• by Wendy Davis , December 4, 2008

The digital rights group Electronic Frontier Foundation has long argued that consumers are legally allowed to improve or customize gadgets they own, such as Apple's iPhones. Now the group is asking the U.S. Copyright Office to make it clear that people who "jailbreak" smartphones, such as iPhones, so they can download applications from outside developers do not violate the Digital Millennium Copyright Act.

"There is no copyright-related rationale for preventing iPhone owners from decrypting and modifying the device's firmware in order to enable the phones to interoperate with applications lawfully obtained from a source of their own choosing," the group argues. The Electronic Frontier Foundation estimates that around 350,000 users have reconfigured their iPhones to allow them to download applications from outside Apple.

In addition, in a petition brought on behalf of three wireless recycling and resale groups, the Electronic Frontier Foundation also asked the Copyright Office to extend--and arguably broaden--a 2006 rule allowing people to unlock without violating the DMCA's anti-circumvention provision. That law generally prohibits users from cracking the codes that control access to copyrighted material.

Currently, individuals are not liable for unlocking iPhones or other wireless devices for personal, non-profit use, according to Electronic Frontier Foundation attorney Jennifer Granick. But selling unlocked iPhones might not be legal. At the present time, wireless company TracFone is pursuing at least 28 lawsuits against people who allegedly buy unlocked wireless phones in bulk and re-sell them, and has won at least one large award. TracFone Wireless won $1 million in March, in a lawsuit in federal district court in Texas against James Ray Thomas and others who bought phones in bulk and unlocked them.

The Electronic Frontier Foundation argues that allowing phones to be unlocked helps competition and is also environmentally friendly. "When Americans find that they can't unlock their phones and use them with a new service provider, they throw their old phones away," the organization alleges. "By some estimates, discarded phones, phone batteries and their accessories produce 65,000 tons of toxic trash per year."

The organization also asked the Copyright Office to rule that cracking the encryption on a DVD in order to create a remix is lawful. The group says people who create mashups are making fair use of the material, so circumventing technology that would otherwise prevent them from making mashups should be legal.