Apple v. EFF: The iPhone Jailbreaking Showdown
That was the heated topic of discussion late Friday between Apple’s iPhone marketing czar Greg Joswiak, Fred von Lohmann, the Electronic Frontier Foundation’s copyright genius, Copyright Office officials including registrar Marybeth Peters, the record labels, movie studios and software industry.
Apple vigorously opposed authorizing jailbreaking, saying copyright protections is what gave birth to the iPhone, the 1 billion app sales, 50,000 app developers and 35,000 apps. The EFF vigorously urged the Copyright Office to authorize jailbreaking, which in this case is hacking the phone’s OS, and hence allowing consumers to run any app on the phone they want, including those not authorized by Apple.
“It is my automobile at the end of the day,” von Lohmann said, a reference that iPhone users should be allowed to do what they want with their phones, just like car owners do.
At stake for Apple is the very closed business model Apple has enjoyed since 2007, when the iPhone debuted. More than 30 million have been sold so far. “This would severely limit our ability to continue what we are doing as well as innovate for the future,” Joswiak said.
The panelists squared off here as part of the Copyright Office’s three-year review on whether to grant exemptions to the Digital Millennium Copyright Act of 1998. The act forbids circumventing encryption technology to copy or modify copyrighted works – in this instance encryption protecting the bootloader connected to the OS operating system itself.
Neither Peters nor the three Copyright Office attorneys at the three-hour hearing here tipped their hats on whether they would recommend the librarian of Congress to grant the exemption, a decision expected later this year. Still, the changeover seemed unlikely as the Copyright Office has repeatedly denied consumer-friendly oriented fair use changes, such as requests to make up backup copies of DVDs or video games, as well as requests for exemptions to enable copying DVDs to laptops and portable devices.
Despite the iPhone’s popularity, about three-dozen people attended the marathon, three-hour jailbreaking hearing here at Stanford University. The hearing came just months before Apple releases its OS 3.0, its latest operating iPhone system. There is an estimated 1 million-plus jailbroken iPhones, von Lohmann said.
Apple said jailbreaking would amount to such a major modification – for example with apps turning the iPhone into a WiFi center — that the law does not permit it. Apple maintained allowing any app on the iPhone could be detrimental to the phone’s functionality that Apple will be overrun by service calls from angry customers. It also goes against the agreements it has with its 30 phone-connection carriers worldwide, Joswiak said.
Ben Golant, the Copyright Office’s assistant general counsel, asked whether AT&T, the exclusive provider for the iPhone in the United States, “prohibits you from implementing certain applications?”
“We don’t allow any bandwidth hogs,” Joswiak said. He added that the Cupertino company does not allow apps associated with porn or other distasteful content, including a so-called “Baby Shaker” app barred last week.
The EFF, of San Francisco, requested the exemption.
Apple (.pdf) fears opening its iPhone platform to non-approved apps could cost it money. It earns 30 percent for every app sold, but would get nothing from those not sold via iTunes. Most important, however, it fears that opening up the OS would lead to piracy of sanctioned iPhone apps as well as create a giant iPhone platform to play and copy infringing content like movies and games.
The Motion Picture Association of America, the Recording industry Association of America, the Business Software Alliance and others said the DMCA does not allow circumvention exemptions to create a “venue for infringing activity.”
“The impact will be to open up fast fields for the manufacturers and purveyors of pirated games,” said Steve Metalitz, a representative for those groups.
But von Lohmann countered and said the exemption, which would apply to all mobile phones including Google’s Android platform, is warranted because opening a venue for third-party apps is, by itself, a non-infringing activity the DMCA authorizes.
“This is a close ecosystem of a business model,” von Lohmann said, adding:
“I don’t think Congress meant that when they passed the DMCA.”
The DMCA, which President Clinton signed ten years ago, dictates “no person shall circumvent a technological measure that effectively controls access to a work protected under this title.”
But under the law, every three years the Librarian of Congress is charged with considering the public’s request for exemptions to that anti-circumvention language.
An exception adopted during the last review in 2006 granted mobile-phone owners the right to circumvent the technological locks on their phones.
Doing that allows users to switch phone carriers without buying a new phone. That is up for review again this year, and Peters and the other members of the Copyright Office entertained proposals to extend that for another three years as well.
Over the decade, a handful of other exemptions have been granted. They include circumvention of anti-copying restrictions on DVDs for the purpose of making compilations of portions of those works for educational use in a classroom. Another was directed at the blind, allowing the circumvention of an e-book’s shuttered read-aloud function. Another allows the circumvention of access controls on CDs to research for security flaws.
Here are all the nine exemptions under consideration this year.
- Hackers, Others Seek DMCA Exemptions
- Apple Says iPhone Jailbreaking is Illegal
- Top Internet Threats: Censorship to Warrantless Surveillance …
- Online Video-Sharing Sites Score Copyright Victory
- The Digital Millennium Copyright Act of 1998
- Feds Consider New DMCA Anti-Circumvention Exemptions
- DMCA Coupon Flap Ends Nobody ‘Won’
- DMCA Abuser Apologizes, Will Take Copyright Law Course
Also on Wired.com