A new change to the much-maligned Digital Millennium Copyright Act free users who jailbreak their iPhones and other mobile handsets from worries about prosecution under the provisions of the DMCA that prevented circumvention of protection technologies. A separate change announced Monday also gives security researchers some new protections.
The changes to the DMCA–particularly the ruling that handset jailbreaking does not infringe on copyrights–are being hailed by legal experts and privacy advocates as major advances. The Library of Congress’s Patent Office, which oversees the DMCA, conducts mandatory regular reviews of the law, which is designed to prevent the circumvention of copy protections, such as DRM, on digital devices.
As soon as the iPhone came out, industrious owners began finding ways to jailbreak them in order to be able to load applications other than the ones that are in the official Apple iTunes App Store. Apple executives didn’t like this much and began a game of cat-and-mouse in which they’d force software updates on iPhones that would brick jailbroken phones, which users would then find a way around. The Electronic Frontier Foundation requested several exemptions to the DMCA, including the jailbreaking change.
“When one jailbreaks a smartphone in order to make the operating system
on that phone interoperable with an independently created application
that has not been approved by the maker of the smartphone or the maker
of its operating system, the modifications that are made purely for the
purpose of such interoperability are fair uses,” the Patent Office said in its ruling.
“Copyright law has long held that making programs interoperable is
fair use,” Corynne McSherry, EFF’s Senior Staff Attorney, said in a statement on the ruling.
“It’s gratifying that the Copyright Office acknowledges this right and
agrees that the anticircumvention laws should not interfere with
interoperability.”
The change in the DMCA is a pretty clear rejection by the Patent Office of claims by Apple and other device manufacturers that users who jailbreak their phones in order to install other software diminish some of the value of the devices. The Patent Office concluded, instead, that because a user needs to purchase the device in order to actually jailbreak it, that claim doesn’t hold up.
A second exemption to the DMCA that was created in Monday’s ruling protects security researchers who are in legal possession of a legitimate copy of a software program and circumvent protections on the software in order to do “good faith” testing and research. The exemption specifically applies to video games.
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“Overall, the Register has concluded that the factors set forth in 17 U.S.C. 107 tend to strongly support a finding that such good faith research constitutes fair use. The socially productive purpose of investigating computer security and informing the public do not involve use of the creative aspects of the work and are unlikely to have an adverse effect on the market for or value of the copyrighted work itself,” the Patent Office said in its rule change. “Aggregating the evidentiary record, the proponents have shown that they need to be able to fix flaws that are identified in this class of works and they need to be able to investigate other alleged security vulnerabilities in this class.”
