Tonight there's gonna be a jailbreak (of your software?)
Taking a cue from the rock band Thin Lizzy, on Monday, the U.S. Copyright Office
ruled that “jailbreaking” your iPhone or other mobile device will not violate federal copyright laws. Jailbreaking (or, as it relates to restricted networks, "unlocking") a device generally means working
around or removing restrictions built into the software code by the software developer -- otherwise known as "anti-circumvention measures" or "access controls." We're all familiar with restrictions in mobile
devices. For example, Apple's iPhone requires that third-party software or applications downloaded on the device be "validated" by the device's software, which limits iPhone users to only those software or application
downloads available in Apple's iTunes App Store. Similarly, most all mobile phones are restricted to certain mobile networks, based on exclusive marketing and service arrangements between the device manufacturers and the network
providers. AT&T doesn't want you to use your new iPhone on T-Mobile's network.
Anti-circumvention measures have been around for quite a while. Historically, software developers have employed anti-circumvention measures principally to prevent piracy or to gain a competitive advantage, or both. For instance,
anti-circumvention measures are widely used in music CDs or MP3s to prevent piracy. Anti-circumvention measures can also create a commercial advantage. When a software developer offers complimentary products for use with its software,
it stands to gain commercially if consumers can only use its software with its products. It's no mystery why your iPod or iPhone won't play content from other online music stores besides iTunes. Apple planned it that way
so that it can sell you the device and the content. Likewise, your Sprint phone will only work on Sprint's network because Sprint wants to sell you the device and the calling plan.
Proponents of anti-circumvention measures argue that they reward innovation by allowing copyright owners to benefit from the fruits of their labor. Critics argue that they limit innovation and preclude users from tailoring software
or devices to best suit their needs.
Monday's decision by the Copyright Office may be tilting the playing field in favor of the jailbreakers. It creates an exemption for mobile devices under the
Digital Millennium Copyright Act of 1998, which before now broadly restricted users of software from removing anti-circumvention measures. Faced with arguments from proponents and opponents of anti-circumvention measures on mobile
devices, the Copyright Office ultimately concluded that anti-circumvention measures were preventing fair use of mobile devices by their users. Jailbreaking a phone to add third-party software to function with the phone's operating
software is not an infringing use, according to the Copyright Office, nor is unlocking a phone to work on a different mobile network. Interestingly, on the issue of ownership of the firmware imbedded in Apple’s mobile devices,
the Copyright Office actually raised a new question instead of providing an answer:
Although Apple retains ownership of the computer programs, the contracts [for the sale of the mobile device and cell phone/data service license] also expressly grant users ownership of the device. Since the copy of the computer program is fixed in hardware of the device, it is unclear what ownership status is given to the particular copy of the computer program contained in the device. . . . [T]he state of law with respect to the determination of ownership is in a state of flux in the courts.
Nonetheless, the Copyright Office ultimately concluded that opposition to jailbreaking is nothing more than a desire to "preserve an existing business model that has little if anything to do with protecting works of authorship.”
With regard to that business model – on which essentially the entire mobile device market is built - this decision by the Copyright Office is pretty big in and of itself. But it also begs the question: Is this just the beginning?
How do software developers respond, or should they? More important, how are other software-dependent industries affected? How much leeway should be given to users to circumvent access controls in software to suit their individual
needs?
Some would argue that software developers should have the absolute right to control their product, even for the purpose of gaining a commercial advantage. After all, in the DMCA (which amended the Copyright Act), Congress affirmed
the right of authors to employ anti-circumvention measures in order to control their content, and one might argue that the commercial advantage of doing so was presumed. But the Copyright Office’s decision on jailbreaking
is focused on the expressed exclusive rights granted by the Copyright Act in its pre-DMCA form – the rights to display, reproduce, create derivative works, perform and distribute the actual work of authorship. Implicit in
the Copyright Office’s decision is the conclusion that the business model so prevalent in the mobile device market really doesn’t serve to protect those rights.
So, if you're a software developer, or producing products that are heavily dependent on devices with embedded firmware, and there are anti-circumvention measures in your code, you should probably focus your attention on using
those measures to protect your rights of authorship. That’s what the Copyright Office is interested in protecting.