DMCA Jailbreak Decision: Less Than Meets the Eye in

The Copyright Office says individuals who jailbreak their iPhones or otherwise modify mobile phones so they can run unapproved software can;t be sued for copyright violations. The office, part of the Library of Congress, today granted a three-year exemption from provisions of the Digital Millennium Copyright Act that bar “circumvention” of copy protection schemes. Ars Technica has a good rundown on the details of this and other DCMA exemptions.

The exemption is welcome, but probably will make little practical difference to much of anyone. Although Apple strongly opposed the exemption, the company had never taken any action against jailbreakers, including the iPhone Dev-Team that has done most of the work. So the Copyright Office has said that Apple cannot do what it was not doing anyway.

More significantly, the exemption does not stop Apple (or other phone makers or carriers) from trying to protecting their products. Apple, for example, has forced the Dev-Team to write new code with each iOS release while some Motorola phones, including the Verizon Droid X, include an eFuse chip that can deactivate the phone if unauthorized system software is installed. These moves are unaffected.

The situation is analogous to the status of audio CDs under the Home Audio Recording Act. That law says you can’t be sued for copyright violation for making a personal copy of an audio recording, but doesn’t say that music rights owners can;t try to stop you anyway. The difference, of course, is that the music industry has never come up with a practical way to copy protect audio recordings and their attempts, such as Sony’s SACD and Audio DVD, have flopped in the market. Phone makers have been much more successful.

The bottom line is that the enthusiasts, tinkerers, and hackers who want to mess with their phones can do so without worrying about something that doesn’t seem to have given any of them a second’s pause. And the vast majority of consumers will go on using their phones just the way they came from the store.

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2 Responses to “DMCA Jailbreak Decision: Less Than Meets the Eye in”

  1. Joshua Weinberg Says:

    But what about this one?

    http://www.techdirt.com/articles/20100725/22194810352.shtml

    Do you think this will have any significance in making the DMCA more reasonable for people not looking to rip-off content owners but just wanting to have a great user experience?

    Would love to hear your analysis…

  2. swildstrom Says:

    With the usual caution that I am not a lawyer, my suspicion is that the Fifyh Circuit case discussed in the TechDirt article is too narrow to have much affect on the stuff we all really care about: copy protected media.

    In general, the position of the courts has been that Congress meant what it said in DMCA and the law, as it applies to things like copying protected DVDs for personal use, is going to stand until Congress changes it. In the last few years, courts have moderated their stance a little, moving away from some extreme anti-consumer interpretations, but the core of the law has stood.

    Of course, we have all recently discovered that DMCA is a two-edged sword. As much as we may hate the anti-circumvention section, we love the safe harbor, which let Google defend YouTube against Viacom.

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