I’ve written an article on what exactly jailbreaking IS and why it’s important it’s legal. Monday’s ruling on the legality of iPhone jailbreaking seemed to need a nice public explanation.
The Copyright Office and Librarian of Congress today officially sanctioned jailbreaking the iPhone, and while they were at it also put their pen to paper approving unlocking the device. Apple originally weighed in on this issue in February of 2009.
I’ve been reading the various news coverage (including ours) around this story, and it seems a good idea to define why jailbreaking is important, why the government agrees, and what jailbreaking isn’t. This article will be on the long side, as I’d like to address the point fairly fully.
At the end of the article I’ll reference some of the big points from the official filing. But let’s get back to the original question – why does jailbreak matter?
Running ModMyi.com, my daily conversations with people (frickin’ EVERYONE has an iPhone) always wind up turning to jailbreak, and there’s the single inevitable question – “well why should I jailbreak?” A lot of “apps” come up – MyWi, WinterBoard, Notifier, Intelliscreen, SBSettings… which is what they’re usually asking. Those are reasons TO jailbreak, though, not reasons FOR jailbreak to be legal and important. To answer that question, we need to take a look at what jailbreaking is.
At it’s core, jailbreaking is not an app, it’s not Cydia, it’s one simple thing – having unrestricted write access to your device. In more technical terms, it’s having root access. In the Android scene, it’s actually called rooting your device.
So what’s the big deal you ask? Maybe you’re not a hacker, or even a “hobbyist” or “enthusiast” – that’s fine. Maybe you don’t care about having any access at all to your device – it does everything you need already. You don’t want to jailbreak, and you never will. That’s fine, and for many, true. My iPhone 4 isn’t jailbroken yet, and it’s been handling itself great – of course there’s tons of jailbreak apps I miss (Notifier, Tlert, MyWi, WinterBoard, iFile, and OpenSSH/SSL being some of the biggest). But if I /want/ to modify my device, which I have purchased and own outright, for completely legal activities, enhancing the original purpose of the device (a “smartphone”) – it should be legal. Whether I do so or not should remain wholly my choice.
This precedent is in nearly every computer or “smart” gadget on the market. When you go down to Best Buy and purchase Sony or Toshiba’s latest laptop, the Best Buy people don’t tell you “now this has Windows, you can install any program Microsoft sells through their store here. Anything else is illegal.” Or from Sony/Toshiba/whomever’s store. You’re free to install any Windows-compatible app you’d like to. You’re not infringing any copyright by installing third-party software on your computer, you’re simply installing third-party software. The same can be said even of Apple’s desktop/laptop operating system, OS X. There is none of this “purchasing software from anywhere but us is illegal” talk anywhere but in the iOS field. Heck, you can even put programs on your Texas Instruments graphing calculator. (EDIT: comex tells me TI calcs now have signing keys… sigh).
Many people seem to associate “jailbreaking” with “iPhone piracy.” This is a flawed view. Piracy IS illegal, has been clearly defined as such legally for years, and is not at all synonymous with jailbreaking. Take ModMyi.com as a case study – we have over 675,000 members, the vast majority of whom have jailbroken one or more iDevices, and we strictly forbid any talk, linking, or mention of pirated apps. I personally have had a jailbroken iPhone longer than nearly anyone here (ModMyi actually created the first ever iPhone “theme”), and I have never pirated an iPhone app. It has always been our standpoint piracy is 100% illegal, and is rude on top of that. Devs spend days and weeks building $2 and $5 apps – if you want them enough to install them, you should pay for them.
Another false argument many people seem to use to argue against jailbreaking is security. I’ve seen comments all over opposing jailbreak by saying “well these sort of things can bring down a cell network.” Or “what if they install a virus.” Those activities are also illegal. In fact, any hacker who has root access to an iPhone also has (just as every single one of us does, out of the box) root access to any Mac they purchase, and could do just as much damage from their laptop as they could from an iPhone. More, perhaps. Restricting access to ALL third party software is not a valid security tactic, and in any other OS would be laughable – building a more secure OS is the answer. The only reason it’s been questionable this long with the iPhone is a mobile operating system this capable and robust has never been this widespread. We’re in new territory. If Microsoft were to suddenly require all programs in Windows to be purchased/sold ONLY through Micorosoft’s own fully independent arbitrary storefront, pundits would be up in arms.
The App Store is a thriving market, and while it’s profitability may not be as high as you think, the App Store is a huge driver of hardware sales, which contribute largely to Apple’s record profits and revenues, including the $3.25 billion in profit they had this past quarter of $15.7 billion in revenue. You would think Apple would see jailbreaking as a continued push for hardware sales (their highest profit) rather than a threat to it. Even aside from that, jailbreaking and third-party apps can co-exist peacefully with the App Store just as well as the version of Coda I purchased directly from Panic works fine side by side with the version of iLife I purchased through Apple.
I stress again – illegal activity done by means of jailbreak is and should be just as illegal and prosecutable as illegal activity done from ANY device, including one’s laptop/desktop. This has never been put in question, and to equate the two is to speak ignorantly.
I’ll pull some content from the official ruling below. What’s your take on this?
Here’s Apple’s argument to the government against the jailbreaking case (from the .pdf linked to here under “For the full rulemaking order:”):
Apple responded that jailbreaking by purchasers of the iPhone is a violation of the prohibition against circumvention of access controls. It stated that its validation system is necessary to protect consumers and Apple from harm. Apple further contended that modifying Apple’s operating system constituted the creation of an infringing derivative work. Specifically, Apple argued that because purchasers of an iPhone are licensees, not owners, of the computer programs contained on the iPhone, Section 117 of the Copyright Act is inapplicable as an exemption to the adaptation right. Apple further argued that the fair use defense codified in 107 would not apply to jailbreaking activity under the statutory factors.
Based on the record, the Register has determined that the encryption and authentication processes on the iPhone’s computer programs are technological measures that control access to the copyrighted work (the firmware) for purposes of 1201(a)(1). Moreover, the Register finds that the evidence supports the contention that a technological protection measure is adversely affecting adding applications to the iPhone. The critical question is whether jailbreaking an iPhone in order to add applications to the phone constitutes a noninfringing use.
There’s quite a lot of content in the official ruling, but when we get to the meat of the ruling, it’s this:
Under the first factor in Section 107, it appears fair to say that the purpose and character of the modification of the operating system is to engage in a private, noncommercial use intended to add functionality to a device owned by the person making the modification, albeit beyond what Apple has determined to be acceptable. The user is not engaging in any commercial exploitation of the firmware, at least not when the jailbreaking is done for the user’s own private use of the device.
The fact that the person engaging in jailbreaking is doing so in order to use Apple’s firmware on the device that it was designed to operate, which the jailbreaking user owns, and to use it for precisely the purpose for which it was designed (but for the fact that it has been modified to run applications not approved by Apple) favors a finding that the purpose and character of the use is innocuous at worst and beneficial at best. 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, Apple’s objections relate to its interests as a manufacturer and distributor of a device, the iPhone.
Moreover, Congress has determined that reverse engineering for the purpose of making computer programs interoperable is desirable when certain conditions are met, and has crafted a specific exemption from Section 1201(a)’s prohibition on circumvention in such cases. While an iPhone owner who jailbreaks does not fall within the four corners of the statutory exemption in Section 1201(f), the fact that he or she is engaging in jailbreaking in order to make the iPhone’s firmware interoperable with an application specially created for the iPhone suggests that the purpose and character of the use are favored.
Turning to the second fair use factor, it is customary for operating systems functional works to enable third party programs to interoperate with them. It does not and should not infringe any of the exclusive rights of the copyright owner to run an application program on a computer over the objections of the owner of the copyright in the computer’s operating system. Thus, if Apple sought to restrict the computer programs that could be run on its computers, there would be no basis for copyright law to assist Apple in protecting its restrictive business model. The second factor decisively favors a finding of fair use.
Turning to the third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, EFF admitted that because the Apple firmware is necessary in order to operate the iPhone, it is necessary for individuals who jailbreak their phones to reuse the vast majority of the original firmware. However, the amount of the copyrighted work modified in a typical jailbreaking scenario is fewer than 50 bytes of code out of more than 8 million bytes, or approximately 1/160,000 of the copyrighted work as a whole. Where the alleged infringement consists of the making of an unauthorized derivative work, and the only modifications are so de minimis, the fact that iPhone users are using almost the entire iPhone firmware for the purpose for which it was provided to them by Apple undermines the significance of this factor. While the third factor arguably disfavors a fair use finding, the weight to be given to it under the circumstances is slight.
Addressing the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, EFF asserted that the firmware has no independent economic value, pointing out that the iPhone firmware is not sold separately, but is simply included when one purchases an iPhone. EFF also argued that the ability to lawfully jailbreak a phone will increase, not decrease, overall sales of the phones because users will know that by jailbreaking, they can take advantage of a wider array of third party applications.
Apple responded that unauthorized uses diminish the value of the copyrighted works to Apple. However, Apple is not concerned that the practice of jailbreaking will displace sales of its firmware or of iPhones; indeed, since one cannot engage in that practice unless one has acquired an iPhone, it would be difficult to make that argument. Rather, the harm that Apple fears is harm to its reputation. Apple is concerned that jailbreaking will breach the integrity of the iPhone’s ecosystem. The Register concludes that such alleged adverse effects are not in the nature of the harm that the fourth fair use factor is intended to address.
