Anyone writing and possibly even using a crack to jailbreak the Apple iPhone could face the wrath of the courts, according to intellectual property experts.
Under UK law, cracking the system to gain access to the operating system could be construed as circumventing a protection system, which could be seen as copyright infringement.
“Apple would probably have a cause of action against both the person that wrote the crack and against the consumer, but it would depend on the terms of the licence,” said Leigh Ellis, intellectual property partner at specialist copyright law firm Gilhams.
If someone writes a hack that allows someone to get at the operating system, for example, then Apple would have a case
“It would be an offence under anti-circumvention laws and if someone writes a hack that allows someone to get at the operating system, for example, then Apple would have a case.”
The UK stance is in stark contrast to the US, where the Copyright Office recently ruled that it was not illegal to provide software to crack the iPhone.
Apple had argued that cracking its hardware breached copyright laws, but the Copyright Office said: “The user is not engaging in any commercial exploitation of the firmware … at least not when the jailbreaking is done for the user’s own private use of the device.”
In the UK, Ellis believes Apple would have a case against not only the people writing the jailbreaking crack, but potentially against anyone employing the software to unlock their handset or other hardware.
“If I was advising Apple, I would suggest going after both the consumer and the hacker,” he said. “But Apple would probably choose not to go after the consumer – they are the ones that buy the products.”
He added that action would likely happen in civil courts. “Primarily this would be a civil action that Apple would have to take, but if the infringement was on an industrial scale then it could be seen as a criminal event,” he said.
Intellectual Property Office
The Intellectual Property Office (IPO) had not come back to us despite repeated requests, but statements on its website appear to confirm that Ellis’s assertions hold water.
“Technical protection measures that are designed to prevent unauthorised, restricted acts in respect of copyright protected works, are perfectly legitimate tools used by copyright owners to restrict certain uses of their work,” the IPO official information reads.
“Workarounds, or circumvention, of such protection measures is illegal and may result in the right holder taking civil and/or criminal action against the person carrying out such an act.”
According to the IPO, criminal action would probably only apply to people selling or distributing the software to crack the security measures in place.
“The right to take action is equivalent to the rights you have when suing for infringement of your copyright in the civil courts. Criminal offences may also apply to those who deal in the means to get round technical measures.”
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