iPhone 4 Jailbreak Released, Bricks to follow? August 3, 2010
Less than a week after the Library of Congress released the latest round of DMCA anti-circumvention exemptions, word is out that the iPhone 4 has been jailbroken. In fact, a new website called “jailbreakme.com” offers a software app to accomplish exactly this.
Apple’s support site continues to state that jailbreaking is a violation of the iOS license agreement. Perhaps the obvious conclusion is that Apple will continue to include anti-jailbreaking/iOS modification restrictions within the license agreement. The bottom line: if you jailbreak your iPhone, you still lose your warranty, and an update push might brick your device. That’s been the norm for some time, so nothing terribly new here. Apple remains within their legal rights also, since the DMCA exemptions do not affect contract law.
Despite the tech media’s positive support for the new exemptions, I have not seen a detailed discussion of the limitations of the exemptions (Dominik and I discussed some of them on this week’s podcast in detail). Based on our reading, the exemptions are not a sweeping authorization for all jailbreaking activities. Websites that provide “jailbreaking” apps or services, like jailbreakme.com, may still have legal concerns.
If you read the official release from the US Copyright Office, you might have noted this little quirky sentence in the first paragraph:
“Persons making noninfringing uses of following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) until the conclusion of the next rulemaking.”
Important here is that the exemptions only apply to § 1201(a)(1) and no other section. If you read the entire statute, you can see that § 1201(a)(2), which is not exempted, still prohibits the:
“manufactur[ing], import[ing], offer[ing] to the public, provid[ing], or otherwise traffic[king] in any technology, product, service, device, component, or part thereof, that –
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title”
Unfortunately, this means that it is still unlawful to provide an application or service for jailbreaking. App developers should take notice that they are probably not exempt from these prohibitions, should Apple decide to pursue them in court. However, based on the 5th Circuit’s latest opinion, there is still some argument that a violation of § 1201(a) does not stand on its own without an underlying infringement of a copyright owner’s exclusive rights. Still though, I would not consider the 5th Circuit’s opinion on § 1201 to be the ultimate fix. Be careful when dancing near the lines on these rather complex statutory provisions and don’t forget that an applicable EULA or ToS may still be enforceable in court.
No related posts.
