As the result of a libertarian digital public-interest group’s efforts, the U.S. Copyright Office is evaluating whether to grant a three-year exemption from the Digital Millennium Copyright Act (DMCA) for iPhone “jailbreaking”.
Apple’s iPhone includes software locks to prevent applications (or “apps”) other than those sold through Apple’s App Store from running on the iPhone platform. Jailbreaking is the increasingly popular practice of bypassing the locks so that iPhone owners can run non-Apple-approved apps of their choosing. According to the Electronic Frontier Foundation (EFF), which is leading the battle to legalize jailbreaking, Apple has become somewhat puritanical about what apps may be featured on the App Store, barring, for example, a Nine Inch Nails-themed app from the band’s front man Trent Reznor, as well as “Me So Holy,” an irreverent app that pastes a snapshot of the user’s face over the faces of hallowed religious figures.
In any litigation to prevent jailbreaking, Apple is likely to invoke the so-called “anti-circumvention” provision of the DMCA, 17 U.S.C. Section 1201(a)(1). This clauses prohibits the circumvention of technological measures (also known as digital rights management or DRM) that “effectively control[] access” to copyrighted works. Apple’s position would be that the software locks bypassed by the jailbreakers are genuinely designed to protect Apple’s copyrighted code for the iPhone bootloader and operating system from unauthorized modification and copying. While this is far from clear, jailbreakers and their legal advocate the EFF have taken preemptive action to clear the way for the free exchange of iPhone apps outside of Apple’s control.
Under the DMCA, the Library of Congress and the Copyright Office may hold rulemakings to create three-year exemptions from the anti-circumvention provision of the DMCA for certain classes of works if it is determined that users are likely to be adversely affected in their ability to make non-infringing uses of those works due to the prohibition on circumvention of access controls. The EFF has specifically requested the creation of a formal exemption to permit jailbreaking and installation of non-App Store apps on the iPhone platform. The period for public comment ended February 2, and the Copyright Office held hearings on the proposed rulemaking at Stanford Law School on May 1 and in Washington, D.C. on May 6-8. The EFF is essentially arguing that Apple’s software locks are intended to protect a closed business model with respect to the distribution of apps, rather than any legitimate copyright interest. Apple has countered that the software locks protect its copyrighted firmware, with the goals of protecting the iPhone device from harm, excluding malware, protecting Apple’s and its authorized developers’ rights in their apps, and preventing the circulation of pirated apps. A final rule is expected in October 2009.
For more on the EFF’s involvement with the jailbreaking movement and its other digital crusades, check out their website at http://www.eff.org.