EFF Attorney Talks About The Legality of Jailbreaking

By , Feb 6, 2012

Last month, we told you about the danger of jailbreaking becoming a “legal violation” again this year. Two years ago, the US government ruled that the act of jailbreaking was legal. But that ruling could expire this year if it isn’t renewed.

Leading the fight to keep jailbreaking legal is the EFF (Electronic Frontier Foundation). And Gizmodo recently had a chance to sit down and talk with one of the foundation’s staff lawyers, Mitch Stolz, about the whole matter…

Why is the debate over the legality of jailbreaking suddenly in the news again?

The Digital Millennium Copyright Act has an exemptions process. The Library of Congress every three years makes exemptions to the law. Those have to be renewed, so we’re coming up on the next cycle. In the last cycle, the EFF asked for an exemption that you can jailbreak a smartphone that you own, to run your own software on it, so that wouldn’t be a violation of the Digital Millennium Copyright Act, section 1201.

Is this a tricky area in terms of interpreting the Digital Millennium Copyright Act?

It’s not clear at all. What is clear is that device manufacturers have used the DMCA specifically to enforce incompatibility with third-party products. Sometimes the courts have allowed that and sometimes they haven’t. In those cases it’s used as a way to shut out competition.

The ultime question here, then, is what kind of rights, if any, do the hardware manufacturers have over the hardware once it’s sold to you?

That’s a big question. They can have rights that come from contracts. Say you buy a smartphone from a carrier that says what you can and can’t do with the phone. I don’t know if you want me to get into whether those sort of rights are a good thing or not, but if you look at the issue at hand it is exactly that. It gets into the rights of a hardware manufacturer and the owner of a piece of hardware, which are sort of negative rights. They aren’t stated necessarily in the law, but they’re things we all understand. We see comments that people have posted to the Copyright Office in support of our requests on jailbreaking, and over and over the analogy that they’re making is to a car — that to prevent jailbreaking is like welding the hood shut on a car to legally prevent you from modifying a car that you own and that just strikes a lot of people as absurd.”

If you haven’t left a comment on the Copyright Office’s comment board, we encourage you to do so. Remember to note that you are in favor of jailbreaking smartphones and tablets (the EFF is also fight for jailbreaking game consoles), and state why you think the act of jailbreaking should remain legal.

The comment board closes February 10th, and hearings for the proposed DMCA exemptions are expected to start sometime this Spring. We’ll keep you updated on the EFF’s progress.

Have you left a comment yet?

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  • jose castro

    i agree with them, If you buy something like a car its your to do as you plz. And it should be the same with phones and other things you buy. If you own them, then you should do what you want with the item. thats how it should of bin a in the first place.

  • http://www.facebook.com/randle1 Phil Randle

    I think Jailbreaking should remain legal, I know why Apple is against it, and it is simply to protect their appstore, I think rather then fight jail breaking, improve DRM and Security on its appstore applications.

    I don’t use Installous or anything now, I think the only app I have ever pirated is TomTom, and then I found out how brilliant it runs on the iPhone and bought it anyway so I could use HD Traffic.

    Most people who aren’t in the know, view jail breaking as app piracy, rather then the innovation that it is, half of the iOS features we have now, I know we wouldn’t have had if it wasn’t for Jailbreaking. I don’t think I could live without Intelliscreen X now, it has become a main stay in my day to day use of my iPhone. I barely unlock it at all!

    • Anonymous

      the reason Apple doesn’t encourage it is because of the experience. The iPhone is supposed to be a very sleek and smooth user experience. Jailbreaking can mess this up. If some n00b gets a bunch of really sketchy cracked tweaks, these can mess the device up. Apple then has to take the blame for allowing/encouraging it.

      tl;dr- Apple doesn’t want to get sued if someone messes something up.

      • http://twitter.com/vantheman169 vantheman420

        Like Apple is afraid of the LEGAL System, HA! The great thing about jailbreaking and if some “n00b” messes up their iPhone, there is this program i think its called iTunes (#sarcasm) and can restore it to factory condition at anytime.

      • jose castro

        not even the reason dude(Purple112)

      • http://www.facebook.com/SpideyRules Scott Curry

        You are SUPER backwards on this one. The reason Apple doesn’t want jailbreaking to occur (Again, this is speculation. I haven’t personally talked to Tim) is so they can have more control over the device and ensure it is used ONLY in the way they want end users to use the device. Apple would NEVER have to accept ANY responsibility for any damage theft loss of information that would occur from anything relating to a device being jailbroken. Jailbreaking is a user’s choice, and therefor the user accepts ALL consequences inherent to it.

      • http://twitter.com/desaintpreux Highlander

        The real reason is $.
        For every dollar you spend on cydia, apple gets NOTHING!
        That is it.

  • http://www.facebook.com/people/Ronaldo-Alves-Borges/100001394131178 Ronaldo Alves Borges

    I’m in in favor of jailbreaking smartphones and tablets.This is my phone, and my tablet and JAILBREAK It is the best Way for Technologie and freedom.

    ****************************KEEP JAILBREAK FREE AND LEGAL****************************************

  • http://www.facebook.com/people/Ronaldo-Alves-Borges/100001394131178 Ronaldo Alves Borges

    I’m in in favor of jailbreaking smart phones and tablets.This is my phone, and my tablet and JAILBREAK It is the best Way for Technologie and freedom.

    ****************************KEEP JAILBREAK FREE AND LEGAL****************************************

  • Cloudi Windi

    Everything is cracked nowadays even softwares of the computer, how come the phone could not be cracked. Jailbreaking is FOREVER LEGAL.

    • http://www.facebook.com/SpideyRules Scott Curry

      This is one of the dumbest arguments I’ve heard for jailbreaking in a long time. You’re comparing it to software piracy, which is, in fact, illegal.

      And please go take Remedial English at your local community college.

      • Cloudi Windi

        I know that software cracking is illegal, but it still keep going and why jailbreaking shouldn’t keep going.
        And in my opinion if jailbreak will no longer allow, maybe 50% of the iDevice user will be gone.