Jailbreaking iPhone Not A Crime Says U.S. Government

The Library of Congress Copyright Office ruling refutes Apple's contention that iPhone buyers are licensees of the technology, not owners, and thereby bound by the company's licensing agreement.
The U.S. government has given iPhone users the green light to crack Apple's electronic protections to sign up with wireless service providers other than those that have partnered with Apple.

In addition, the Library of Congress' Copyright Office ruled Monday that iPhone users can also bypass Apple's access controls to download and run on the smartphone applications not approved by Apple. The rulings came in the form of exemptions to the Digital Millennium Copyright Act requested by the Electronic Frontier Foundation, a consumer advocacy group.

The exemptions removes the threat of a lawsuit against people who crack their iPhones for what the Copyright Office sees as non-infringing or fair use activities. More than a million iPhone users are believed to have jailbroken their handsets in order to change carriers or use non-Apple sanctioned apps.

Apple was not immediately available for comment, but in its arguments to the Copyright Office, the company claimed that modifying the iPhone, known as "jailbreaking" in the industry, circumvented access controls designed to protect consumers and Apple from harm. The company also argued that iPhone buyers were licensees of the technology, not owners, and thereby bound by Apple's licensing agreement.

However, the Copyright Office disagreed. "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," the agency reasoned in its decision, which applies not just to iPhones, but to all smartphones.

A key finding in the rulings was that a typical jailbreaking scenario involved the modification of fewer than 50 bytes of code out of more than 8 million bytes, or about 1/160,000 of Apple's copyrighted work in the iPhone as a whole.

"The fact that iPhone users are using almost the entire iPhone firmware for the purpose for which it was provided to them by Apple undermines the significance of this factor," the Copyright Office said.

In praising the rulings, the EFF said the Copyright Office recognized that the primary purpose for the locks on smartphones that bind people to a particular carrier or applications listed on an online store are to limit competition, not to protect copyrights.

"The Copyright Office agrees with EFF that the DMCA shouldn't be used as a barrier to prevent people who purchase phones from keeping those phones when they change carriers," Jennifer Granick, EFF's civil liberties director, said in a statement.

A third EFF-backed ruling from the Copyright Office gives artists the right to use short excerpts from DVDs to create new, noncommercial works for the purpose of criticism or comment. Such exemptions from the DMCA have been around for a while in the use of short excerpts from writings, such as books and magazine articles, for the same purpose.