Saracens Blog

Jailbreaking your iPhone – IS IT LEGAL?

WILL IT GET ME INTO TROUBLE?

Many of you or your family members/ loved ones and friends already own an Apple device (iPhone or iPad or iPod – collectively referred to as ‘iDevices’) and you may have heard the term ‘jail-break’ or ‘jail-breaking’ being used in relation to these devices. What is jail-breaking? Should you jailbreak your phone? Is it legal? Are you breaching Apple’s copyright by doing so? Will you get in trouble for doing it?

Changes in mobile device usage and the emergence of applications or “Apps” allow you to download various Apps direct from the Official Apple ‘App Store’. From games to music, learning and fitness tools, there is an App out there for everyone. Seemingly, you have complete freedom to download Apps and customise your iDevice in order to enhance your experience.

But can you really customize your iDevice in the manner you want or do you have to stick within the boundaries predefined by Apple? The reality is that unless your desired changes fit within Apple’s boundaries, you will be unable to make your desired changes:

 

That is, of course, unless you choose to jail-break your iDevice…

 

What is jail-breaking?

In their default state iDevices are only capable of running Apps that have been purchased and installed from the App Store. Essentially, barriers have been erected by Apple (as is their right) in order to protect the so called ‘integrity’ of their product. These barriers actually prevent users from exploiting the full potential of their iDevice in accordance with their own wishes.

Users unhappy with these restrictions are ‘breaking’ these barriers by installing software which overrides them and this process is called ‘jail-breaking’. The main benefit of jail-breaking is that it allows access to software that allows you to download and run applications produced by 3rd parties.

Such applications are not available in the App Store. By jail-breaking an iDevice, you can download more apps and customise your iDevice in the way you see fit.

 

Is jail-breaking illegal?

There is nothing in English law to suggest that jail-breaking is in itself illegal. The Copyright and Related Rights Regulations 2003 state that although you can break these ‘barriers’ for certain operational reasons you cannot do so in order to install pirated Apps as this would be regarded as a breach of copyright. Installing pirated Apps (commonly referred to as an act of piracy) is illegal. Pirate Apps are copies of official Apps made available for free download to those  using jail-broken iDevices.

Apple argues that users who jail-break their iDevices are acting illegally since this exposes their operating systems to the risk of being pirated which in itself would be a breach of copyright. The Courts in England are silent on the issue although U.S. Courts have disagreed:

 

“When one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses.”

 

Simply put the U.S Courts do not accept that the only reason people jailbreak is to pirate software and breach copyright law.

 

In Summary:  iDevice users are permitted to download and install whatever software they care to regardless of who developed it so long as they steer clear of pirate software – installing pirate software is a breach of copyright and therefore illegal.

 

Breach of copyright?

 Although it is widely accepted that the act of jail-breaking is legal, certain programmes downloaded following the jailbreak allow access to illegal software. By installing these programmes, users are able to access official App Store applications and download pirated versions of the same at no cost whatsoever.

Copyright itself is a legal right granted to authors / artists / developers (‘creators’) which allows them to protect their work from being copied by others unless prior express consent is granted.

This means the creator is solely entitled to copy the work, play the work in public or adapt the work. Alternatively, the creator can licence a separate entity to exercise their rights.

 

Beware…

Despite the legitimate benefits of jail-breaking, there is no doubt that it has given rise to an explosion of illegal downloading of Apps in the past two years.

Only creators (or those licensed by them) are entitled to distribute copies of the work they have created. So, in this instance, if you were to create a new application and place it on the App Store, you alone – with the assistance of Apple – would be entitled to distribute the App.

In fact what is occurring is that users other than the creator are gaining access to the application, copying and uploading it onto software programmes that allow jail-broken iDevices to download it for free. This is in fact illegal as it is a breach of copyright.

Breaches of copyright open up a user to possible criminal and / or civil liability. English Courts have the power to stop individuals from making further use of infringed work, award damages to creators etc… Remember however, these penalties exist for illegal downloading and not just for jail-breaking the iDevice, which is not illegal.

The existence of copyright provides an incentive for creators to create works and earn a source of income. If breaches of copyright exploited via jail-breaking continue unchecked, there is no incentive for creators to ‘create’ exciting new Apps and ultimately all iDevice users would lose out as a result.

It is up to you to ‘jail-break’ or not and you should research the positive and negative aspects of doing so but as long as you make sure that you steer clear of illegal software downloading programs, you should be operating within the confines of the law.

 

 

 

 

Tanveer Rashid

Litigation department

 Saracens Solicitors

 

 

 

photo credit: Mando2003us


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