Huzzah! This is BIG indeed! According to new government rules announced today, iPhone, iPod Touch and iPad owners can now legally jailbreak in order to install any third party applications of their choice that haven’t been approved by Apple Inc.
This came against 1998 federal law that prohibits people from bypassing technical measures that companies put on their products to prevent unauthorized uses. It is being reported that the Library of Congress Copyright Office reviews and authorizes exemptions every three years to ensure that the law does not prevent certain non-infringing use of copyright-protected material.
The Electronic Frontier Foundation (EFF) has posted a press release announcing the US government’s policy changes. Following are some of the excerpts of change in policy w.r.t iPhone OS Jailbreak issued by the Copyright Office of the U.S. Library of Congress.
EFF argued that jailbreaking is a non-infringing activity for three reasons. First, it alleged that at least in some cases, jailbreaking can be done within the scope of what is authorized under the license Apple grants to every iPhone user. It stated that [t]o the extent a jailbreaking technique does not modify any of the individual software programs that comprise the iPhone firmware collection, but instead simply adds additional software components to the collection, the practice may not exceed the scope of the license to use the iPhone software; or constitute a modification; of any Apple software components, any more than the addition of a new printer driver to a computer constitutes a modification of the operating system already installed on the computer.
Second, EFF asserted that to the extent a jailbreak technique requires the reproduction or adaptation of existing firmware beyond the scope of any license or other authorization by the copyright owner, it would fall within the ambit of 17 U.S.C. 1l7(a). EFF contended that the iPhone owner is also the owner of the copy of the firmware on the iPhone and that jailbreaking falls within the owner’s privilege to adapt those copies to add new capabilities, so long as the changes do not harm the interests of the copyright proprietor.
Finally, EFF contended that in any event, jailbreaking constitutes fair use of the firmware because jailbreaking is a purely noncommercial, private use of computer software, a largely functional work that operates the phone, and that the phone owner must reuse the vast majority of the original firmware in order for the phone to operate. Because the phone owner is simply modifying the firmware for her own use on the phone, there is no harm to the market for the firmware.
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.
You may also like to view full iPhone Jailbreak policy change document (PDF)
In addition to jailbreaking, other exemptions announced would:
- Allow owners of used cell phones to break access controls on their phones in order to switch wireless carriers.
- Allow people to break technical protections on video games to investigate or correct security flaws.
- Allow college professors, film students and documentary filmmakers to break copy-protection measures on DVDs so they can embed clips for educational purposes, criticism, commentary and noncommercial videos.
- Allow computer owners to bypass the need for external security devices called dongles if the dongle no longer works and cannot be replaced.
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