, my Nexus One and now my Samsung Galaxy S “Vibrant” device. The fact that T-Mobile does not forbid this (although some manufacturers like Motorola are locking their devices down… for now) and up to a point, provides support for this by hosting a forum for people like us who want to “root” and heavily customize their phones seems to simply say “Caveat Emptor”.

        You don’t see T-Mobile threaten to sue anyone who publicizes how to root their phone.

        What makes the iPhone community so special? If you decide not to jailbreak your iPhone, then will you not be shielded from rogue applications? Only those who dare to cross the line will place themselves at risk. Why not let them enjoy their device and those who prefer the closed and nurtured “Apple” environment can stay within the boundaries. Why can’t an iPhone user decide to move his or her phone to another carrier even though 3G might not work?

        Nope… I still believe that this is more marketing driven than safety driven. However, I will grant you one point: Apple applications and hardware work together with much less problems than Android or Windows based ones. But then again, this has always been the main difference between a “Microsoft” and an “Apple” world.