iPhone Jailbreak Out Amid Apple-EFF Tussle

Code that will unlock and “jailbreak” the iPhone 3G and early versions of the iPod Touch is available now on the Internet from a group of hackers known among the iPhone OS community for releasing such applications.

In a recent post at its blog, the so-called iPhone Dev Team writes that, “redsn0w is an easy to use, multi-platform, multi-device jailbreaking and unlocking (iPhone 2G only) tool for the iPhone 2G (original iPhone), the iPhone 3G (but not the 3GS) and also the iPod touch (first and second generation). Currently it is available for Windows and Mac OS X.”

Jailbreaking is the use of unsanctioned apps to allow iPhones, or other devices, to run applications from sources other than those approved by Apple (NASDAQ: AAPL), while unlocking a phone means the handset can be used on any wireless carrier, as opposed to just AT&T, the exclusive carrier for the iPhone.

The newly-released jailbreak and unlocking app comes at a time when Capitol Hill is asking the FCC to investigate exclusive carrier deals with handset makers and as Apple continually makes headlines over what types of content is authorized for sale at its App Store.

“We believe strongly that people should be able to jailbreak their phones, but, people face a legal threat if they do so. Our view is that if you want to jailbreak, you should, because you own the phone. In terms of iPhone apps, what Apple does or doesn’t approve becomes less of a big deal if people can opt out of the App store,” Rebecca Jeschke, media coordinator for the Electronic Frontier Foundation told InternetNews.com.

She adds that the group is petitioning the Digital Millennium Copyright Act office (information here in PDF format) to allow jailbreaking.

One EFF proposal requests a DMCA exemption for cell phone jailbreaking while another asks for a renewal of an exemption previously granted for unlocking phones so they can be used on any telecom carrier.

“Carriers have threatened cell phone unlockers under the DMCA to protect their anti-competitive business models, even though there is no copyright infringement involved in the unlocking. Instead, the digital locks on cell phones make it harder to resell, reuse, or recycle the handset,” claims the EFF.

The comments from the EFF likely won’t surprise Apple, as the two are involved in an ongoing tussle over what constitutes legal use of its devices.

In the past, Apple has said jailbreaking is illegal. Jailbreaking an iPhone constitutes copyright infringement and a DMCA violation, says Apple in comments filed with the Copyright Office as part of the 2009 DMCA triennial rulemaking.

In its filing, Apple claimed that copyright infringement happens when jailbroken iPhones use modified version’s of Apple’s operating system software. But the EFF in a legal analysis posted at its Web site counters that by saying copying software while reverse engineering is fair use when done for “purposes of fostering interoperability with independently-created software.”

As for the DMCA violation, Apple argues that the DMCA entitles them to block interoperability with anything that hasn’t been approved in advance, saying that independently-created applications will compromise security and prompt pirated software.

The EFF, however, responded by using a car manufacturer analogy, saying that consumers would not allow only General Motors, for example, to service or provide parts for a car they bought from that company.

The public comment period on the proposed exemptions ended in February, and now hearings are being held, with a ruling on the matter from the Copyright Office expected in October.

Apple had not returned calls seeking comment by press time.

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