EFF Seeks DMCA Exemption for iPhone Jailbreaking

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.

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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."