iPhone ‘Jailbreaking’ Sparks Regulatory Battle

Published June 1, 2009

A regulatory fight is brewing with Apple Inc. facing off against third-party software developers and consumers. At issue is whether users may modify the Cupertino, California-based company’s popular iPhone without running afoul of U.S. copyright laws.

The U.S. Copyright Office scheduled a series of hearings in May to discuss whether the practice of “jailbreaking” should be exempt from the Digital Millennium Copyright Act (DMCA) of 1998. Jailbreaking involves altering the iPhone’s file system to let users run third-party applications from sources Apple hasn’t sanctioned. The process voids Apple’s product warranty.

Legal Briefs Fly
In December the Electronic Frontier Foundation, a San Francisco-based, nonprofit, public-interest law firm, filed a 37-page brief with the Copyright Office asking it to legalize jailbreaking under the DMCA. Exemptions to the copyright law can be proposed every three years and must be renewed after three years. A decision from the Copyright Office is expected before the end of this year.

In February Apple filed a 27-page response to the EFF brief in which it argued jailbreaking violates its copyright, could undermine the iPhone’s security and reliability, and provides a means to illegally copy iPhone applications.

Fred von Lohmann, a senior staff attorney for EFF and coauthor of the group’s brief, says jailbreaking has little if anything to do with software piracy and everything to do with opening the iPhone and other closed platforms to market competition.

“These are technical restrictions imposed solely to restrict competition,” von Lohmann said. “Nothing says Apple has to provide service or warranties for jailbroken phones. There is no serious burden on Apple at all.”

Courts Discourage DMCA Abuse

EFF argues jailbreaking is no different from unlocking a cell phone from an exclusive network or phone vendor, which the Copyright Office exempted from the DMCA in 2006. While jailbreaking and unlocking are not exactly the same process, unlocking an iPhone requires jailbreaking the phone.

Von Lohmann also noted the federal courts have frowned on companies using the DMCA’s copyright protections to muscle out competition.

The U.S. Supreme Court in 2005 tossed out a lawsuit by Lexmark in which the Lexington, Kentucky-based printer manufacturer claimed third-party toner resellers violated the DMCA’s anti-circumvention provisions.

Open Door to Piracy
Apple did not respond to requests for comment. In its brief, the company pointed out jailbreaking iPhones requires altering the handheld device’s operating system, which is protected by copyright. The company also argued that since jailbreaking a phone is necessary for running pirated software, a DMCA exemption will lead to more software piracy.

Von Lohmann notes, however, that Apple gives away the iPhone’s firmware for free, so pirating is not an issue.

“This is really about protecting Apple’s business model,” von Lohmann said.

Worried About Competition?
While EFF and Apple’s attorneys wrangle over copyright regulations, some upstart entrepreneurs are courting lawsuits by openly selling applications for jailbroken iPhones or ones that are simply unsanctioned by Apple.

Jay Freeman, a doctoral student in computer science in Santa Barbara, California and the developer of several popular applications for jailbroken iPhones, launched the Cydia Store on March 6.

Another Web site, called Rock Your Phone, has announced plans to sell unauthorized iPhone applications for users who have not modified their phones. A third site geared toward selling apps with adult content that does not pass muster with Apple is also reportedly in the works.

Apple Wants ‘Control’
Freeman did not respond to e-mail requests for an interview. Elsewhere, however, he has said his goal for the Cydia store is to “provide choice.”

“It’s understandable that [Apple] wants to control things,” Freeman told The Wall Street Journal in March, “but it has been very limiting for developers and users.”

Apple has sold more than 17 million iPhones since 2007. Although solid numbers are difficult to come by, it’s estimated about 10 percent of iPhones have been jailbroken.

The vast majority of iPhone users download applications for the handheld device from the App Store at Apple’s online iTunes Music Store. Apple in April reported customers have downloaded nearly 1 billion applications from the App Store since it launched in July 2008. Apple collects a 30 percent commission on app sales from the store.

Developers Complain
In several cases Apple has denied applications for sale, and developers complain Apple’s opaque vetting standards seem designed to protect the company’s products and services from competition rather than enhancing usability.

Last year Apple refused to let Mozilla, developer of the popular Firefox Web browser, sell its iPhone browser app. Applications for jailbroken phones include Cycorder, which lets the iPhone operate as a camcorder, and PdaNet, which allows the iPhone to be used as a cellular modem.

Possible Ambivalence
Some Apple observers say the company isn’t necessarily hostile to competition—or even to jailbreakers, so long as the practice remains confined to a small share of the market.

“I think Apple is officially opposed but unofficially ambivalent,” about jailbreaking, said Jason Snell, executive vice president of Mac Publishing and editor of Macworld magazine.

“If Apple wanted to make the lives of jailbreakers much harder, I think it could, technically,” Snell said. “The fact that the jailbreak community can get access to the phone so quickly after each update suggests that Apple’s not interested in putting effort into fighting this on a technical level.”

Ben Boychuk ([email protected]) writes from Rialto, California.