Last December, the Electronic Frontier Foundation proposed an exemption to the Digital Millennium Copyright Act that would make legal jailbreaking phones—the process of hacking phones to allow running third-party applications from other sources. Exemptions to the DMCA can be proposed to the Copyright Office every three years, and are valid for three years. In response, Apple has now filed a 27-page argument (PDF link) that jailbreaking should not be given an exemption.
The EFF’s argument wasn’t restricted to the iPhone, but it figured prominently in the organization's proposal. Suggesting that jailbreaking did no substantial damage to Apple, EFF said that the process introduced the benefit of competition for consumers by allowing applications distributed from places other than Apple’s App Store, perhaps even making the product more attractive to consumers.
In its filing, Apple categorically rejects the EFF’s arguments. It points out that opening up iPhone to run unauthorized software requires altering the iPhone’s OS and bootloader (themselves protected by copyright), which could lead to adverse effects on the reliability and security of the device. The company also suggests that since jailbreaking phones is necessary for running pirated software (both Apple’s and third parties’), granting an exemption will lead to an increase in pirated software. That’s difficult to prove, of course, but the recent release of a tool for cracking the security of App Store programs did require jailbroken phones to use.
For its part, the EFF has rebutted that Apple is ignoring a significant body of law having to do with reverse engineering and compares the company’s arguments on security, safety, and reliability with car manufacturers insisting that consumers use only replacement parts from the manufacutrer itself.
There’s a lot in Apple’s filing, and the company brings some interesting data to bear, such as the additional costs of jailbreaking to Apple’s support resources:
Apple’s iPhone support department has received literally millions of reported incidents of software that crashes on jailbroken iPhones, although it works properly on unmodified iPhones. For example, one recent software crash caused by jailbroken phones was reported over 1.6 million times from users of just 10,000 jailbroken phones. Two other recent crashes caused by jailbroken phones were reported over 2 million times and over 2.4 million times, respectively.
Additional support costs are not insignificant to Apple, if for no other reason than it diverts resources from other potentially more important issues, and I’d wager that it's a far more measurable drain than the somewhat nebulous loss of value that Apple says could harm the iPhone if the exemption were allowed.
It’s important to remember that what the EFF is proposing here is creating an exemption to existing law, and that Apple is not necessarily attempting to outlaw jailbreaking, but rather prevent its proliferation. The company has made little attempt in the past to crack down on consumers who jailbreak their iPhones, other than occasionally altering how it secures the firmware on the phone (which is usually quickly re-broken by hackers). It seems unlikely that Apple will change this policy and start trying to pursue legal action against jailbreakers, as it’s probably not worth the company's time or expense.
Of course, there are tenuous links on both sides of this argument, since it largely involves hypothetical propositions about what the exemption of jailbreaking would or would not lead to. Apple’s case seems strong though, and as the burden of proof rests on the organization proposing the exemption, I wouldn’t be surprised to see this one rejected.