For the 2009 rulemaking, Electronic Frontier Foundation (EFF) had filed an exemption request with the U.S. Copyright Office to the Digital Millennium Copyright Act (DMCA) related to jailbreaking iPhone.
At that time, Apple had told the U.S. Copyright Office that it believed jailbreaking an iPhone is a violation of the DMCA and infringes on its copyright. Apple also informed the Copyright Office that the exception request by Electronic Frontier Foundation (EFF) was not acceptable as the very act of jailbreaking the iPhone results in copyright infringement.
EFF’s argument was that jailbreaking iPhone is protected under fair-use doctrines, and that the Copyright Office should grant an exemption because “the culture of tinkering (or hacking, if you prefer) is an important part of our innovation economy.”
The U.S Copyright Office agree with EFF’s views and has exempted jailbreaking and unlocking iPhone from the Digital Millennium Copyright Act.
Here are the excerpts from EFF’s press statement that is relevant to iPhone users:
The exemptions were granted as part of a statutorily proscribed rulemaking process, conducted every three years to mitigate the danger the DMCA poses to legitimate, non-infringing uses of copyrighted materials.
The first of EFF’s three successful requests clarifies the legality of cell phone “jailbreaking” — software modifications that liberate iPhones and other handsets to run applications from sources other than those approved by the phone maker.
In its reasoning in favor of EFF’s jailbreaking exemption, the Copyright Office rejected Apple’s claim that copyright law prevents people from installing unapproved programs on iPhones: “When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses.”
“Copyright law has long held that making programs interoperable is fair use,” confirmed Corynne McSherry, EFF’s Senior Staff Attorney. “It’s gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability.”
On EFF’s request, the Librarian of Congress renewed a 2006 rule exempting cell phone unlocking so handsets can be used with other telecommunications carriers. Cell phone unlockers have been successfully sued under the DMCA, even though there is no copyright infringement involved in the unlocking. Digital locks on cell phones make it harder to resell, reuse, or recycle the handset, prompting EFF to ask for renewal of this rule on behalf of our clients, The Wireless Alliance, ReCellular and Flipswap. However, the 2009 rule has been modified so that it only applies to used mobile phones, not new ones.
This doesn’t change things much for iPhone users as the cat and mouse game between Apple and the iPhone hacking community will continue but from a legal point of view they can now jailbreak their iPhone without fear of copyright infringement penalties. You can checkout the latest update on jailbreak iPhone from the iPhone Dev Team.
In case of unlocking iPhone, carriers can still prevent unlocking in many circumstances and can pursue cases against individuals by citing breach of contract under the carriers’ Terms of Service.
Apple has always maintained that unauthorized modification of the iOS is a violation of the iPhone end-user license agreement and because of this, Apple can deny service for an iPhone, iPad, or iPod touch that has installed any unauthorized software. It will interesting to see if Apple will be able to deny service under the new federal policies.
We would love to hear your thoughts on this ground breaking ruling by the US Copyright Office so please drop us a line in the comments.
Thanks everyone for the tip!