Jailbreakers are Lawbreakers? Apple Thinks So!

[Jeff Campbell]

<div class='os_post_top_link'><a href='http://www.tuaw.com/2009/02/13/apple-says-jailbreaking-is-illegal/' target='_blank'>http://www.tuaw.com/2009/02/13/appl...ing-is-illegal/</a><br /><br /></div><p><em>"The Electronic Frontier Foundation has posted the news that Apple has filed comments with the US Copyright Office stating that the act of jailbreaking your iPhone is a copyright infringement and a DMCA violation, and therefore illegal. The EFF says that Apple is claiming that jailbreak apps still require modified versions of Apple's software, and Apple apparently believes that those versions are infringing on their copyrights."</em></p><p><em><img src="http://images.thoughtsmedia.com/resizer/thumbs/size/600/at/auto/1234583183.usr105634.jpg" style="border: 1px solid #d2d2bb;" /></em></p><p>It took awhile, but Apple has finally made their opinion very clear in this briefing filed with the <a href="http://www.copyright.gov/" target="_blank">US Copyright Office</a>. The <a href="http://www.eff.org/" target="_blank">EFF</a> is taking a stand on the opposite side stating "reverse engineering is a fair use when done for purposes of fostering interoperability with independently created software."&nbsp;How in the world is Apple going to enforce this one you might ask? Good question, and I'm not sure either. However at this point it is just a formal complaint, I'm sure more is to follow!</p>

[ptyork]

Apple is walking a fine line here. I actually believe that they might have a valid case. The "patched" files are modified versions of Apple's binaries. And they may even be able to argue that any access to the file system represents a violation since, unlike a standard OS, Mobile OS X was never intended to be accessed using their underlying file system. They'd have no case whatsoever if people were installing Linux, but by modifying the OS "black-box," I'm thinking Apple might have a legs to stand on.

However, this will undoubtedly create significant "badwill" (I presume that is the opposite of "goodwill") among a significant portion of their user community. They have purposely crippled the device (which I have argued is bad many times but won't again here) and many users have had to turn to jailbreaking to make the device (otherwise really cool) meet their needs.

Especially now that they have real competition emerging in the phone market, Apple has two courses of action. They can be defensive, litigating to protect their patents (VERY dangerous) and punishing those who seek to make the most out of their devices. This path will (IMO) backfire. I already hate their Orwellian policies (so ironic given their classic 1984 commercial) now more than I ever thought to hate Microsoft's, and my thoughts are not unique. Antipathy will without doubt grow and they will further alienate an important segment of their user base--the power users. You know, the ones who make using Apple products cool (remember, not long ago Macs were just considered "Computers for Dummies").

Or they can go on the offensive, embracing the power users and perhaps even opening things up more. Cisco's decision to roll with the hacking of their WRT-54g is a good example of the wild success that you can achieve by embracing your hacker community (even if they were a bit reluctant at first). I know a router and a phone are vastly different, but the concept is the same. They allowed an okay product to be made better. But more importantly, they took a product that was otherwise not a standout and made it THE product to have. This vastly grew their market share, not because a few power users bought it and flashed the firmware, but because every power user now bought them for their parents and sisters and grandparents and the grandparents told their bridge buddies that this is the product that their brilliant grandchild bought for them and so on.

IMO, Apple needs to embrace both the copycat competition (winking and saying that imitation is flattery but no one will ever be able to duplicate a true "Apple experience") and the hacking community, and just continue their policy of "exuding coolness." This is what has brought them from the brink. NOT hyper-protectionism, but rather a power user community that has made them THE computer/mp3 player/phone to covet.

[jdmichal]

Dear ptyork,

Please get out of my head.

Thanks,
~jdmichal



On a real note, I'm not really sure what legal standing Apple has here. I mean, if I buy a toaster, I'm allowed to do whatever the hell I want with that toaster. If I feel it's underpowered and solder on a new power transformer that turns the thing into a veritable heat ray of destruction, that's my right as the owner of the toaster. Sure, I'll void my warranty; that is acceptable. A manufacturer should absolutely not be responsible for the functionality of a device when someone's tinkering with it. But everyone would simply laugh if the toaster company tried to take me to court for it.

Why is software any different? Why is everyone simply not laughing this off?

[doogald]

On a real note, I'm not really sure what legal standing Apple has here. I mean, if I buy a toaster, I'm allowed to do whatever the hell I want with that toaster.

I also do not know what legal standing Apple has, but you do not license a toaster, though, and sign a contract that says that you agree not to alter the toaster in any way. Which I think is what you do when you license the software that runs on the iPhone that you use.

I do think that the title and the discussion on this thread are a little misleading. One might get the impression from the title that Apple is looking to sue their customers who jailbreak a phone, but that is not what I am reading from their comments. It looks as if the EFF have submitted something to the copyright office to say that jailbreaking is protected by fair use, and Apple is arguing that if this exemption is granted it will harm Apple.

If jailbreaking is allowed, then Apple will be forced to provide support for the phones that have been jailbroken. I am thinking that the purpose of this filing, more than anything else, is to ensure that going forward Apple can refuse support to an iPhone that has been jailbroken if they choose not to support it, rather than to "go after" users who jailbreak.

[jdmichal]

As I said, I have no issue with them not providing support or warranty status to these items. They can ensure this by simply stating so in their warranty and support terms. "We will not support a phone with any modifications to the hardware, firmware, or software, through a channel not supported by Apple." Or something similar. Those selling "real" products have these kinds of clauses in their warranties with no problems. I don't accept that as an explanation.

I think the "licensing" idea of software needs to finally be stricken down in courts. Especially when it's getting to the point that modifying your instance of the software which you paid for in order for it to function as you wish is approaching a legal border line.

There have been instances where the courts have ruled that the character of purchasing software is like a normal purchase, and that the "license" approach is merely a way to circumnavigate the first-sale doctrine. As such, the court determines they are proper sales and appropriately strikes down the licensing terms. I believe this is the proper viewpoint.

http://en.wikipedia.org/wiki/Softman_v._Adobe

Again I ask, why isn't this simply being laughed off?