Copyright Office: Jailbreaking an iPhone is Fair Use

Do you want to jailbreak that iPhone 4? Go right ahead, says the Library of Congress.
The Copyright Office within the LOC on Monday ruled that jailbreaking a smartphone – particularly Apple's iPhone – is permissible under the Digital Millennium Copyright Act's (DMCA) fair use provisions.

Jail breaking is "innocuous at worst and beneficial at best," Librarian of Congress James H. Billington wrote in his decision.

By law, Billington is required to review the DMCA every three years to see if there are any emerging technologies that might be exempt from the law's ban on circumventing access to copyrighted material. The Copyright Office asked people to submit their recommendations for what technologies it should consider, and of the 19 submissions, Billington on Monday exempted six.

Of those submissions, the Electronic Frontier Foundation (EFF) asked the Copyright Office to review the jailbreaking issue, particularly as it applies to the iPhone. EFF argued that some jailbreaking can be done in the scope of Apple's license, the iPhone owner is the owner of the iPhone firmware, and that jailbreaking is a purely non-commercial private use of the iPhone's computer software.

Apple prohibits iPhone users from jailbreaking its device, which could entail making the phone work on a provider other than AT&T or adding an app that has not been approved for the Apple App Store.

Apple, of course, objected to the EFF's proposal and argued that its policies are "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," the Copyright Office said. "Specifically, Apple argued that because purchases of an iPhone are licensees, not owners, of the computer programs contained on the iPhone … the Copyright Act is inapplicable as an exemption to the adaptation right."

Billington was not convinced. He acknowledged that the contract between Apple and its customers does not specifically authorize modification of the iPhone, but said that the contractual language is "unclear" as to whether users are buying or licensing a copy of the computer program contained on the iPhone.

"Apple unquestionably has retained ownership of the intangible works, but the ownership of the particular copies of those works is unclear," he concluded.

Therefore, EFF's "fair use argument is compelling and consistent with the congressional interest in interoperability" because it's clear that people jailbreaking their phones are going to be using them for "private, noncommercial use."

"Apple's objections relate to its interests as a manufacturer and distributor of a device, the iPhone," the Copyright Office concluded. "The harm that Apple fears is harm to its reputation."
"Copyright law has long held that making programs interoperable is fair use," Corynne McSherry, EFF's senior staff attorney, said in a statement. "It's gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability."

The Copyright Office also granted EFF another exemption for people remixing videos on YouTube. According to the new rule, users do not violate the DMCA if they use excerpts from DVDs for the purpose of criticism or comment.

Other exemptions were granted for wireless networks, video games, computer programs on dongles, and e-books.