Want to play old school Nintendo games on your iPad? Download Google Play apps from foreign countries to your Galaxy Tab? If so, you’ll have to break the law. That’s because under new rules issued by the U.S. government, jailbreaking (or in the case of Android, rooting) tablets becomes a violation of the Digital Millennium Copyright Act on Sunday, October 28.
On Thursday, the Librarian of Congress issued its latest set of exemptions to the DMCA. By default, digital rights management (DRM) mechanisms cannot legally be flouted by consumers, but the DMCA allows the government to periodically define exemptions to this rule.
In 2010, tinker-happy iPhone owners breathed a sigh of relief (and Steve Jobs likely just sighed) when it was ruled that jailbreaking smartphones was perfectly legal under the DMCA. This remains the case, but the updated list of exemptions explicitly excludes tablets, a category of devices that the government found to be too “broad and ill-defined” to allow their owners free reign when using them. So as of now, it is illegal to jailbreak an iPad or root a tablet running Android or any tablet-focused flavor of Windows.
This Makes No Sense
The tablet exemption is a bit of a head scratcher. I’m free to jailbreak my iPhone and do as I please with it, but if I want to run the same jailbreak tool on a larger device running the same exact operating system, it’s against the law?
Accessing Cydia on my iPhone 4 is cool, but doing it on a screen a few inches bigger? That’s illegal. Other than its size, the only significant difference between these two devices is that the iPhone makes and receives calls.
The new rules also forbid personal copying of DVDs. And starting in January 2013, it will be illegal to unlock new smartphones for the purpose of switching carriers. Unlocking older handsets will continue to be fine. The whole thing illustrates what Ars Technica’s Timothy B. Lee calls “the fundamentally arbitrary nature of the DMCA’s exemption process.”
In order to convince the Librarian to allow DVD ripping in order to watch it on an iPad, a court would first need to rule that doing so falls under copyright’s fair use defense. To get such a ruling, someone would have to rip a DVD (or sell a DVD-ripping tool), get sued in court, and then convince a judge that DVD ripping is fair use. But in such a case, the courts would probably never reach the fair use question, because – absent an exemption from the Librarian of Congress- circumvention is illegal whether or not the underlying use of the work would be a fair use.
Lee goes on to make the case that new rules surrounding DVD copying and eBook DRM don’t make sense either and suggests that perhaps DRM schemes should not be legally protected from tampering by default. His take is well worth a read.
How Will This Impact iOS Jailbreaking?
When the news broke, iOS jailbreak developer MuscleNerd expressed concern about it on Twitter. When I asked him for his perspective, he declined to comment because of potential legal repercussions.
Suffice it to say that developers like him are less than thrilled about the new rules. It may cause them to be more be cautious about building new jailbreak tools for iOS. Tools like Absinthe and Redsn0w will continue to be able jailbreak iPhones, but may include some fine print about using them to to crack open iPads, if that functionality is available at all.
Developers have not yet created an untethered jailbreak for iOS 6, but one is understood to be in the works. We’ll see if these new rules have any impact on what the jailbreak community comes up with.