Library of Congress Says You Can Jailbreak Your Smartphone

On July 26, 2010, the Library of Congress ruled that “jailbreaking” of smartphones is a fair use under the Copyright Act. Under the Copyright Act, the Librarian of Congress is required to review classes of works every three years for exemptions to the ban against circumventing technological measures that control access to copyrighted materials. The purpose for the triennial review is to determine whether users of copyrighted works are adversely affected by the anti circumventing ban in their ability to make noninfringing uses of copyrighted work. As part of its decision making process, the Copyright Office provides notice of its rulemaking, solicits input from the public and makes a final recommendation to the Library of Congress.

This year, the Library of Congress granted exemptions to six of the 19 submitted classes of works. One of the interesting exemptions is the ability to “jailbreak” or circumvent the technological measures contained on smartphones and in particular Apple’s iPhone, to prevent unapproved software from being installed and run on such phones. In other words, it is now permissible as fair use to “jailbreak” Apple’s iPhone in order to make the operating system on that phone interoperable with a third-party’s software that has not been approved by Apple.

The relevant section regarding jailbreaking states as follows:

Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

The exemption is applies only to instances, “where circumvention is accomplished for the sole purpose of enabling interoperability of such applications.” Thus, to be exempt, the user must prove that their jailbreaking activity is being performed to ensure interoperability of the phone’s copyrighted material with the unauthorized third-party material.

While the newly granted exemption may be welcomed news to some smartphone users, it should be noted that it is only effective for the ensuing 3-year period or until the next rulemaking. In addition, although the exemption does not make jailbreaking illegal, it also does not prevent smartphone manufacturers from seeking technological countermeasures to prevent jailbreaking.