U.S. Government to Explicitly Allow iPhone Jailbreaking [Updated x2]

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The Associated Press briefly reports that the U.S. government has defined new rules that will permit users to "jailbreak" their iPhone and skirt Apple's App Store ecosystem to add unapproved third-party applications.

Owners of the iPhone will be able to break electronic locks on their devices in order to download applications that have not been approved by Apple. The government is making that legal under new rules announced Monday.

The decision to allow the practice commonly known as "jailbreaking" is one of a handful of new exemptions from a federal law that prohibits the circumvention of technical measures that control access to copyrighted works.

While it is not uncommon for users to jailbreak their devices, the practice is officially unsanctioned by Apple. The company maintains a support document outlining some of the issues users of jailbroken iOS devices may experience while also disclosing that Apple reserves the right to deny service for any such device due to the "unauthorized modification" being a violation of the license agreement. Under the new federal policies, it would appear that Apple is no longer permitted to deny service for such reasons under the Digital Millennium Copyright Act, although the company could likely still argue that the device's Terms of Use allow it to deny service.

Update: The Electronic Frontier Foundation (EFF) has posted a press release announcing the government's policy changes that came at the request of the EFF and has posted the full document (PDF) issued by the Copyright Office of the U.S. Library of Congress.

On balance, the Register concludes that when one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses. Case law and Congressional enactments reflect a judgment that interoperability is favored. The Register also finds that designating a class of works that would permit jailbreaking for purposes of interoperability will not adversely affect the market for or value of the copyrighted works to the copyright owner.

Update 2: Some observers have pointed out the the Library of Congress ruling today also addresses the issue of mobile phone unlocking, which involves moving a device to another wireless carrier for which support is not generally offered. Today's ruling only states, however, that copyright concerns can not be used to prohibit unlocking of mobile phones under the Digital Millennium Copyright Act. Carriers are still free to prevent unlocking in many circumstances and can pursue cases against individuals by citing breach of contract under the carriers' Terms of Service.

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