Posted on by Ben Meredith

Jailbreaking. It’s not as illegal as it sounds.

I have wonderful friends and family who let me know when I say things that I think are harmless that can be taken in ways that I don’t intend.

Recently, I mentioned “jailbreaking” my phone on twitter, and was privately asked how I can do something that sounds so illegal and call myself a Christian.  Let me explain, so that you don’t think I am breaking the law.

Jailbreaking is the process whereby you make it possible to put non-Apple sanctioned apps on the device.  Some of those apps are illegal (they steal the code from legal apps and allow you to get free apps that you should pay for–just as illegal as pirating music) and some of the apps are not illegal, they just don’t fit in Apple’s very tight parameters (they run in the background, they access root files, they “replace core functionality of the device,” for example).

If you jailbreak in order to download illegal apps, you are breaking the law.  If you jailbreak to satisfy your inner geek that can only be satiated by having a settings app that runs in the background (and sucks your battery dry just like Uncle Steve warned you), you aren’t breaking any laws, but you still are kind of a dork.

I fall into the second category.

The simple fact of the matter is that it is my phone.  I have paid for it.  I should be able to do whatever I like to the phone, short of violating someone else’s intellectual property (by pirating apps, for example).

So no, I’m not breaking any laws.  I appreciate the opportunity to state that publicly.

12 Replies to “Jailbreaking. It’s not as illegal as it sounds.”

  1. I don’t have an iPhone, and if I did have one, besides maybe the very newest one, I would probably jail-break it.

    Nevertheless, it actually isn’t very clear whether it is actually legal to do so.

    Apple is so convinced that it is not legal that they took the matter to court:

    http://www.eff.org/deeplinks/2009/02/apple-says-jailbreaking-illegal

    The concept of ‘intellectual property’ in our modern era of data and communication has made the argument ‘I bought it, and it is mine, so I can do whatever I want with it’ actually pretty complicated.

    For example, if you buy a CD, depending on the record label, you don’t actually own the album. You own the right to listen to the album.

    It’s a subtle and really powerful distinction.

    I wouldn’t expect Steve Jobs to come knocking on your door any time soon, but just FYI…

    1. Thanks for the clarification. Apple does indeed claim it to be illegal. But they’ve not taken it to “court,” so much as to the Copyright office. And here’s hoping the copyright office sees the absurdity of Apple’s claims.

      Here’s my favorite section from the article you linked to:

      One need only transpose Apple’s arguments to the world of automobiles to recognize their absurdity. Sure, GM might tell us that, for our own safety, all servicing should be done by an authorized GM dealer using only genuine GM parts. Toyota might say that swapping your engine could reduce the reliability of your car. And Mazda could say that those who throw a supercharger on their Miatas frequently exceed the legal speed limit.

      But we’d never accept this corporate paternalism as a justification for welding every car hood shut and imposing legal liability on car buffs tinkering in their garages. After all, the culture of tinkering (or hacking, if you prefer) is an important part of our innovation economy.

      The Copyright office is set to rule soon on further exemptions to the DMCA, and I’m hoping that jailbreaking is officially cleared. (but it hasn’t been officially declared illegal at this point)

  2. It sounds good to say that it is your phone, that you paid for it, and you should be be able to do whatever you want with it. In fact that is true, you do own the physical device.

    You do not own the software that is loaded on the device, it is only licensed to you. When you first use your phone you are agreeing to Apple’s End User License Agreement (EULA) which expressly forbid modifying the software that is comes on your phone. Despite arguments I found on the internet, common sense tells us that jailbreaking an iPhone is a modification of the software and as such is a violation.

    You are correct in saying that it is not illegal. A EULA is not law, merely and agreement between two private entities. However, it is a violation of the word that you gave to Apple when you (implicitly or explicitly) accepted the EULA by using the phone.

    For reference here is the relevant passage

    “2 (c) Except as and only to the extent permitted by applicable law, or by licensing terms governing use of open-sourced components included with the iPhone Software, you may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, **modify**, or create derivative works of the iPhone Software, iPhone Software Updates, or any part thereof. Any attempt to do so is a violation of the rights of Apple and its licensors of the iPhone Software and iPhone Software Updates. If you breach this restriction, you may be subject to prosecution and damages.”
    – iPhone EULA (emphasis added)

    1. Thanks, Anonymous, for the tip. (and wow, I am important enough to have anonymous comments? Who knew? And I can still figure out who you are. I’m a geek with access to whois searches)

      I’m intrigued by the legalities here, because basically I am just opting out of an agreement with Apple (to fix my phone, provide me with support, etc) by jailbreaking.

      Now my question is, is it immoral to intentionally violate an agreement, and forfeit the benefits of that agreement? I’m not going to hold Apple to their side of the agreement, because I opted out of the agreement. I don’t feel like that’s immoral.

      Again, I am not going to pirate apps or illegally tether or any of that… I’m just into tinkering with the software in legal ways.

      This is turning into a really good discussion for me. I hope it doesn’t end in me learning that it is immoral and un-jailbreaking my phone. But we’ll have to see.

      1. I wasn’t trying to be Anonymous, I just didn’t see that my identity in any way effected my argument.

        For me, the issue is that the EULA is a take it or leave it proposition. It isn’t a negotiation. In the world of pure software, this simply means that if you don’t like the agreement that comes with a piece of software you don’t install it.

        Unfortunately in the Apple monoculture there is an incestuous bond between the software and hardware. It is my understanding that this lets them couple the two together in a way makes it a violation of the agreement to use the phone and not their software.

        The text of the EULA provides exactly one “opt-out” option.

        “If you do not agree to the terms of this license, do not use the iPhone or download this software update. If you do not agree to the terms of the license, you may return the iPhone within the return period to the apple store or authorized distributor where you obtained it for a refund, subject to apple’s return policy found at http://www.apple.com/legal/sales_policies.”

        This makes it clear to me that it was Apple’s intention that no one would be allowed to use an iPhone that was not running Apple’s own software. I personally believe that while this practice is objectionable, it is both legal and their right as the manufacturer of the device.

        This is where you have the latitude to disagree. I suppose you could make the argument that you own the phone and therefore you can choose to throw the EULA, their is some legal precedent to this view. On the moral front I personally find that argument dubious.

        If you feel that you never agreed to the EULA at all and therefore circumvent it by destroying the software on the phone, you may have a case.

        At this point it comes down to a matter of conscience. I do not like these restrictions Apple has created and therefore I do not use any Apple products. Legally, I think you never have anything to fear from your jailbroken iPhone.

        1. Fascinating.

          If the language in the EULA were “you agree not to _____” instead of “you may not _______” I’d have no wiggle room, morally.

          As it is, I never agreed not to jailbreak, I just made myself potentially–but not certainly, by virtue of the use of the word “may”–“subject to prosecution and damages.”

          Am I right? I never said I wouldn’t jailbreak, by agreeing to the EULA.

          Is this semantics? do I need to unjailbreak?

          1. Upon doing some more checking around, it may actually depend on when you bought your phone. I read most recent EULA on the apple web site (the one I quoted previously was from about a year ago) and the new language says

            “You may not and agree not to, or enable other to, … modify …. the iPhone Software”

            Apparently they found and closed the exact loophole you mention. The fact they did so seems to lend some credibility to your argument. So I guess you should look for your original documentation and see what it said.

            I feel this is just semantics and I would never jailbreak an iPhone. However, the evidence does suggest suggest to me that a reasonable person could choose to jailbreak an with a clean conscience provided that they have one old enough to be covered by the original language.

    2. I feel like these donuts break the EULA of the donuts themselves, and like the iPhone jailbreaking that can only make them better.

    1. Joo, I appreciate stalking by Asian guys more than any other type of stalking. So no worries.

      I do find it interesting that it is now definitely legal to jailbreak, but as our discussion earlier pointed out, it is still questionable in light of the EULA from an ethical standpoint.

      Plus, since I wrote this post, I have unjailbroken because my phone was so painfully slow it was unbearable. It’s still too slow, but at least now I have a prayer of it working.

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