Apple using scare tactics to stop iPhone jailbreaking from becoming legal

In the more than two years since the iPhone has been available, Apple has largely remained quiet about "jailbreaking," in which users modify the device's software to run third-party applications. Now that the EFF is pushing to make this practice officially legal, Apple is finally speaking up, but is it too late?

In a support article published late Wednesday, Apple for the first time discussed jailbreaking, calling it "hacking" in order to make "unauthorized modifications" to the iPhone and iPod Touch.

What does jailbreaking lead to? If you listen to Apple, it sounds quite dangerous.

The company warns of, "Frequent and unexpected crashes of the device, crashes and freezes of built-in apps and third-party apps, and loss of data." More ominously, Apple says, "Security compromises have been introduced by these modifications that could allow hackers to steal personal information, damage the device, attack the wireless network, or introduce malware or viruses."

Perhaps the strangest claim, however, is that jailbreaking can lead to the iPhone OS being "damaged" like a cracked egg such that it is "not repairable." In turn, iPhones or iPods that have been jailbroken risk "becoming permanently inoperable."

If the practice is so dangerous, why is Apple only publicly raising concern now, when customers have been jailbreaking their iPhones since 2007? The answer to that question likely lies in a recent effort by the Electronic Frontier Foundation to officially legalize jailbreaking through a DMCA exemption.

The Digital Millennium Copyright Act, passed in 1998, states that "no person shall circumvent a technological measure that effectively controls access to a work protected under this title." However, the United States Copyright Office makes exceptions to this rule every 3 years -- the last one in 2006 and the next one this year. The EFF has petitioned the Copyright Office to make jailbreaking exempt under fair use laws.

"Jailbreaking an iPhone in order to run lawfully obtained software does not constitute copyright infringement. Nothing in the Apple iPhone Software License Agreement changes this conclusion," EFF attorney Fred von Lohmann wrote in a letter to the Copyright Office dated July 13 (PDF from Wired).

Of course, Apple had an entirely different opinion on the matter. "Jailbreaking constitutes copyright infringement. Because jailbreaking involves unauthorized modifications to Apple's copyrighted bootloader and OS programs, it is a violation of 17 U.S.C. § 106(1) & (2), unless such modifications are either within the scope of the license granted under the IPSLA (which they are not), or are covered by the statutory rights under 17 U.S.C. § 117 or by the fair use doctrine (again, which they are not, as detailed below)," the company wrote (PDF from Wired).

"More pernicious forms of activity may also be enabled. For example, a local or international hacker could potentially initiate commands (such as a denial of service attack) that could crash the tower software, rendering the tower entirely inoperable to process calls or transmit data," Apple told the Copyright Office.

The weakest link in Apple's arguments, as the EFF's von Lohmann points out, is that millions of iPhones have long been jailbroken and none of the dire risks raised by the company have materialized. Apple also has largely been tolerant of those with jailbroken iPhones, admitting that it hasn't excluded them from warranty coverage (although, Apple indicates it will be forced to deny warranty coverage if jailbreaking becomes legal and thus more widespread).

Now, Apple can point to the support article that publicizes its position on jailbreaking as proof of the risks (it can't be made up if it's in an official document!), as well as its position that the practice violates the DMCA and should not be made exempt:

"It is also important to note that unauthorized modification of the iPhone OS is a violation of the iPhone end-user license agreement and because of this, Apple may deny service for an iPhone or iPod touch that has installed any unauthorized software."

What do you think: Should jailbreaking an iPhone or iPod Touch to run third party software be legal?