Apple: iPhone Jailbreak hack violates the law

Apple says hack amounts to copyright infringement; EFF calls that stance absurd.

Hacking an iPhone is against the law, Apple has argued in comments filed with the U.S. Copyright Office.

According to the Electronic Frontier Foundation (EFF), a freedom-of-speech advocacy organization, this is the first public statement from Apple about its legal position on "jailbreaking," the term used to describe hacking an iPhone to install third-party applications not sold via Apple's own App Store.

In comments submitted to the Copyright Office, Apple said jailbreaking was a violation of copyright laws. "Current jailbreak techniques now in widespread use [utilizes] unauthorized modification to the copyrighted bootloader and OS, resulting in infringement of the copyright in those programs," Apple said. The iPhone's bootloader is a small program stored in the phone's non-volatile memory that, as its name implies, loads the device's operating system.

Jailbreaking an iPhone breaks the law, Apple said, because the process relies on pirated copies of the bootloader and operating system.

"Infringing reproductions of those works are created each time they are downloaded through Pwnage Tool and loaded onto the iPhone," said Apple, referring to one of the most popular jailbreaking tools. Created by a group calling themselves the "iPhone Dev Team," Pwnage Tool traces its history to September 2007, when the programmers unlocked the first-generation iPhone.

And iPhone hacking leads to even more piracy, Apple argued. "In addition, the jailbroken OS enabled pirated copies of Apple copyrighted content and other third-party content such as games and applications to play on the iPhone, resulting in further infringing uses of copyrighted works and diminished incentive to create those works in the first place."

Apple's written comments (download PDF) to the Copyright Office were in response to the EFF's request last year for an exemption to the Digital Millennium Copyright Act (DMCA) for cell phone jailbreaking. The EFF, and other technology companies that support it, including Firefox maker Mozilla Corp., want the Copyright Office to let users install applications not available through Apple's App Store on their iPhones without fear of copyright infringement penalties.

On Thursday Fred von Lohmann, the EFF senior staff attorney who is the organization's expert in intellectual property law, blasted Apple.

"Apple justifies [its position] by claiming that opening the iPhone to independently created applications will compromise safety, security, reliability, and swing the doors wide for those who want to run pirated software," said Lohmann in a entry posted to an EFF blog . "If this sounds like FUD [fear, uncertainty and doubt], that's because it is."

Elsewhere, Lohmann called Apple's take on jailbreaking an "absurdity."

"One need only transpose Apple's arguments to the world of automobiles to recognize their absurdity," Lohmann said. "General Motors might tell us that, for our own safety, all servicing should be done by an authorized GM dealer using only genuine GM parts. But we'd never accept this corporate paternalism as a justification for welding every car hood shut and imposing legal liability on car buffs tinkering in their garages."

In the original EFF request (download PDF) for a DCMA exemption, Lohmann argued that "there is no copy-righted rationale for preventing iPhone owners from 'jailbreaking' their phones, enabling them to interoperate with applications lawfully obtained from a source of their own choosing."

For its part, Apple sees the EFF's moves as an attempt to tell it how to run its business. "EFF apparently desires to use the rulemaking process to alter Apple's business practices by negating DCMA protection for technologies that interfere with what the EFF seems to assume would be a more socially desirable business model that is more 'open'," the company said.

"Its arguments really amount to an attack on Apple's business choices," said Apple.

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Gregg Keizer

Computerworld
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