Jailbreaking is Legal; Now What?

Today the U.S. Librarian of Congress ruled that jailbreaking is legal, citing it as an exemption to DMCA regulations. Specifically, they stated: “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.”

From this summary statement, you might find it hard to figure out what they mean, as the word “jailbreaking” never appears. To find the full details, including specific mention of jailbreaking, Apple, and the EFF (which sought the exemption), you need to read the Federal Register document. Here you will see that Apple essentially lost every argument that it made. It’s a fairly strong slap in the face.

What will be the fallout from this ruling? With the caveat that I am not a lawyer, here’s what I think:

• By citing jailbreaking as legal, it removes a significant stigma from the process. No longer can someone say that you should not jailbreak your iPhone because “it is against the law.” In the short run, this will likely encourage more people to give jailbreaking a try. In the longer run, it may encourage more developers to offer software via the jailbreaking route.

However, as long as jailbreaking remains a “geeky” often technically-tricky task and as long as Apple remains hostile to the process (both of which I suspect will be the case), I don’t see the status quo changing much. Jailbreaking will still be something that attracts only a small minority of iOS device users and developers.

• Nothing in the ruling suggests that Apple has to directly support jailbreaking. Apple retains its right to develop new ways to block jailbreaking with every iOS update and new hardware that it releases. It will continue to do so.

Apple states: “Unauthorized modification of the iOS is a violation of the iPhone end-user license agreement and because of this, Apple may deny service for an iPhone, iPad, or iPod touch that has installed any unauthorized software.”

This one has me scratching my head a bit. Is it still legal for Apple’s end user license to claim that jailbreaking is prohibited, given that jailbreaking has now been declared legal? Could Apple deny any and all service to an iOS device simply because the device has been jailbroken at some point in its history?

My guess is that, yes, Apple can. However, by taking a significant arrow out of their quiver, the ruling makes it a bit harder for Apple to get away with it.

By analogy, could authorized Toyota service providers refuse to service a car if they detected that the car had ever been serviced by a “non-authorized” provider? I believe they could. But it would be poor policy for them do so. They would ultimately lose money (by refusing to service numerous cars that they would have otherwise repaired) and they would seriously anger their customers (who might buy another brand of car as a result).

Apple is not yet in this competitive position. However, if Google’s Android phones continue to improve and gain in market share, Apple may find itself in a similar position sometime down the road. If so, I expect Apple’s stance towards jailbreaking to loosen.

• What would Apple have done if they won the DMCA ruling? Perhaps nothing beyond what they are already doing. However, I suspect they would use it as carte blanche to become even more assertive. For example, they might have sued, or sought to criminally prosecute, the people who distribute jailbreaking software and who provide the networks from which you can download such software.

Thankfully, we will not see that happen now.

• Overall, while I doubt Apple will ever overtly support jailbreaking, today’s ruling may ultimately lead to Apple becoming less aggressive in its attacks. As a result, jailbreaking may become a more reliable and easier to maintain process.

It has long been my position that many of the risks, complications and problems associated with jailbreaking are a consequence of the actions jailbreakers must take to circumvent Apple’s attempts to block the process. If Apple lightens up here at all, this could change — for the better.

But that’s the long view, and an optimistic low probability long view at that.

In the short run, you can expect Apple to continue doing exactly what it has been doing. Don’t expect to have an any easier time jailbreaking your iOS device next week than you did last week.

Update: Based on feedback from Twitter conversations, I add some clarification:

I in no way believe that Apple must support problems with the use of jailbroken software or secondary problems that are perceived as due to the presence of jailbroken software. This has always been the case with all computer products. Apple doesn’t support problems even with legitimate third-party software on your Mac or iOS devices. Don’t expect to go to the Genius Bar and get help with how to use Photoshop. The question is: If you jailbreak your iOS device, and Apple can detect that you did so, does this automatically and entirely void your warranty for any problem whatsoever? Should Apple be able to refuse to service your device?

For example, what if your iPhone’s screen cracks due to a defect in the design of the screen? Should Apple be able to deny a warranty repair if it discovers that the iPhone is jailbroken?

Or, what if the Calendar app on your jailbroken iPhone keeps crashing on launch, for reasons having nothing to do with jailbreaking? You know this because numerous people who never broke their iPhone are having the exact same symptom. You go so far as to restore your iPhone to its pre-jailbreak state. As you still get the crashes, you bring your iPhone to the Apple Store. If Apple somehow discovers that you previously jailbroke your iPhone, should they be able to refuse service?

A strict interpretation of Apple’s position suggests that they might well answer yes to these questions. I would disagree.

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One Response to Jailbreaking is Legal; Now What?

  1. Pingback: Apple Patent to Kill Jailbroken Devices? Nope! « Slanted Viewpoint

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