Zittrain: No Get Out Of Jail Free Card For Jailbreak Developers

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There’s been much ado about DMCA’s latest ruling, particularly its “jailbreaking” provision, which allows users to run applications that are not approved by their phone maker (ahem, Apple). In less than 24 hours, hundreds have opined on the matter, some wondering what kind of Pandora’s box this ruling could unleash upon iPhone’s carefully manicured Garden of Eden.

Take for instance, PC World’s Lance Ulanoff, who described an “open season on iPhone, AT&T and others,” a world where jailbreaking services banded, “together to create a business organization. They could sue Apple and AT&T, claiming the companies [were] undermining their ability to conduct business.”

While the image of newly empowered developers taking pitchforks to Apple’s guarded ecosystem is a vivid one, Jon Zittrain, Harvard Law professor of internet law and the author of The Future Of The Internet And How To Stop It, doesn’t buy it. Video above. (For those who want a primer on DMCA, Zittrain provides a nice synopsis in the first three minutes of the interview, if you want to skip ahead go to the 2:40 mark.)

He says the DMCA exemption is a key, symbolic victory for the open campaign— but in many ways, a legal paper tiger:

“The victory for those who want to hack is not trivial even though in large part it is symbolic. I mean here it is in honor of the United States government saying this is actually not illegal behavior, this is OK to jailbreak your phone. Interesting thing though is, the specific provision in title 17 of the US code is 1201 and this is 1201 (a)(1), that says you can’t hack in order to gain access to something protected by copyright. It turns out that there’s another provision that says you’re not allowed to market or traffic in tools whose primary purpose is to let people hack and the exceptions are not permitted to be applied to that provision. So even though the Library of Congress has given blessing to the act of hacking here. It’s not able to give a blessing to trafficking in the tools that let you hack.”

Thus, while consumers are in the clear (as least when it comes to copyright law– forget about your warranty) developers do not get an automatic get out of jail free card when they market and distribute jailbreaking services.

If Zittrain was in Apple’s position, he would advise Steve Jobs to maintain the app store but open up the ecosystem to give users the option to “off-road.” Speaking more realistically; however, he predicts a real surge in jailbreaking could trigger an arms race between Apple and developers, a battle decided not in the courts but in the operating system: “If they’re gathered back at the lodge and trying to figure out how to respond to this, I’m not sure they’re going to be that dejected. They might just be like “All right, game on!” You guys want to hack the iPhone, we’ll try to brick it, if we detect it jailbroken in certain ways. So they certainly have their options. “

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