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Time to Jailbreak Your iPhone?

Full disclosure: I love my iPhone. It has been one of the best tech toys I've bought and has most of the features and functionality that I need. While I've always wanted it to do "a little bit more" I've accepted Apple's restrictions requiring purchase of Apps only through the App Store and using AT&T as a carrier. I don't like Apple's restrictions, but I've accepted them because the iPhone is such a great product.

Until now the options for adding things to the iPhone have been limited to getting new Apps from Apple's App Store or waiting for Apple to release the next version of the operating system or a new version of the iPhone. Most third party Apps submitted to Apple are approved. But Apple does deny and ban Apps from being available through the App Store all the time, even some really cool ones than iPhone owners seem to want (Google Voice and tethering leap to mind).

I'm patient, so I've waited for new Apps and releases to come along. Most owners, but definitely not all, seem to share my patience.

More adventurous iPhone owners have been jailbreaking their iPhones and fighting a running battle with Apple for years. Jailbreaking or hacking the iPhone allows the owner to bypass Apple's digital rights management ("DRM") access controls on the iPhone. By getting around the DRM these owners can install and use Apps available from sources other than the App Store. Jailbreaking also allows owners to leave AT&T behind and use other carriers. But by bypassing the DRM these owners were probably violating the Digital Millennium Copyright Act's ("DMCA") anti circumvention provisions. I say probably because Apple never provided us with a test case by suing a jailbreaker.

Apple of course responds quickly to jailbreaking efforts. We've seen Apple quickly close the vulnerabilities to the iPhone operating system being exploited through operating system updates. We've also seen Apple add some features to the iPhone that were once only available through jailbreaking.

Until now Apple had the right to request a fine every time an iPhone owner violated the anti circumvention provisions of the DMCA. But thanks to the U.S. Copyright Office there is now a "fair use" exception and you are now legally protected from a copyright infringement claim if you jailbreak your iPhone. .

In copyright law the "fair use" doctrine allows you to copy and distribute copyrighted material without permission under certain circumstances. But you always need to be careful with "fair use." The boundaries are murky, and without guidance you can easily cross the line into copyright infringement.

Thanks to the new rule jailbreaking an iPhone now does not violate Apple's copyright. Keep in mind that for the purpose of this article I'm using the iPhone and Apple as examples since they're in the news. But the new rule applies to all smartphones and smartphone manufacturers.

The new ruling by the Copyright Office authorizes several new "fair use" exemptions to the DMCA's anti circumvention provisions, including two that apply to the iPhone. The ruling creates exemptions for circumvention of access controls for noninfringing use of copyrighted works.

From the Copyright Office's ruling, the two exemptions relating to the iPhone are for:

  • 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.

  • Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

Now you may be wondering why the Copyright Office issued such a ruling. Well, someone in Congress was actually thinking for once. Congress set up a procedure by which the Librarian of Congress (which operates the Copyright Office) is required to review the DMCA every three years to see if there might be new technologies that should be exempted from the DMCA's anti circumvention provisions. This is actually the fourth ruling that's been issued; the first three just flew under the radar. This one made the news because it hits Apple right between the eyes (and in the wallet).

Apple's initial response to the ruling was predictable--they warned that jailbreaking your iPhone could lead to potential damage to the device and other potential harmful physical effects.

Not surprisingly a new jailbreak for the new iPhone 4 quickly followed the Copyright Office's ruling. Owners can now avoid the App Store entirely and download and activate the jailbreaking application simply by visiting a web page using the Safari browser on the iPhone 4.

For those of you already thinking ahead about creating a startup to assist owners in jailbreaking their iPhones...DON'T. Doing so is still illegal. The ruling only applies to the owner of the iPhone, so if you're going to jailbreak your iPhone you have to be the one who does it, not a third party.

For those of you are not ready to tinker with the guts of our iPhone the ruling may not have much of an impact. But for those of you ready to take the plunge, beware. Jailbreaking an iPhone voids the warranty and could potentially open you up to a breach of contract claim by Apple. Remember that legalese you skimmed after purchasing your iPhone? That was a license agreement between you and Apple forbidding jailbreaking.

Those with the technological chops to take a stab at jailbreaking your iPhone may want to wait and let the dust settle. Apple is likely to fight back in a couple of ways. First, Apple may appeal the Copyright Office's decision. Second, there's nothing stopping Apple from employing technological countermeasures to fight back against jailbreaking.

Jailbreaking your iPhone could also lead to security and performance problems. It could open up the iPhone to security issues such as viruses, malware, and worms. We've already seen some hit iPhones over the last year. A jailbreak that doesn't work could also leave you with a useless or "bricked" iPhone that doesn't work properly or work at all. Good luck getting Apple's service centers to fix your jailbreaked iPhone.

So why take the risk? Well, for some the opportunity to install Apps that Apple will not approve and/or drop AT&T as a carrier is irresistible. It depends on how patient you are.

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