BROOKE GLADSTONE: When Congress passed the Digital Millennium Copyright Act back in 1998 to protect copyrighted material from being illegally distributed via new media, it was recognized that the law would need regular updates to keep pace with rapidly changing technology. So every three years, the Librarian of Congress reviews its provisions and issues exemptions. And this week, results of the latest review were released. The exemption that grabbed the most headlines involved smart phones. Apple had claimed that hacking your iPhone to, say, use non-Apple apps, violated the act, which may be why messing with your smart phone is called “jailbreaking.” But now the Librarian of Congress has determined that jailbreakers are not subject to copyright lawsuits. Jonathan Zittrain of Harvard’s Berkman Center for Internet and Society says there are plenty of reasons to jailbreak.

JONATHAN ZITTRAIN: There may be all sorts of applications, including ones that go against the business model of the curator, that people would want to run. So there are people who have submitted email management programs to run on something like the iPhone, and Apple, within its rights, has said, no, we're not going to allow it on the platform because we think it competes with our own mail program on the phone. And so it may well be that as an iPhone user, you want to use something like that, and uh, jailbreaking the phone would be the way to do it. Of course, another big reason to jailbreak the phone would be to try to use a different phone services vendor, to move from AT&T, say, to Verizon or something.

BROOKE GLADSTONE: Apple keeps a pretty tight hand on its applications. You can submit an idea to Apple. They can either accept it or they can refuse it. They want to create a squeaky-clean what they call “ecosystem” for their users. This would compromise that.

JONATHAN ZITTRAIN: Correct. And at the moment, one of the competing phones, the Android phone, in large part sponsored and pushed by Google, is a phone that has an official app store, just kind of like the Apple Store, but you can go off-roading if you want. And one big canary in the coal mine will be, for people who use Android phones, how often do they find themselves using applications that may not have merited approval, and how often are those applications ones that turn out to be bad for them, the way that sometimes in our personal computer environment we end up running applications that we regret later.

BROOKE GLADSTONE: As a practical matter, what does this decision really mean for people who have a smart phone like the iPhone? Can they hack their phone? Do they have the tools? Can grandma go to a website and double-click something that will jailbreak her phone?

JONATHAN ZITTRAIN: It’s still not clear. The exception just provided to allow people to hack their phones doesn't itself directly apply to trafficking in the tools that let you do the hacking you were just told you can do. So it’s a little bit like being told, okay, you’re allowed to chisel out a statue from this block of marble but we're not going to allow you a chisel. Even if you get the chisel, there’s still the issue, especially with phones, which are constantly talking back to the mother ship to enable their usage, that you’re voiding the warranty. You could see the vendor of the phone saying, well, no update for you. Your phone isn't going to work anymore. So-called “bricking” could take place, where the phone is essentially turned into a brick. This exception just allows game on. [LAUGHS] It allows the cat-and-mouse game to continue without the vendor of the phone trying to bring the courts to bear to stop you, but it doesn't mean they can't bring technology to bear.

BROOKE GLADSTONE: So unless you have some programming expertise, this isn't going to help you very much. But what about symbolically?

JONATHAN ZITTRAIN: I think symbolically that’s where this decision makes a difference. Here is an official of the United States government declaring that the activity by which you can use the phone however you like is legally protected. And that’s important. Even the terminology we use a lot – jailbreaking, hacking – these terms tend to have connotations that suggest a subversive, if not downright illegal, activity. I mean, in what other context are we happy when jailbreaking takes place? So, I see this decision symbolically as helping to refine a conversation about how much the long arm of the vendor can keep operating after a purchase has been made. And even if, say, an Apple or a Kindle or a Facebook would be entirely within its rights to try to go after you for changing the applications that you can run on their product, it may mean that they'll be more reluctant to do it because it’s seen not as a terrible activity but actually as a salutary one.

BROOKE GLADSTONE: And salutary because?

JONATHAN ZITTRAIN: Because one of the lessons we've learned is how much we can be surprised by what those two people in a garage can do. The World Wide Web itself, instant messaging, Skype, peer-to-peer networking, each one of these things originated kind of in a corner and then could find a mainstream audience because there was no central curator to whom a business case had to be made.

BROOKE GLADSTONE: Jonathan, thank you very much.

JONATHAN ZITTRAIN: Thank you.

BROOKE GLADSTONE: Jonathan Zittrain is Professor of Law at Harvard Law School and co-director of Harvard’s Berkman Center for Internet and Society.

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