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Unlocking and jailbreaking are now legally protected in the U.S. (eff.org)
266 points by isamuel on July 26, 2010 | hide | past | web | favorite | 35 comments

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.

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.

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

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.

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.

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.

The second state is important as legal consequences are removed and the situation becomes subject to market forces.

If an ecosystem for adapting and jailbreaking phones or cracking DRM for fair use grows up, then it will start drawing customers in if that's what people want.

At some point some of the original sellers will realize that if they remove the original locks themselves, their customers will get their unlocked phone with less money (just buying price instead of buying price + unlocking price), and eventually the markets make the shift because they are no longer constrained by the old legal monopoly.

Right, but ultimately if Apple wants to cripple their device to for app store profit and I don't like it, I can spend a few hundred bucks on a competitors phone and call it a day. If I can't live in any neighborhood but Harlem the landlords their can jack the rent as high as they want and I live in poverty no matter what.

I'm actually fine with losing service contracts and stuff for jailbroken devices. What I'm interested to see is how much ammunition this actually gives youtube to say "fuck you" when media companies send cease&desist notices and takedown letters and such to fair use youtube videos and that sort of thing. If there are no consequences for that sort of corporate bullying then it probably won't stop.

Could one consider protection of a certain action as prohibition of its anti-action, and thereby we recognize only two states? So, instead of the buying of property itself being protected, it's the refusal to sell is prohibited.

Yes, exactly. This is how libertarians prefer to few things because it recasts things like equal housing opportunity laws from "protecting the rights of minorities" to "infringing upon the rights of property owners".

Hopefully this provides ammunition though to combat companies that continue to use technological locks. A decision like this helps to muddy any corporate arguments used to claim that locking mechanisms are ethical.

Technological locks aren't always about ethics. Often times it's about being practical. As much as people love bashing Apple, Apple works hard to give people a stable environment to build apps in. If you think it's not stable, then you've certainly never built apps in the jailbreak environment. Sure there are cool things you can do which you can't in Apple's sandboxed environment, but it's also the wild west. It's cool if people want to jailbreak and invent cool stuff, but expecting Apple to support it doesn't really support the community at large in a scalable way. Jailbreaking is a good thing, but most people don't really consider the business implications of it.

I would just reserve the right to refuse to service jailbroken phones (and maybe service them anyway if there is no added hassle, as a goodwill thing) instead of trying to stop people from doing it. Not supporting is very different from legally and technically limiting.

Honestly I don't think most users want to jailbreak the OS, just as most android users don't want to install other OSes. iPhone users resort to jailbreaking just so they an use their carrier of choice without restrictions.

As far as I know (I don't own iPhone myself), what you describe is called unlocking. Users resort to jailbreaking to install non-AppStore applications. Jailbreaking is different from unlocking.

Now that there's no uncertainty about the legality of it, maybe more effort will go into providing stable jailbroken environments.

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

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.

They may actually already be required to do this.


It would really be interesting for someone to try to make an argument under this law that Apple must show that jailbreaking the device caused the malfunction before refusing service.

That said, mentioning the guy who dropped his iPad and was pretty much asking for a favor (Apple does not cover accidental damage) is silly. In practice, Apple actually /does/ ignore jailbroken-nes ls of phones when it comes to serious hardware errors, and they have even stated as much in their DMCA commentary.

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.

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.

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


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.)

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.

This last sentence, from the article, indicates that this ruling is actually a step backward:

"On EFF's request, the Librarian of Congress renewed a 2006 rule exempting cell phone unlocking so handsets can be used with other telecommunications carriers. Cell phone unlockers have been successfully sued under the DMCA, even though there is no copyright infringement involved in the unlocking. Digital locks on cell phones make it harder to resell, reuse, or recycle the handset, prompting EFF to ask for renewal of this rule on behalf of our clients, The Wireless Alliance, ReCellular and Flipswap. However, the 2009 rule has been modified so that it only applies to used mobile phones, not new ones."

Droid X has already been rooted, so I guess it wasn't much of a problem.


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

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.

Are you sure? The Librarian of Congress's statement says that:

> Nor is this rulemaking about the ability to make or distribute products or services used for purposes of circumventing access controls, which are governed by a different part of section 1201.


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.

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.

Would someone like to sell me a Canadian iPhone 4?

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)

"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.

This is administrative rulemaking; perfectly ordinary. It could be set aside by a court if it were arbitrary or capricious, but that's pretty unlikely.

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