Apple has laid out what is believed to be its first legal argument against the practice of jailbreaking an iPhone in response to an EFF petition before the Copyright Office.
Apple recently told the U.S. Copyright Office that it believes iPhone jailbreaking is a violation of the Digital Millennium Copyright Act and infringes on its copyright, according to the Electronic Frontier Foundation.
The EFF is trying to get the Copyright Office to grant a DMCA exemption on behalf of iPhone owners who have chosen to jailbreak their iPhones, or bypass the restriction Apple places on standard iPhones that only allows the installation of applications from approved sources: the App Store. In its response to the Copyright Office (click here for PDF), Apple disagreed that such an exemption was proper because the very act of jailbreaking the iPhone results in copyright infringement.
Current jailbreak techniques now in widespread use utilize unauthorized modifications to the copyrighted bootloader and OS, resulting in the infringement of the copyrights in those programs. For example, the current most popular jailbreaking software for the iPhone, PwnageTool (cited by the EFF in its submission) causes a modified bootloader and OS to be installed in the iPhone, resulting in the infringement of Apple's reproduction and derivative works rights.
The EFF's argument is that jailbreaking your iPhone is protected under fair-use doctrines, and that the Copyright Office should grant an exemption because "the culture of tinkering (or hacking, if you prefer) is an important part of our innovation economy." But Apple's response is that few users of jailbroken iPhones actually jailbroke it themselves; instead, they downloaded software created by other parties to make that happen.
Don't expect Apple to come knocking on your door if you're using a jailbroken iPhone; they used a similar argument in the Psystar case and no one has confiscated my Open Computer yet. But Apple could be trying to build momentum behind the recognition of jailbreaking that does more harm than good; already this week, iPhone developers have been discussing writing software that only works on jailed iPhones as a way of preventing application bootlegging.