Print 45 comment(s) - last by knutjb.. on Jul 27 at 4:03 PM

Somewhere Steve Jobs is screaming in frustration

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 contracts).

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 handset. 

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.

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Don't get too excited...
By Motoman on 7/26/2010 4:13:44 PM , Rating: 3
...all this really does, from an iPhone standpoint, is to confirm that jailbreaking your phone isn't a crime.

That says nothing about whether or not you just voided your warranty. It doesn't force Apple to open up their App Store. It doesn't mean that Apple can't detect your hack and disable your iTunes account. It doesn't mean that Apple can't "inadvertantly" brick your jailbroken phone with an OS update.

All it means is that Apple can't have you arrested for hacking your phone. Period. All other bets are off.

From a DMCA standpoint, it's nice that they're extending the right to educators etc. to be able to break DRM - but it's a long ways away from solving the DRM problem for 99% of the world's population.

As long as DRM is legal, legitimate consumers are punished by it. And even if you're doing something with that content that is now protected (like a documentary), you still have to hack the DRM out of your content on your own anyway. Regular consumers still don't have Fair Use of the content they pay for.

Nothing will be right in the world of movies/music/software/etc. until DRM is made illegal. Until then, publishers will continue to persecute legitimate consumers with it, and it will continue to encourage piracy.

RE: Don't get too excited...
By omnicronx on 7/26/2010 4:34:47 PM , Rating: 2
It doesn't mean that Apple can't detect your hack and disable your iTunes account. It doesn't mean that Apple can't "inadvertantly" brick your jailbroken phone with an OS update.
Or does it? Unless Apple wants to see a class action suit of epic proportions, they will not be 'inadvertently' bricking anything anytime soon. Jailbreaking is merely finding a bug or exploit to get root access to iOs. I would find it hard to believe that even Apple could prove that any update could 'inadvertently' brick a phone that has merely been rooted. Now that jailbreaking has been deemed legal, Apple has absolutely no foot to stand on. Its not like bypassing itunes to allow other devices to sync, in this situation Apple can merely peg it on a software change (which could easily happen). There really is no such defense in this situation in which the issue is basic functionality for a unix based OS.

RE: Don't get too excited...
By Motoman on 7/26/2010 8:06:31 PM , Rating: 2
Sure there is. All they have to do is play the "testing & Q/A" bit about how they only certify that their updates will work correctly on un-hacked phones. Provide a disclaimer that hacking/jailbreaking your phone may cause current and/or future Apple software and updates to not work right, or cause your device to not work properly. BS legal disclaimer stuff that 99.99999999% of the Apple user base won't read.

...and then when they release a patch that bricks hacked/jailbroken phones..."oops, sorry about that."

RE: Don't get too excited...
By sviola on 7/26/2010 4:41:25 PM , Rating: 2
It doesn't mean that Apple can't "inadvertantly" brick your jailbroken phone with an OS update.

I'm not sure about how american law works, but I seems to me if the law allows you to jailbreak you cell phone, a private company does not have the right to brick your phone because of it, and, therefor, would be subject to legal action. What I understand is that by doing this, a user is no longer under warranty.

RE: Don't get too excited...
By Motoman on 7/26/2010 8:01:11 PM , Rating: 3
Well, here's the thing jailbreak your phone, which fundamentally changes some software right then and there, and then maybe you install other 3rd party apps that aren't approved by Apple.

Then, Apple releases an OS patch. They only test the patch on non-hacked devices. You download the patch and it bricks your phone - Apple isn't going to care because your phone was hacked to start with, and they aren't going to be held liable for their good-faith efforts to keep your device up to date when you have hacked it.

They probably can't get away with creating an update with the sole purpose of bricking jailbroken phones...but if a regular OS update happens to brick hacked phones...ooops.

RE: Don't get too excited...
By raumkrieger on 7/27/2010 8:49:30 AM , Rating: 2
Apple wouldn't intentionally brick jailbroken iphones, it would just be a "bad side effect." That's what they'd spew when faced with legal confrontation.
Corporations know how to legally cover their asses in most regards, letting them get away with almost whatever they want. This is largely the reason why our legal system is broke beyond repair, no one can be held accountable if they pay enough lawyers.

"A politician stumbles over himself... Then they pick it out. They edit it. He runs the clip, and then he makes a funny face, and the whole audience has a Pavlovian response." -- Joe Scarborough on John Stewart over Jim Cramer

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