Your Thoughts: Should Jailbreaking an iPhone be illegal?
Friday, February 13, 2009 at 2:18PM 
Apple is taking its first steps to declaring jailbreaking an iPhone illegal. Essentially their argument is that jailbreaking violates the DMCA (Digital Millennium Copyright Act) due to the reverse-engineering aspect of jailbreaking. Let's sift through this, and establish what we mean by "jailbreak" and "illegal."
As the DMCA is written, Apple is probably right: jailbreaking, that is to say, to circumvent included hardware or software to use the device with apps outside the Apple iTunes universe would most likely be a violation. That doesn't mean it should be though. We're not talking about unlocking. Unlocking, or making your device work on networks it was not intended for is a different ball game. The main reason I can cut Apple some slack on unlocking is the fact that carriers are subsidizing the purchase in many markets. I don't think it is fair (which should be a measure of law, one would think) for AT&T to pay Apple for half the price of a phone for someone to then use that phone elsewhere. That's a discussion for another day.
Some people have floated the idea of a Mac App Store. A one-stop shop for applications for your Mac. Imagine if Apple did that, then only allowed you to buy apps through that store. And, if you bought apps elsewhere, not only would it be frowned upon, but you would be doing something illegal. That doesn't make much sense. Does anyone remember the great cell outage of 2005? You know, the one where the guy ran an unauthorized app on his Palm and the network came crashing down? No? That's because it didn't happen, and it won't happen, and if it could happen, it wouldn't be stopped by the app store. To hide behind this shield of keeping customers and the network safe, is ridiculous.
Innovation comes from open systems. A company basing its OS on UNIX should know that.
That's my opinion. What's yours? Let's have a lively dialog in the comments.
Reader Comments (11)
Apple is fighting a lost cause here. If someone pays full price (unsubsidized) for an iPhone it is their right to do with it as they please. Only thing Apple can do is deny warranty support. Instead of worrying about jailbroken phones they should concentrate on adding many of the sorely missing features such as MMS, video and cut/paste.
You've made a key error here, one that you can't be blamed for as Apple conveniently glosses over an important point: Even the DMCA allows duplication for reverse engineering and interoperability. In other words, you're allowed to tinker with your own device.
Much as they've done for the so-called "clones", Apple's claim is that they can control the circumstances their software is installed, whether the software is legally purchased or not, by specifying these limitations in the EULA. They could also specify that installing Windows will give you leprosy and the W was the "Best Pres Ever!" -- it does not make it true, OR enforceable.
It's my phone, Apple -- back off.
Easy... Absolutely Not.
I jailbroke both of my iPhones, 3G and 2.5G, just a couple of weeks ago for the one and only purpose of using UAFaker. Now I really can use “just the internet” just like apple promised in their commercial. I have since loaded a couple of nice themes to use and a couple of apps that make the iPhone… MyPhone. My only regret about jailbreaking is I really wish I would have done it sooner instead of waiting around hoping that steve jobs and friends would eventually get around to fleshing out the iPhone’s OS. Can you say “cut and paste” steve? Because I can, it’s called Clippy and MyPhone can now cut and paste any text anywhere there is a keyboard, and that includes internet pages.
If they don’t want me using Clippy, they can go into MY phone and delete it any time they want to… oh wait, I disabled that “feature” with a jailbroken app so now they can’t. Sorry.
If a(ss)pp(ho)le says jailbreaking is illegal, fine, come and get me. I’ll even turn my GPS on (turn by turn navigation is coming out at the end of February for jailbroken phones by the way) so once they pull their collective heads out of whatever orifice they’re stuck up it’ll be easier for them to find me!
Fight the power!
The author and five previous comenters here all miss some important subtleties of the matter. The author makes the invalid "straw man" argument "What if the did this for Mac apps?" Not only is it too late for that, but if Apple tried the obvious would happen -- they'd go out of business because their platform wouldn't be popular enough to be sustainable. The market for computers is different than the market for mobile phones. Until Apple, there were NO mobile phones that competed on the basis of the "apps" that were available.
The author (ryanrit?) further states (incorrectly in my opinion) that "innovation comes from open systems." Virtually zero innovations come from open systems. Almost all innovation comes from protected, proprietary invention—that's the whole point of copyright and patent protection. The section of the US Constitution that established these provisions begins, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Jamie misses the point because (he?) is only correct about the hardware and forgets about the software. As far as hardware goes, you can do whatever you like—smash it, blend it, dip it in chocolate, whatever—and Apple's only remedy is to deny warranty service. But the DMCA isn't about hardware, it's about software. Apple doesn't sell you any software. The just give you permission, via the license agreement, to use the software included with the device in the manners in which they approve. A license agreement says, in effect, "you can use our stuff, but only in these ways." Since Apple still owns the software they include on the device, it is not, in fact, "yours" to do with as you like.
John Halbig likewise makes an oversight when he says, "Even the DMCA allows duplication for reverse engineering and interoperability." The DCMA allows one to do their own tinkering, but does not allow anyone to do the tinkering for you, or to provide tools for others to do that tinkering. So while jailbreaking your own phone from scratch might not violate the DCMA creating, distributing or using a tool created by one person to jailbreak another person's phone is definitely a DCMA violation. (Note: "Not violating the DCMA" is NOT the same thing as "legal." It's entirely possible that an act excluded from the DCMA could violate other laws.) John further talks about "whether the software is legally purchased or not," but in fact no software has been sold legally or otherwise and Apple is very, very clear about that.
"digital dad" is a little vague with his "Absolutely not" comment, so I'll let that one slide for now.
The Digital Alchemist claims he jailbroke both of his phones recently, but I'll be he didn't do that on his own without using tools created by someone else. I think it's that "someone else" that Apple is really concerned about.
Jamie's final comment (before this one, anyway) "Fight the power!" is also a little misguided. Laws are enforced by the government, which is supposed to be "for the people, by the people, and of the people." We shouldn't FIGHT the power, we should BE the power. If you believe—like I do—that the DCMA is a bad law, think about that for a while. How could it be improved while still giving companies an incentive to create great, innovative products? How should someone be rewarded for doing something new, if others are allowed to copy or modify that work as they see fit? If you have an idea you think should be considered, write to your US Congressman and Senators. Involve people in the discussion. Get attention.
Just saying "F... the man!" and turning your back is how these bad laws get passed in the first place. The people they benefit sure do their research and make their voices heard, and so should you.
Bob
Bob,
Thanks for your comment. The end has me a bit confused though. You are agreeing that the DMCA is a bad law. Are you saying The Digital Alchemist should be free to use tools from others to jailbreak his phone, although currently that's not allowed, or are you referring to other portions of the law? I agree with you on patents and copyrights, and that's precisely why they exist, and why there isn't a need for the extra layer appended by the DMCA. Plenty of industries have done just fine operating under the patent and copyright system. Pharmaceuticals, or automobile industries, for instance. While digital devices and content offer their own challenges, let's not make them seem more wildly different than they are: People should not copy Apple code for profit, or to hurt Apple profit. If anything, jailbreaking an iPhone offers a larger opportunity for Apple to profit from people using the phone in novel and new ways. Hiding behind the DMCA to thwart competition, and to keep you from having to make a better device: a jailbroken phone can record video, but the quality is bad. You can choose to make a better quality cam, or hide behind the DMCA and say, hey you can't do that unless we say you can!
Hi uh, "ryanrit",
I think the DCMA is over-reaching in general; this discussion is only about one small piece of it. I do think that it's "fair" however, for the creator of something to decide the terms upon which he's willing to make it available to others. If that were not the case there would be no incentive to make those things available at all; anyone could copy the invention without having to worry about the time or cost of development.
Intangible assets ARE wildly different from tangible ones. There's really very little similarity, in fact, which is why all those crazy "what if Apple or Microsoft made cars" analogies are ridiculous. Tangible assets require physical materials and processes to duplicate, which entail costs. Intangible assets, particularly digital assets, require virtually nothing to duplicate. Compare the costs of copying someone's motor design to produce counterfeit motors versus the cost of duplicating, say, Adobe Creative Suite. I can purchase a motor for about the same price as the full CS4 suite, but I can transmit CS4 to a friend across the country for nothing (retaining my copy). It would cost me thousands (perhaps millions, if I need to invest in a plant) to duplicate the motor.
You say that "People should not copy Apple code for profit, or to hurt Apple profit." Jailbreaking DOES hurt Apple's profit. Every time someone installs a "jailbroken" application instead of one from the App store, Apple loses it's cut of the profit. When people talk about applications that are only available for Jailbroken phones, that diminishes the perceived value of the App store. To the extent that developers are willing to make applications available outside of the App store, that reduces Apple's ability to capitalize on the features of the phone, and reduces the incentive of developers to sell through Apple instead. It's impossible to argue both that inventors should be able to control their inventions and also to say that others should be allowed to freely modify and/or redistribute them.
Notice that nobody is developing software to REPLACE what's on the iPhone. No one is writing their own OS for the device in place of what Apple is providing. All the hacks and jailbroken programs that exist still rely on making use of someone else's property (the Apple code) for their own means. Jailbreaking does not offer Apple additional benefits, it reduces Apple's ability to profit from the work they've already done.
You mention "hiding behind the DMCA to thwart competition," but that's ridiculous as well. The reason that copyright suits (including DCMA suits) cite "unfair competition" against the defendant is because it's INHERENTLY unfair that the defendant freely make use of all the work and expense that the copyright holder put into creating the work in the first place. How is it in any way "fair" that someone who modify's Apple's (or anyone else's -- Apple is merely the example here, not the basis of the argument) code not have to pay back any of the millions of dollars of expense or years of work that it took to create the original code? These derivative works would not be possible without the innovative work of the original product, which was created at the time and expense of the creator.
There's no such thing as "hiding behind" Copyright law. You either believe in the right to own individual property, or you don't. If you can't control the property you own, then you don't really own it in the first place.
@Bob,
But your last line sums it up; "If you can't control the property you own, then you don't really own it in the first place." My understanding (and maybe someone more technical can chime in) of why we don't hear of another OS on the iPhone is there's simply not a way to get it on there in a user-friendly fashion. I can purchase a Mac, and choose to put Windows or Linux on it. I own it. While I agree with you on the challenges of piracy of digital assets, the iPhone itself is hardware, but it's hardware that's being crippled, or having its feature set selected by Apple via their software choices. If Apple were to say, here's Boot Camp for the iPhone, put whatever OS on it you wish, but if you use ours these are our rules, I would be fine with that. I think the car analogies (which are overdone, yes) are correct in so much as once I buy the car, anyone can drive it, and they can drive it anywhere they want. No one says I shouldn't be able to drive to Pep Boys and buy a different oil filter because somehow that isn't fair to Ford since they built the car and offer their own filter. "If you can't control the property you own, then you don't really own it in the first place."
>Almost all innovation comes from protected, proprietary invention
Bob, this ruined your entire argument! The most significant advances of the computer age have come about via open source innovation. I'll just give you two (out of dozens) of examples:
WWW
Linux
Bob,
If you want to get into semantics, I made no “claim” that I jailbroke my phones recently, I did. However, I didn’t specify how or who did it for me… it is you who made the assumption that I used a third party application. All that aside, the only reason I finally resorted to jailbreaking (I feel a better term would be “fixing” my phone instead of jail”breaking” because you can’t break something if it is already broken) was to get “just the internet”. Isn’t that what one of their commercials promised? If I had known that was all just propaganda from a company that was supposed to be reputable, I may well have purchased a different phone from the start.