World of Apple

I am a bit late to this story, but I find this to be an advantage as I have had the opportunity to read a great deal of the relevant background documentation and filings as well as other commentators’ thoughts.

Brief Background

The Digital Millennium Copyright Act (DMCA) is a piece of legislation passed in 1998 putting into law several international intellectual property treaties from 1996. As part of the DMCA, there is a rule-making review process that occurs every three years in which interested parties may ask the Librarian of Congress for exemptions from the restrictions of the DMCA if such restrictions interfere with non-infringing uses of otherwise-protected content. Any exemptions passed in the previous rule-making session automatically expire in three years and must be re-requested with a de novo review.

One of the groups that has been very active in exemption advocacy is the Electronic Frontier Foundation (EFF). Despite its obvious bias, EFF’s Intellectual Property Page is a wonderful launching pad for resources on this subject.

The DMCA has a notoriously bad reputation among certain segments of the technology community, primarily sophisticated users of digital content. The intent of the DMCA was to modernize copyright law in the ever-changing world of how copyrighted work is delivered and stored. The automatic three-year review recognizes that this area is a constantly moving target.

In the 2006 review, an exemption was granted to users who wish to “unlock” their cellular phones for uses on an “unauthorized” carrier. The EFF is seeking a renewal of this exemption (with additional clarification) as well as a new exemption for iPhone owners who wish to “jailbreak” their devices in order to install applications from sources other than the iTunes App Store (the exemption would not be limited to iPhones—more detail given below). This article is only intended to review the latter request in detail.

Relevant Reference Points

Rationale for the Prior Grant of the Cellular Phone Unlocking Exemption

Here are the basic points elucidated in the Recommendations of the Register of Copyrights dated November 17, 2006 (Pages 48 through 53):

1. A cellular phone owner could not switch carriers in the majority of cases even after their contract period with the carrier expired. If the consumer wanted to obtain service from another provider, they were required to purchase a new device, re-customize it with stored information, and the cycle would repeat again.

2. The cellular devices themselves were inherently capable of working on other networks but for installed software locks in one of several forms.

3. The concern of the cellular phone industry does not appear to be the protection of any copyright but of protecting a specific business model which is not an area to be protected (or denounced) by the DMCA.

4. There does not appear to be any harm that would occur to the copyright holder if the consumer were allowed to circumvent the technological access controls in order to engage in this non-infringing act.

General Factors to be Considered in Granting Any DMCA Exemption

1. The availability for use of copyrighted works;

2. The availability for use of works for nonprofit archival, preservation, and educational purposes;

3. The impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research;

4. The effect of circumvention of technological measures on the market for or value of copyrighted works; and

5. Such other factors as the Librarian considers appropriate.

Factors Considered by the Courts in Determining Fair Use

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect of the use upon the potential market for or value of the copyrighted work.

Obviously, there is substantial overlap in these factors.

The EFF’s Argument as it Relates to Jailbreaking the Apple iPhone

The EFF sought DMCA exemption for two new proposed classes. Only the first is relevant to this article and states as follows:

Proposed Class #1: 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.

Before embarking on its argument in chief, the EFF argues for change in the way that exemptions are evaluated and granted. Specifically:

… EFF urges the Librarian to adopt a new approach when considering now fair use and other statutory exceptions should be taken into account. The approach can be summarized as follows: where assertions of fair use or other statutory exceptions lead the Librarian into areas that have not yet been addressed by the courts, the Librarian should err on the side of accepting these assertions of noninfringement, but narrow any resulting exemption to activities that are ultimately found by the courts to be noninfringing.

In presenting its substantive argument, the EFF claims that Apple has no copyright-related rationale for restricting the decryption and modification of the iPhone firmware so that users may install applications from sources other than the iTunes App Store, and that its only rationale is the protection of a business model which does not fall under copyright protection. The EFF goes on to allege that any iPhone software developers are forced to pay Apple a 30% commission and are overly restricted in the types of applications that may be developed, including applications that directly compete with the iPhone’s native functionality.

The EFF admits that the current iPhone jailbreaking process involves the decryption and modification of the iPhone firmware (though other processes may be developed in the future) but argues that it is necessary in order to allow non-infringing uses of the phone. It further argues that the jailbreaking process itself is not a legitimate violation of copyright for at least the following three reasons:

1. Even though every iPhone owner is bound by a license that forbids decryption, modification, and creation of derivative works of the software, there may be some scenarios in which jailbreaking can be achieved without running afoul of these restrictions (though none exist at this time). Specifically, a jailbreak technique might involve only the addition of code rather than the modification of any existing code. The EFF distinguishes an addition from a modification by use of a comparison of adding a printer driver to an existing OS. It does admit that decryption would also be necessary.

2. The EFF invokes 17 U.S.C. § 117(a) which provides for the lawful adaptation and/or copying of legally owned software if such copying or adaption is “an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner.” Even though Apple explicitly states that the software is licensed and not purchased, the EFF argues that it is in fact constructively owned by the user since Apple only retains ownership of the copyrights and grants ownership of the “media on which the iPhone software is recorded” to the iPhone purchaser. Since the purchaser can keep the software for life and destroy it at any time, the purchaser is reasonably construed to be an owner of the software as he enjoys rights that are typically associated with ownership. Further, even though Apple does retain ownership of the copyrights, § 117(a) allows for adaptation, and the jailbreaking process is an adaptation process to allow non-infringing uses.

3. Lastly, even if any copying/modification did not fall under the two previous scenarios, it would be considered allowable as non-infringing fair use. The EFF relies heavily upon two of the four factors considered by the courts in evaluating fair use. These factors are listed in the introduction to this article. The first is whether “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”; and the second is “the effect of the use upon the potential market for or value of the copyrighted work.”

With regards to the first element, the EFF argues that jailbreaking is a noncommercial private matter and thus falls squarely in line with that factor. As regarding the second, the EFF argues that since the firmware is not sold apart from the iPhone itself, and in fact is offered free from Apple, it has no independent value to be depreciated apart from the iPhone itself. In fact, the EFF argues, an exemption for jailbreaking may make the iPhone, and thus its attendant firmware, more popular. The EFF acknowledges that smartphone manufacturers may engineer different access controls or license agreements which militate against their three arguments, but urges that such situations should be left for the courts to decide on a case by case basis while allowing for a general DMCA exemption.

In additional comments, the EFF notes that an exemption would not subject any other protected content on the device, such as songs or movies, to infringement as the controls for which an exemption is sought are different from the access controls that protect such content.

As a sidenote, the iPhone is not the only smartphone mentioned in the EFF’s request. Google’s Android platform is briefly discussed, but the iPhone is by far the most prominent device referenced in the exemption request.

Apple’s Response in Opposition to the EFF’s Request for Exemption

Apple presented its argument in a more polished manner than did the EFF. As such, I will quote Apple’s own brief summary of its opposition before moving into the finer details:

Apple is opposed to the proposed Class #1 exemption because it will destroy the technological protection of Apple’s key copyrighted computer programs in the iPhone™ device itself and of copyrighted content owned by Apple that plays on the iPhone, resulting in copyright infringement, potential damage to the device, and breach of contract. The proponents of the exemption have also not satisfied their burden of proof of showing harm to non-infringing uses of the copyrighted works protected by the technological protection measures on the iPhone. In addition, because Congress has already explicitly addressed circumvention for interoperability in Section 1201(f) of the Digital Millennium Copyright Act (DMCA), the Copyright Office should not create interoperability exemptions outside that statutory structure, at least without a clear showing of specific and significant harm, which has not been put forth here.

Translation in one sentence: Interoperability has already been addressed by legislation and thus is outside the scope of the purpose of the triennial review.

When presenting its case in detail, Apple argues that the brief mentions of other smartphones in the EFF request is illusory. EFF uses “obligatory language about a class of works, its arguments really amount to an attack on Apple’s particular business choices with respect to the design of the iPhone mobile computing platform and the strategy for delivering applications software for the iPhone through the iPhone App Store.” As such, Apple argues, many of EFF’s arguments have little to do with the purpose of the triennial review for exemptions. Apple summarizes this argument in multiple places in its response as follows:

EFF apparently desires to use the rulemaking process to alter Apple’s business practices by negating DMCA protection for technologies that interfere with what EFF seems to assume would be a more socially desirable business model that is more “open.” … EFF’s submission offers no proof that this proposed transformation would actually increase innovation or investment in creative work …. Congress did not envision the DMCA exemption process as a forum for economic restructuring of business models. The DMCA deos not empower the Copyright Office, nor is it equipped, to consider whether the business practices of a particular commercial entity are socially optimal from a particular perspective. And even if the Copyright Office were the proper forum for consideration of such larger economic questions, the EFF has presented no evidence that would justify its apparent view that a more “open” business model is always more socially optimal for the creation and use of copyrighted works and consumer welfare.… In essence, the arguments in EFF’s submission require the Copyright Office to go on faith that forcing Apple to move to an iPhone platform that can execute any third party application, regardless of problems that may ensure, will result in a better world. But this rulemaking proceeding is not the place to bring about or even to argue that sort of marketplace restructuring. Nothing in the DMCA permits that sort of inquiry.

Apple pointed to the tremendous success and revolutionary nature of the iPhone and the App Store to support its contention that the iPhone and App Store has spurred innovation rather than stifling it. In its first foray into the cellular phone market, Apple turned it from a stagnating industry to one of tremendous growth and creativity. The consumer demand for the first generation iPhone was extraordinary even though it did not immediately have any means to install applications. The consumers could have chosen to eschew such purchases, but instead overwhelmingly made them.

The approach that Apple took to allow installation of applications has also been regarded nearly universally as revolutionary which is proven by the staggering number of downloads, purchases, and the copycat market that is trying to imitate Apple’s strategy and success. The App Store facilitated the ability of developers to distribute their copyrighted works to a ready consumer base and provided not only the centralized hosting, but also the payment processing all of which overcomes substantial hurdles that a small developer would otherwise face. In fact, a venture capital firm invested $100 million into an “iFund” which supports and invests in application developers. In response to the EFF’s negative portrayal of Apple’s 30% commission, Apple points out that the EFF does not mention that a great many applications are free, and thus make no profit for Apple even though Apple still provides the same services that it does for paid application. Further, developers are free to set their own prices to account for that business cost.

After answering the EFF’s allegations of consumer and creative harm, Apple then argued its core copyright case and explained in detail how the bootloader and the operating system work (both of which are copyrighted by Apple). This dual system contains a number of technological protection measures to ensure proper functioning of the device which goes beyond the making of cellular calls into the realm of a mobile computer platform based upon Apple’s Mac OS X™ operating system. Apple went on to describe the purposes of the technological protection measures in more detail in what Apple has called its “chain of trust.” These purposes are summarized as follows:

1. The OS performs tasks essential to the operation of the device such as monitoring temperature; charging the battery (i.e. ensuring that a certain protocol is followed as to when to start and stop charging); and volume governance. Modifications could impair these functions and damage the device to the detriment of the consumer.

2. The OS performs essential security functions that not only protect the device (to the benefit of the consumer) but also the cellular network to which it is connected. If modified, potential malware could be activated which pose a significant risk to the user due to the sensitive information that many users store on the device, but also to the “baseband processor” which could result in unauthorized access or harm to the cellular network.

3. The OS manages APIs and system calls, and modification could cause such systems to fail. Additionally, even if the modifications initially cause no problems, later updates to the OS from Apple may cause the modification to malfunction.

In sum, Apple argued that it, and other manufacturers, have weighty legitimate concerns justifying their use of technological protection measures to preserve the functioning of the device which benefits both the company and the consumer. Apple has a reputation for smooth and enjoyable operating experiences, and this good will and brand reputation could be harmed by malfunctions and harm that are outside of the intended functioning of the device. Further, significant sums of money have been expended by Apple in providing support for users experiencing problems with their iPhones as a result of jailbreaking. Apple reports that literally millions of support calls are fielded in which Apple must determine if the reported problem is due to Apple’s product or that of another. This results in significant sums of money needlessly expended.

In response to the EFF’s claim of cumbersome developer restrictions, Apple argued that it has an interest in disallowing obscene content and hate speech. Further, when an application is denied, the developer is told how it may be corrected and the majority of denied applications are later accepted after the developer makes needed changes. Apple further noted that EFF’s allegation that applications which replicate the iPhone’s functionality are automatically denied by pointing out several applications which do in fact replicate some of Apple’s functionality, such as web browsers.

Moving beyond safety and functioning, the technological protection measures protect Apple’s investment in its intellectual property. When these measures are circumvented, applications and programs may be pirated to the detriment of both Apple and iPhone application developers. Apple gives several examples of this happening with copyrighted games owned by Apple. Piracy, by its nature, discourages creative work and investment in innovation by developers. Apple alleged that all of the above disprove EFF’s allegations that Apple’s technological protection measures serve only to protect a business model.

Apple then analyzed the conditions for which exemptions may be granted, i.e. for non-infringing uses of otherwise protected content. However, jailbreaking involves an inherently infringing use of the heart of the copyright; the operating system itself. Additionally, none of the EFF’s arguments meet the burden of a fair use exemption, which is not within the purview of the Copyright Office, but rather is rightfully in the province of the courts and legislature. The currently most popular means of jailbreaking involves the installation of a modified bootloader and OS based substantially on Apple’s protected code resulting in infringement of Apple derivative and reproduction rights. Essentially, modified versions of Apple’s product are created, not transformative new works.

With regards to allowable adaptation under Section 117 of the copyright code, Apple cited to court support of the Final Report of the National Commission on New Technological Uses of Copyrighted Works which favoured the rights of creators to limit adaption rights through contract. Apple has done so in its software licensing agreement.

Even if that were not sufficient, Section 117(a) requires that users must personally make the modifications themselves or authorize them to be made on their behalf. This is not the case in the majority of jailbroken iPhones. Further Section 117(b) requires the consent of the copyright holder for this personally created/authorized adaptation to be made available for distribution. Apple has not given its consent. Also, the modifications discussed under Section 117 are only allowable to the extent that they do not cause harm to the copyright holder. As previously argued, these modifications do cause harm to Apple and its product. Lastly with regard to Section 117(a), modifications can only be used “as an essential step in the utilization of the computer program with a machine and in no other manner.” Apple argued that the intent of the creator defines the limits of “in no other manner” and that jailbreaking involves uses of the protected programs that were never intended when created.

Apple’s response is lengthy and organizes the same facts in several different ways to assert that EFF’s argument fails statutory, fair use, and pubic benefit approaches. I believe I have covered them above in summary.

The EFF’s Reply Comments

The EFF put forth additional facts it believes supports its contention that the circumvention controls are in place to protect a business model and suppress competition.

1. Certain applications were denied for duplicating the iPhone’s native functionality, particularly “Podcaster” which was only allowed after Apple added similar features to its own iTunes application. The EFF concedes that alternative web browsers have been allowed but that they are still required to utilize Apple’s own Webkit technology which excludes browsers such as Firefox.

2. While Apple prohibits use of its undocumented APIs, it allows its favoured partners to use them in contradiction to the prohibition.

3. Censorship of ebooks has taken place due to “dirty words” which were required to be removed before approval.

4. The denial of potentially “risque” content has been arbitrary with some applications being denied until modified while others with similar material are allowed.

5. There are several applications which were denied, and the developer was not told why or what was needed to make them acceptable.

6. When “cut & paste” was being developed outside of Apple’s ecosystem, Apple modified the firmware to purposefully disable the application.

The EFF proffered a petition signed by over 8,000 people who are in favour of removing unlocking and jailbreaking restrictions. It does not appear that the questions were ever asked independently, and in this section the EFF put forth arguments that couple mobile phone handset manufacturers with network carriers making it difficult to separate out the arguments as Apple offered no opposition to the unlocking exemption request. The EFF stated that it will submit personal testimony of individuals directly harmed by these restrictions to overcome Apple’s contention that all that was offered was “bald assertions.”

The EFF provided a technical overview of jailbreaking and unlocking. It disputed the effectiveness of Apple’s “chain of trust” alleging that it can be overcome at the very first link. Further, it alleged that the modified version of the software is personally created by each user individually on their own computer using tools provided by a group of hobbyists known as the iPhone Dev Team.

So What About Unlocking for Use on Other Carriers?

The EFF not only argued for a renewal of the 2006 exemption but also advocated that it explicitly include protections for commercial entities to take advantage of the exemption. It further argued that environmental concerns should be weighed by the Librarian in making a decision. Apple specifically stayed out of that request. Here is the sum of Apple’s comment on the “unlocking” exemption request (with the exception of several other statement distinguishing the arguments in favour of unlocking from the arguments offered for jailbreaking):

Apple’s election not to submit responsive comments with respect to other proposed exemptions in this triennial rulemaking proceeding should not be construed as an indication that Apple either supports or opposes such proposed exemptions.

This comment will become significant in the following editorial commentary.

Editorial Commentary

First, as always, I must stress that I am not a lawyer and legal opinion on the issues discussed must come from a competent and properly licensed attorney. Additionally, this is not a subject that I was reasonably familiar with prior to this article, with the exception of the brief commentary offered on the DMCA claims in the Apple v. Psystar case.

There is a dynamic inherent in this type of story that causes some people to automatically label the “big corporation” as the bad guy, and even more so if the corporation happens to be the competitor to their preferred technology company. If Microsoft is getting slammed, many Apple fans automatically rejoice; and if Apple is getting slammed, many who dislike Apple have a party. The same also occurs when either company is involved in any suit/proceeding in which they are asserting or defending their rights. They are perforce painted by one side or the other as the oppressor of mankind, oftentimes complete with outlandish slippery slope analogies. For example, Mozilla’s jumping upon the EU Commission dogpile on Microsoft. At any time, either Microsoft or Apple could be wrong. It is the knee-jerk presumption of guilt by some rival techno-loyalists that is disturbing.

In this specific case, a very pertinent fact has not been stressed nearly enough. Repeat after me. Apple was not the aggressor and did not actively seek a ruling on the legality of jailbreaking iPhones. Please let that sink in. The only reason that Apple has made any allegations of illegality is because they have to respond to the offensive action taken by the EFF. Until that time, Apple seemed to be perfectly content to allow jailbreaking to fly under the legal radar. The EFF has an agenda (right or wrong) and purposefully stirred this particular pot. This is very similar to Apple’s position with regards to the OSx86 community. Until clone makers such as Psystar attempted to profit off that work, Apple had turned a blind eye. They may continue to do so, but until the identity of the ten “John Doe” defendants in that case are identified, it is possible that specific people within the OSx86 community may be the additional involved parties that Apple is alluding to in its Amended Complaint. I want the reader to know that I wrote this paragraph having the bare minimum knowledge of the issues in this controversy. Thus, at the point I wrote this, I had no opinion on whether Apple is right or wrong. I have no compunction keeping me from voicing a negative opinion on certain actions by Apple. Case in point: opposing New York City over the use of the “apple” symbol. That was completely ridiculous.

I do not stand with most digital content users in their deep dislike of the DMCA even though I once did. Why did I change my mind? For the same reasons I stopped cheering every time Microsoft got slapped. Businesses/content creators have rights too, and those rights should not be denied simply because we don’t personally like something. Nothing has opened my eyes more to this issue than the ranting that goes on in many discussions regarding the Psystar case that are based on sheer selfish emotionalism. No, we don’t get to do just anything we want with something we didn’t create; at least not in the United States. The “me, me, me” mentality has repulsed me, as well as the “everything should be open and free” mindset. I retort, says who? You? Why should people/companies be forced to comply with your personal opinion? Mozilla has also jumped on this dogpile stating, “choice is good for users, and choice shouldn’t be criminalized.” Well Mozilla, protecting creative works is good for creators who should not be forced to give up their rights. I find Mozilla’s stance on this and the Microsoft issue mentioned above to be hypocritical to the core. Firefox itself comes with Google as the default search bar. If Microsoft is a bad guy for bundling Internet Explorer as its default search engine even though users are free to download alternatives, Mozilla should literally puts its own money where its mouth is and remove the Google search bar. I have exercised my choice to show my dissatisfaction by ceasing use of Firefox as my primary browser as I disapprove of their business practice and philosophy. I am not however insisting that the force of law be brought to bear to enforce my preference and disapproval.

There is an “open and free” mentality popular today that is quite aggressive. If everything was open and free, I firmly believe the following scenarios would develop:

1. Radical innovation would be stifled.

2. Users would soon find out that they ultimately get what they pay for, and if they pay nothing for everything, then everything will be worth nothing, or they will learn there really is no such thing as a free lunch. Someone is paying something somewhere. Salaries made by representatives of “open” proponents such as the Mozilla Foundation are getting paid, and its not out of thin air. I think that Apple nailed the heart of the issue. The EFF is more interested in social engineering than copyrights.

Now, I do think there are some very valid criticisms of the DMCA, but there is an opportunity every three years to make one’s case. I wish most laws had such review, such as the outdated and innovation-stifling anti-trust Acts that had great relevance many decades ago but now are simply dinosaurs in the middle of the highway of modern business. I do not hide my scorn for socialism be it in welfare or economic policies.

Lastly, I have some concerns with the way that the EFF has represented these issues in past articles.

Bias/Inaccuracies/Imprecision in the EFF’s Reporting on DMCA Issues

In Victory in Anti-Circumvention Proceedings, Jennifer Granick, Civil Liberties Director of the EFF, stated the following with regards to its successful advocacy of the 2006 DMCA exemption for unlocking cellular phones:

The copyright industry filed objections, as did the CTIA and TracFone, a large vendor of pre-paid cell phones.

Now I am certainly willing to be corrected, but this seems to be an exaggeration of the actual events and lacking in significant details. Specifically, on Pages 42 through 53 of the published Recommendations of the Register of Copyrights dated November 17, 2006 it was noted that although there were multiple comments in support of this exemption, there was only one comment filed in opposition. Specifically:

The Wireless Alliance and Robert Pinkerton (supported by the EFF) proposed an exemption for “Computer programs that operate wireless communications handsets.” Many reply comments were submitted in support of this exemption and only one reply comment provided any opposition to the proposal. Only two witnesses testified at the hearing on this issue: a representative of the principal proponent of the exemption and a representative of the Joint Reply Commenters. Importantly, no party came forward to represent the interests of the copyright owners of the copyrighted works that operate wireless communications handsets, either in reply comments after the exemption was proposed, or at the public hearing. Nor did representatives of the manufacturers of the handsets or providers of wireless telephone communications services (who, the initial comment asserted, are the principal beneficiaries of the deployment of access controls on wireless telephone handsets) make any effort to present their views.

Now does that mesh with the statement of Ms. Granick? Now what did happen is that the CTIA and TracFone filed untimely responses that were not considered by the rule-making committee. The “copyright industry” that objected was not even those who represent the owners of the firmware or bootloaders, but instead offered hypothetical scenarios about possible impact upon other copyrighted content contained in cellular devices such as ringtones for which the EFF did not request exemption. I prefer my news without spin.

In its article, Apple Says iPhone Jailbreaking is Illegal, the EFF states the following:

Apple’s copyright infringement claim starts with the observation that jailbroken iPhones depend on modified versions of Apple’s bootloader and operating system software. True enough — we said as much in our technical white paper describing the jailbreak process. But the courts have long recognized that copying software while reverse engineering is a fair use when done for purposes of fostering interoperability with independently created software, a body of law that Apple conveniently fails to mention.

So there is law that Apple conveniently fails to mention? I rather think that this EFF article conveniently fails to mention that the two cases they link to are arguably significantly distinguishable from Apple’s position. Apple contends “that jailbroken iPhones depend on modified versions of Apple’s bootloader and operating system software” which the EFF admits. However, is that the same as “copying software while reverse engineering for purposes of fostering interoperability with independently created software” as described in the cited cases? No. In the first case, Sega v. Accolade, Accolade reverse-engineered Sega’s code for game cartridges compatible with Sega’s Genesis game console in order to analyze the “unprotected functional elements of the program” that allow it to operate on the console. Accolade then created its own unique code and games for use on the console. The only portion of Sega’s product that was used was a few short lines of code implemented by Sega for the express purpose of preventing piracy of its games by giving Sega grounds for violation of trademark since the subject code flashed the Sega trademark while the game loaded. Piracy was not the issue here, and Accolade went out of its way to make sure its customers knew that their games were not in any way associated with or made by Sega. Upon its face, this appears to have little to do with Apple’s concerns which might explain why it “conveniently failed to mention this case.” Further, the Sega Court ruled that Sega did not make its case that the copied code was protected as nonfunctional rather than unprotected functional code. The case law definitions of “functional” and “nonfunctional” are quite unintuitive, and I recommend the interested person to read the Sega case for a complete explanation. It might help to think in categories of “expression” and “function” as many cases do in making the distinction.

The second case, Sony v. Connectix, also concerns gaming consoles. In this matter, Connectix reverse-engineered Sony’s copyrighted BIOS software in order to create the “Virtual Game Studio” which would allow users to run Sony PlayStation game CDs on their Macintosh computers. Sony’s complaint against Connectix hinged upon authorized copying of their BIOS software in the process of reverse-engineering. Sony never alleged that Connectix’s final product contained code that infringed upon Sony’s copyrighted code.

Both of these cases dealt primarily with intermediate copying of code in the process of reverse-engineering when the final product does not contain clearly infringing material. That is completely different from the main issues in Apple’s opposition to the jailbreaking exemption from the DMCA. Oddly enough, in both of its filings relative to Apple, the EFF conveniently “failed to mention” those cases as well (unless I missed it, and I welcome correction on that point). That particular comment by the EFF appears to me to be little more than snarky well-poisoning.

Opinion on Outcome

I do not believe that the EFF has met its burden of proof in the context of these rule-making proceedings. I realize that this opinion is not likely to make friends and influence people, but I must give my frank conclusions. I do not believe that my admitted pro-Apple bias skewed my view in this matter as I really didn’t have any strong feelings one way or another with regards to jailbreaking in particular. I have not jailbroke my iPhone, not because of some strong ethical or personal feeling about the process (I never really gave it much thought until now), but simply because there are no applications that I have such a desire to obtain that I would be brave enough to risk being the proud owner of an iBrick.

It may very well be that Apple is guilty of over-reaching in its copyrights but such appears to be an issue that belongs in the realm of the courts and not an administrative rule-making session. The burden of proof of proving that DMCA restrictions interfere with non-infringing uses of otherwise-protected content lies squarely with the party requesting the exemption, and I just do not believe that the EFF has met that burden. They openly admit in their submission that they are requesting the rule-making committee to take a different approach than they have in the past in their suggestion that a blanket exemption be granted, leaving the courts to decide individual disputes involving allegations that the use is in fact an infringing use. This reasoning, though, is completely circular. The purpose of the exemption is to protect clearly non-infringing uses, not to shift the burden of proof of proving infringement to the copyright holder in the court system. Further, their arguments appear to me (and Apple) as thinly veiled attempts at social engineering for acceptable business models through DMCA exemptions.

The above is my personal opinion and should not be taken as the opinion of World of Apple. It may seem that I am adamantly opposed to the EFF in general. I am not. We absolutely need groups for consumer advocacy. If it took becoming an Apple fangirl to eschew knee-jerk jeering at corporate rights, I am thankful, even though it means I find myself defending Microsoft at times. Additionally, my comments should not be taken as a blanket judgment upon anyone who disagrees as knee-jerk anti-business zealots. There are extremes on both sides and many who are more moderate. I have many good friends who would have unemotional reasons for disagreeing with me on this issue.

Correcting Misconceptions in Apple Web Reporting on this Issue

Many articles written on the Apple web regarding this issue seem to mistakenly focus on unlocking the phone for use on other carriers and lauding an approval of such an exemption as a significant consumer win. However, that exemption was already in place before the iPhone was even introduced into the market.

For example, see EFF Volleys to Make Jailbreaking Free of “Jail-Time.” Additionally, note the following commentary dated February 16, 2009 by Rui Carmo from The Tao of Mac:

The elephant in the room (besides copyright and intellectual property) isn’t jailbreaking – it’s unlocking. I find it amazing that people still think buying subsidized iPhones from one carrier, unlocking them and using them on another carrier (thereby cheating Apple, the carrier, or both out of the revenue that was factored into the price difference) is legal in any way, or that going on about “freedom” is enough of a smokescreen to cover up this kind of malfeasance. Phones aren’t more expensive unlocked because there is an evil lobby from carriers – phones are cheaper in a carrier bundle because the subsidies are a way to lower barriers to commitment and ensure mid-term revenue. Carriers and manufacturers are trying to run a business, not a charity, and most people are simply too spoiled to understand the real value of things. When you jailbreak a device, you’re not sending “a message” to Apple – you’re just being ignorant of the implications.

Mr. Carmo seems to be unaware that an unlocking exemption has already been in place since 2006 but automatically expires in 2009, thus requiring a re-filing. The only major difference between the EFF’s arguments in 2006 and now is an argument that the prior exemption has been misinterpreted by the courts as only being applicable to non-commercial activities and that commercial unlocking should be explicitly allowed in a 2009 exemption. As far as Apple is concerned, contrary to Mr. Carmo, unlocking is not the elephant in the room; social engineering is.

Conclusion

So what’s next? I am unclear whether Apple will be afforded an opportunity to reply to the EFF’s response. The rule-making committee may request testimony of witnesses as to the matters raised in the requests and responses with a decision expected in October 2009.

Off-Topic Point of Interest

The Sony case previously discussed contained allegations by Sony that Connectix tarnished its brand and trademark. That is precisely some of the arguments made by Apple against Psystar without using the word “tarnished.” This case has not yet been referenced in the Apple v. Psystar matter. I bring it up as a point of potential interest.

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