
Unlocking and jailbreaking are now legally protected in the U.S. - isamuel
http://www.eff.org/press/archives/2010/07/26
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tzs
Saying its "legally protected" is slightly misleading. Rather, it is not
prohibited by copyright law and the DMCA. However, the manufacturers are free
to use technological means to stop you from jailbreaking, to refuse to provide
service for jailbroken devices, and to use other legal means besides
copyright/DMCA such as contracts to stop you.

Law is often tri-state. For instance, at one time it was not legal to sell
property to black people in certain neighborhoods in the US, because of
legally binding covenants. This is the first state: prohibited.

The law was changed so that such covenants were not enforceable. However, that
didn't mean black people could _actually_ buy property in those neighborhoods.
The property owners were still free to refuse to sell to black people. This is
the second state: not prohibited.

The law was again changed, so that discrimination in real estate on the basis
of race was illegal, and a seller could get in trouble if the seller used race
to decide who to sell to. This is the third state: protected.

~~~
fragmede
There IS a 4th status: undefined. If there are no laws on a specific
something, then it is open for interpretation. A judge may use existing case
law to rule that a specific something is merely an extension of an existing
something (eg, email vs. snail mail), but until that ruling (and depending on
the jurisdiction), that something is in a legal gray area.

~~~
Gormo
Is this really a grey area? If there is no law on a particular topic, how does
it differ from merely being 'not prohibited'?

~~~
pmccool
That depends on whether you're talking about statute or common law. With
statute law, no law does mean "not prohibited". With case law it does not: the
courts can and do make up new law to fit the facts.

Lack of case law affords no protection. It just makes it hard to predict the
outcome in advance.

~~~
Gormo
Well, if there are no statutes nor established case law precedents that apply
to or can be extended to a particular situation, any cases would be more a
matter of equity than law. And neither common law nor equity rulings apply a
priori; a case must be brought to the court after the fact in order for the
court to make a ruling on it. Common law also requires _mens rea_ for any
action to be considered an offense.

So even in a situation where a court would award damages if a case was filed
and malicious or negligent harm were proved, I'm not really sure it makes
sense to say that anything was "prohibited" in advance.

~~~
pmccool
Not prohibited != can be done without legal consequence.

New torts are invented, albeit rarely. Every so often there's a new duty of
care in negligence. There are, I'm sure, other examples and the point is this:
the lack of case law wasn't much help to the first defendant to lose on that
point.

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mikecane
According to an attorney on Twitter, although it's now legal to jailbreak an
iPhone, Apple can still state it's a violation of their warranty and deny
service -- as recently seen with someone who jailbreaked their iPad (which
heated up) and was denied service: <http://snurl.com/zv7gc>

~~~
mortenjorck
If, somehow, hardware manufacturers _were_ required to extend warranty
coverage to unsanctioned modifications, we'd see a lot of push-back against
this in the near future. The extra burden to vendors would make a good
argument against it, but the great thing is that as it stands, it's hard to
argue against this without sounding anti-consumer.

~~~
mikecane
This is getting a lot of play in the MSM. TV news is even talking about it --
local, not just network (just like Consumer Reports and the iPhone 4 antenna).
If this leads to a lot of people jailbreaking, I wonder if this could lead to
a growing alternate market for iPhone apps vs the App Store.

~~~
sp332
Unfortunately, the App Store developer agreement means that devs can't sell on
Apple's App Store if they ever use a third-party store.

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isamuel
This is an enormous ruling. The full rulemaking order, which includes
additional protections for DVD ripping and other things, is here:

<https://www.eff.org/files/filenode/dmca_2009/RM-2008-8.pdf>

------
jim_h
What does this mean for eFuse, on the Droid x/2 phones, which is supposed to
protect the system from unauthorized updates?

edit - Why was I voted down? Is it bad to ask questions? I thought others
might be curious about this too. (BTW, thanks for the answer.)

~~~
isamuel
Nothing in this ruling (based on my relatively quick read) stops companies
from implementing countermeasures. It's not illegal to make it hard to do
something legal; for example, DVDs are protected by CSS, which although it's
laughably easy to break, does stop you from exercising some of your fair use
rights (which this ruling also recognizes).

Whether companies can implement things like eFuse or whatever is generally the
realm of antitrust law, which is another ball of wax entirely.

------
win_ini
Finally, now I can stop worrying about a cop seeing that my iPhone is running
on T-Mobile....whew!

~~~
isamuel
It's more that now legitimate businesses can do these things without fear of
legal action. It's legal now for Google to post a custom app on the web that
unlocks your iPhone and installs Google Voice. It's legal for T-Mobile to
unlock your iPhone for you.

These things have existed on the grey market for a while, but legitimate
businesses can't trade in such things. Now they can.

~~~
jasonlotito
Curious as to why this wasn't possible before, seeing as you could buy an
unlocked phone from Apple?

Edit: I think I'm confusing jail breaking with just untying a phone to a
carrier. You can, of course, buy phones untied to a carrier already from
Apple. However, you must still install apps via the App Store.

~~~
drewcrawford
Apple's not going to sue itself. So they can of course unlock their own phones
(barring a contractual restriction with AT&T or similar).

The change means that, i.e., Google, or TMobile, or some other legitimate
competitor to Apple could use jailbreaking or unlocking as a competitive
strategy in a way that Apple wouldn't like. For instance, Google could operate
their own app store, and consumers could use Google software to unlock their
device and install Google's app store.

While Apple does offer unlocked phones in some countries, they typically don't
do so willingly. All of the unlocked phones that I am aware of come from
countries that forbid locked phones to be sold.

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stcredzero
Would someone like to sell me a Canadian iPhone 4?

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ck2
I'd guess this really isn't proven law until it survives a lawsuit escalated
to the supreme court.

(and given their decisions lately, I'd rather not see this particular court
address these issues)

~~~
sp332
"Proven law"? The DMCA explicitly calls for these rulings to be made every 3
years. If the rest of the DMCA is "proven law," then so is this ruling.

