US regulators: jailbreaking legal


Federal regulators said in a ruling that consumers can jailbreak their mobile devices without fear of legal repercussions from handset makers over violating copyright protections.

The Register of Copyrights (which is part of the Library of Congress), ruled that jailbreaking a phone does not violate the Digital Millennium Copyright Act – over the objections of iPhone maker Apple. The relevant exemption states that “computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset,” are exempted from violating copyright laws.

Jailbreaking is the process of modifying a phone or operating system to run applications not approved by the initial vendor or carrier.

However, analysts said the ruling likely will not have many practical implications for the wireless industry. The ruling – which applies to all handsets and not just the iPhone – does not require Apple or other handset makers to allow jailbreaking, but instead does not penalize people who circumvent controls designed to stop jailbreaking.

“There’s no real practical implications here, except for the fact that what is not a particularly common or widespread practice is now legal,” says Michael Gartenberg, analyst with the Altimeter Group. “The risk versus reward is still too great for most folks. The people who were going to do it are probably going to do it anyway.”

Additionally, noted Tim Bajarin, an analyst at Creative Strategies, Apple has not taken legal action against people who have publicized the fact that they have jailbroken their iPhone. “What this ruling says is that Apple can’t sue you. It also doesn’t say Apple can’t find ways to try to prevent you from doing this.” Apple, meanwhile, can still void the warranty of users who jailbreak their iPhone.

Apple has argued that the DMCA protects the encryption Apple put in the software that starts up the iOS platform. Apple has argued that unauthorized modification of its platform “has been a major source of instability, disruption of services and other issues.” Apple indicated that it is not changing its policies.

“Apple’s goal has always been to insure that our customers have a great experience with their iPhone and we know that jailbreaking can severely degrade the experience,” Apple said in a statement provided to Cult of Mac. “As we’ve said before, the vast majority of customers do not jailbreak their iPhones as this can violate the warranty and can cause the iPhone to become unstable and not work reliably.”

Avi Greengart, an analyst at Current Analysis, says he does not think the ruling will have many practical implications, but might allow more reputable sources to publish jailbreaking how-tos. Nevertheless, he called it a “symbolic slap” to Apple.

“I think it’s an important step forward from the perspective that it clarifies things a bit on ownership. If you buy a device, what are you allowed to do with it?” Greengart said. “It doesn’t change the economic incentives to lock it down. And for that matter, it doesn’t change the economic invectives for a consumer to seek locked down devices.”

In a statement, the CTIA urged consumers to use caution if they decide to jailbreak their devices. “Wireless carriers and handset makers go to great lengths to protect their customer’s privacy by blocking spam, filtering for viruses, and testing software that is sold through their portals,” Michael Altschul, CTIA’s general counsel, said in the statement. “Unfortunately, ‘jailbreaking,’ or other modifications to a wireless phone’s operating system, increases a consumer’s risk for malware, spyware and other vulnerabilities.”

One area where the ruling could have an effect is in the legal battle between Virgin Mobile USA and MetroPCS. MetroPCS in the summer of 2008 began a program to flash competitors’ CDMA handsets so that they can work on MetroPCS’ network.

Virgin Mobile, which subsidizes some of the cost of its handsets and then recoups those expenses through monthly fees, asked MetroPCS to stop selling the service. In response, MetroPCS filed a claim seeking to show that it does not violate any trademarks or interfere with Virgin Mobile’s contracts. Virgin Mobile then counter-sued with trademark infringement and contract interference claims. In September, a federal judge threw out Virgin Mobile USA’s claim that MetroPCS was meddling with its contracts by using its MetroFlash service. However, the judge did not dismiss some trademark infringement claims that Virgin Mobile brought against MetroPCS.

According to the Register of Copyrights’ recent ruling: “Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.”

The current status of the Virgin/MetroPCS case is unclear: Virgin Mobile and MetroPCS representatives did not immediately return calls for comment.