Jailbreaking officially granted DMCA exemption
If you jailbreak your iPhone to add third-party software, you can do so with the comfort of knowing you aren't violating copyright laws, after a federal ruling came down on Monday.
The U.S. Librarian of Congress ruled on Monday that consumers who circumvent digital protections on smartphones to install unapproved applications—a practice often colloquially known as “jailbreaking”—for noninfringing reasons should be exempted from prosecution under the anti-circumvention section of the Digital Millennium Copyright Act (DMCA).
The proposed exemption on jailbreaking was first put forth in 2008 by the Electronic Frontier Foundation, which argued that users should be allowed to jailbreak their phones to install, for personal use, legally acquired third-party software. Apple, for its part, argued against the exemption in an extensive filing contending that an exemption for jailbreaking would lead to more widespread piracy and additional support costs for the company. Two software developers, the Mozilla Corporation and Skype Communications, filed documents in support of the EFF’s argument.
The DMCA specifically prohibits the circumvention of copy-protection technology such as Digital Rights Management (DRM). Every three years, however, the Librarian of Congress—on recommendation of the Register of Copyrights—issues a ruling on classes of materials that are exempt from that stipulation for noninfringing uses. The rulings expire after three years, meaning that the previous exemptions granted in 2006, 2003, and 2000 are no longer valid today. The other exemptions granted by the Librarian on Monday allow circumvention of protections for copyrighted material on DVD for educators, documentary filmmakers, and noncommercial videos; software to allow phones to connect to cellphone networks; breaking video game protection measures for the purposes of testing; obsolete computer programs requiring a dongle that is broken; and e-books where protections prevent the use of screen readers and read-aloud functions.
It’s worth noting that the jailbreak ruling does not force Apple or other handset makers to remove copy protection from their software. Rather, those users who do choose to circumvent the protections will not be subject to criminal prosecution for the act of circumvention. In addition, the ruling only provides for jailbreaking for the use of legally-acquired software, meaning that users cannot use it as a defense for installing pirated applications.
It remains to be seen what effect, if any, this will have on mobile software development. Jailbreaking has been commonplace since shortly after the original iPhone’s release, and despite repeated attempts by Apple to prevent it, the practice continues unabated. At the same time, Apple has no history of pursuing legal action against either individual users who jailbreak their phones or those parties who develop the jailbreaking methods.
In theory, the exemption could legitimize the third parties who are already creating software that does not require Apple’s approval, which in turn may open the door for established companies such as Mozilla to create software that Apple would otherwise not approve—an iPhone-native version of the Firefox Web browser, for example. That said, however, any program developed would be at risk of becoming irrelevant when the exemptions expire in three years (if the jailbreaking exemption is not renewed).
There’s also the possibility that the act of legitimizing jailbreaking may prompt Apple to relax some of its strictures on the development of iPhone software, but given the runaway success of the App Store, that seems unlikely. On the flip side, it also potentially gives Apple fodder for those who argue that App Store stifles competition; the company could use the exemption ruling to argue that apps that don’t meet Apple’s standards can be distributed via jailbreak—though that eventuality doesn’t seem particularly probable either.
In sum, while the ruling is certainly a win for the EFF and the jailbreaking community, don’t expect it to change the status quo instantly or dramatically. For the most part jailbreaking remains a technically-savvy niche practice among the millions of current iPhone customers.
Updated at 10:47 PT to correct the link to the Librarian's ruling and correct the EFF's full name.