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  • Why Jailbreak Matters, and What Jailbreak Isn't


    The Copyright Office and Librarian of Congress today officially sanctioned jailbreaking the iPhone, and while they were at it also put their pen to paper approving unlocking the device. Apple originally weighed in on this issue in February of 2009.

    I've been reading the various news coverage (including ours) around this story, and it seems a good idea to define why jailbreaking is important, why the government agrees, and what jailbreaking isn't. This article will be on the long side, as I'd like to address the point fairly fully.

    At the end of the article I'll reference some of the big points from the official filing. But let's get back to the original question - why does jailbreak matter?

    Running ModMyi.com, my daily conversations with people (frickin' EVERYONE has an iPhone) always wind up turning to jailbreak, and there's the single inevitable question - "well why should I jailbreak?" A lot of "apps" come up - MyWi, WinterBoard, Notifier, Intelliscreen, SBSettings... which is what they're usually asking. Those are reasons TO jailbreak, though, not reasons FOR jailbreak to be legal and important. To answer that question, we need to take a look at what jailbreaking is.

    At it's core, jailbreaking is not an app, it's not Cydia, it's one simple thing - having unrestricted write access to your device. In more technical terms, it's having root access. In the Android scene, it's actually called rooting your device.

    So what's the big deal you ask? Maybe you're not a hacker, or even a "hobbyist" or "enthusiast" - that's fine. Maybe you don't care about having any access at all to your device - it does everything you need already. You don't want to jailbreak, and you never will. That's fine, and for many, true. My iPhone 4 isn't jailbroken yet, and it's been handling itself great - of course there's tons of jailbreak apps I miss (Notifier, Tlert, MyWi, WinterBoard, iFile, and OpenSSH/SSL being some of the biggest). But if I /want/ to modify my device, which I have purchased and own outright, for completely legal activities, enhancing the original purpose of the device (a "smartphone") - it should be legal. Whether I do so or not should remain wholly my choice.

    This precedent is in nearly every computer or "smart" gadget on the market. When you go down to Best Buy and purchase Sony or Toshiba's latest laptop, the Best Buy people don't tell you "now this has Windows, you can install any program Microsoft sells through their store here. Anything else is illegal." Or from Sony/Toshiba/whomever's store. You're free to install any Windows-compatible app you'd like to. You're not infringing any copyright by installing third-party software on your computer, you're simply installing third-party software. The same can be said even of Apple's desktop/laptop operating system, OS X. There is none of this "purchasing software from anywhere but us is illegal" talk anywhere but in the iOS field. Heck, you can even put programs on your Texas Instruments graphing calculator. (EDIT: comex tells me TI calcs now have signing keys... sigh).

    Many people seem to associate "jailbreaking" with "iPhone piracy." This is a flawed view. Piracy IS illegal, has been clearly defined as such legally for years, and is not at all synonymous with jailbreaking. Take ModMyi.com as a case study - we have over 675,000 members, the vast majority of whom have jailbroken one or more iDevices, and we strictly forbid any talk, linking, or mention of pirated apps. I personally have had a jailbroken iPhone longer than nearly anyone here (ModMyi actually created the first ever iPhone "theme"), and I have never pirated an iPhone app. It has always been our standpoint piracy is 100% illegal, and is rude on top of that. Devs spend days and weeks building $2 and $5 apps - if you want them enough to install them, you should pay for them.

    Another false argument many people seem to use to argue against jailbreaking is security. I've seen comments all over opposing jailbreak by saying "well these sort of things can bring down a cell network." Or "what if they install a virus." Those activities are also illegal. In fact, any hacker who has root access to an iPhone also has (just as every single one of us does, out of the box) root access to any Mac they purchase, and could do just as much damage from their laptop as they could from an iPhone. More, perhaps. Restricting access to ALL third party software is not a valid security tactic, and in any other OS would be laughable - building a more secure OS is the answer. The only reason it's been questionable this long with the iPhone is a mobile operating system this capable and robust has never been this widespread. We're in new territory. If Microsoft were to suddenly require all programs in Windows to be purchased/sold ONLY through Micorosoft's own fully independent arbitrary storefront, pundits would be up in arms.

    The App Store is a thriving market, and while it's profitability may not be as high as you think, the App Store is a huge driver of hardware sales, which contribute largely to Apple's record profits and revenues, including the $3.25 billion in profit they had this past quarter of $15.7 billion in revenue. You would think Apple would see jailbreaking as a continued push for hardware sales (their highest profit) rather than a threat to it. Even aside from that, jailbreaking and third-party apps can co-exist peacefully with the App Store just as well as the version of Coda I purchased directly from Panic works fine side by side with the version of iLife I purchased through Apple.

    I stress again - illegal activity done by means of jailbreak is and should be just as illegal and prosecutable as illegal activity done from ANY device, including one's laptop/desktop. This has never been put in question, and to equate the two is to speak ignorantly.

    I'll pull some content from the official ruling below. What's your take on this?


    Here's Apple's argument to the government against the jailbreaking case (from the .pdf linked to here under "For the full rulemaking order:"):

    Apple responded that jailbreaking by purchasers of the iPhone is a violation of the prohibition against circumvention of access controls. It stated that its validation system is necessary to protect consumers and Apple from harm. Apple further contended that modifying Apple's operating system constituted the creation of an infringing derivative work. Specifically, Apple argued that because purchasers of an iPhone are licensees, not owners, of the computer programs contained on the iPhone, Section 117 of the Copyright Act is inapplicable as an exemption to the adaptation right. Apple further argued that the fair use defense codified in 107 would not apply to jailbreaking activity under the statutory factors.

    Based on the record, the Register has determined that the encryption and authentication processes on the iPhone's computer programs are technological measures that control access to the copyrighted work (the firmware) for purposes of 1201(a)(1). Moreover, the Register finds that the evidence supports the contention that a technological protection measure is adversely affecting adding applications to the iPhone. The critical question is whether jailbreaking an iPhone in order to add applications to the phone constitutes a noninfringing use.
    There's quite a lot of content in the official ruling, but when we get to the meat of the ruling, it's this:

    Under the first factor in Section 107, it appears fair to say that the purpose and character of the modification of the operating system is to engage in a private, noncommercial use intended to add functionality to a device owned by the person making the modification, albeit beyond what Apple has determined to be acceptable. The user is not engaging in any commercial exploitation of the firmware, at least not when the jailbreaking is done for the user's own private use of the device.

    The fact that the person engaging in jailbreaking is doing so in order to use Apple's firmware on the device that it was designed to operate, which the jailbreaking user owns, and to use it for precisely the purpose for which it was designed (but for the fact that it has been modified to run applications not approved by Apple) favors a finding that the purpose and character of the use is innocuous at worst and beneficial at best. Apple's objections to the installation and use of unapproved applications appears to have nothing to do with its interests as the owner of copyrights in the computer programs embodied in the iPhone, and running the unapproved applications has no adverse effect on those interests. Rather, Apple's objections relate to its interests as a manufacturer and distributor of a device, the iPhone.

    Moreover, Congress has determined that reverse engineering for the purpose of making computer programs interoperable is desirable when certain conditions are met, and has crafted a specific exemption from Section 1201(a)'s prohibition on circumvention in such cases. While an iPhone owner who jailbreaks does not fall within the four corners of the statutory exemption in Section 1201(f), the fact that he or she is engaging in jailbreaking in order to make the iPhone's firmware interoperable with an application specially created for the iPhone suggests that the purpose and character of the use are favored.

    Turning to the second fair use factor, it is customary for operating systems functional works to enable third party programs to interoperate with them. It does not and should not infringe any of the exclusive rights of the copyright owner to run an application program on a computer over the objections of the owner of the copyright in the computer's operating system. Thus, if Apple sought to restrict the computer programs that could be run on its computers, there would be no basis for copyright law to assist Apple in protecting its restrictive business model. The second factor decisively favors a finding of fair use.

    Turning to the third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, EFF admitted that because the Apple firmware is necessary in order to operate the iPhone, it is necessary for individuals who jailbreak their phones to reuse the vast majority of the original firmware. However, the amount of the copyrighted work modified in a typical jailbreaking scenario is fewer than 50 bytes of code out of more than 8 million bytes, or approximately 1/160,000 of the copyrighted work as a whole. Where the alleged infringement consists of the making of an unauthorized derivative work, and the only modifications are so de minimis, the fact that iPhone users are using almost the entire iPhone firmware for the purpose for which it was provided to them by Apple undermines the significance of this factor. While the third factor arguably disfavors a fair use finding, the weight to be given to it under the circumstances is slight.

    Addressing the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, EFF asserted that the firmware has no independent economic value, pointing out that the iPhone firmware is not sold separately, but is simply included when one purchases an iPhone. EFF also argued that the ability to lawfully jailbreak a phone will increase, not decrease, overall sales of the phones because users will know that by jailbreaking, they can take advantage of a wider array of third party applications.

    Apple responded that unauthorized uses diminish the value of the copyrighted works to Apple. However, Apple is not concerned that the practice of jailbreaking will displace sales of its firmware or of iPhones; indeed, since one cannot engage in that practice unless one has acquired an iPhone, it would be difficult to make that argument. Rather, the harm that Apple fears is harm to its reputation. Apple is concerned that jailbreaking will breach the integrity of the iPhone's ecosystem. The Register concludes that such alleged adverse effects are not in the nature of the harm that the fourth fair use factor is intended to address.
    (NOTE: on 7/27/10 1:57 PM this article was edited slightly, purely for grammatical reasons)
    This article was originally published in forum thread: Why Jailbreak Matters, and What Jailbreak Isn't started by Kyle Matthews View original post
    Comments 123 Comments
    1. macsoldier's Avatar
      macsoldier -
      I can see where people are frustrated with Apple, especially when they said we are pretty much paying to use there stuff. Heres the opinion from an average guy, First for Apple to come out on top of things I would get ahold of the jail breaking community and have a press release or something to work with the dev teams and the developers out there to enhance jail breaking. At the same time Apple will have a little bit more control over the jail breaking and be able to monitor what is in and what is out with jail breaking. There is money to be made in jail breaking and Apple loves two things money and control. I just see it benefiting both sides if Apple was to help with the jail breaking community, And like they said it would increase the sale of phones. At the same time Apple isn't really concerned about all of this due to the fact they cant even keep up with supply and demand. I've found the jail breaking community a friendly one at most times, people helping me day in and day out with newb questions and giving me advice on how to start theming. Overall I think there will be a huge benefit to Apple and the Jailbreak if they where to team up, will we ever see it probably not. I know the jail breaking community is great on its own and will keep expanding, ANy ideas on what Apples next step is or are they going to sit on this one? An average opinion from an average guy
    1. KartRacer's Avatar
      KartRacer -
      Apple is against jailbreaking because it exposes what the phone is capable of. That simple.

      Want to send a file to someone over Bluetooth? Nope. Apple would rather you email it, preferably through MobileMe, to that person.

      Want to send someone a picture message on an original iPhone? Sorry. Gotta buy new hardware.

      They are against it because they've become the new oppressor. What you want it irrelevant, they'll tell you what you want and what you can have. Apple and Steve Jobs have become exactly what they hated, The Man. Nothing would be sweeter than to see the Realization by the masses that the Emperor has no clothes. Finally the media is catching on that these assholes have turned into what they once hated and can see that they are in fact becoming the enemy to the people that by their products.
    1. Jay316's Avatar
      Jay316 -
      I completely agree with jailbreaking, as the article says, when you buy an iPhone you own it, its the same with a car, if you want to modify it then it is yours to do with it whatever you like. One question though, why does jailbreaking an iPhone allow users to install AppStore Apps for free? don't get me wrong, I love the fact I can get games for free, and Cydia is a fantastic way for devs to release apps for functional purposes e.g. Winterboard and iBlueNova to name two.

      Btw, referencing the above comment. My first gen iPhone would do more than 3G e.g. MMS and fully functional bluetooth, so I agree with you 100%
    1. ctstiffler's Avatar
      ctstiffler -
      Great read! Finally people with actual power take up for the people putting in the work to make YOUR device truly YOUR device. Jailbreak = freedom from apples Death Grip on YOUR purchased phone!
    1. peu's Avatar
      peu -
      Quote Originally Posted by sziklassy View Post
      I would like to add, that for all intents and purposes MyWi should not really be considered legal. I mean it is literally used to get around paying for a certain service. Don't get me wrong, I don't condone paying 20 bucks a month to ATT just to use my bandwidth on my phone a different way, but it should be said that on paper, it is quick probably illegal, and in my opinion, should not be listed as reasons to jailbreak.
      You are making a common mistake, mixing fair use with commercial interests, its in the commercial interest of ATT to charge you extra for bandwidth used for other devices, but, they are not giving you that bandwidth for free, they are charging you.
      So its the same as jailbreaking the device: its yours (its your bandwidth paid month by month), you can jailbreak it (you can use bandwidth for whatever you want) I think you know the drill...

      And on an unrelated view of things:

      what would happen now that is not illegal to jailbreak, if one appears with a problem at a genius bar with a jailbroken device?

      Will they refuse service?
    1. shaquk's Avatar
      shaquk -
      Quote Originally Posted by wcbardwell View Post
      Very nicely put... Great article! Maybe one day, when pigs fly over the frozen lakes of fire in the depths of a sub-zero hell, we can get a factory unlock when our contract is up... Probably never happen, but might be nice... Especially for all those people who hate AT&T.
      Hi, actually in the UK, you can get a factory unlock if you got a pay as you go iPhone (after your initial data contract is up) or even an unlock if your normal contract is up.

      Apple even sells factory unlocked iphones here, as since last year we have more than just one network provider selling iphones (3 more joined this summer).

      I ordered a factory unlocked iphone 4 from apple so that i have the choice to switch between providers. You guys in the states need to hope that the sole provider contract with AT&T runs out soon and that verizon and t-mobile will get distribution rights too.
    1. rkswat's Avatar
      rkswat -
      Quote Originally Posted by joec2 View Post
      ....is too busy being a ****.....
      Really, a ****? Come on now, that's offensive on so many levels. Surely you could come up with a more appropriate word.
    1. Dark Angel's Avatar
      Dark Angel -
      An excellent article. Thank you very much for the education. 100% agree with your perspective.
    1. Xtremeiphone's Avatar
      Xtremeiphone -
      great and helpful article
    1. robertr1's Avatar
      robertr1 -
      You could always use this as another argument: "I paid 400$ for this why do I have restricted acess to what it can do and what I can do with it. I'm the owner of this because I bought it from you you no longer own it. " thats what I think about it.
    1. NCMacMan's Avatar
      NCMacMan -
      Jailbreaking is a viable option for users. It does enable more functions to consumers and more choice. Thanks for the informative, well thought out article!
    1. mikerlx's Avatar
      mikerlx -
      Great post
    1. kuhndsn's Avatar
      kuhndsn -
      Quote Originally Posted by shaquk View Post
      Hi, actually in the UK, you can get a factory unlock if you got a pay as you go iPhone (after your initial data contract is up) or even an unlock if your normal contract is up.

      Apple even sells factory unlocked iphones here, as since last year we have more than just one network provider selling iphones (3 more joined this summer).

      I ordered a factory unlocked iphone 4 from apple so that i have the choice to switch between providers. You guys in the states need to hope that the sole provider contract with AT&T runs out soon and that verizon and t-mobile will get distribution rights too.
      exactly and it has been posted here as such. I got my iPhone 4 (as all my others) unlocked for 50 euro) One thing though... Verizon is CDMA so unlocking it will be useless in a since unless APPLE and Verizon opts to keep the sim slot... If verizon got with the times like EU and the rest of the world they would already have people using the the iPhone on their net as T-Mobile USA has...
    1. s1l3nt's Avatar
      s1l3nt -
      nicee
    1. z3r01's Avatar
      z3r01 -
      Yea some people find it easier to use cdma and some like sim cards
    1. yentrog31's Avatar
      yentrog31 -
      {So what's the big deal you ask? Maybe you're not a hacker, or even a "hobbyist" or "enthusiast" - that's fine. Maybe you don't care about having any access at all to your device - it does everything you need already. You don't want to jailbreak, and you never will. That's fine, and for many, true. My iPhone 4 isn't jailbroken yet, and it's been handling itself just fine - of course there's tons of jailbreak apps I miss (Notifier, Tlert, MyWi, WinterBoard, iFile, and OpenSSH/SSL being some of the biggest). But if I /want/ to modify my device, which I have purchased and own outright, for completely legal activities, enhancing the original purpose of the device (a "smartphone") - it should be legal. Whether I do so or not should remain wholly my choice. }
      ---------------------------------------------------------
      Great read..and the above my fav part.When I got my iPhone(3GS) it was a great phone/device,but I could tell there was something missing.There was power not being used,like it had a governor on it.
      So I read and googled this site and others,and decided a JB was for me.So long story short,I only use my home button once to turn my phone on,otherwise I swipe and tap(SBSettings,QuickDo)and I have control over my phone the way it functions and looks(Winterboard).So to sum up by the last line in said paragraph..you should have a choice and WE do.Thx again for the great read.
    1. tecpunk64's Avatar
      tecpunk64 -
      very informative news(read the entire article!)
    1. yentrog31's Avatar
      yentrog31 -
      Quote Originally Posted by peu View Post
      You are making a common mistake, mixing fair use with commercial interests, its in the commercial interest of ATT to charge you extra for bandwidth used for other devices, but, they are not giving you that bandwidth for free, they are charging you.
      So its the same as jailbreaking the device: its yours (its your bandwidth paid month by month), you can jailbreak it (you can use bandwidth for whatever you want) I think you know the drill...

      And on an unrelated view of things:

      what would happen now that is not illegal to jailbreak, if one appears with a problem at a genius bar with a jailbroken device?

      Will they refuse service?
      of course...this is SJ we are talking about..I can see it now:
      YOU are reading it wrong!
    1. bojinx's Avatar
      bojinx -
      great article!
    1. BrennenSB's Avatar
      BrennenSB -
      Great article! Very insightful to those who are ignorant to the jailbreaking community and concept. Question though, is it still illegal to root android phones and also, did google ever have a problem with it before the EFF? Just curious.