If it were legal, would it still be a jailbreak? The Electronic Frontier
Foundation is requesting a Digital Millennium Copyright Act exemption for cell
phone users who jailbreak, or hack, their mobile devices to run third-party
applications from sources other than those approved by the phone maker.
The DMCA prohibits circumventing DRM (digital rights management) and
"other technical protection measures" used to protect copyrighted
works. Although there is no copyright infringement involved in unlocking a
mobile phone to run third-party applications, carriers have threatened to sue
owners who unlock their phones.
According to the EFF, carriers are unfairly using the DMCA to keep their phones
locked and protect their business models.
"It's not the DMCA's job to force iPhone users to buy only Apple-approved
phone applications," EFF Senior Staff Attorney Fred von Lohmann said in a
statement. "The DMCA is supposed to block copyright infringement, not
competition."
The EFF is also asking the U.S. Copyright Office to renew a DMCA exemption granted
in 2006 allowing cell phone owners to unlock their phones so that the handsets
can be used with any telecommunications carrier. Despite the DMCA exemption,
carriers have buried users who seek to unlock their phones with a blizzard of
lawsuits.
"Millions and millions of Americans replace their cell phones every year.
EFF is representing three organizations that are working to make sure the old
phones don't end up in the dump, polluting our environment," said EFF
Civil Liberties Director Jennifer Granick. "Also, renewing this exemption
will continue to help people who want to use their phones while traveling and
will promote competition among wireless carriers."
The EFF requests are being made during a review held every third year of
DMCA exemptions granted by the Copyright Office. The rulemaking proceeding will
accept public comments regarding proposed exemptions until the deadline of Feb 2, 2009. The Copyright Office will
then hold hearings in Washington
and California in the spring. The
final rulemaking order will be issued in October 2009.
In addition to the unlocking exemptions, the EFF is seeking to exempt from DMCA
restrictions artists who use excerpts from DVDs in order to create new, noncommercial
works. Hollywood takes the view
that "ripping" DVDs is always a violation of the DMCA, no matter the
purpose.
"Remix is what free speech looks like in the 21st
century, which is why thousands of noncommercial remix videos are posted to
YouTube every day," von Lohmann said. "The DMCA wasn't intended to
drive fair use underground."
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