The DMCA or Digital Millennium Copyright Act encompasses the legality of the circumvention of digital devices and their software. Since Congress passed the DMCA in 1998, the Librarian of Congress (the head of the Library of Congress, who’s appointed by the President) can grant exemptions to the DMCA. Since 2010, the act has expectedly stated that both Jailbreaking iOS-based devices and unlocking iPhones and other smartphones is completely legal. However, new amendments to the DMCA will change the legality of Jailbreaking and unlocking.
Thankfully, the new revisions to the DMCA still allow the circumvention of “computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset”. Essentially, in layman’s terms, Jailbreaking “telephone handsets” (the iPhone) is still permitted.
However, members of the Jailbreak community aren’t as lucky when it comes to the iPad. The Librarian of Congress “”found significant merit to the opposition’s concerns that this aspect of the proposed class was broad and ill-defined, as a wide range of devices might be considered ‘tablets,’ notwithstanding the significant distinctions among them in terms of the way they operate, their intended purposes, and the nature of the applications they can accommodate”. The iPad falls into the tablet category, which is a vague, “broad and ill-defined” term in and of itself. For example, according to the Librarian, any portable electronic device from an eReader to handheld game console, or even a laptop, could be considered a “tablet”. Unfortunately, in light of this new ruling, Jailbreaking Apple’s iPad isn’t listed as exempt in the new DMCA exceptions.
Additionally, the legality of unlocking a smartphone, without the explicit permission of the device’s official carrier, is also about to change. In both 2006 and 2010, exemptions were made that permitted the process of unlocking phones and using them through a different carrier. The Librarian reportedly changed his mind when he considered the fact that when you purchase a device with an operating system such as the iPhone, you don’t completely own it, you’re simply licensing it according to the terms outlined in the device’s End User License Agreement. The point was brought up that unlocking one’s phone undermines and breaches the End User License Agreement.
While the new exemptions are set to to take effect October 28th, customers who purchase their phones before January of 2013 are still able to legally unlock their phone. However, as for phones purchased after January 2013, it’s a different story.
Finally, as pointed out by MuscleNerd, the silver lining in this situation is that the DMCA doesn’t highlight any correlation between Jailbreaking and piracy, which is essentially what the DMCA helps to fight.
Stay tuned for additional coverage on both the DMCA, future exemptions and amendments to the act and the legality of Jailbreaking.