A new fundraising campaign aims to break Apple's stranglehold over iPhone software distribution, giving users the ability to run software that hasn't been approved by Cupertino. The project is backed by disabled people who say that Apple's restrictive app approval process makes it difficult for them to use their smartphones. But the project may run afoul of federal copyright law.
If you own an iMac or MacBook, you're free to run whatever software you like on it. But users of iPads and iPhones don't enjoy the same freedom. Only Apple-approved software is allowed.
Luckily, there's a solution: jailbreaking. That's a process that removes Apple's software restrictions, letting users run any software they please. Older versions of iOS, the iPhone operating system, were jailbroken long ago. But so far no one has written effective jailbreaking software for the current version, iOS 7.
Most Apple customers view this as a minor annoyance — if they're even aware of the issue. But for many disabled users, it's a serious problem. While Apple has tried to make its devices accessible, Apple's accommodations don't meet the needs of all disabled users. And third-party software that does meet their needs can't always survive Apple's app-review gantlet.
Chris Maury is an iPhone user who says Apple's restrictive rules make his iPhone much less useful for him. He has Stargardt's Macular Degeneration, a genetic condition that is gradually destroying his central vision. He says that Apple's standard accessibility features don't meet his needs, and some of his favorite third-party apps aren't allowed in the App Store. So he helped organize a crowd-funding campaign to create a reward for anyone who creates iOS 7 jailbreaking software.
Maury concedes that iOS is "the most accessible platform." But he argues that jailbreaking helps to "empower a group of people who aren't necessarily considered first with new functionality."
He points to two examples that affect him personally. An app called f.lux lets him change the color of his display to reduce eye strain. But the app isn't available from the official app store, so he must jailbreak to use it. Jailbreaking also allows him to increase the maximum reading speed of Voiceover, Apple's text-to-speech software.
These aren't the only examples. For those with poor vision, jailbreaking makes it possible to to display a magnified version of the iPhone screen on a larger display. It also allows users with muscular dystrophy, who can't easily type on the tiny iPhone keyboard, to send SMSes from a web browser.
But there's a big problem looming over jailbreaking and the disabled users who benefit from it: distributing jailbreaking software is probably illegal. A provision of the Digital Millennium Copyright Act, enacted in 1998, makes it a crime to distribute "circumvention devices" that disable copy-protection software. Jailbreaking software is likely to qualify as such a "circumvention device."
The DMCA lets the Librarian of Congress grant DMCA exceptions once every three years. In 2012, the Librarian provided an exemption for jailbreaking mobile phones (but, weirdly, not tablet computers). Unfortunately, the law only allows exemptions for the act of circumvention, not the distribution of circumvention software. In other words, if a disabled user happens to be talented enough to write jailbreaking software himself, from scratch, it's legal for him to do so. But it's probably illegal for others to provide him with software to do so.
Elizabeth Stark, a legal expert who helped organize the iOS 7 jailbreaking campaign, argues that a 2004 precedent allows the distribution of jailbreaking software. That case held that the manufacturer of a garage door opener could not use the DMCA to restrict third parties from manufacturing compatible remotes. Stark argues that in light of the Librarian's ruling on jailbreaking, similar logic would suggest that distributing jailbreaking software does not run afoul of the DMCA.
But James Grimmelmann, a legal scholar at the University of Maryland, disagrees. He argues that Stark's interpretation would render the entire Library of Congress exemption process moot, which can't have been Congress's intention. Moreover, he notes, other appeals courts may not agree with the reasoning of the Chamberlain decision. In another case involving the online game World of Warcraft, the Ninth Circuit Court of Appeals "squarely rejected" the reasoning Stark cites for the legality of jailbreaking. So if Apple took the jailbreakers to court, in Grimmelmann's view, they'd face long odds.
Officially, Apple isn't a fan of jailbreaking. "Apple's goal has always been to ensure that our customers have a great experience with their iPhone and we know that jailbreaking can severely degrade the experience," an Apple spokesman said by e-mail on Tuesday. "As we've said before, the vast majority of customers do not jailbreak their iPhones as this can violate the warranty and can cause the iPhone to become unstable and not work reliably."
Still, Grimmelmann doesn't think Apple is likely to actually try to shut down jailbreaking projects. "I have to assume that the people behind this know that if Apple went after them, it would in fact play right into their hands," Grimmelmann said.
"You have the copyright office having said this should be legal and laid out a reasonable case for why it doesn't harm Apple and why it promotes non-infringing activity," he noted. "If they still got sued over it, it would show the absurdity of the DMCA's structure and it would put Apple and other smartphone companies in an incredibly bad light."
So while distributing jailbreaking software is probably illegal, the creators of jailbreaking software may not have to worry about facing the wrath of Apple's lawyers. Still, Grimmelmann says, the DMCA does have a real effect on the jailbreaking market.
The DMCA "pushes jailbreaking from being something that everybody does into something for the technically adventurous. So from Apple's perspective, keeping this as a niche market rather than a mass market, that's good enough."
But that can be a real problem for disabled users. Maury may be "technologically adventurous," but many other disabled users are not. So legal restrictions on jailbreaking not only slows the development of jailbreaking software, they also deprives less tech-savvy disabled users of its benefits.