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Jailbreaking The iPhone, Legally

The Library of Congress gave iPhone users a get-out-of-jail-free card yesterday.

As part of a periodic review, the agency determined that “jailbreaking” the iPhone is allowed under American copyright law. Owners of iPhones (and other smartphones) have the right to unlock their devices and use applications not approved by the manufacturer or seller.

The decision is important in a variety of ways, not all of which are directly related to phones, or even to the wider goals of the Electronic Frontier Foundation, which sought a smartphone exemption to the Digital Millennium Copyright Act.

Basically, the Library of Congress reinforced the idea that when you buy a device, you own that device. This concept should apply to all sorts of technologies.

Automobiles are one example. Between built-in DVD navigational systems and the impenetrable engine service codes, drivers have to rely on the manufacturer for updates and service more completely than ever before. The days of teenagers in garages tinkering with their cars are all but over. Any owner, however, should be able to buy a third-party DVD database for the navigation system, or a program that can interrogate a car’s onboard computers to learn which malfunctioning gewgaw is making the “check engine” light flash ominously.

The world of e-books is another arena where the rules of ownership are fuzzier than they ought to be. A year ago, Amazon incensed its customer base when it wirelessly deleted certain previously purchased books from Kindle users’ libraries. Though the customers owned their Kindles, the files were apparently not so clear cut. And, while Amazon has since acknowledged that it was wrong to handle the matter the way it did, the company still has recall-enforcement mechanisms that are not available to merchants who sell more traditional merchandise.

Technology changes quickly, but some concepts ought to be enduring. One is that you own what you buy. Yesterday’s ruling means that, if you wish, you can install unauthorized applications on your own device, or make changes to the firmware.

Be careful. These modifications can have consequences much worse than a copyright violation notice. Jailbreaking your phone will almost always void its warranty. The practice can also open the door to spyware and viruses. But those choices are now firmly in the hands of the individual user, as they should be.

Apple claimed that permitting iPhone owners to jailbreak their phones would destroy the company’s technological protection for software on the device. But the Copyright Office noted that jailbreaking involves changing fewer than 50 bytes out of 8 million. It’s a small change that yields a lot of flexibility.

Vendors are usually eager to invoke the digital copyright law to the maximum extent. Apple understandably wants to keep its iPhone customers tied as closely as possible to its own iTunes and App stores, and to the wireless carriers (in this country, AT&T) with which it makes exclusive marketing arrangements. But hardware customers are not serfs. A car company cannot tie its customers to a certain brand of gasoline. Television makers cannot select only certain channels that will appear on their screens. (I am old enough to remember when the Federal Communications Commission mandated that all TVs must be able to receive UHF signals.) Even my shaving razor accepts third-party blades.

Our mothers taught us that we can’t “eat our cake and have it, too.” The Library of Congress now has delivered the same message to smartphone makers: You can’t sell a device and still behave as though you own it.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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