LL&D Law
Jailbreaking your iPhone - Is it legal?

by R. Scott Thompson
6/14/2011 2:25:00 PM


     Before addressing the legality of “jailbreaking,” let me start by explaining it. Apple's iOS operating system for iPhones allows only the installation of software through Apple's own Appstore. All software in the Appstore has been approved for inclusion by Apple. “Jailbreaking” is a process whereby the iOS software is modified to allow installation of software from other sources. Jailbreaking can be dangerous to your phone and will definitely void your warranty with Apple, but many people accept the risk for the benefit of being able to install a wider variety of software.
     Jailbreaking requires modifying Apple's iOS and bootloader (the software that controls what happens when the system boots). Apple has always claimed such modifications violate its copyrights and violate the Digital Millenium Copyright Act's (“DMCA”) prohibition on reverse engineering. However, the Copyright Office revisits its regulations relating to DMCA exemptions every three years and recently addressed this precise issue at the request of the Electronic Frontier Foundation. The Copyright Office found that jailbreaking was fair use and therefore did not violate the DMCA. 
     This does not necessarily mean, however, that jailbreaking is completely legal, just that it does not violate the DMCA. For example, software companies usually take the position that the software you just purchased is not yours. Instead, it still belongs to the software company and you have merely purchased a license to use it. You know those terms and conditions that you are always required to accept before getting any piece of software to work? The ones you never read. That is usually what it says. This issue is still unsettled and could obviously affect the legality of jailbreaking. Moreover, state contract laws could come into play not only because of that license, but because consumers typically enter into agreements with service providers, such as Verizon or AT&T, which can restrict use of their networks to approved devices. A jailbroken iPhone may not qualify.
     In short, jailbreaking has moved closer to legal, but it is still not completely in the clear. Regardless of whether Apple prosecutes jailbreakers, Apple has clearly indicated jailbreaking violates your warranty and, according to Apple, can degrade your user experience. Accordingly, jailbreaking continues to be something you do at your own risk both legally and with respect to preserving your warranty.



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