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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. gtag's Avatar
      gtag -
      Thanks for the enlightening article. I totally agree with the EFF and just like any other type of electronic device (ie: computer) I own I would like to have the choice of doing anything with it (modding) and as long as it is legal no one should have an issue with it. Apple could revoke my right to honour the service or warrantee on it claiming the modification did damage the item and that could be acceptable. The argument from Apple regarding it's responsibility to it's eco-system does give a mild "Big Brother" chill. I think that if they are concerned about their responsibility to the Eco-System they could create a system or fund to stop the software piracy (which I am against) associated with jailbreaking and not the jailbreaking itself!
    1. PeezaPi's Avatar
      PeezaPi -
      This is great and all but the real kicker is the warranty. The few people I know that /haven't/ jailbroken their phones are afraid of voiding their warranty not because they thought it was illegal even though I tell them I've had mine jailbroken for over a year with no issues. I think that's what needs to happen to get more jailbreakers. Maybe that's next??
    1. confucious's Avatar
      confucious -
      Good post

      [Edit]Just as I finished typing this I went back to Twitter toi find MN had retweeted the post about this article [/Edit]

      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.
      Why? My T-mobile account specifically allows tethering - if I wanted to do it I would use MyWi. The program itself is perfectly legal, how people use it, not necessarily so, but that could be said about a lot of things.
    1. macimaster's Avatar
      macimaster -
      Quote Originally Posted by Bryan000 View Post
      Dang we shoulda made yesterday iPhone Independance Day... (at least officially)
      I think you are right! this is definitely a momentus occasion and needs a title!

      iPhone Independance Day
    1. cjgonzales1900's Avatar
      cjgonzales1900 -
      Exactly, Congress got it right, Apple Inc. just wants to protect there asses from Jailbreaking and making the iphone work like any other Smartphone out there, they want it to keep the shape of a iPhone and not turn into a Windows Phone lol But hey Give the people what they want and you will prosper as a Company.
    1. sh4508's Avatar
      sh4508 -
      I am totally agree. I have bought AppStore apps as well as Cydia and Rock apps. Most of unused AppStore apps that I have bought are because not meeting my expectation, and user experience is not comfortable. While Cydia and Rock apps are bought because I need the functionality and I could not find those functionality at AppStore. I am using a 3G (jailbroken) and a 3Gs (not jailbroken yet); both are upgraded to iOS 4.0.1.
    1. LastSonOfKrypton's Avatar
      LastSonOfKrypton -
      Great article Kyle. Glad to see you put the time and effort into such an informative post
    1. sh4508's Avatar
      sh4508 -
      Quote Originally Posted by confucious View Post
      Good post

      [Edit]Just as I finished typing this I went back to Twitter toi find MN had retweeted the post about this article [/Edit]

      Why? My T-mobile account specifically allows tethering - if I wanted to do it I would use MyWi. The program itself is perfectly legal, how people use it, not necessarily so, but that could be said about a lot of things.
      I for one main reason to jailbreak is MyWi. It provides me with 3G router everywhere I go, even places without WiFi hotspots. I have bought Huawei MyWi devices, but it is an extra device I have to bring, plus another SIM card; very unpractical.
    1. therockk's Avatar
      therockk -
      Its all a bunch of BS what Apple is trying to do. Out of my social circle i was the first person to get an iPhone. And when all my friends saw what i could do with it after i had jailbroken it they all went and got one. Its only after they saw my jailbroken one they saw all the different things i was able todo with it for example. I could control my office computers through the iPhone. If anything i helped Apple sell about 1,000 iPhone more or less ... I hope they realize soon the benefits of Jailbreaking and release a factory Jailbroken device.
    1. salayyad's Avatar
      salayyad -
      Wow that was a great post and agree with everything said. Hell it was better than most posts i read lately at major tech blogs. Good job
    1. spider_pig448's Avatar
      spider_pig448 -
      What if Adobe created and released flash for iPhone exclusively at the Cydia store? That would really show Steve the bigger picture, he would be so pissed off
    1. skj8100's Avatar
      skj8100 -
      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.
      For the love of everything good- PLEASE DO NOT TURN THIS INTO AN AT&T BASHING THREAD.

      We have more than enough of those.
    1. GellBrake'rrrr's Avatar
      GellBrake'rrrr -
      Thank you so much for the time put forward in informing those (which there are many), that jailbreak has nothing to do with legalities.... Just releasing ones self from confinement. Such as a phone that is held back from being able to do things it SHOULD HAVE BEEN capable of doing at the time of purchase.

      Long post, but worth the read!!!!
    1. skj8100's Avatar
      skj8100 -
      Yeah apple jailbreaking is so bad. That's why I had copy and paste 1 1/2 years before you graciously allowed people to have it on unjailbroken devices....
    1. GellBrake'rrrr's Avatar
      GellBrake'rrrr -
      Quote Originally Posted by skj8100 View Post
      Yeah apple jailbreaking is so bad. That's why I had copy and paste 1 1/2 years before you graciously allowed people to have it on unjailbroken devices....
      I AGREE!!! If it wasn't all about APPLE making money off of each "new technology"... Then why did I have a video camera (CYCORDER), "thanks Jay", on my 2nd gen iPhone?.... Or should I just wait for a year or two to get the 3GS that enables us users to have what we should've a long time ago.

      And that's just one of many apps that CRAPPLE decides we can now have.

      And now, a couple years later, let's take advantage of backgrounder (multiple-tasking),and categories (folders)..... But wait, you can only put so many apps in each category.

      What's iOS 5 gonna do???
      Let us put a couple apps in each folder? Oh yeah... Thanks for the wallpaper! Not quite a theme, but we're getting close. 

      NOT SO MUCH!!!

      @Comex.... We appreciate all that you do/and continue to help us with!!!!!!
    1. glassJAw's Avatar
      glassJAw -
      Horale cardnal°
    1. mskitty's Avatar
      mskitty -
      Great article, it was worth the read!!!
    1. PolishHacker's Avatar
      PolishHacker -
      I perosonaly think that Steve Jobs and is Senior Staff is Pro-Jailbreak, becuase come on guys they have over 15,000 people working for them I'm pretty sure if they wanted to patch the jailbreak exploit they would have done it a long time, with jailbreaking, it gives people a better reason to buy an Ipod Touch or iPhone-no wonder they made over 15 Billion Dollars in Profit
    1. rasputin007's Avatar
      rasputin007 -
      As you mentioned it, Kyle, if you paid full price for the phone it is yours and you should be allowed to do with it what you want. This applies to "prepaid" or "Pay As You Go" phones, NOT phones on contract as these are technically not yours until the contract has come to an end.
      You mentioned the example of Laptops/Desktops with preinstalled OS. I would like to use a similar example. You would not pay full price for a car and then being told you only can use petrol from BP garages, or would you?
      Now this stresses my point about locked phones which you buy as "prepaid" or "Pay As You Go" phones. Why do you have to wait and pay for an unlock for a phone which you paid full price and it is yours?
      For example I paid full price for a "Pay As You Go" 3GS from Orange UK, needless to say it is locked to Orange, but to get it unlocked I have to be a Orange customer for at least 3 month and then pay £20 for the unlock. So that phone stayed in the drawer for over 2 month until ultrasn0w 0.93 came out and I could unlock it that way.
      Phones you pay full price for should be unlocked!
      And it does not matter if it is an iPhone, a Motorola or any other phone make.
      If it is your, it is morally wrong to have a lock on it and to wait/pay for an unlock.
    1. confucious's Avatar
      confucious -
      Quote Originally Posted by rasputin007 View Post
      As you mentioned it, Kyle, if you paid full price for the phone it is yours and you should be allowed to do with it what you want. This applies to "prepaid" or "Pay As You Go" phones, NOT phones on contract as these are technically not yours until the contract has come to an end.
      I was about to say that might be the case in the US but it's certainly not in the UK - then I saw you are from the UK.

      Contract phones in the UK are yours from day one which is why so many people sell 'unwanted' upgrades (and where I get most of my phones). Your liability is for the contract - the phone is yours to do with as you please.

      But this change in the law only applies to the US (obviously) the law in the UK remains open to interpretation.