It's 2009, so that means the Copyright Office is in the process of considering new exemptions to the DMCA prohibition on circumvention of digital locks on copyrighted works. Not surprisingly, the Electronic Frontier Foundation submitted a proposal to exempt computer programs that enable wireless telphone handsets for purposes of enabling interoperable applications to run on them. In other words, EFF wants cell phone users to be able to break into the protected software on cell phones, particularly the iPhone, in order to allow other software applications to run on the phones. Apple obviously disagrees, and has filed its own rebuttal with the Copyright Office, which oversees the DMCA exemptions.
At first blush, the EFF request sounds legit, right? Well, not so fast.
Apple may very well win this one because of one key provision of the DMCA requiring proponents of exemptions to actually prove that there is harm or is likely to be harm to users ability to make non-infringing uses of a particular group of similar copyrighted works, as opposed to a general "you kids get off my lawn" kind of crankiness. Apple points out the following in its filing:
"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 measures on the iPone. In addition, because Congress has already explicitly addressed circumvention for interoperability in section 1201 (f) of the 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."
The DMCA is clear that in order for an exemption to be granted, the proponent must prove that the DMCA prohibitions are or are likely to adversely affect the users ability to make NON-INFRINGING uses of a CLASS or similar group of copyrighted works. This was purposely a high hurdle. However, it is not an impossible one, as evidenced by the exemptions granted in each of the three previous rulemakings. Unless the EFF can come up with some actual victims that are affected across the entire class of works, then the Copyright Office is likely to come back and say, "if ya don't like it, don't buy and iPhone".
To give EFF their due, let's look over their claims issue-by-issue, starting with non-infringing uses first. As Apple correctly points out, EFF's proposal is almost entirely centered on arguing that iPhone users should be allowed to use "jailbreaking" software to trick their iPhone operating software into allowing unauthorized applications to run on the device. And from the submissions by both parties, there doesn't seem to be any dispute that the jailbreaking software permits infringing operating software and applications to be loaded onto the iPhone. The class of works here is the operating software for all cell phones. But,EFF has failed to show how all cell phone users are being harmed by not being able to jailbreak their iPhones to run unauthorized and/or infringing applications. So, should the Copyright Office grant an exemption where there is no demonstration of a harm to non-infringing uses of the entire class of all cell phone operating software? NO.
EFF wants to exempt software running wireless telephone handsets because some users aren't satisfied with the 15,000 applications available or Apple's App Store or because some programmers don't want to contract with Apple to get a licensed application. Apple's iPhone and App Store are the gold standard in the wireless phone industry but the other cell phone companies are quickly trying to catch up with similar user interfaces and applications. So, just because some users aren't entirely happy with thier ability to configure their iPhone that they chose to buy, should the Copyright Office allow jailbreaking of operating software on ALL cell phones? NO.
It's important to remember why the DMCA exists here. The purpose of the DMCA was to encourage innovation by allowing copyright owners to safely participate in the digital marketplace, to the benefit of both consumers and creators. There should be economic rewards for innovators and copyright creators that invest in research and development of successful products and services. Aside from not passing the test for the exemption, EFF doesn't present enough evidence to support a change in the public policy underlying the DMCA provisions. This is an example of the DMCA working exactly as it was intended.
So, if the EFF arguments fail the test for an exemption, does their proposal inspire discussion about scenarios under which cell phone users, or users of any other consumer electronic product containing proprietary software, can hack the technological protections in order to run interoperable software programs? As Apple points out, the DMCA already provides for an exception for interoperability. There might be an interesting case if Apple chose to sue the creator of a software allowed independently created interoperable software to run on the iPhone for a violation of the DMCA's prohibition on circumvention devices. But, until that happens, the current jailbreaking software doesn't get it done.
An additional question that is raised is: "can content owners control the use of the device or hardware containing their software to the extent that users can't delete all the proprietary software and reload it with other software?" In a previous rulemaking the Copyright Office stated that an exemption may be warranted where technological protections were employed not for purposes of protecting rights in the copyrighted work. I expect this grey area will be the subject of much consideration in the future.