Jailbreaking an iPhone = Copyright Infringement?

Apple recently filed a paper with the U.S. Copyright Office asserting that jailbreaking an iPhone is an act of copyright infringement and violation of the anti-circumvention provision of DMCA.

Out of the box, the iPhone restricts the applications that can be run on the device to the software in the iTunes Application Store. However, a large number of users have figured out how to remove these restrictions by "jailbreaking" their devices.

Apple's filed response claims that jailbreaking an iPhone is an act of copyright infringement because jailbroken iPhones must run unauthorized modified versions of Apple's bootloader and operating system. Modifying copyrighted software (otherwise know as "creating a derivative work") without the permission of the copyright holder can certainly be an act of copyright infringement. However, as we’ve seen from cases like Sega v. Accolade, the unauthorized copying of software for purposes of reverse engineering is considered a fair use when done with the goal of fostering interoperability with other software. The twist in this case is that modified versions of Apple's software must be copied into memory every time the iPhone boots, making the reverse engineering exception more arguable.

Apple’s filed comments also claim that jailbreaking an iPhone violates the anti-circumvention provision of the DMCA, because jailbroken iPhones run Apple's copyrighted software while the user of the iPhone is in breach of the end-user license agreement. Here again, Apple must contend with a law that recognizes an exception to the DMCA for purposes of enabling interoperability of software (reverse engineering).

We've seen software owners take the position that copyright infringements occurs as soon as the software is used outside the terms of an end-user license agreement more and more frequently in light of recent rulings in cases like Blizzard v. Glider. Fair use advocates have been quick to point out to that such a position effectively reads out the protections of U.S.C. 117(a), which is designed to allow users of software the ability to copy software they possess into temporary memory without worrying too much about copyright infringement.

So, is jailbreaking an iPhone a protected act of reverse engineering, or an infringing act of unauthorized copying? We'll have to wait and see how this all shakes out.