EFF wins enormous victory against DRM: legal to jailbreak iPhones, rip DVDs for mashup videos

The Electronic Frontier Foundation drove three deep wedges into the US prohibition on breaking DRM today. EFF had applied to the Copyright Office to grant exemptions permitting the cracking of DRM in three cases: first, to "jailbreak" a mobile device, such as an iPhone, where DRM is used to prevent phone owners from running software of their own choosing; second, to allow video remix artists to break the DRM on DVDs in order to take short excerpts for mashups posted to YouTube and other sharing sites; finally EFF got the Copyright Office to renew its ruling that made it legal to unlock cellphones so that they can be used with any carrier.

These are major blows against the tradition in US law of protecting DRM, even when DRM wasn't upholding copyright. For example, Apple argued in its Copyright Office filing that it should be illegal under copyright law to install iPhone software unless Apple had approved and supplied it (akin to the principle that you should only be allowed company-approved bread in your toaster, or Folgers-approved milk in your instant coffee).

I'm not clear on whether these rulings now make it legal to traffick in circumvention tools that can accomplish this trick: if so, it would mean that you could sell DRM-ripping software in stores, or open a fix-it shop that jailbroke iPhones so that they could access unapproved software from third-party suppliers (including online stores that competed with Apple's App Store).

In any event, major kudos to EFF for an enormous win. I've always maintained that the biggest problem with DRM is the special status the law affords it: prior to 1998's Digital Millennium Copyright Act, a company that wanted to control how you used your purchases had to devote serious, ongoing effort to stopping the companies that sprang up to undo their locks; consequently, the market was able to drive DRM into the dust quickly, as companies abandoned strategies that squandered profits to lock down products. But after DRM got special treatment under the law, companies could merely slap on the thinnest veneer of DRM (the iPad's DRM was broken in less than a day!) and count on a public subsidy to defend it, through the courts and the law.

This was pure moral hazard, an invitation to the world's corporate bullies to invent "business models" based on stopping you from fully enjoying your property unless you paid to "unlock" every feature and morsel of value latent in it. Like a fridge that you have feed quarters into if you want to chill anything except dairy products, or a shower that charges you extra to rinse off the dog. Companies could create these ridiculous businesses and count on the government to police them, externalizing the cost of their extraordinary chutzpah to the very customers they were inflicting it upon!

Ironicially, just as the US government is starting to reconsider this wisdom of this approach, other governments are being arm-twisted by the US trade representative into adopting it -- for example, Canada's pending Bill C32, a copyright law that was practically ghost-written by the American entertainment lobby and delivered after the Prime Minister's office handed down the edict to "Make the Americans happy."

EFF Wins New Legal Protections for Video Artists, Cell Phone Jailbreakers, and Unlockers


  1. “…finally EFF got the Copyright Office to renew its ruling that made it illegal to unlock cellphones so that they can be used with any carrier.”

    “But hurry please, we have so much time and so little to see. Wait a minute! Strike that. Reverse it. Thank you.”

  2. “EFF got the Copyright Office to renew its ruling that made it illegal to unlock cellphones so that they can be used with any carrier” should read “EFF got the Copyright Office to renew its ruling that made it LEGAL to unlock cellphones so that they can be used with any carrier.”

  3. While I love EFF and all the incredibly hard work they do, this round of DMCA exemptions was not a single-handed EFF victory. Library organizations, the Organization for Transformative Works, and many other consumer advocates worked hard in the public interest on this round of exemptions. Amazing results!

  4. The pending Canadian copy right bill is C-32, C-31 died on the table after Harper prorogued parliment.

  5. I may be missing something in the legal ramifications but why would be ok to install your own software on it but not unlock it to use on any carrier. If you pay for the equipment, it should be yours period. Yes, I understand about the sub they give to each handset, but once you pay that off (which if I remember right is generally 9-14 months of contract time) shouldn’t you have the right to do as you wish?

  6. So we have this, GE’s win and a massive coup for Wikileaks.

    Today is an amazing day of information liberation.

  7. In related news, Steve Jobs was seen trying to beat Steve Ballmer’s record in the 5-lb chair throw :)

  8. Wasn’t it always legal to jailbreak iPhones? I thought it just void the warranty as it was against Apple’s T&C’s?

  9. Today has made me realize why Boing Boing is one of my favorite websites.

    Not only are there two articles detailing court cases about unfair DRM laws being shot down, but there’s also an article about how to get color back on old LEGOs.

    It’s just full of useful information. :D

  10. Hooray!! I just jailbroke my own kick-ass-hardware-but-crappy-company-software cellphone yesterday and its A BAZILLION TIMES BETTUR! Talking Mobile Shell and Turbo CFW. And I don’t know a lot about technology but the Internet helped me. Who would freely want to pay the full price for a house in wich the best rooms inside are locked and the keys cost additional money? Kick those doors open!

  11. when we first ripped a blaockbuster and re-thought it, it was 2002, Blade 2 was the hack, and nobody really noticed.
    but we BELEIVED!!!!!!!
    The Infringement: A Comedy in one (DMC)Act


  12. “finally EFF got the Copyright Office to renew its ruling that made it illegal to unlock cellphones so that they can be used with any carrier. ”

    I must not have enough coffee yet – how is this good? I specifically buy unlocked phones overseas so that I don’t have to be tied to a carrier – but other folks unlock their phones. how is this good for them?

    is that illegal to ‘lock’ cellphones?

    I’m confuddled. I think I’ll burn some coffee and see if I can understand :)

  13. IANAL. Does this ruling mean it will be illegal for Apple to require, via EULA, that users not jailbreak or unlock their phones?

    1. “IANAL. Does this ruling mean it will be illegal for Apple to require, via EULA, that users not jailbreak or unlock their phones?”

      No, Apple can put whatever they like it their EULA. They can require that you only use your ipone while juggling live gerbils if they want to. What this does mean is that you can not be imprisoned/fined by the federal government for breaking the DRM on the phone you bought – which is the case if you go by the letter of the DMCA.

      Apple can still make any ridiculous requirements they like. They could TRY to sue you for breech of contract if you jailbreak, but even Darth Turtleneck wouldn’t make that sort of PR mistake, and it would be tough to prove that you’ve cost them money by unlocking your phone. All that will really happen is that you’ll lose any claim to warranty or support.

      I’m not a lawyer either, but that’s the situation as I understand it.

  14. Great win! Stupid DRM, stupid Apple. Hope they are learning something. We need open networks/systems. Sharing is needed.

  15. The best Monday morning news ever!
    Completely made me go double rainbow on my coworkers…

  16. Any ideas on how this ruling effects things like the feature locks on Cisco routers and firewalls??

  17. Nah, this is not a big deal.

    Teh Steve will tell us this is the result of an unfair media frenzy blowing things out of proportion.

    Also, the perception that Apple did not approve of jailbreaking iPhones was only because Apple was using a formula that miscalculated the $2,500 fine. They have corrected the formula, and now it properly calculates out to a bumper refund/rebate.

  18. The ruling renewed the exception to the DMCA about unlocking phones to change carriers. This means that you can continue to unlock USED phones for access to other networks. Original purchasers would still be bound by their contract to the seller.
    Yes, it says the opposite in the post (due to bad cut-n-paste from the EFF article, I’ll bet).

  19. Unless I’m reading the ruling wrong, it allows you to circumvent DCSS and take excerpts of video from DVDs for educational purposes or criticism only. It does not allow you to take excerpts to remix or create mashups, even if they are non-commercial.

    So if you’re making a non-commercial video about (say) science fiction movies (a piece of criticism) you can clip away to your hearts content. If you’re making a mash up of cats and Star Trek to amuse your 200 friends on YouTube, that’s not protected.

    1. @ IanBetteridge

      You’re saying that a mash up of cats and Star Trek isn’t social commentary?

  20. I’ve been against jailbreaking, not because it allows you to load non-app-store apps onto the phone, but because it allows you to load pirated software onto the phone. I have 5 apps on the store, and all have been cracked and made available on numerous pirate sites. Aside from hoping Apple keeps it difficult to jailbreak, there’s nothing I can do about it.

    I believe Apple should do what they initially said when announcing the store. Check apps for malware, practices destructive to the network, and illegal stuff. Let the rest through and the market can decide. Apple has gone way further than that. As we know they disallow apps that don’t follow strict UI guidelines, that compete with their own apps in some ways, and so on. This is what grew the jailbreak community.

  21. This statement is incorrect: “finally EFF got the Copyright Office to renew its ruling that made it legal to unlock cellphones so that they can be used with any carrier.”

    From the EFF website: “On EFF’s request, the Librarian of Congress renewed a 2006 rule exempting cell phone unlocking so handsets can be used with other telecommunications carriers. Cell phone unlockers have been successfully sued under the DMCA, even though there is no copyright infringement involved in the unlocking. Digital locks on cell phones make it harder to resell, reuse, or recycle the handset, prompting EFF to ask for renewal of this rule on behalf of our clients, The Wireless Alliance, ReCellular and Flipswap. However, the 2009 rule has been modified so that it only applies to used mobile phones, not new ones.

    “The Copyright Office recognizes that the primary purpose of the locks on cell phones is to bind customers to their existing networks, rather than to protect copyrights,” said Granick. “The Copyright Office agrees with EFF that the DMCA shouldn’t be used as a barrier to prevent people who purchase phones from keeping those phones when they change carriers. The DMCA also shouldn’t be used to interfere with recyclers who want to extend the useful life of a handset.””

  22. So, if jailbreaking is legal… does this extend to modifying hardware to boot standard media — i.e. modchips?

  23. So… does that mean that if I jailbreak my iPhone it won’t void the warranty? That is really the only reason I am hesitant to jailbreak… :/

    1. No. It also doesn’t mean that jailbreaking your phone is legal. It simply means that it is not necessarily a violation of copyright to jailbreak your phone. It’s still a violation of the EULA (licensing agreement), and it will void your warranty.

  24. @Anon, welcome to the software world. Piracy will *never* go away; just be satisfied that you do have some paying customers and don’t worry too much about it. Focus on the paying customers (e.g. see what features they want, offer services or something).

  25. I don’t think anyone should unlock or modify an iPhone and maybe not other phones. Especially the iPhone though because Apple wouldn’t want you to do that. Apple has been very good to all of us, and we owe it to them to continue their profiteering. There is no way I am NOT going to give as much money to Apple as frequently as I possibly can. You should feel the same way. It is right.

  26. Hmm. What are the implications, I wonder, for other electronic content? Seems like under this thinking it should be okay now to provide tools to convert iTunes DRM-protected songs to MP3, or to move Amazon Kindle books to PDF, so they are no longer locked into Apple’s or Amazon’s devices.

  27. FINALLY! It’s like half the Information Iron Curtain from the LAST ENTIRE DECADE I grew up in, seeing it built that whole time, just got blown away today, along with the massive Wikileaks news!

    This is one of the happiest days I’ve had in the last 10 years. I really mean that- as a human being, I actually feel like a better person today for having seen a day like this come.

    I propose, in all seriousness, today be remembered.

    The day America finally fought back with a major punch against the trifecta of tyrannically entrenched bad laws, corporate ownership of said law, & secretive government hypocrisy of the utmost.

    America is my home, and I love it. I would never wish it harm of any kind. But in my heart, I know that we can do better. We can get rid of bad laws, we can scream “I bought it and it’s MINE- fuck off Apple/Sony/MS!”, we can hang the political careers of lying secretive politicians that ruin our country’s honor and keep us in the dark.

    Today, America FINALLY stepped up to modern tyrannies, tyranny lost, and America won.

    Stay classy lady liberty, stay classy.

  28. I’d also like to add, as soon as I find work, the EFF is getting a good chunk of my paycheck- those people are to me what mother Teresa was to Catholics!

  29. I sincerely hope the Supreme Court will do the right thing and overturn this decision. This is disastrous for the protection of artists and consumers alike. What this court decision has done is completely gut the only thing protecting artists from the wholesale theft of their craft.

    1. I notice that every comment you’ve made on this blog so far has been to defend DRM and lament the “free culture” movement. Just curious- do you have a personal stake in this issue?

        1. I have no dog in this hunt, I’m simply against theft in any form.

          That would sound way more convincing if you had ever raised your voice about any other issue on BB.

          1. I know! johnwraps is nothing but an industry troll.

            Whenever I read your biassed comments, they consistantly muster a raised eyebrow as I ponder “why does this useless joker bother wasting his (and my) time?”

            In any case it’s lucky for you the courts have decided that the uses in question are not theft, so now you can stop worrying about your little moral crusade to make the world think in your delusional way.

    2. Here’s the thing you don’t get – intellectual property theft is STILL illegal. It always has been. The part of the DMCA that everybody has a problem with is that it makes breaking digital locks illegal – even when the person has rights to the content itself.

      Basically, it’s like the police arresting you for breaking into your own house because you locked yourself out. The DMCA effectively makes opening a lock without the key illegal, even if it’s your lock on your door to your house. This decision says that you’re allowed to break your own lock, or that other people are allowed to do it if they have an established right to do so – such as for journalistic, scholastic or parody purposes, or to allow you to actually use a phone you’ve paid for. In the house analogy, it would be like saying that yes, a fireman is allowed to break down your door if your house is on fire and you’re inside screaming for help. Under the DMCA as written, he’d get arrested for breaking and entering.

      And here’s the part that’s most applicable to you – IP theft itself is still illegal. If someone jailbreaks their phone and steals one of your apps, they’ve still broken the law. You can still sue them if you want to.

      Jailbreaking was never difficult. It takes a minute or less, and even a simpleton can do it. It’s not as though the DMCA was actually protecting you before. The only thing that is different now is that people who do it for completely legitimate and legal purposes aren’t considered criminals just because they broke into their own device.

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