Jailbreaking Smartphones: A Recognized Fair Use

(Photo by: Thanushyon)

Jailbreaking a smart-phone allows individuals to run unapproved applications. Apple pushed for a ruling that jailbreaking was illegal under the Digital Millennium Copyright Act. However, in a ruling on July 26th, 2010, the Library of Congress affirmed the legality of the practice by approving a fair use exception, thereby allowing jailbreaking to continue legally, at least for now.

The iPhone is a popular smart-phone manufactured by Apple; the iPhone held a 14.4% worldwide smart-phone market share in 2010. An iPhone user seeking to purchase additional software for their phone can purchase software at the App Store. Only software applications that are approved by Apple are available in the App Store. According to the Apple website, any application is subject to an approval process “in order to protect consumer privacy, safeguard children from inappropriate content, and avoid applications that degrade the core experience of the iPhone”.

To jailbreak a smartphone, the user replaces the firmware (the operating system software controlling basic phone function) with a modified version. The modified versions of the code remove any requirement that third party applications have completed the approval process. The modified versions are provided by the jailbreak community free of charge.

To jailbreak or not to jailbreak? That is the question that smart-phone owners have been asking themselves. The benefits of jailbreaking include the capability to utilize additional unapproved applications and customizations. It is also worth noting that a jailbroken iPhone can also access cracked Apple applications (one of the points that Apple is so concerned about). On the other hand, many users hesitate to jailbreak because this voids the warranty provided by Apple and a small potential exists that the phone will be damaged by the process. In 2009, about 2.3 million jailbroken iPhones existed (according to the New York Times).

Apple still claims that the practice of jailbreaking violates the Digital Millennium Copyright Act. The DMCA contains an anti-circumvention provision under §1201(a)(1) governing “the act of circumventing a technological protection measure put in place by a copyright owner to control access to a copyrighted work”. In other words, a copier cannot break into a locked room to copy a book. Apples point is that jailbreaking the phone requires a modification to the phone’s copyright protected Operating Software (OS). Furthermore, they state that recognizing a fair use exception will lead to an increase in pirated software (pirated software does not function on a non-jailbroken phone). Apple makes it exceedingly clear that jailbreaking an iPhone voids its warranty and stresses the potential damage to the device.

Here we have an all-too-typical situation: an industry giant attempting to hijack a body of law to serve a purpose that it was not intended to serve. Apple’s real interest in limiting access to third party applications is to ensure that these software revenue streams will remain open for them and exclusively under their controls (Apple takes a 30% cut from apps sold in their app store). They seek to inhibit legitimate competition in the market for iPhone software and ensure that their monopoly continues. Reverse engineering is a recognized fair use when done for purposes of fostering interoperability with independently created software and, thankfully, the Library of Congress promulgated the exception for jailbreaking using this rationale. So for now, Users that purchase smart-phone devices retain the freedom to customize their devices.