Apple: IPhone Jailbreaking Breaks The Law Too

Posted by: Arik Hesseldahl on February 13, 2009

If you’re the type of iPhone owner with a knack for poking around the devices delicate software underbelly, until recently the only thing you risked was a broken phone and voiding your warranty.

Now Apple says, in a filing with the US Copyright Office, that “jailbreaking” an iPhone – or removing the software impediments that keep out unauthorized applications – amount to breaking the law. No one knows exactly how many iPhones have been modified in this way, but of the 17.4 million sold as of Apple’s first fiscal quarter, ended Dec. 30, educated guesses put the number in the hundreds of thousands.

The statement was Apple’s first official comment on the practice of jailbreaking, which first emerged within days of the iPhone’s initial release in mid 2007. It came in response an effort by the Electronic Frontier Foundation to make the procedure exempt from prosecution under the Digital Millenium Copyright Act. The EFF had argued that jailbreaking the iPhone should be protected under the principal of fair use. “There is no copyright-related rationale for preventing iPhone owners from decrypting and modifying the device’s firmware in order to enable their phones to interoperate with applications lawfully obtained from a source of their own choosing,” the EFF’s Fed von Lohman and Jennifer Granick wrote in their filing with the Copyright Office.

Apple argued otherwise in a response filing opposing any exemption. Jailbreaking an iPhone, it argues, destroys “the technological protection of Apple’s key copyrighted computer programs in the iPhone device itself and 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.” It also constitutes a breach of contract, Apple attorney David Hayes of Fenwick and West wrote.

Central to their difference of opinion is the fact that jailbreaking an iPhone requires making some changes to its bootloader and operating system software. Von Lohmann argues that making such changes – copying the software in order to reverse engineer it and thus make those changes — have generally been considered lawful by the courts when the intent is to make the software more interoperable with other software. In a blog post on the EFF’s Web site, Von Lohmann called this “a body of law that Apple conveniently fails to mention.” Von Lohmann didn’t return a phone call seeking comment.

For its part, Hayes wrote that the “EFF has picked an ironic target around which to center the arguments in its proposal.” He goes on to cite the success of Apple’s iPhone App store a section on iTunes where iPhone owners can download approved third party applications for free or sometimes a small fee. “Congress did not envision the DMCA exemption process as a forum for restructuring business models,” Hayes writes. “Instead Congress set up a focused and limited inquiry – whether prohibiting circumvention of access controls will in specific instances have a substantial adverse effect on noninfringing uses of particular classes of works.” Jailbreaking, he says infringes on Apple’s copyrights by creating “unauthorized derivative versions” of its copyrighted software. “This fact alone must result in denial of the exemption,” he wrote. An Apple spokesman had no further comment on the matter.

The filings are part of a one-every-three years process that the Copyright Office undergoes, as part the DMCA. Signed into law by President Clinton in 1998, the law makes it illegal to circumvent measures intended to control access to copyrighted work. In the past the DMCA has been invoked over attempts by software developers to get around such things as the copyright locks on DVDs and the digital rights management protections on digital music. But since technology changes over time, the law includes provisions for the creation of certain exemptions once every three years.

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