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Jailbreaking Made Legal by Librarian of Congress

The Digital Millennium Copyright Act (DMCA) is an odious piece of legislation that criminalized ordinary behavior around media you have purchased, in the name of preventing unfettered piracy of digital music, games, and video. Yeah, well, we see how well that worked.

One of the DMCA’s key provisions is its restriction on the use of tools that break encryption designed to prevent the unauthorized copying of media – digital rights management (DRM) is the rubric. The DMCA has been successfully used in lawsuits for its precise purpose, however misguided, but also for ridiculous things like protecting code that prevents the use of third-party ink cartridges.

The legislation had a backdoor: the Librarian of Congress, the poobah of copyright in the United States, may carve out exemptions for cases not covered in the legislation. These exemptions allow non-infringing uses of copyrighted works that are prevented by technological means like DRM.

These exemptions were supposed to be issued every three years; the latest were approved last week, nearly four years after the previous rulemaking.

Groups like the Electronic Frontier Foundation (EFF) have used this exemption tool to lobby for the rights of individuals and researchers to have more control over media and devices in their possession. The EFF was widely cited in the new rules, and issued a happy press release.

The latest set of exclusions, drafted by the Registrar of Copyrights and approved by the Librarian of Congress, legitimizes jailbreaking of iPhones. It’s remarkably specific, because Apple’s phone is the most popular locked device on which you cannot install arbitrary third-party software. The rule applies to other devices; they just aren’t enumerated.

The exemptions also include a renewal of a 2006 rule that allows breaking encryption to unlock a phone that is set to work only on a single carrier’s network. The new rule allows unlocking only of used phones, which seems to mean a phone that was bought for and used on a given carrier network. Carriers can still charge cancellation penalties, of course.

The rulemaking about jailbreaking is rather complicated, but it concludes with a dense “designation of a class of works” that I’ll pick apart for you:

Computer programs that enable wireless communication 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.

If you read through the explanation of why this exemption was approved, it’s because the registrar found that all of Apple’s copyright-related reasons for locking down the iPhone aren’t germane, and that an individual shouldn’t be kept from circumvention of the iPhone’s locks for the legitimate installation of software Apple didn’t anoint.

The designation above means that the iOS (a computer program that enables a handset to run software) can be circumvented to allow installation of other programs that work alongside those provided or sold by Apple. (Note the phrase “lawfully obtained”: that’s in there to avoid accidentally making it legal to install pirated software.)

The registrar’s rule doesn’t require Apple to allow jailbreaking, but Apple can no longer claim jailbreaking is illegal. The company has seemingly never sued anyone for creating jailbreaking instructions or for the act itself.

Apple can also continue to say that jailbreaking voids the warranty (as Apple PR informed Leander Kahney of Cult of Mac). It’s within Apple’s power to define the limits of its guarantees for a product, but state courts and state attorneys general define whether a firm’s warranty conforms with the law. The exemption to the DMCA about jailbreaking might make a state consumer-protection lawsuit have greater merit, or a suit even in small-claims court by an individual against Apple. Consumer-protection laws tend to favor purchasers of a product if the item fails, so long as the buyer made reasonable and appropriate use,
regardless of what the warranty clauses attempt to enforce.

This rule change thus doesn’t precisely change the circumstances of jailbreaking. It’s unclear whether jailbreaking software or services are illegal under the DMCA, as providing such information or service isn’t covered by the exemption. Severe penalties are provided for those that violate the DMCA for “commercial advantage or private financial gain,” but a Web site explaining how to jailbreak an iPhone with no fee attached would seemingly not be covered.

So has the landscape for the App Store changed? Will developers now choose between selling apps via Apple or via third-party stores directly to consumers? It seems unlikely at present. Apple might need to work harder to appease developers, but the company also has consistently patched the vulnerabilities exploited by jailbreaking software, and might become even more vigorous on that front.

The exemption sets an important principle, however: that copyright can’t be used as a bludgeon to control how people use devices. It won’t lead to an open iOS platform, but it will keep Apple on its toes.

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