The federal government today announced new exemptions under the Digital Millennium Copyright Act (DMCA) that will allow for the modification of smartphones, most notably Apple's iPhone, without the handset maker's or carrier's approval.
The ruling, issued by the Library of Congress, means that it's now legal to "jailbreak" an iPhone and put apps on it that Apple (NASDAQ: AAPL) has not approved and does not endorse. The ruling came from the Library of Congress because it oversees the Copyright Office, which reviews and authorizes exemptions to the DMCA every three years to find fair use exemptions.
Jailbreaking has been around since the iPhone shipped in 2007, but was always something of an underground effort for this very reason. People who made jailbreak software had to hide their identities to avoid being prosecuted for a DMCA violation.
For now, they won't face the wrath of the government, but they might still face the wrath of Apple. The company had no comment on the news. The ruling doesn't affect Android, since Google doesn't lock the phone down and restrict what apps can be run on the phones the way Apple does.
The Electronic Frontier Foundation (EFF) was quick to take credit for the ruling, since it led the effort for the exemption in the first place. It had argued for the exemption under fair use instances.
"By granting all of EFF's applications, the Copyright Office and Librarian of Congress have taken three important steps today to mitigate some of the harms caused by the DMCA," Jennifer Granick, EFF's Civil Liberties Director, said in a statement. "We are thrilled to have helped free jailbreakers, unlockers and vidders from this law's overbroad reach." A "vidder" is slang for someone who makes their own videos from other sources.
Apple had earlier sent a letter to the U.S. Copyright Office opposing the EFF proposals. The letter, available here in PDF format, said that Apple already receives "literally millions of reported instances of problems flowing from jailbroken phones" and that legitimizing the practice would make it even worse and allow malware to get on the phones.
It also argued that jailbreaking phones would result 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."
But the Copyright Office ruled that "while a copyright owner might try to restrict the programs that can be run on a particular operating system, copyright law is not the vehicle for imposition of such restrictions."
While the government is staying out of the issue, Apple can continue its current policy of voiding the consumer's warranty if he or she jailbreaks the phone. This can be remedied if the user restores the phone to its factory settings by using iTunes to reset the device.
Impact on the iPhone?
Analyst Gerry Purdy said he doesn't expect the ruling to affect many iPhone users.
"Apple will ignore it and not allow [jailbreaking]. People will keep doing it, but at least now you can't get in trouble for it, and someone will file a lawsuit. That's inevitable," Purdy, principal analyst for mobile and wireless with MobileTrax LLC, told InternetNews.com.
The Copyright Office also ruled that a device may be unlocked and used on a network other than the one for which it was issued. Some iPhone users have jailbroken their phone and used it on T-Mobile, the one other U.S. mobile carrier with a GSM network and one that uses a SIM card. Verizon and Sprint are CDMA networks that require manual activation by the carrier.
Purdy said this is overdue. "The whole idea of the 700Mhz frequency is you can take any phone and put it on that frequency, and it's supposed to be open. That's where we're headed, is more open phones and more open networks. That's what's happening to Apple and Google and the wireless handset makers," he said.
TAGS: Apple, DMCA, Copyright Office, fair use, iPhone