If you misplace your keys, no law prohibits you from picking the lock on your car. But if you try to get past the lock on your cell phone, you could be fined or even jailed.
Under the Digital MillenniumCopyright Act (DMCA), overcoming technical measures aimed at restricting access to copyrighted material triggers statutory damages of up to $2,500 “per act of circumvention” and, if the circumvention is deemed to have a commercial purpose, a prison sentence of up to five years. Yet such evasive maneuvers may be required to “unlock” a mobile phone so it can be used on more than one network or “jailbreak” it so it can run software that’s not approved by the manufacturer. In January the Electronic Frontier Foundation (EFF) asked the Copyright Office, which is in charge of granting DMCA exemptions, to declare both unlocking and jailbreaking legal.
Although consumers who fiddle with their phones may copy software in the process, the EFF argues, they are not trying to infringe on anyone’s copyright. Rather, they are trying to make their phones more useful by neutralizing anti-competitive restrictions. In response, Apple argues that allowing iPhone owners to circumvent the software that limits them to applications sold through the iTunes App Store would harm the “iPhone ecosystem,” making the product less reliable and tarnishing its reputation. Apple’s critics note that such concerns are pretty far afield from the DMCA’s goal of preventing unauthorized dissemination of copyrighted material.
The EFF says the real property rights at stake here are those of cell phone owners. “GM might tell us that, for our own safety, all servicing should be done by an authorized GM dealer using only genuine GM parts,” writes EFF attorney Fred von Lohmann. “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.”