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Welcome to the website of the Internet and Intellectual Property Justice Clinic, a University of San Francisco School of Law clinical program that provides legal assistance to parties in intellectual property matters. For more information, see the "About Us" page.

Our website includes commentary from our students on cutting-edge internet law and intellectual property topics. Those posts are listed below, and more are archived under "Pages" on the right. Enjoy!

iPhone Jailbreaking and the DMCA

By Sinny T.

   The Digital Millennium Copyright Act (DMCA) was originally enacted to prohibit “circumvention” of digital rights management and “other technical protection measures” used to protect and control access to copyrighted works. The DMCA has since cast a wide net to protect copyrighted material even when the use of the copyright materials arguably may be permissible under fair use guidelines.

   In order to curtail DMCA’s overly restrictive implications, the DMCA provides that the Library of Congress possesses the power to define exceptions under the DMCA for legitimate, non-infringing uses of copyrighted material. Pursuant to this power the Librarian of Congress has recently issued a public statement declaring that it was legal to bypass a cell phone’s operating system (particularly iPhone) on the particular software it will run to get “lawfully obtained” programs to operate.

   Apple, Inc. has maintained tight control over the types of programs allowed to run on the iPhone, namely, applications (a.k.a. Apps) pre-approved by Apple and which only could be purchased through the App Store. But, with the Library of Congress’ new ruling, Apple’s ability to police and prohibit jailbroken iPhones has vanished. A jailbroken iphone allows the user to bypass the restriction Apple places on iPhones to only allow the installation of applications from the App Store.

   Here’s how the argument had developed over this issue between Apple and “jailbreakers”:

   Apple argues that it has the right to control the software on its devices and jailbroken, altered phones infringes upon Apple’s copyright for Apple’s operating system. Apple further argues that altering the phone encourages pirated applications, exposes iPhones to security risks, and hampers the user’s overall iPhone experience.

   Jailbreaking proponents, however, argue that users should be allowed to customize their phones as they see fit and to have freedom to use features or programs that fall outside of the App Store. Furthermore, allowing this ability to customize phones will in fact bolster iPhone sales and appeal when Apple would not have such a restrictive grip over its products and application store.

   The current Library of Congress ruling allows jailbreaking iPhone users a big sigh of relief as to fear of prosecution.  The ruling also alleviates any concerns about bringing a jailbroken iPhone into the Apple Store for repair or analysis. 

   Although negative publicity over the leak of a secret phone prototype and iPhone 4 antenna problems have chipped away Apple’s iron control over its products, sales figures have not been impacted. Consumers continue to purchase Apple products regardless of any government ruling or unsavory publicity.

   The Library of Congress exception has also allowed artists to remix copyright-protected video content for noncommercial work, and renewed its approval for cellphone owners to “unlock” their devices in order to allow its operation under other wireless carriers.