Last week I received a response from the Minister of Industry’s office to another one of my questions about Bill C-32 (previous response: What C-32 means for DVDs). Here is my question:
Is it legal to jailbreak an iPhone, iPad, or iPod Touch under Bill C-32? By jailbreaking, I mean what is described at http://en.wikipedia.org/wiki/Jailbreaking_for_iOS , not merely SIM unlocking. If jailbreaking is legal, which exception to the anti-circumvention laws makes it legal?
And the response:
Under the Copyright Act, there is no prohibition against “jailbreaking” an iPad or similar device.
Whether a particular technology, such as one used to prevent the running of non-approved applications on an iPad or similar device, would be captured by the TPM provisions would depend on whether it meets the definition of TPM in the Bill. This would be up to Canadian courts to interpret.
Bill C-32 also includes regulatory powers that enable the government to set out exceptions to the TPM provisions, for instance if it considers that the provisions would unduly restrict competition in an aftermarket sector. In the United States, which has a similar mechanism for introducing exceptions to its TPM prohibitions, an exemption has been proposed in relation to jailbreaking smart phones, like the iPhone.
Director of Communications
Office of the Honourable Tony Clement
Background on response’s points
By “regulatory powers that enable the government to set out exceptions to the TPM provisions”, I believe that Mr. Waddell is referring to the proposed Section 41.21 in Bill C-32, which begins “The Governor in Council may make regulations excluding from the application of section 41.1 any technological protection measure…if the Governor in Council considers that the application of that section to the technological protection measure…would unduly restrict competition in the aftermarket sector in which the technological protection measure is used.”.
The United States’ “similar mechanism for introducing exceptions to its TPM prohibitions” likely means the process spelled out in 17 U.S.C. 1201(a)(1)(C), which says “during each succeeding 3-year period, the Librarian of Congress…shall make the determination in a rulemaking proceeding…of whether persons who are users of a copyrighted work are…adversely affected by the prohibition under subparagraph (A) ['No person shall circumvent a technological measure'] in their ability to make noninfringing uses…of a particular class of copyrighted works”. Bill C-32 also describes a periodic review process in Section 58 of the bill, which will replace Section 92 of the Copyright Act: “at the end of each…period of five years, a committee…is to be designated or established for the purpose of reviewing this Act.”.
The exemption that “has been proposed in relation to jailbreaking smart phones” in the United States probably refers to the first of Electronic Frontier Foundation‘s three proposals in the 2009 rulemaking proceeding to exempt “Computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset.”.
To be clear, my question was meant to broadly refer to all situations where a hardware and/or software vendor artificially restricts what software can be run on top of its products. I used the iPhone/iPad/iPod Touch as a specific example because it’s currently the most visible example of such a situation.
I will be posting another article discussing the US exemption rulemaking procedure shortly. It will further expand on the material in this article to examine how effective such a procedure would be in Canada. Update: I’ve posted the article: Will exemption rulemaking work for C-32?.