Get Out of Jail(breaking) Free — At Least As Far As Copyright Is Concerned

 In the past few years, the Apple iPhone and its "smartphone" brethren have seen widespread adoption throughout the United States. Combining the features of computers and traditional mobile phones, along with additional features like movement detection, GPS capabilities, and over-the-air videoconferencing, smartphones have, for many people, become indispensible tools for both work and pleasure.

Sometimes, however, users find the native functionality of certain smartphones to be limited. Some smartphones incorporate operating systems that restrict or eliminate features otherwise built in to the hardware, provide limited software functionality, or restrict the ability of the end user to use the phone in connection with "unauthorized" programs or media. For instance, among other things, the iPhone is "locked" and will only work with AT&T’s wireless network, its operating system requires that "apps" — which are approved by Apple beforehand — be downloaded only from the Apple iTunes App Store, and its interface has very limited customizability features. So, while users enjoy the advanced hardware of smartphones, they often find the installed software to be stifling.

Many smartphone users with this problem turn to "jailbreaking" — removing the software restrictions of the operating software. To jailbreak the iPhone, for instance — that is, to relieve it of its Apple-imposed limitations — requires the user to download and run a program or a series of programs that install custom software, and which modify the existing operating software. A jailbroken iPhone can then access unofficial "app stores" such as Cydia and Installer to download non-Apple-sanctioned third-party software and enable previously locked features and functionality.

Because jailbreaking requires users to "hack" their phones, there is a legitimate copyright concern. This is because the Digital Millennium Copy Act (DMCA), 17 U.S.C. sec. 1201 et seq. (PDF), which was designed to address copyright issues in the digital age, prohibits the act of circumventing measures that control access to copyrighted works — in other words, hacking. Because jailbreaking a smartphone requires users to hack the phone to remove certain software protections, it was likely that — absent other considerations such as fair use exceptions — such an action violated the DMCA’s anti-circumvention provisions.

The questionable legality of jailbreaking prompted the Electronic Frontier Foundation to seek clarification from the U.S. Copyright Office as part of the Copyright Office’s "Triennial Rulemaking" under the DMCA, which requires that every three years the Copyright Office conduct a process for designating exemptions — that is, certain classes of works that for one reason or another may be "hacked" legally for certain purposes. See 17 U.S.C. Sec. 1201(a)(1)(C) and (D) (PDF).   As part of the rulemaking process, the U.S. Copyright Office questioned Apple on various issues related to jailbreaking. In its response to these questions (PDF), Apple maintained that, among other things, jailbreaking constitutes copyright infringement and the creation of infringing derivative works, violates the software license agreement covering the iPhone software, and diminishes the integrity and security of the iPhone software and the data network infrastructure generally.

In its ruling announced on July 26, 2010 and effective July 27, 2010 (PDF), the Copyright Office adopted six exemptions to the DMCA anticircumvention prohibitions, including:

Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

Analogizing jailbreaking to the existing DMCA statutory exemption for reverse engineering for the purpose of making computer programs interoperable, see 17 U.S.C. sec. 1201(f), the Copyright Office explained that:

On balance, the Register concludes that 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.

And so the jailbreaking exemption was adopted. A separate exemption was adopted for "unlocking" the phone to work with any compatible voice and data carrier.

Of course, as Apple correctly points out, copyright is hardly the only relevant legal issue — among other things, jailbreaking an iPhone might violate Apple’s iPhone license agreement and render void the iPhone warranty. However, because it is a reasonably simple process to reload a clean version of the iPhone operating system — with nary a trace of the jailbreak — this is probably not a significant deterrent for would-be escapees. Further, as discussed in my post regarding the first-sale doctrine and enforceability of end-user license agreements, perhaps challenges could be raised to Apple’s insistence that its customers are not owners of the operating software, but only licensees (indeed, in its ruling, the Copyright Office noted that it "cannot clearly determine whether the various versions of the iPhone contracts with consumers constituted a sale or license").

Is this the end of the jailbreaking copyright inquiry? Might Apple or other smartphone manufacturers challenge the Copyright Office’s exemption determination, or will they more aggressively lock down software to deter potential jailbreakers? We will probably not have to wait too long to find out.

3 thoughts on “Get Out of Jail(breaking) Free — At Least As Far As Copyright Is Concerned

  1. Amy – I’m not aware of any decisions on the matter after the Copyright Office’s exemption. Of course, we’ll have to see whether the exemption is renewed in 2013.

  2. Pingback: Latest DMCA Triennial Review Permits Jailbreaking, Video Game Preservation, And More | Trademark and Copyright Law

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