Apple loses bid to criminalize iPhone jailbreaking

Computerworld - Apple lost its bid today to criminalize "jailbreaking," the practice of hacking an iPhone to install unauthorized apps on the smartphone, according to a decision by the U.S. Copyright Office and the Library of Congress.

The decision, which was announced Monday by Librarian of Congress James Billington, adds jailbreaking to the list of practices that do not violate the Digital Millennium Copyright Act (DMCA).

"When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses," Marybeth Peters, Register of Copyrights, wrote in the ruling approved by Billington (download PDF).

Peters also blasted Apple's 2009 contention that hacking the iPhone was a violation of U.S. copyright law because the practice relied on pirated copies of the smartphone's bootloader and operating system.

"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," she wrote in her ruling. "Rather, Apple's objections relate to its interests as a manufacturer and distributor of a device, the iPhone."

She also called jailbreaking "innocuous at worst and beneficial at best."

Apple submitted comments to the Copyright Office in February 2009 after the Electronic Frontier Foundation (EFF) asked for a DMCA exemption in 2008 for cell phone jailbreaking. The EFF, and technology companies that supported it, including Firefox maker Mozilla, wanted the Copyright Office to allow users to install applications not available through Apple's App Store without fear of copyright infringement penalties.

The DMCA and Apple's argument were among the reasons why Mozilla and Norway-based Opera Software declined to create iPhone versions of their Firefox and Opera browsers.

Opera later released Opera Mini, a proxy-based program, for the iPhone. Although Mozilla is actively working on mobile editions of Firefox, it said it would not develop a version for the iPhone. Instead, it recently shipped Firefox Home, a spin-off of the bookmark and tab synchronization technology it currently offers as an add-on to the desktop browser.

The EFF applauded the decision to de-criminalize iPhone jailbreaking.

"Copyright law has long held that making programs interoperable is fair use," said Corynne McSherry, EFF's senior staff attorney, in a statement Monday. "It's gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability."

Today's ruling also gave a limited green light to security researchers investigating vulnerabilities in computer and videogame console software that are defended by technology copy-protection schemes.

"The socially productive purpose of investigating computer security and informing the public do not involve use of the creative aspects of the work and are unlikely to have an adverse effect on the market for or value of the copyrighted work itself," Peters ruled.

Peters asked for and received confirmation from Billington that a special class be protected against DMCA prosecution. "The Register recommends that the Librarian designate a class of video games protected by access controls, when circumvention is done for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities," Peters said.

Apple did not reply to a request seeking comment on the Copyright Office's ruling.

Gregg Keizer covers Microsoft, security issues, Apple, Web browsers and general technology breaking news for Computerworld. Follow Gregg on Twitter at @gkeizer or subscribe to Gregg's RSS feed . His e-mail address is gkeizer@ix.netcom.com.

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