EFF Staff Attorney Talks About The Legality of Jailbreaking

Last month we reported about jailbreaking could become illegal in 2012 if you don’t help The EFF in extending the DMCA exemption. They are fighting to renew the exemption to the DMCA that makes jailbreaking your smartphones, tablets and consoles legal.

Two years ago, the act of jailbreaking was ruled legal. But that ruling is going to expire this year if it isn’t renewed and jailbreaking will become illegal. Engadget recently had the chance to interview the staff attorney of the EFF, Mitch Stoltz and talk about the legality of Jailbreaking…

Why is the debate over the legality of jailbreaking suddenly in the news again?

The Digital Millennium Copyright Act has an exemptions process. The Library of Congress every three years makes exemptions to the law. Those have to be renewed, so we’re coming up on the next cycle. In the last cycle, the EFF asked for an exemption that you can jailbreak a smartphone that you own, to run your own software on it, so that wouldn’t be a violation of the Digital Millennium Copyright Act, section 1201.

Is this a tricky area in terms of interpreting the Digital Millennium Copyright Act?

It’s not clear at all. What is clear is that device manufacturers have used the DMCA specifically to enforce incompatibility with third-party products. Sometimes the courts have allowed that and sometimes they haven’t. In those cases it’s used as a way to shut out competition.

The ultime question here, then, is what kind of rights, if any, do the hardware manufacturers have over the hardware once it’s sold to you?

That’s a big question. They can have rights that come from contracts. Say you buy a smartphone from a carrier that says what you can and can’t do with the phone. I don’t know if you want me to get into whether those sort of rights are a good thing or not, but if you look at the issue at hand it is exactly that. It gets into the rights of a hardware manufacturer and the owner of a piece of hardware, which are sort of negative rights. They aren’t stated necessarily in the law, but they’re things we all understand. We see comments that people have posted to the Copyright Office in support of our requests on jailbreaking, and over and over the analogy that they’re making is to a car — that to prevent jailbreaking is like welding the hood shut on a car to legally prevent you from modifying a car that you own and that just strikes a lot of people as absurd.

If you want to keep jailbreaking your iPhone, iPad, iPod Touch or any other smartphone, tablet or console in future, show your support by leaving a comment on the Copyright Office’s comment board and tell them that you’re in favor of smarphones/tablets/consoles jailbreaking and also state why you think the act of jailbreaking should remain legal.

***Comments should be marked as class “5? and the cutoff for submitting comments is February 10 at 5 PM Eastern Time. Make sure to email a copy of your comment to the EFF at dmca-comments@eff.org to let them know what you’re saying.

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