Feds OK Smartphone Jailbreaking, Unlocking

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The US Copyright Office and Librarian of Congress changed the exemptions to the Digital Millenium Copyright Act on Monday to allow for jailbreaking and unlocking smartphones. The rule change means companies like Apple can’t use copyright rules to block customers from installing and running unapproved third party apps on their smartphones.

“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 Copyright Office stated.

“It’s gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability,” commented Electronic Frontier Foundation senior staff attorney, Corynne McSherry.

Apple is often held up as an example of limiting the software users can install on their smartphones because it tied iPhone app installation to its own App Store. Apps that don’t pass Apple’s screening process won’t get approved, and can’t be distributed to iPhone and iPod touch users without first jailbreaking the device.

Along with its ruling that jailbreaking is fair use, the Copyright Office also renewed its earlier ruling that allows consumers to unlock their cellphones for use on the carrier network of their choice instead of staying locked to a single service provider.

While the rulings mean companies can’t cite copyright regulations as a reason to stop customers from installing unapproved apps on their smartphones, or from unlocking their devices, it doesn’t prohibit companies from limiting those actions through terms of service agreements.

[Thanks to AP for the heads up]

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All the way around a good ruling.

As I read it, it limits the legal options for companies to restrict unlocking. They can’t sue you for copyright violation. However it does not say that Apple or anyone else must let you run any d***** thing you want. They can say your phone is jail broken so you cannot access the AppStore. They can still put code in their software to defeat jail breaking. They can still deny warranty service if your jail broken gadget picks up malware and gets hosed. They still have the right to control the terms of service. It’s just not a copyright violation.

Essentially you have the right under Fair Use to do it, but you have to put up with the consequences of that act, not Apple.


Does the Library of Congress have the power to allow Mac clones as well? That’s basically a copyright issue too.

Lee Dronick

Does the Library of Congress have the power to allow Mac clones as well? That?s basically a copyright issue too.

Well they are librarians, did you ever cross one of those? They are more powerful and dangerous than a sadist and sociopathic PE instructor with a shaved head.

I had always thought that the Copyright Office and the Library of Congress were two distinct agencies. I had to look it up, they are joined at the hip.

Bosco (Brad Hutchings)

Does the Library of Congress have the power to allow Mac clones as well? That?s basically a copyright issue too.

Under the DMCA legislation, the Copyright Office has the power to, for example, grant a DMCA exemption that would allow running software on hardware other than that approved by the software vendor. The Psystar case leaned heavily on the DMCA to enforce Apple’s “tying” clause in its SLA. An exemption would force a judge to consider whether it’s reasonable for shrink wrap agreements to preclude the user mixing and matching hardware and software. Apple would have a much tougher case on that point.

The DMCA was not envisioned to support complicated business models like region coded video discs or tying software to hardware. It was about copyright owners getting paid for copies by giving them legal protection for technological means employed to control copying. The exemption provision was specifically inserted to keep the DMCA from being misused. Ideally, this ruling should send a message that commercial actors ought to be more reasonable and less innovative in what they use the DMCA to protect. It ought to provide guidance to courts of the kinds of things the Copyright Office would exempt without the Copyright Office having to exempt 3 million specific things. Time will tell.

But I will bet that if Apple doesn’t lighten up on in its licensing posture, the EFF will be back in 2012 with a request for a DMCA exemption for Hackintoshing and similar use of software. Software gets some very special protection being treated literary works. Though it does through business process patents and other means, it ought not get near unlimited protection from other means.


Arguably, the Librarian of Congress’ (LOC’s) decision yesterday does not apply to the iOS.  The law authorizing the LOC to grant an exemption to Section 1201(a)(1) only permits him to grant such an exemption for non-infringing uses.  However, jailbreaking the iOS is clearly an infringing use, so the decision yesterday simply does not apply to the iOS, because jailbreaking infringes at least on Apple’s Section 106 exclusive rights to make derivatives of its iOS and make reproductions of the iOS.  That infringement takes jailbreaking the iOS outside the scope of yesterday’s declaration by the LOC.

The law also places two other important restrictions on the LOC’s declaration.  First, that law, by its own terms and as stated in the LOC’s declaration of yesterday, may not be used to as a defense to an action to enforce any other provision of Title 17, so Apple is free to prosecute a civil suit for infringement against any one who jailbreaks the iOS.  The criminal provisions of the Copyright also fully apply notwithstanding yesterday’s LOC decision.  And for those, who are considering going into the business of supplying software to jailbreak the iOS, yesterday’s decision, as the LOC said in his decision, does not affect 1201(a)(2)‘s prohibition against trafficking in technologies that circumvent any copyrighted work’s technical measures that prevent copying, which means that a business jailbreaking the iOS would still violate the DMCA for distributing circumvention technologies, even it did so for free.

The LOC did a very interesting and clever thing in his ruling yesterday.  As required by the DMCA, the LOC exemption only applies to classes of works and uses and only for particular uses in that class that are non-infringing uses.  This really avoids the issue of whether any particular use, such as jailbreaking the iOS, falls within the ambit of the ruling.  As I said, supra, I opine that the LOC’s decision yesterday doesn’t apply to jailbreaking the iOS, because, as I understand what involved in jailbreaking, it is an infringing use.  However, I?d reserve final judgment until a complete record is developed in a lawsuit in a court of competent jurisdiction.

The LOC also avoided the tricky issues of whether he even has jurisdiction to make decision apply to the iOS, where, as was the case here, Apple put forward a colorable claim of infringement.  The LOC did that by simply not applying his decision to jailbreaking or any particular use.  Now, the federal courts must decided whether jailbreaking is an infringing use, and, if it is, the LOC’s decision by its own terms and as mandated by the DMCA does not apply to jailbreaking the iOS.


Also, the DMCA does not grant the LOC any authority to permit any person to run copyrighted software on non-licensed hardware in contravention of the license that governs the use of that software.  The relevant Section of the DMCA, 17 U.S.C. ? 1201(a)(1), only authorizes the LOC to grant exemptions to 17 U.S.C. ? 1201(a)(1)(A) for classes of non-infringing uses.  Section 1201(a)(1) does not grant the LOC any authority with respect to any other provision of the Copyright Act (Act).  Congress carefully made clear in the express language of the DMCA that the LOC has no power that affects any other provision of the Act, which means that he does not have power to affect copyright holder’s Section 106 rights pursuant to the Act.

Lee Dronick

I don’t know Nemo, in the court of public opinion the chattering class is talking about this as if it was a total repeal of law and order. One just reported on TV that “Millions of people had already jailbroken their iPhones.” Are there accurate numbers of how many have done so?



The Library of Congress has the power to make exceptions to the DMCA that would be considered illegal by a strict interpretation of the DMCA.

Your opinion basically nullfies that power of the Library of Congress, and was not the intent of Congress when they wrote the DMCA.

You are wrong Nemo.

Bosco (Brad Hutchings)

@daemon, Nemo isn’t exactly wrong. He’s just caught in a box of strict legalese trying to continue to justify the unjustifiable. The Copyright Office has shown in previous exception granting rounds that it does not want to grant a huge number of exemptions. But its granting of perhaps the two most radical proposals has put the copyright industry on notice that they aren’t going to tolerate the DMCA being used to prop up complicated business models or preclude fair use. Yes, they can still be propped up with SLAs and of course, other portions of the Copyright Law, but you should not expect to use the DMCA to get easy enforcement of crappy, Draconian practices.

Where this is going is that the DMCA will be applicable when technology is used to prevent making copies that haven’t been paid for. It will not be applicable when technology is used to prevent the copies being used in some way that the author doesn’t like. Our laws treat software and hardware differently because they are different. Calling a combination “a whole system” doesn’t change that.

Lee Dronick

Nemo, and others, I am fine keeping my iPhone behind bars. However, I would like to send it care packages of ripped commercial DVDs so that we can enjoy them together during conjugal visits. The way I am reading this ruling is that I can once again legally make “fair use” copies of my DVDs. Do you think that is the case?



I don’t think it lets you rip dvds legally…

From PC World:

DVDs: No Ripping/Copying.. But..

College professors and students, documentary filmmakers, and those making noncommercial videos, are now able to circumvent the copyright protection on DVDs in order to use short clips from those DVDs in new works “for the purpose of criticism or comment.” The exemption was previously in place for professors, but has now been expanded to include students and filmmakers. The exception does not allow for users to copy whole works, or for individuals to create backups of DVDs they personally own, an issue brought up last year in the RealDVD case.



Daemon:  It is not my position; it is the law.  The LOC may not grant an exemption to an infringing use.  17 U.S.C. ? 1201(a)(1)(D) (“The Librarian shall publish any class of copyrighted works for which the Librarian has determined, pursuant to the rulemaking conducted under subparagraph (C), that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected, and the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period.”) and see 17 U.S.C. ? 1201(a)(1)(C), which provides, inter alia, that the LOC’s authority is limited to publishing exempt classes of noninfringing use, and 17 U.S.C. ? 1201(a)(1)(B), which also makes it clear that the LOC’s authority is limited to noninfringing uses.

So the question becomes whether jailbreaking iOS is an infringing or noninfringing use.  There is little doubt that it is, which is why the EFF and the LOC are banking their hopes on the Fair Use defense.  Fair Use is an affirmative defense—what a law professor of mine called a yes but defense—which concedes that you have infringed but that infringement is okay because you can defend on the grounds that what would otherwise be infringement is Fair Use.  Well, is it?

The court have had a hard time applying the fair use defense in the context of the DMCA’s noncircumvention provision, 17 U.S.C. ?1201(a)(1)(A).  As the most authoritative court on matter of IP law said:  “We do not reach the relationship between ? 107 fair use and violations of ? 1201. The District Court in Reimerdes rejected the DeCSS defendants’ argument that fair use was a necessary defense to ? 1201(a), Reimerdes, 111 F.Supp.2d at 317; because any access enables some fair uses, any act of circumvention would embody its own defense. We leave open the question as to when ? 107 might serve as an affirmative defense to a prima facie violation of ? 1201. For the moment, we note only that though the traditional fair use doctrine of ? 107 remains unchanged as a defense to copyright infringement under ? 1201(c)(1), circumvention is not infringement.”  CHAMBERLAIN GROUP, INC., v. SKYLINK TECHNOLOGIES, INC., 381 F.3d 1178 at n. 14.  In other words, the Fed. Cir rejected the LOC’s position that fair use is always a defense to infringement for the purpose of achieving interoperability.  What courts have done is apply the four factor balancing test of the fair use to defense to determine on a case by case basis whether it will apply.  Unfortunately, there does not seem to be an on point case that teaches us whether jailbreaking for the purpose of app compatibility qualifies as fair use.

These are the four factors that determine the applicability of the fair use defense:  (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.  I think that Apple can make a very strong case that all of the four factors are strongly in its favor, but without a record, we can moot that point all day, and I don’t have all day. 

And like most things in the law, these four factors must be read with a professional’s understanding of the law.  For example, in this context, the third factor isn’t given much weight, for reasons that I don’t have time to explain, and the same is true for the other three factors.  But have fun with it.  I always find it instructive to see what the laity make of these things.

The bottom line is that until a federal district court of competent jurisdiction holds that jailbreaking the iOS for the purpose of interoperability is fair use, whether the LOC’s recently declaration embraces Apple’s iOS is unknown.


Here’s one for you. This guy’s quoting Rob Enderle…as if he’s a credible source on Apple!


Need a laugh?


I will tell you this ... Now that my ipod is jail broken I can use Flash & Java funcutions that I couldn’t before. I had no other reason to jailbreak mine. If apple would have let us use Flash and other important programs many people wouldn’t jailbreak their ipod. Not everyone does it to steal software and programs.

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