What the New DMCA Ruling on Jailbreaking Actually Says


The U.S. Copyright Office today clarified how it plans to enforce the Digital Millennium Copyright Act, making new exemptions for things like jailbreaking iPhones and ripping DVDs.

It might be exciting to think that it’s now legal to jailbreak iPhones (s AAPL) for the purpose of installing software not approved by Apple or switching wireless carriers. But “jailbreaking is legal” is not what the ruling said. It simply said that jailbreaking is not a violation of copyright law.

The Copyright Office rejected Apple’s arguments that purchasers of its iPhone software cannot copy and modify it because of the DMCA’s rules against circumventing DRM. The recommendation found that jailbreaking is indeed fair use, and further said Apple is trying to co-opt fair use for the purposes of competitive advantage.

Here are a couple of key quotes from the 250-page recommendation:

Ultimately, Apple’s position with respect to harm to the market for and value of its
firmware boils down to Apple’s conclusion that “the value of the iPhone, and hence the software
embedded in it, is substantially diminished when the integrity and functionality of that software is
compromised by jailbreaking, when Apple is left to deal with the problems that ensue, and when
the positive feedback loops enabled by the App Store and the iPhone Developer Program are
compromised.” The Register [Copyright Register Marybeth Peters] concludes that these concerns are not what the fourth fair use factor is intended to address.

Apple’s objections to the installation and use of “unapproved” applications appears to have nothing to do with its interests as the owner of copyrights in the computer programs embodied in the iPhone, and running the unapproved applications has no adverse effect on those interests. Rather, its objections relate to its interests as a manufacturer and distributor of a device, the iPhone.

But just because the Copyright Office didn’t believe Apple’s arguments about the DMCA doesn’t mean there aren’t other legal issues with jailbreaking. Here are some highlighted in the recommendation:

  • The Copyright Office wouldn’t rule on whether the purchaser of an iPhone owns the copy of the software on the device, recommending instead that this be addressed by new laws, not regulations. This distinction could have further implications on who has the right to modify an individual phone’s software.
  • It also said Apple’s ability to legally restrict what applications can run on its computers is not a copyright law, recommending that this criticism should be referred to elsewhere, perhaps to antitrust investigators.
  • And further, iPhone purchasers may be bound by state contract laws between purchasers of smartphones, manufacturers and service providers. Copyright law is not the only way Apple can keep its users in check; it can still void warranties and take other measures to enforce contracts.

The Electronic Frontier Foundation, which was Apple’s main opponent in the Copyright Office’s deliberations, said that more than 1 million iPhone owners have already jailbroken their handsets. Many more will probably do so now that it’s thought to be legal. But the problem is it’s not necessarily legal — yet.

Update: Apple has officially commented on the news, noting that jailbreaking still voids your warranty, but it has not prosecuted jailbreakers in the past.

Apple’s goal has always been to insure that our customers have a great experience with their iPhone and we know that jailbreaking can severely degrade the experience. As we’ve said before, the vast majority of customers do not jailbreak their iPhones as this can violate the warranty and can cause the iPhone to become unstable and not work reliably.

Feature image courtesy Flickr user subcircle.