With the advent of modern smartphones, many
users have sought to jailbreak their phones to allow them to use unauthorized
code (such as controversial apps or services not officially allowed by hardware
or service providers). Many also have sought unlock the SIM cards on
phones, allowing them to be used on networks which the hardware providers do
not officially have deals with.
Apple has long contended that unlocking and
jailbreaking is illegal under the 1998 Digital
Millennium Copyright Act [PDF]. Apple claims that it supports a vast
variety of evils including gangs,
drug dealing, and terrorism. Other companies like Microsoft or Palm
[now part of HP] have remained mum on the issue. And yet others -- like
Google -- have been mildly
supportive/tolerant of unlockers, while stopping short of providing the
tools to unlock phones themselves (which might endanger their valuable carrier
Some expected the U.S. Supreme Court or further
legislation by Congress would eventually tackle the issue. However, a
surprising source appears to have, in essence, given unlockers and (phone)
jailbreakers the legal green light -- the Library of Congress.
While not typically officially considered a part
of the legislative branch, the Library of Congress is rather an independent
research organization tasked with supporting Congress in a variety of ways,
including legal research and preserving our nation's history.
The Library of Congress added the
following passage to the DMCA, as a result of its research:
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
There are still some sticky legal issues,
despite this seemingly liberal addition that opens the door to potentially
legalizing unlocking/jailbreaking of smart phones in the U.S. The DMCA
still specifically forbids "technology, product, service, device,
component, or part thereof" used in breaking underlying access protections.
That is thought to include unlocking efforts such as the George
Hotz/iPhone Dev Team's donation-financed iPhone hacks that allow the phone to jump ship
to T-Mobile's GSM network in the U.S.
Also significant, the Library of Congress has
amended the use of video excerpts from commercial film -- such as movies or
television -- to include "documentary and non-commercial
applications" as well as educational ones. That potentially
legalizes video montages, the likes of which oft pop up on YouTube and
elsewhere, which the MPAA and others have long
contended is illegal. With the new language Google and others may
gain grounds to fight takedown notices.
The Library of Congress's tweaks to the DMCA
certainly seem a progressive step forward. With new legislation like
ACTA pending, it may only be a temporary one. It
remains to be seen whether the U.S. will continue to step forward in terms of
customer and artistic freedoms, or whether this is merely a brief advance
before a subsequent retreat.