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Apple argues jailbreaking illegal under DMCA

updated 05:10 pm EST, Fri February 13, 2009

Apple jailbreaking stance

Apple has publicly defined its legal stance on iPhone jailbreaking, arguing that it represents copyright infringement and a DMCA violation, in response to an exemption filing by the Electronic Frontier Foundation that was submitted to the Copyright Office as part of the 2009 DMCA triennial rulemaking. The foundation proposal asked for an exemption that would allow jailbreaking of iPhones or other handsets, effectively liberating the devices to run applications other than those obtained from Apple's own iTunes App Store.

The iPhone-maker until now has remained relatively quiet regarding the jailbreaking issue. The exemption proposals could have a significant affect on future litigation, however, and the company has finally outlined its position in a 27-page response.

Apple suggests that the necessary modification to the iPhone's operating system and bootloader would lead to reliability issues with the handsets, while the code itself is protected by copyrights. The company also argues that the practice will contribute to the prevalence of pirated software and the illegal distribution of other protected content.

Fred von Lohmann, a legal analyst for the EFF, recognizes that jailbreaking requires modification of the software. "But the courts have long recognized that copying software while reverse engineering is a fair use when done for purposes of fostering interoperability with independently created software, a body of law that Apple conveniently fails to mention," he said.

Von Lohmann compares Apple's case to the laser printer makers and garage door opener companies that have used the DMCA laws to prevent interoperability with any third-party products that the company has not approved.

"Sure, GM might tell us that, for our own safety, all servicing should be done by an authorized GM dealer using only genuine GM parts. Toyota might say that swapping your engine could reduce the reliability of your car," he said. "But we'd never accept this corporate paternalism as a justification for welding every car hood shut and imposing legal liability on car buffs tinkering in their garages."

by MacNN Staff



  1. WiseWeasel

    Joined: Dec 1969



    Shame on Apple for arguing that an ACCESS CONTROL mechanism is the same as a COPYRIGHT CONTROL mechanism. There is no copyright being violated by the act of jailbreaking, and there are countless legitimate uses for gaining access to the device that don't involve copyright violation, that Apple's making quite a specious argument. It reflects poorly on them that they are trying to set this nasty precedent of expanding the meaning of the DMCA to cover mere access to the device by the owner and user.

  1. jarod

    Joined: Dec 1969


    Get real Apple

    Like seriously...GET REAL.

  1. resuna

    Joined: Dec 1969


    Unlocking is legal

    In 2006 the US Copyright Office explicitly ruled that reverse engineering to unlock cellphones to access other cellular networks was legal. Would it not be inconsistent to rule that reverse engineering to unlock cellphones to install legal applications was illegal?

  1. Flying Meat

    Joined: Dec 1969


    Lame, Apple!

    Linking jailbreaking to piracy is just plain lame. Get some real numbers to back that up or drop it.

    Punishing everyone for a few people's transgressions is also lame.

  1. Guest

    Joined: Dec 1969


    Do I misunderstand this?

    "But the courts have long recognized that copying software while reverse engineering is a fair use when done for purposes of fostering interoperability with independently created software, a body of law that Apple conveniently fails to mention,"

    Does this not mean third party apps that have been developed and delivered through the app store? Or am I missing something?

  1. Stilgar702

    Joined: Dec 1969


    Over the Top

    While jailbreaking may not be a desirable thing for anyone to do, at least in Apple's eyes, to say it is illegal seems a bit over the top.It's like saying don't put regular gas in your car when the owner's manual says "premium only". It may void your warranty, but it is NOT illegal. The other way to look at this (Apple, are you listening?) is to let us change our icons and wallpaper. That is on of the number one reasons people do this! Apple, buy Winterboard and put it in your next update. Add Themes to the App Store and sell them. Give us the ability to do on the phone what we have been doing on our iMacs, change the wallpaper. Oh, and while you are at it, give us Auto Redial!

  1. TheSnarkmeister

    Joined: Dec 1969



    The sh*t is about to hit the legal fan. Apple's action makes it impossible for the courts to further ignore this critical issue.

  1. heyjp

    Joined: Dec 1969


    not all love and roses

    I have a friend that is an iPhone developer. A week or so ago they released an iphone app that accesses data feeds from their server. Within an hour of it's appearance in the app store, they sold 12 copies at 4.99 apiece. Then, in the next hour it was jail broken and 1200 illegal copies hit their servers. They haven't had ANY jail broken downloads pay them after the "demo".


  1. jarod

    Joined: Dec 1969


    Paid for and mine

    Once you buy the product; you're free to do whatever you want with it. This illegal talk is pure BS. My phone, my business. As soon as you've received my money, you've lost all authority over MY product.

    Comment buried. Show
  1. themacjedicali

    Joined: Dec 1969


    Boo Hoo

    Apple is whining because they dont have the skills to prevent this kind of thing plain and simple. It would be like leaving your car unlocked in a parking lot and telling everyone who wlaks by that they cant and sholdnt steal it. If someone comes by thats does, you should have come up with a better lock instead of hiding behind some ridiculous law.

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