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Apple, EFF Square Off on Legality of iPhone Jailbreaking

By Chris Maxcer MacNewsWorld ECT News Network
Feb 18, 2009 11:43 AM PT

For quite possibly the first time ever, Apple has publicly stated that it believes that jailbreaking an iPhone is against the law -- not against its end-user agreement for iPhone use with Apple's services like iTunes, its App Store, or MobileMe -- but against the law.

Apple, EFF Square Off on Legality of iPhone Jailbreaking

More specifically, Apple contends that jailbreaking an iPhone infringes on its copyright.

That's right, copyright.

Back Up the Truck

While it's no stretch of the imagination to believe Apple isn't particularly keen on customers who jailbreak their iPhones so they can run unsanctioned applications and/or do things with the iPhone that don't pad Apple's and AT&T's coffers, the company has not often addressed the phenomenon in public statements.

Yes, Apple has tweaked software updates to make life harder for jailbreakers. Each time a new version of iPhone software is released, jailbreakers have to wait for third-party developers to create special tools before they can use the updates on their phones. Yet it's also fairly clear that if Apple wanted to wage an all-out war against jailbreaking, the company could likely make things even more difficult. However, does Apple really want to make modding your iPhone illegal?

Not surprisingly, Apple didn't respond to a request for comment on the matter.

However, documents filed with the U.S. Copyright Office in response to a filing by the Electronic Frontier Foundation (EFF) clearly show where Apple stands on the matter. The EFF, it turns out, saw a window of opportunity to help out consumers who want to jailbreak their iPhones: As part of the Digital Millennium Copyright Act (DMCA), every three years the Copyright Office reviews cases of requests for exemption from the act. The basic idea is that as technology changes, the Copyright Office should consider special situations where copyright should or should not be enforced.

The EFF asked the Copyright Office to provide an explicit exemption for the jailbreaking of cellular phone handsets in order to remove any threat of jailbreaking possibly becoming a copyright crime. The EFF cited the iPhone as an example.

The War in the Filing Cabinet

The EFF comment submitted to the Copyright Office laid it out on the line:

"The iPhone ... includes software locks that prevent the device from running applications obtained from sources other than Apple's own iTunes App Store. Independent software developers who want to sell software through Apple's App Store must pay a 30 percent commission to Apple. This restriction is not necessitated by the iPhone technology. Rather, the effort to tie the iPhone, as well as independent developers, exclusively to Apple's own App Store is a business model decision on Apple's part, unrelated to any copyright interest in the firmware that operates the iPhone."

Apple responded with its own comment, of course, noting it is opposed to the EFF proposed exemption because:

"... it will destroy the technological protection of Apple's key copyrighted computer programs in the iPhone device itself and of copyrighted content owned by Apple that plays on the iPhone, resulting in copyright infringement, potential damage to the device and other potential harmful physical effects, adverse effects on the functioning of the device, and breach of contract."

Of course, both the EFF comment and Apple comment to the Copyright Office are more complex than noted above.

It's Not as Though It's Going to Explode

As Apple noted, might some tinkering with the iPhone create some harmful physical effects? Jailbreaking isn't likely to create a problem, but hey, who knows what users might do? Some faulty batteries have caused fires in other devices. And think of it this way: If a kid bought a stock Subaru but then installed a new souped-up engine and poured in some rocket fuel, might that also be dangerous? Sure -- but Subaru isn't claiming any sort of copyright protection is necessary, is it?

So what about the idea of support and warranties? Sticking with the car metaphor, automobile manufacturers don't get to void their warranties because the dude next door changed the oil rather than the original manufacturer's authorized dealers. Does anyone expect Apple to support -- or deal with -- customers who jailbreak their phones?

"The dispute here is not about whether Apple should or shouldn't be required to offer updates and support for phones that have been jailbroken, and are now running alternative software. In the past, Apple has released software updates that 'brick' jailbroken phones, but that isn't the point of contention in EFF's current request to the Copyright Office," Peter Eckersley, a staff technologist for the Electronic Frontier Foundation, told MacNewsWorld.

"What is at issue is whether it is legal for consumers to install non-Apple-approved software on the devices they have purchased. EFF strongly believes that consumers have a right to do so, while Apple claims it is illegal for customers to alter their iPhones, despite the fact that they paid for them," he explained.

"EFF is asking the Copyright Office to step in and disarm Apple, preventing them from using the DMCA as a club against their own customers," he added.

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