Action News 22 breaking news 24/7

DMCA Exemption Unlikely for iPad Jailbreak

A lot and little has transpired following the Electronic Frontier Foundation asking the U.S. Copyright Office for an exemption to the Digital Millennium Copyright Act for authorization to jailbreak an iPhone or any "wireless telephone handsets."

For starters, the Copyright Office's decision has been pending since December 2008 — although a ruling is expected any time.

During that wait, however, Apple unveiled the iPad — a gadget with the same closed ecosystem of the iPhone that isn't likely covered in EFF's request. All of which means that a jailbreaking exemption for the iPad likely cannot be made until late 2011 or 2012, the next time the Copyright Office opens up requests for DMCA exemptions.

"We limited it to phones. This was the only category of devices where this was a problem in 2008," said Fred von Lohmann, the EFF attorney who wrote the DMCA phone exemption.

The proposal, if approved, clearly would pave the way for third-party apps on the iPhone — hence turning the iPhone into a blank slate to run whatever its owner wishes. More than 3 billion apps have been downloaded from iTunes, and Apple claims sanctioning the hack would be a blow to its financial future.

The iPhone hack is part of the exemption process under the Digital Millennium Copyright Act of 1998. every three years, the Librarian of Congress and the U.S. Copyright Office entertain proposals for exemptions to copyright law. It's not likely that a ruling in EFF's favor would include the iPad — which will debut in more than a month — although von Lohmann isn't "conceding" iPad defeat.

The EFF proposal concerns "Computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset."

The iPad, at least as we know it now, does not offer phone service from a carrier, but can be used to make and receive calls via the voice over internet protocol.

"In December 2008, we could not know Apple would launch the iPad and impose the same restrictions as the iPhone," von Lohmann said.

Over the decade, a handful of DMCA exemptions have been granted. They are considered every three years.

"It's a very glacial process when compared to the pace of technology," von Lohmann said. "Since it happens every three years, you're always behind the technology curve."

Approved DMCA exemptions include circumvention of anti-copying restrictions on DVDs for the purpose of making compilations of portions of those works for educational use in a classroom. another was directed at the blind, allowing the circumvention of an e-book's shuttered read-aloud function. another allows the circumvention of access controls on CDs to research for security flaws.

But it's unclear whether regulators would approve the "wireless telephone handset" proposal. The government has repeatedly denied consumer-friendly, fair use changes, such as requests to make backup copies of DVDs or video games, as well as requests for exemptions to enable copying DVDs to laptops and portable devices.

The content industry has lobbied against the jailbreaking proposal alongside Apple, which has sold some 75 million iPhones. while opening up the iPhone's OS would lead to the pirating of sanctioned iPhone apps, it would create a giant iPhone platform to play and copy infringing content like movies and games.

All the while, almost one out of every 10 iPhones and iPod touches already might be jailbroken, according to Jay Freeman, the operator of underground app store Cydia. Nearly half a million of the gadgets connect to his online store daily.

Even without a DMCA exemption, we expect the same for the iPad, which will run the 140,000 apps available for download in iTunes.

"I think it's sort of ingrained in the nature of geeks anywhere that somebody is going to hack the iPad," said Jonathan Zdziarski, an iPhone developer and a hacker who teaches forensics courses on recovering data from iPhones.

To be sure, if the government sanctioned jailbreaking Apple's operating system for the iPad or iPhone, jailbreaking would become elevated from the underground to the mainstream with legitimate markets competing against Apple.

Photo: Jon Snyder/Wired.com

See also:

• Once again, DMCA Protects Online Video Sites
• 10 Years later, Misunderstood DMCA is the Law that Saved the Web ...
• DMCA Coupon Flap Ends — Nobody ‘Won'
• Air Force Cyber Command's new Weapon: DMCA Notices
• YouTube to McCain: you made Your DMCA Bed, Lie in It
• Google, EFF Applaud Veoh DMCA Ruling
• Feds Consider new DMCA Anti-Circumvention Exemptions
• Yahoo Issues Takedown Notice for Spying Price List
• Judge who Signed ‘Torture Memo' Blasts DMCA Sentence

DMCA Exemption Unlikely for iPad Jailbreak