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Jailbreaking your iPhone is Fair Use - Legal for Now

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by , 07-26-2010 at 11:34 AM (1436 Views)
It is Legal to Jailbreak and Unlock Your Cellphone

Jailbreaking an iDevice is Fair use

The Digital Millennium Copyright Act gives the Library of Congress the right to review and make certain DRM exemptions legal for 3 years. So, every 3 years, the Library of Congress goes through the thankless and generally unrecognized duties of listening to us complain about DCMA.

After the current review, The Library of Congress is allowing widespread bypassing of the CSS encryption on DVDs, declaring iPhone jailbreaking to be "fair use," and letting consumers crack their legally purchased e-books in order to have them read aloud by computers.

The exemptions

The DMCA was passed in 1998, so this is the fourth exemption review hearing for the Library. In the past, little change was approved. Now, after more than 10 years of DMCA, substantive changes in the exemptions rulings address 6 areas or classes of works:
(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
(i) Educational uses by college and university professors and by college and university film and media studies students; (ii) Documentary filmmaking; (iii) Noncommercial videos. (2) 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.
(3) 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.
(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:
(i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and (ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.
(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and
(6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.
What some of these exemptions mean for us regular people:

DVDs

Previous exemptions have been made for college professors using film clips in class. The new rule applies to all. Anyone making a documentary or noncommercial video is covered under this exemption. Note that the exemption is only for short portions of motion pictures and if there is another means of getting the clips other than bypassing DRM, you are expected to use that method.

As the Librarian of Congress finally admitted, "I agree with the Register that the record demonstrates that it is sometimes necessary to circumvent access controls on DVDs in order to make these kinds of fair uses of short portions of motion pictures."

Jailbreaking
- Exemption 2 is a very surprising loss for Apple.

The Electronic Frontier Foundation argued that jailbreaking one's iPhone should be allowed, even though it required one to bypass some DRM and then to reuse a small bit of Apple's copyright firmware code. Apple attended the hearings to opine that jailbreaking was harmful and illegal. Apple's stance on jailbreaking was that limits were needed needed to preserve Apple's controlled ecosystem, which had great value to consumers.

That might be true, the Register agreed, but what did it have to do with copyright?
"Apple is not concerned that the practice of jailbreaking will displace sales of its firmware or of iPhones," wrote the Register, explaining the thinking by running through the "4 factors" of the fair use test. "Indeed, since one cannot engage in that practice unless one has acquired an iPhone, it would be difficult to make that argument. Rather, the harm that Apple fears is harm to its reputation. Apple is concerned that jailbreaking will breach the integrity of the iPhone's ecosystem. The Register concludes that such alleged adverse effects are not in the nature of the harm that the fourth fair use factor is intended to address."

The Register concluded that a jailbroken phone used "fewer than 50 bytes of code out of more than 8 million bytes, or approximately 1/160,000 of the copyrighted work as a whole. Where the alleged infringement consists of the making of an unauthorized derivative work, and the only modifications are so de minimis, the fact that iPhone users are using almost the entire iPhone firmware for the purpose for which it was provided to them by Apple undermines the significance" of Apple's argument.

"On balance, the Register concludes that 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."

Bottomline for iDevices: Apple can say jailbreaking voids the warranty, but you're not doing anything illegal by jailbreaking your phone and installing apps not approved by Apple.

E-books

Anyone remember when Amazon got into trouble with publishers for allowing the Kindle to run automated text-to-speech? Publishers objected that this could cut into their audiobook money and that it might violate their rights.

The Library of Congress has now given users the right to crack e-book DRM in order to hear the words. Exemption 6 only applies in cases where there is no alternative; if e-book vendors offer any sort of version that allows screen-reading or text-to-speech, even if the price is significantly higher, people must use that version rather than bypass DRM. But if there are no commercial alternatives, e-book buyers are at last legally allowed to bypass DRM.

Good for 3 years

These exemptions are good for 3 years and must be re-argued every 3 years. Take note that the Library of Congress took so long in releasing its recent ruling that the next review happens just 2 years from now. So, until then, enjoy your exemptions.

Sources:

Apple loses big in DRM ruling: jailbreaks are "fair use"

U.S. Copyright Office - Anticircumvention Rulemaking

http://www.copyright.gov/1201/2010/RM-2008-8.pdf

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