Earlier this week, the Library of Congress in the United States ruled that it’s entirely legal to jailbreak your iPhone. But what about the UK? Is it legal for us Brits to jailbreak our iPhones?
An investigation by Duncan Geere
Since the device’s earliest days, users who chafed at Apple’s draconian device restrictions have hacked their handsets to enable extra functionality, like access to 3rd party app stores with content that Apple refused to approve. Apple had claimed the process was illegal under copyright law.
But now an exemption has been created in the US that allows the legal breaking of DRM for: “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.”
The US Copyright Office explained the ruling by adding: “The user is not engaging in any commercial exploitation of the firmware. At least not when the jail-breaking is done for the user’s own private use of the device.”
Apple, for its part, has sniffily responded to Cult of Mac, saying: “Apple’s goal has always been to insure that our customers have a great experience with their iPhone and we know that jailbreaking can severely degrade the experience. As we’ve said before, the vast majority of customers do not jailbreak their iPhones as this can violate the warranty and can cause the iPhone to become unstable and not work reliably.”
So what about Britain? Over here we have a far more tangled set of rules and regulations, thanks to the intervention of the European Union. The relevant EU directive essentially says that breaking “technical protection” (i.e. DRM) on software is fine, as long as you’re not doing it for the purposes of infringing copyright (i.e. playing pirated games).
But that’s Europe. In the UK, we have to ratify all of these EU directives before they become law, so the British lawmakers transposed the EU directive into British law, in the “Copyright and Related Rights Regulations 2003“. That says essentially the same thing — that it’s okay to break these “technical measures” for interoperability reasons, but not for the purposes of infringing copyright.
The difficult bit comes when you try and interpret “interoperability”. I spoke to Andres Guadamuz, a lecturer in IT law at the University of Edinburgh, who pointed out that there haven’t been any test cases to set any legal precedent in the UK.
While there have been two cases of a ruling against people selling the tools to hack videogame consoles, these were predicated on the basis that the primary motivation to do so is to play pirated games. A similar, more recent, ruling outlawed so-called “R4 cards” in Britain, which are frequently used to play pirated Nintendo DS games.
But while piracy can be accomplished by jailbreaking an iPhone, the majority of people don’t jailbreak for that reason. They jailbreak so they can get access to software created by third parties that Apple hasn’t, or won’t, put in its own app store. They jailbreak so they get more access to the device’s hardware, and use it in different ways. They jailbreak because they don’t want Apple’s controlling hands on everything that they do on their device.
That’s where the interoperability aspect of the law comes in. “The interoperation is between (third party) software and the iPhone’s hardware,” says Guadamuz. That’s the very argument that the US bought into when it was ruled acceptable, and while US law doesn’t set legal precedence in Britain, there have been a few cases of complex technical software law where US rulings could have been said to have influenced the result.
Guadamuz added the example of a company who reverse-engineered their competitors’ products, breaking “technical measures” in the process, being found not guilty of copyright infringement because they didn’t copy the code verbatim into their products. Unfortunately, Guadamuz said, they also copied several pages of their competitors product manuals, so they were found guilty of that instead.
So while the matter can’t be totally settled until there’s a test case — something Apple has long avoided — Guadamuz says he’d be very surprised if hacker went down for jailbreaking an iPhone. “Although you might be breaking Apple’s terms and conditions and voiding your warranty, I just can’t see how a judge would rule against it.”