How Jailbreaking Your Smartphone Could Become Illegal

Don’t like the way your smartphone works? Maybe you want more control arranging the app icons on your iPhone. Or you want to get rid of the obscure airG Chat social network app that Virgin Mobile installs on your Google Android phone and won’t let you remove.

Today, you’re free to hack around those restrictions. And you don’t always need to be a tech whiz. With some iPhones, for example, you have been able to visit the website with your phone’s browser and just press a button. After that, it’s “jailbroken,” and you can install apps from anywhere, not just Apple’s App Store.

These changes aren’t always purely for fun. Some deaf people have hacked Android phones, for example, to allow them to make video calls using a sign-language interpreting service called SVRS.

But soon, all that could be illegal if jailbreaking is ruled to be copyright violation. Today is the last day that the U.S. Copyright Office is accepting input on whether it should continue allowing you to jailbreak your phone. Technically, doing so could violate the 1998 Digital Millennium Copyright Act, or DMCA, a strict law against “circumvention of technological measures applied to copyrighted works.”

Software is considered to be copyrighted work, so jailbreaking your phone by changing its software could be considered “circumvention.” The penalties, at least on paper, can be severe — up to $25,000 – though it’s unlikely to go that far. “I’d say people will be more at risk of getting threatening letters from lawyers,” said Mitch Stoltz, staff attorney at the nonprofit Electronic Frontier Foundation, or EFF.

Cellphone tinkerers got a reprieve in July 2010 when the U.S. Copyright Office agreed – based on input from EFF — to exempt mobile devices from the DMCA. But the exemption is temporary, and will expire later this year if the government decides not to renew it.

Even now, it applies to only “wireless telephone handsets.” It doesn’t mention iPads and other tablets, though they often run the same software as the phones. It certainly doesn’t cover other gadgets such as game consoles. In fact, Sony sued a man named George Hotz in 2011 for jailbreaking the PlayStation 3 to run additional software and for offering downloads on his website that would enable other people to do the same.

(We asked Sony on Wednesday and Thursday to comment, but they were unable to reply in time for publication. The same happened with Apple and Google.)

For that reason, EFF is asking not only for extension of the phone exemption, but also for protection for hacking tablets and game consoles. Stoltz is upbeat. “We’re pretty confident that we’ve shown that there are a lot of legal and valid reasons for jailbreaking devices,” he said.

Other groups are going further. The Free Software Foundation will ask the copyright office to exempt essentially every electronic device. Brett Smith, their license compliance engineer, was finishing the organization’s comments to the Copyright Office as we spoke to him on Thursday night. “We’ll support an exemption for as much jailbreaking as we can get,” he said. Smith declined to provide a list that would limit what they wanted covered, but he said “yes” to every item we asked about, including game consoles, tablets, PCs, PC software, home automation devices, robotic toys and TVs. Then he added home network routers and modems.

Aaron Williamson, a staff attorney at the Software Freedom Law Center, said his organization is also pushing for broad exemptions. “If you buy anything — whether that’s a phone or a computer or a tablet or a toaster — you have the right to control the software running on that device and have it do what you want it to do,” he said.

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