Is it just a question of morality, of whether a company has the right to set the rules for how their product may be used? It might seem that EFF is advocating consumer revolt, that Apple shouldn't be able to stop users from breaking its rules. But that's not the issue, EFF's Jennifer Granick tells Hansell. Apple can and does set the terms of iPhone use by contract.
The problem is that contract law would require Apple to sue users and prove they breached the license agreement, an expensive proposition. Copyright law is so much more convenient.
Under copyright law, Apple would have the right to claim statutory damages of up to $2,500 “per act of circumvention.” People who jailbreak phones, might even be subject to criminal penalties of as long as five years, if they circumvented copyright for a financial gain.
“Apple is bringing the hammer down in a way that Congress never intended and is really severe for something that is just not wrong,” Ms. Granick said. An Apple spokesman declined to comment beyond its legal filing.
Hansell finds the entire debate frustrating. For one thing, the Copyright Office will ultimately decided this issue. It's not really about copyrighted software at all. It's about whether a consumer should get to do whatever they want with the product they buy and whether a company can brick the product or punish users. It's hard to conceive of Apple actually using these legal tools against consumers, but you could imagine the company going after the jailbreak hackers.
EFF may eventually ask Congress to step in, although I have to say I find it hard to work up that much excitement over jailbreaking iPhones.
This is an issue that Congress may have to take up. Ms. Granick also pointed out that Congress has from time to time limited the ability of companies to use contract law to limit what buyers of their products can do with them. For example, car companies are not allowed to void warranties for people who chose to have repairs done somewhere other than at dealers.