After Hours

Jailbreaking smartphones is finally legal, for now

The EFF won important protections for fair use of copyrighted works and restricted-use consumer technology.

The EFF won important protections for fair use of copyrighted works and restricted use consumer technology.


On 28 October 1998, U.S. President William Jefferson Clinton signed a new law called the Digital Millennium Copyright Act. More commonly known as the DMCA, this law enacted new, far-reaching provisions for strong copyright protections.

Some of the consequences of the DMCA have been called "chilling" with regard to their effects on technological innovation and various fields of research. The DMCA has also paved the way for major corporate copyright-based industries to impose unprecedented difficulties on the exercise of the doctrine of fair use. Since the early days of the DMCA, researchers giving talks about their work have been recipients of cease-and-desist notices because software vendors whose products were the subject of some of the research did not want the flaws in their security models discussed outside the company -- relying on the law, rather than good design, to protect their applications from security crackers disinclined to obey the law anyway.

The DMCA's prohibition against circumventing DRM and "other technical protection measures" has given copyright owners the tools they need to sue people who perform actions that, in many cases, have no copyright infringing effects. Among these practical effects of the DMCA have been lawsuits targeting "jailbreakers," cellphone unlockers, and video samplers.

Cellphone "jailbreaking" is the act of modifying software and configurations on mobile devices such as iPhones, allowing restricted platforms to be used in ways the vendors did not intend.

A related subject is that of people unlocking their cellphones, allowing them to take a cellphone acquired from one service carrier to another carrier. This can, for example, enable the use of a cellphone purchased from Verizon with a T-Mobile service account instead. The DMCA has been bent to fit the purpose of suing these unlockers, despite the fact there is no copyright infringement involved in that act at all.

Video sampling is the process of incorporating clips from previously existing videos in a new video production, in some cases producing what might be called a "remixed" video. YouTube in particular has been at the center of controversy involving these samplers of footage from previous works and, like iPhone "jailbreakers" and cellphone unlockers, they too could be subject to lawsuits for their actions.

Major copyright industry corporations -- such as the core members of the RIAA, MPAA, and BSA -- hold most of the cards when it comes to litigation over terms of the DMCA. The "little guy", meaning individual middle class people who just want to be able to enjoy their purchases and use them the way they see fit, are largely at the whim of the legal departments of such corporations. As a result, these corporations have used the powerful legal weapons placed at their disposal as a result of the DMCA to whittle away at the U.S. legal doctrine of fair use, effectively restricting anyone's ability to do much of anything with the CDs, DVDs, MP3s, and even physical electronic devices that they have purchased.

The DMCA does provide some provision for relief. It is a bureaucratically complex process of petitioning the Copyright Office and Librarian of Congress for fair use exemptions to the restrictive provisions of the DMCA. Once every three years, these requests are reviewed and either granted or denied. Even when granted, these grants of exemption expire after the following three year period, requiring those with an interest in ensuring such exemptions in perpetuity to petition for renewal every cycle. Furthermore, for an exemption to be granted, the rules of the process require that there has been some substantial adverse effect on the ability to exercise fair use rights to employ copyrighted works.

Luckily, the corporations with all the legal manpower to pursue their agendas indefinitely are not the only organizations talking to the Copyright Office and Librarian of Congress about the matter. This year, the Electronic Frontier Foundation won three exemptions on behalf of American citizens:

  1. "Jailbreaking" smartphones (a new exemption)
  2. Unlocking cellphones (an exemption renewal)
  3. Video sampling for noncommercial uses (a new exemption)

The DMCA feeds the corporate effort to pretend the law provides some kind of effective security against illegal copyright infringement. It doesn't, of course, but it does effectively make life difficult for law-abiding people who simply want to use what they have purchased. Thanks in part to the efforts of the EFF, it is not quite as difficult as it could be this year.

About

Chad Perrin is an IT consultant, developer, and freelance professional writer. He holds both Microsoft and CompTIA certifications and is a graduate of two IT industry trade schools.

40 comments
SheRex
SheRex

Not the point of the article I know, however, the proper subject/verb agreement would be: Smartphones ARE or Smartphone IS

geofer50
geofer50

what common sense???????

ps.techrep
ps.techrep

When in the course of human events ... It would be interesting to keep a tally of how many of the reasons for separation from England apply to our present federal government. Seems to me that there might be enough to justify suits for separation by the states.

bboyd
bboyd

Thanks for the article. Wish the law would get junked, it so horrible abuses the consumer and fair user. Guess I'd say the same about many laws.

apotheon
apotheon

The focus of subject/verb agreement is "jailbreaking" in this case. Jailbreaking is legal. We just happen to be discussing smartphones. Another formulation of the sentence would be "Smartphone jailbreaking is finally legal, for now". Given the relationship of the terms "jailbreaking" and "smartphones", those two words should be swappable without affecting the grammar of the rest of the sentence. It's "Jailbreaking is legal", and not "Smartphones are legal", after all.

BobP64
BobP64

Now this is an argument that I agree with 100%. Today's Federal Government is exhibiting behavior almost identical to that back when the US was first formed. First, I am taxed without representation (I work in a different state than I live and so have no say regarding taxes in the state I work). Second, the amount of taxes being taken today is far greater than any of the "tea taxes" that started the revolt for independence. Third, the Federal Government has turned into a wealth transfer company, taking from the middle and upper classes and giving money to the illegal immigrants in the form of free medical care, free schooling for their children, etc. This isn't just true for illegal immigrants, but for all the lazy welfare people who won't get a job. No, don't get me wrong, there are SOME people (disabled) who do need government help and I don't begrudge it to them, but there are STILL too many people on welfare and having MORE kids WHILE ON WELFARE. This should stop. Anyhow, you get my point, a couple hundred years ago, you reaped what you toiled. These days, what you toil gets reaped (I was going to say RAPED because that seemed more fitting) by every person that makes under the poverty line. That simply would not have happened a couple hundred years ago - sure, you'd be helped if you needed it, but if you didn't do jack and were capable, you were cut off. Well, it's time to CUT OFF some of these people. I'd vote to start with ALL THE ILLEGAL IMMIGRANTS.

Sterling chip Camden
Sterling chip Camden

We Southerners tried that, and got put down by invasion and occupation. It didn't help that we were flat out Wrong on slavery. Wait, it did help -- it helped the Federal government bury the states' rights issue.

JayGee21
JayGee21

A number of years ago a restaurant next to my electronics store that had live bands after the supper hour. A rep from the recording industry said they would camp in his restaurant listening to his bands and the moment they played one of their copyprotected tunes WHAM they would shut him down. UNLESS he paid a "monthly fee" for "use rights" to their songs. Nothing was said about paying the artist, the song writer(s)or the label.

Juanita Marquez
Juanita Marquez

Who is suing "the little guy", the government or the businesses wanting to manipulate the law to their own favor? The blame falls on the businesses with the mouths perpetually foaming for more and more perceived profits that makes them go through such ridiculous gyrations. Jason Hiner posted this http://recordingindustryvspeople.blogspot.com/2010/07/ha-ha-ha-ha-ha-riaa-paid-its-lawyers.html on Twitter about the little return the RIAA actually gained in comparison to the money they paid out to their attorneys. Seems a bit foolish, yes? The government is certainly not strongarming them to sue these people.

Sterling chip Camden
Sterling chip Camden

I'm joking, of course -- but not by much. Any time Congress makes a new law, the unintended consequences become the chess pieces for those who would manipulate the legal system for their own purposes. It's high time we simplify and reduce government's involvement in our lives.

JayGee21
JayGee21

It was treatment like this that when the PC web came of age that spawned the large "sharing" networks which then led to all these new regs. which spun into what we have today. Large money companies with "holding rights" "patent rights" "copyrights" fervently demand nonstop payments for something they once did and the thinking you can not modify their hardwired products that they sold with intent of being used on someone elses networks that they get a kick back on. The networks also assume the purchased item will be used on their system making them monthly fees from the user. So then came the protection business to strong arm users to protecting the big money people. THUS slick Willie's signed into law system protecing big money with small tax payer's money.

apotheon
apotheon

Government enables these copyright abuses. Do you think the DMCA was passed without the help of Congress to pass it and a President to sign it?

Juanita Marquez
Juanita Marquez

I have to say, there are certain areas I WELCOME government interference - like mandatory safety features. Cars wouldn't have things like seatbelts and mines wouldn't have things like face masks and inspections if it hadn't been for that pesky government forcing safety features on the businesses that didn't want to pay for them. Very few times will businesses' magnanimosity of heart add such things in on their own dime.

apotheon
apotheon

Have you checked out copyfree.org? You might find some stuff there you like. The Software Liberation Front offers a somewhat less politic approach to similar topics.

apotheon
apotheon

I don't disagree with what you said. There are a number of problems with the socioeconomic problem in the US. First and foremost is the intertwining of government and business. Just as we have "separation of church and state", we should also have "separation of economy and state". Otherwise, we end up with stuff like the feedback loop between massive corporations and corrupt government.

Juanita Marquez
Juanita Marquez

by large donations from the businesses. It's an endless circle. I don't believe ALL government is bad, any more than I believe ALL businesses are bad, but wherever there is money to be made, corruption will be found.

David_burbage
David_burbage

I can't quite see how unlocking a cellphone or "jailbreaking" an iPhone falls into the same category as seat belts or mining equipment! They are safety related - phones aren't (unless you need one as a safety or comfort blanket). Personally I am sick of the use of "i" as a suffix for everything - never a great lover of macs in the first place (overpriced and restrictive).

santeewelding
santeewelding

Don't mess around in the outback, Apotheon, according to her rules -- unless, of course, you subscribe to those rules.

apotheon
apotheon

The power of the auto industry lobby is, and has been, well-known for decades. You see an era in which seatbelts were logically being added anyway by the carmakers; I see an era in which they were dragged kicking and screaming into spending money they thought was a waste even though people were dying. I think enough evidence exists for my line of thought. It's obvious to me that massive, government-entangled, public corporations would much rather avoid the expense of seatbelts (small though that expense may be in the grand scheme of things), though they may have liked to offer them as expensive options. That preference of the Big Three automakers is not something I dispute. Leaving the preference aside, though, what I question is whether it was actually government per se that did it, or just market forces. Even if it wasn't market forces that pressed them to action, I wonder how much governmental involvement might have diluted the direct effectiveness of market forces by serving to consolidate dominance in the hands of a few industry giants. This could have created an oligopolistic circumstance wherein only further governmental involvement could have the desired effect, resulting in a very inefficient solution to a problem that was created by government in the first place. In short, it still does not seem at all obvious to me that, absent not only the safety regulation, but also power centralizing, influences of government oversight were the only reason we'd end up with seatbelts in cars along a similar timetable.

santeewelding
santeewelding

His posting humanity is about on par with your own, Juanita. I saw his crass remarks when he made them. I left them right were they were. Which is, beneath notice.

Juanita Marquez
Juanita Marquez

Your comment makes me think either you have no sense of humor, no healthy way to vent your frustration at people, and no pity for people who have suffered due to the economy and rise in outsourcing. But no worries, if any of us were desperate enough to apply for a job at your company, we will make sure to not fill in the app with our TechRepublic names.

dougogd
dougogd

should be telling their employees that they should be off the road for important phone calls. I also keep tabs on what companies do what and don't offer them my business if they do things that should be illegal.

dougogd
dougogd

for your account. So I had to choose unemployed.

Juanita Marquez
Juanita Marquez

In a meeting with President Nixon, he (Lee Iacocca) was recorded on the President's secret taping system, saying safety was killing the American car business. "I didn't know I was being taped at the time--how the hell would I know that?" Iacocca says when reminded of this. In talking to President Nixon, Iacocca said: "Shoulder harnesses and head rests are complete wastes of money. Safety has really killed off our business." http://www.cbsnews.com/stories/1999/05/17/60II/main47539.shtml Here's a more current example, dealing with 3-point belts in the back seat. "In 1988, NHTSA proposed amending FMVSS 208 to require three-point belts in all seating positions. After extensive lobbying by the auto industry, NHTSA decided not to go through with the proposed amendment based on manufacturer complaints that the costs of installing three-point belts in the rear-center seats might exceed safety benefits." http://tinyurl.com/23tgl2y "The Big Three have a long history of railing against virtually any safety or pollution enhancements that Washington has attempted to place on their vehicles, from seat belts and turn signals to collapsible steering wheels and air bags. In 1966, Henry Ford II famously argued that implementation of federal safety requirements for automobiles (including lap and shoulder seat belts) would force his eponymous company to ?close down.?" http://tinyurl.com/287g27w This one is too long to quote here, but basically seat belt failures were covered up by carmakers, and when CBS News investigated, the auto lobby put pressure on their advertisers to keep the report off the air. http://www.safetyforum.com/inertial/ The power of the auto industry lobby is, and has been, well-known for decades. You see an era in which seatbelts were logically being added anyway by the carmakers; I see an era in which they were dragged kicking and screaming into spending money they thought was a waste even though people were dying. I think enough evidence exists for my line of thought. I see the law as a tool to force businesses to be responsible when their potential profitability is at stake. I do not trust businesses to make decisions in my, or the average consumer's, best interests - I expect them to make decisions based on what kind of money they can make for their stockholders or VIPs, many times overriding safety issues. Cigarettes are a classic example. High fructose corn syrup is one more current example - it has been scientifically documented to make cancer feed faster, negate the effect of the body's natural appetite regulation, diminish insulin reactivity resulting in an increase of diabetes, and a number of other problems (I do have links if you want them) - but it continues to be used in EVERYTHING. I literally was shopping for frozen salmon and somehow HFCS was in that, as well. The responsible thing manufacturers could do would be to change to some other form of sugar or omit it altogether, but regular cane sugar is more expensive than abundant corn syrup - or at least that is what the soda makers say. Sugar has its own issues but it is not found in almost every food product you can think of. I trust neither the government nor businesses to look out for me. But the government seems to be more easily pressured (usually over many years' time, and many times grudgingly and after many deaths or injuries) into eventually "doing the right thing" to help people. We elect officials who make laws, and kick them out as a nation when they do not serve us; we do not have the same kind of opportunity for many businesses who are free to abuse us as they please.

apotheon
apotheon

If you make a positive assertion, it's your responsibility to offer some valid logic or evidence to support it. If you don't do so, all you're doing is waving your hands and shouting and expecting people to believe what you say based on your own assertions that you're right. When someone asks for evidence or a valid argument to support your assertion, that person may well have already researched the subject and failed to find any such support for your position. That person may just want to know whether there's some evidence he or she hadn't found, or some logically valid argument that had not occurred to him or her. Just assuming someone doesn't mean anything by a request for supporting logic or evidence except to "diminish a point by asking for layers of proof they themselves would be unwilling to dig for" is the behavior of an intellectually lazy person who wants everybody to believe him or her without offering any reason to do so. If you make "arguments" like that in the TR community, you're likely to find yourself unpleasantly surprised. Many here expect arguments to have some kind of foundation, rather than just taking hand-waving at face value. Your apparent take on how argumentation should work would prohibit you from questioning me if I asserted that the sky is actually a nice shade of pink from exactly 8,254 feet between 12 October and 17 November every year, anywhere on Earth. Mine would respect someone who said "I'm skeptical. Can you provide some evidence to back that up?" Why wouldn't you expect someone making an assertion to offer some kind of evidence? Really, if you are just so intellectually lazy that you are unwilling to provide any support for your assertions, you are the one looking for "an easy cop out."

apotheon
apotheon

There's just a small problem with that explanation as support for government involvement: From the look of it, seatbelts were on their way in, anyway. It doesn't prove that without government we wouldn't all have seatbelts by now at all. It doesn't even suggest it. Consider this: not long ago, Congress was working on a bill that would require all lightbulbs to be replaced with compact fluorescent bulbs. Shortly after that bill stalled in committee, the price of LED bulbs dropped drastically -- not quite to the point where they're competitive with incandescent bulbs, but they're nearly competitive on a per-unit basis with CF bulbs, and will likely get even cheaper. Meanwhile, LED bulbs last much longer, use less energy, and contain fewer polluting materials than CF bulbs. If that bill had passed, LED bulb development would have been set back by years. By the same token, it's possible that we still use three-point belts because of seatbelt standards mandated by law that make research into different -- and better -- systems nearly impossible for the general consumer market. The law is not a scalpel. It is a great big honking sword, and should only be used when there are absolutely no other options. The side-effects of trying to use the law to solve a problem when there might be other options (and especially when the problem may solve itself, as in the case of the fact that public sentiment and industry trends seemed to indicate a move toward ubiquitous seatbelts anyway) are often worse than the effects of doing nothing. I'm perfectly willing to consider evidence that actually suggests we wouldn't have seatbelts in our cars without government interference with the market, as you initially suggested, but so far I haven't seen it.

boomchuck1
boomchuck1

Make it illegal like it is here in Oregon. You still see it some but not nearly as much as before.

boomchuck1
boomchuck1

Yeah, but do you have the original documents stamped by a notary public? Enjoyed your history lesson. Too often posters try to diminish a point by asking for layers of proof they themselves would be unwilling to dig for. Just an easy cop out.

Jaqui
Jaqui

would be the reduction of stupid people. improving the human race. you are he idiot for thinking that killing off idiots is a bad thing. you must love the warning on your coffee cup "caution contents hot" like you bought a hot coffee and it's not going to be hot. riiight. the dumbasses that got burned should have been laughed out of court.

BobP64
BobP64

I find it interesting to see that it's all the UNEMPLOYED people making these inane statements. Maybe that's why you're unemployed. Trust me, I keep tabs on people like this and should you ever interview at my company and show any tendency toward behavior or thoughts like this, you would either not be hired or tossed out in the street so fast you wouldn't even realize you had a job in the first place.

BobP64
BobP64

Yea, just let me know when you get one of those 6" spikes jutting from your steering wheel installed. I'll point the local DRUNK at you and see how YOU like it. I'm surprised that a supposed "professional" would even THINK of such a thing without realizing the potential consequences of such an action. With idiots like you potentially designing physical devices, there's no wonder why there are defects in most everything you buy these days.

dougogd
dougogd

I have been cut off far more times by people talking on the phone than people texting. It seems people get so wrapped up in their phone call they forget how to drive or pay attention to the road. I guaranty that if I end up in an accident by just one of those people I will sell everything I own just to be able to show proof that cell phone use needs to be completely banned in cars. It only takes a couple of minutes to get off the road to take a call people need to start doing that. You get a phone call say I will call you right back pull off the road then call them back. Just remember if i end up in a car accident because you were on the phone I will also sue your phone company. edit to add I don't believe in the spike thing just passing a law to prevent it.

Jaqui
Jaqui

it would only take one such death to make people realize the idiocy of cell phone use while driving.

Juanita Marquez
Juanita Marquez

we had a ban in movie theaters. There is a definite hazard of homicide from those of us who want to strangle movielong yakkers and texters.

Juanita Marquez
Juanita Marquez

Documentation for anything is never an unreasonable request. http://inventors.about.com/library/inventors/bl_seat_belts.htm Seat belts were first invented in the mid 1800's, by that bastion of safety, Volvo. The first US patented seat belt came about in 1885. Electric cars apparently were popular among vehicle drivers at this time through the 1930's. http://www.huffingtonpost.com/2008/06/13/electric-cars-pre-date-ci_n_107001.html Granted, the putt-putts of yesteryear are not the same high-speed death machines we have today, nor were there the autobahns and interstates and traffic congestion, so arguably manufacturers didn't feel the need to include belts at that time, even though they did exist. According to this article, belts were not pushed by the government OR manufacturers - but by concerned physicians and policemen, in the 1930's. http://www.enotes.com/everyday-law-encyclopedia/seat-belt-usage In 1956, Volvo offered lap belts. In 1959, Volvo invented the 3-point lap belt we are familiar with today and made it available in their cars (whether optional or mandatory, I don't know). Apparently they even made the technology available to other manufacturers as well. http://www.dailymail.co.uk/motoring/article-1206112/Clunk-click-trip-The-modest-seatbelt-celebrates-50-years-lifesaving-today.html Around that time, Chrysler and Ford offered lap belts, but they were not standard equipment. They were felt to "detract from the experience of the ride". http://thrive.preventioninstitute.org/traffic_seatbelt.html Consumer advocates, including Ralph Nader and his book "Unsafe At Any Speed", helped bring the hazards of cars to the forefront of the public's consciousness, much like "The Jungle" and Upton Sinclair did with the meatpacking industry in its time.(Preventioninstitute.org link again). These advocates helped push for legislation culminating in the 1966 National Traffic and Motor Vehicle Safety Act, which included a provision for mandatory seat belts in vehicles; not the wearing of them, but the installation. The wearing laws are handled individually by each state. The actual year of enaction of the mandate for the belts came about in 1968. http://en.wikipedia.org/wiki/National_Traffic_and_Motor_Vehicle_Safety_Act In conclusion, seat belts were invented long before cars and streets justified their widespread use, and were occasionally in use for some vehicles, usually at the owner's installation. After concern from physicians, policemen and other public advocates starting in the 1930's, a law to make them a mandatory part of vehicles came about 3 decades later. Three manufacturers made belts an optional component in the late 50's (again, with Volvo, I don't know their specifics for certain if they were optional or came with every car - but they made the tech available to others), even knowing that the lack of the belts would cost lives. The fact that legislation required belts in all cars tells me that belts did not exist in all cars prior to that. As far as the mines, I will have to find documentation for you but for now will simply say I have more information than the average bear on such things and may or may not be able to express it for legal reasons.

Jaqui
Jaqui

a 6" spike jutting from the steering wheel instead of an airbag. guarantee the driver wouldn't let their mind wander from driving. :D no texting. no not paying attention to the road. no aggressive driving. and far fewer accidents.

Jaqui
Jaqui

you do realize that these "safety features" have made it less catastrophic to the occupants of the vehicle when they get into an accident from using their "smart phone" while driving? There should be a mandatory killing feature, guaranteeing the driver dies if they don't pay attention to driving.

apotheon
apotheon

Cars wouldn't have things like seatbelts and mines wouldn't have things like face masks and inspections if it hadn't been for that pesky government forcing safety features on the businesses that didn't want to pay for them. Cite your evidence or present a valid logical argument from premises, please.

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