Modifying Apple’s iPhone software to install applications not approved by Apple will still be legal under new exemptions to take effect on Sunday in the U.S., but illegal for an iPad and other tablets.
The seemingly contradictory decision comes from the U.S. Librarian of Congress, which grants certain exemptions to the Digital Millennium Copyright Act, which forbids consumers from trying to break security controls intended to thwart piracy and copyright violations.
The Librarian of Congress, which acts on recommendations from the U.S. Copyright Office, is allowed to grant exemptions from the law if it determines users are adversely affected by certain non-infringing uses. A review is held every three years.
“Jailbreaking,” or modifying Apple’s iOS software, is popular since Apple only allows applications it approves of to be available in its App Store to the frustration of some users. iPhone modifications have been legal since a DMCA exemption was approved in July 2010, which Apple opposed.
This time around, the antipiracy group Business Software Alliance (BSA), of which Apple is a member, argued to the U.S. Copyright Office in July that jailbreaking leads to the piracy of applications.
“Jailbreaking enables the installation and execution of pirated — i.e., unlicensed — apps on a mobile device,” the BSA wrote. “So there is a direct link between piracy and the circumvention of TPMs [technological protection measures], — jailbreaking is the precondition for making pirated apps valuable.”
The Electronic Frontier Foundation (EFF), a digital rights advocacy group, contested the piracy argument in its own letter to the agency.
“There are many legitimate, non-infringing reasons why a user might choose to jailbreak or root a device,” the EFF wrote in its July 2 letter. “These reasons range from installing non-infringing applications that happen to be unapproved by the device’s vendor, to customizing a device’s appearance, to transforming a phone into a flashlight.”
Oddly, the Copyright Office found that tablets should not qualify for the same exemption. Tablets are a broad and ill-defined class with “significant distinctions among them in terms of the way they operate, their intended purposes, and the nature of the applications they can accommodate.” The iPad, then, is out.
Another key change comes in regards to unlocking phones. Users won’t be able to legally “unlock” phones, or modify the software in a way that allows the operation of a SIM card from another carrier, that have been bought after January 26, 2013. It dramatically modifies exemptions granted in 2006 and 2010, which allowed users to legally unlock their phones.
The Copyright Office concluded that while not every mobile phone is sold unlocked, there are plenty of phones sold that way, and the new rule would not hurt the market.
The Wireless Association, known as CTIA, opposed extending the 2010 exemption, arguing that groups traffic in pre-paid phones which are then unlocked and sold in markets where carriers don’t subsidize handsets.
The Librarian of Congress also granted three other exceptions. Vision-impaired people are allowed to use screen readers or other technologies to help them view literature distributed electronically. Movies can be used by educational institutions for noncommercial uses, such as for criticism or commentary, and be modified to enable captions or descriptive audio for people with vision or hearing problems.