Can You Free Your Phone? The Legality of Jailbreaking and Unlocking the Apple iPhone

Abstract

This Article reviews the creation of the Apple iPhone and the function of technological protection measures that are put in place by Apple for various control purposes. It also reviews the process of “unlocking” and “jailbreaking” an iPhone and the legality that rests on this hacking technique.

Section one will explain the process of “unlocking” and “jailbreaking” an iPhone, what purpose is served by performing these processes, and the interests of Apple in preventing jailbreaking including a review of the protective measures that have been put in place by Apple to prevent the jailbreaking from happening.

Section two will outline the law surrounding the processes of unlocking and jailbreaking. This will include an overview of The Digital Millennium Copyright Act § 1201(a)(1) ("DMCA"), which specifically prohibits the circumvention of protection measures like the ones put in place on the iPhone by Apple.

Section three details the current litigation brought by the Electronic Frontier Foundation (“EFF”) and Apple where the EFF petitioned the Librarian of Congress to make an exemption for jailbreaking and Apple, in response to the EFF’s petition, wrote its own petition to the Librarian of Congress.

Finally, section four will explain why the Librarian of Congress should allow an exemption for jailbreaking an iPhone for lawful purposes. Not only is it in conjunction with the current Exemption Five, but jailbreaking causes more benefit to Apple than harm, and those who violate copyright law by providing “cracked” Apple applications to the public can still be found liable under the law.

This will soon be updated to include information about the recent ruling by the Librarian on Congress exempting jailbreaking from the DMCA.

Keywords: iPhone, iPod, iPad, Apple, DMCA, Digital, Millennium, Copyright, Act, Jailbreak, Jailbreaking, Unlock, Unlocking, Circumvention, Technological, Protection, Measures, Technology, Tech, Macintosh, Electronic, Frontier, Foundation, 1201, Exemption, Copyright, Infringement