Yesterday, EFF asked the U.S. Copyright Office to grant an exemption to the Digital Millennium Copyright Act for “jailbreaking” smart phones, tablets, and video game consoles.   The exemptions are designed to dispel any legal clouds that might prevent users from running applications and operating systems that aren’t approved by the device manufacturer.  The exemptions stem from section 1201 of the DMCA, which prohibits circumvention of “a technological measure that effectively controls access to a work protected under this title.”

In 2009, over strident opposition from Apple, EFF won an exemption from the Copyright Office for users who wish to jailbreak iPhones and other smartphones.  Due in part to this ruling, a vibrant jailbreaking community has developed online that has immeasurably improved innovation, security, and privacy in these devices.

So why might Apple and other manufacturers still oppose the process? That’s a great question. When Apple first fought one's legal ability to jailbreak, they claimed it would cut into their business model and ruin their ability to make money. But Apple profits are at an all-time high by every relevant metric.

In fact, rather than hurting companies like Apple, the jailbreaking community often ends up helping them, as Apple and other manufacturers later adopt many features they rejected at first. Let’s take a look back at all the benefits jailbreaking has brought both manufacturers and users of smartphones, and why they should be expanded to tablets and video game consoles like the PlayStation 3, Nintendo Wii, and Xbox 360.

Innovation

By all accounts, the jailbreaking community has greatly improved smartphone usability. For example, the community developed applications—first rejected by Apple—that allowed older versions of the iPhone to record video. Jailbreakers were also the first to successfully configure keyboards to wirelessly connect with the smartphone. Apple later adopted both of these features.

This pattern of imitation has been followed in a host of other innovations introduced by the jailbreaking community stretching from the design of the user interface to the management of applications on the phone.  As David Kravets of Wired said, “those hacks include pulldown notifications, home-screen camera access and wireless syncing,” to name a few.

Security

Security fixes developed by the jailbreaking community protect smartphone users when the manufacturer is slow to fix vulnerabilities or doesn’t fix them at all.

When a security flaw was discovered when iPhone’s web browser opened PDF files, Apple was slow to patch it. Users who didn’t want to wait for the manufacturer to fix the problem had a better way to protect themselves: jailbreak their phones to install an “unauthorized” patch created by an independent developer.

But the 2011 DigiNotar debacle is the clearest example of why jailbreaking is so vital. Until recently, DigiNotar was a certificate authority—an organization that issues digital certificates used to authenticate and secure communications between various services online, such as credit card transactions. But in September, it was hacked and started issuing fraudulent certificates, allowing malicious users to compromise devices and services. Early versions of Android didn’t update automatically, leaving users with older operating systems no recourse except to jailbreak their phones so they could protect themselves.

Privacy

In an era of increased worries about privacy on mobile devices, the jailbreaking community has also been vital in securing users’ privacy when manufacturers won’t.

Jailbreakers were the first to introduce an unauthorized app on the iPhone that hid text messages from automatically appearing on the front screen for anyone to see who was nearby. Jailbreakers were also responsible for introducing a patch that prevented Apple's unauthorized logging of detailed location data on iPhones. Similarly, on the Android, an unauthorized application called LBE Privacy Guard allows for personal research and monitoring of sensitive data that third-party applications may try to access. But these privacy-protective applications are only available to users who jailbreak their devices.

The popularity of tablets has exploded over the past few years, and EFF wants users of devices such as the iPad and NOOK to have the same benefits as smartphone users have enjoyed for the past three years.

But that’s not all. We are also applying for an exemption for video game consoles.

Video Game Consoles

Manufacturers of video game consoles like the PlayStation 3, Xbox, and Nintendo Wii also limit users’ operating system and software options, even when there is no evidence that other programs will infringe copyright. Our exemption would allow users to run the operating system of their choice on their consoles, as well as “homebrew” applications.

Video game consoles have powerful computer processors that can allow a user to run them as an inexpensive alternative to a desktop. Researchers, and even the U.S. military, turned clusters of PS3s into powerful supercomputers back when Sony supported the installation of alternative operating systems. But Sony axed that option with a 2010 firmware update, and PS3s can no longer run Linux without being jailbroken. Indeed, earlier this year Sony went so far as to sue several researchers for publishing information about security holes that would let people install and run Linux on their own PS3s. We hope the exemption we’re seeking will clarify that people can run the operating system and applications of their choice on their own boxes.

EFF implores Apple, Sony, and others to support these exceptions to the DMCA to improve user experience and keep their users’ information private and secure.