The Battle for Legal iPhone Jailbreaking Begins

We wrote earlier that Apple has called jailbreaking "illegal." At the same time, however, the Electronic Frontier Foundation (EFF) has filed comments with the Copyright Office asking for an exemption to the DMCA so that cell phone owners can unlock their phones (their "Free Your Phone" campaign), as well as be able to legally "jailbreak" their iPhones.

On Friday, the Copyright Office held the first of its hearings in the triennial exemption process. Scheduled to appear was Apple Vice President of iPod and iPhone Product Marketing Greg Joswiak. Why is Apple's interest so heightened this time?

While obviously Apple is less concerned with DRM nowadays, having removed it from the iTunes Store, this year, the Electronic Frontier Foundation has submitted three requests for exemption, one of which might seriously impact Apple's cash cow: the iPhone.

The three proposed by the EFF:

• A DMCA exemption for cell phone "jailbreaking" -- liberating iPhones and other handsets to run applications from sources other than those approved by the phone maker. More than a million iPhone owners have "jailbroken" their iPhones in order to use applications obtained from sources other than Apple's own iTunes "App Store." Apple has taken the position that any modification of an iPhone's software to enable the use of applications from other sources violates the DMCA.

• Renewal of the 2006 exemption for unlocking cell phones so that the handsets can be used with any telecommunications carrier. Several carriers have threatened cell phone unlockers with legal action under the DMCA, even though there is no copyright infringement involved in the unlocking. The digital locks on cell phones, however, make it harder to resell, reuse, or recycle the handset.

• An exemption for amateur creators who use clips from DVDs in order to create noncommercial, noninfringing videos. Hollywood takes the view that "ripping" DVDs is always a violation of the DMCA, no matter the purpose. The growing popularity of sites like YouTube and creative practices like vidding, however, make it clear that the future of "remix culture" depends on being able to take digital clips from existing material, including DVDs.

Of course, hackers have been jailbreaking the iPhone for years, and they've already promised that the iPhone OS 3.0 is jailbreakable. It's not as though Apple has sued anyone over jailbreaking the iPhone, yet, but it's possible, and that's what the EFF exemption hopes to head off. Apple keeps the iPhone very closed, and only allows applications on the phone that it approves. And the approval process is pretty much secret, with Apple not giving any details into it, although it's been clear from decisions on apps that anything the company feels competes with its own products will be banned.

And it's the ability to run whatever they want to run on the iPhone and iPod touch that makes users lean toward jailbreaking. EFF attorney Fred von Lohmann said in an email:

"When an iPhone owner jailbreaks her iPhone, no copyrights are infringed. Granting an exemption will not reduce the availability of iPhone firmware or apps -- in fact, it's likely to increase the availability of both, by creating a more competitive, vibrant, consumer-driven marketplace."

Right, and many would love that, but Apple wants strict control over what does and does not appear on the iPhone, and that's going to make it lobby hard against this exemption. More to come, obviously, as the hearings continue.