Apple has responded to the Electronic Frontier Foundation (EFF)'s request to the US Copyright Office to declare hacking a smartphone legal; not surprisingly, Apple believes jailbreaking is copyright violation and, therefore, illegal.
The EFF has petitioned for an exemption to the anti-circumvention clause of the Digital Millennium Copyright Act (DMCA) for jailbreaking, a process that gives users access to the main Unix file system, allowing them to add third-party applications not approved or sold by Apple. The EFF's proposed exemption would make clear that jailbreaking involves no copyright violation.
But according to Apple, jailbreaking or hacking a smartphone is a copyright violation because in order to jailbreak a phone, the user must have pirated copies of the bootloader and operating system software.
"Current jailbreak techniques now in widespread use [utilize] unauthorized modification to the copyrighted bootloader and OS, resulting in infringement of the copyright in those programs," Apple said.
But in its original application for the exemption, the EFF argues that jailbreaking does not go beyond "the scope of authorization" of the phone owner, and even if it does, hacking is a legally permitted, acceptable—or fair—use by software's owner. Indeed, according to Fred von Lohmann, intellectual property law expert and EFF senior staff attorney, there is a substantial body of law that says software copying is a fair use when performed to make independently-created software (i.e., third-party apps) compatible with the original.
Apple also argues that hacking an iPhone through software such as Cydia or Installer.app encourages even more piracy and a "diminished incentive to create those works in the first place."
To the contrary, EFF has argued that smartphone manufacturers' interest in restricting jailbreaking is not a concern of copyright violation, but merely a business decision—and one that limits competition, consumer choice, and innovation at that. Specifically in response to Apple's declaration, Lohmann has written:
One need only transpose Apple's arguments to the world of automobiles to recognize their absurdity. Sure, GM might tell us that, for our own safety, all servicing should be done by an authorized GM dealer using only genuine GM parts. Toyota might say that swapping your engine could reduce the reliability of your car. And Mazda could say that those who throw a supercharger on their Miatas frequently exceed the legal speed limit.
But we'd never accept this corporate paternalism as a justification for welding every car hood shut and imposing legal liability on car buffs tinkering in their garages. After all, the culture of tinkering (or hacking, if you prefer) is an important part of our innovation economy.
A decision by the Copyright Office is expected in October 2009, but in the meantime, Apple is reportedly already talking about developing software that would only work on jailed iPhones to provide an incentive for users to leave their phones unhacked.
Is "Jailbreaking" a Smartphone Legal?