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Apple and EFF spar over iPhone jailbreaking and the DMCA

Nilay Patel
02.13.09
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Uh oh, Ashton, it looks like Apple might have a thing or two to say about that jailbroken iPhone of yours. Every three years the Copyright Office asks for proposed exemptions to the Digital Millenium Copyright Act's rules against breaking access protections, and this time around the lovable scamps at the Electronic Frontier Foundation have asked that jailbreaking phones -- like, yes, the iPhone -- be classified as one of those exceptions. As you might have guessed, Apple's response to the EFF isn't exactly supportive of the idea: it says the proposed rule will "destroy the technological protection of Apple's key copyrighted computer programs in the iPhone device itself and of copyrighted content owned by Apple that plays on the iPhone." Both sides have filed long briefs supporting their positions with extremely detailed legal arguments, but the main takeaways are that the EFF thinks that allowing jailbreaking will result in more apps and innovation, and Apple points out that the App Store is already hugely successful and that jailbroken phones are technically running unauthorized modifications of Apple's copyrighted iPhone code that allows them to run pirated applications. Interestingly, Apple's convoluted App Store approval process is the center of a lot of discussion, and Apple is totally disengeniuous about it, saying there's no "duplication of functionality" rule and as proof claims to have allowed "multiple general web browsers... and multiple mail programs." Note to the Copyright Office: if you believe this we have a very nice bridge to sell you.

Now, let's be clear: while we're definitely hoping the EFF pulls this one out, the worst thing that can result of all this is the status quo -- Apple isn't asking for jailbreaking to specifically be ruled illegal, it's just asking that it not be specifically ruled legal. If that sounds like a fuzzy distinction, well, it is, but that's the sort of gray area that keeps everyone else out of court for the time being. We'll find out more in the spring, when the Copyright Office holds hearings -- final rulings are due in October.

Read - EFF page on the jailbreaking debate
Read - EFF's brief (PDF)
Read - Apple's reply (PDF)
Read - EFF's second brief (PDF)

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