iPhone-Google Voice Flap a Reminder of Why DMCA Needs Fixing

by on August 10, 2009 · 9 comments

We’ve discussed extensively the controversy that recently erupted when Apple rejected Google Voice applications from the iPhone App Store. With the FCC sniffing around and tech pundits around the blogosphere weighing in on the merits of possible government intervention, it’s important to remember that jailbreaking an iPhone may be illegal under the Digital Millenium Copyright Act (DMCA). In other words, if you use a hack or workaround that enables you to run banned apps like Google Voice on your iPhone, you could be violating federal law.

The DMCA hasn’t stopped millions of iPhone owners from jailbreaking their phones and installing Cydia, an unofficial alternative to the official iPhone App Store. Cydia, which lets users download banned iPhone apps like Google Voice, has been installed on a whopping one in ten iPhones, according to its developers.

But jailbreaking programs and applications like Cydia are in risky legal territory. Developers who circumvent the iPhone’s copy protection systems are at risk of being sued by Apple, as are users who run jailbreaking software. Apple maintains that jailbreaking software is illegal under federal law, though it has not taken legal action against any unauthorized iPhone developers to date.

To clear up the muddy legal waters surrounding iPhone jailbreaking, Fred von Lohmann of the Electronic Frontier Foundation has asked the U.S. Copyright Office to grant a legal exemption to iPhone jailbreaking on the grounds that users should be able to install apps of their choice on the phone without risking civil or criminal sanctions. In a recent DeepLinks post, von Lohmann argues that the FCC should throw its weight behind EFF’s call for exempting jailbreaking from anti-circumvention rules.

Von Lohmann has a point. Unofficial software that reverse engineers copyrighted software for interoperability purposes shouldn’t be illegal. As former TLFer Tim Lee puts it, “Because reverse engineering is so important in transforming closed standards into open ones, we should be especially worried about laws that stand in the way of that process.”

Jailbreaking should be legal, but that doesn’t mean that Apple should have to make it easy for iPhone owners to jailbreak their phones. Rather, iPhone owners should be able develop and use jailbreaking software free from undue governmental interference. If Apple manages to concoct a bulletproof method of locking down the iPhone, or if AT&T wants to ban jailbreaking in its wireless terms of service, that’s fine. But the burden rests on Apple and AT&T to design adequate technical countermeasures against jailbreaking. At worst, the penalties for jailbreaking should not exceed the contractual terms that users accept when they buy an iPhone.

On the flip side, however, if independent developers devise a method of jailbreaking iPhones that Apple cannot block or detect, that’s Apple’s problem — not government’s. As Ed Felten argues:

The best policy is for government to stay out DRM decisionmaking altogether. Let companies like Apple develop DRM schemes. Let others interoperate with those schemes, if they can figure out how. Ensure competition, and let the market decide which products will succeed, and which DRM schemes are viable.

Granting a DMCA exemption for iPhone jailbreaking is a good start. Fundamentally, though, the real culprit here is the DMCA itself. Congress should reform the DMCA by overhauling its ban on circumvention technologies. Doing so would allow developers to freely distribute iPhone jailbreaking apps without running the risk of getting in legal trouble.

A good example of what DMCA reform ought to look like comes from the Digital Media Consumers’ Rights Act (DMCRA), a bill which was introduced unsuccessfully in Congress in 2003 and again in 2005. The bill would re-establish the legality of breaking copy-protection schemes for legal, non-infringing uses. It would also protect scientific research into copy protection technologies. (The DMCRA also contains some troubling provisions that deal with CD labeling, but that’s a separate matter).

  • http://srynas.blogspot.com/ Steve R.

    Good points, but I think that there are unstated bigger issues here with the the DMCA. First, why should a corporation be entitled to use the power of the state to (in an Orwellian sense) protect its so-called property through a criminal action, but the abused user has no such recourse? For example, Amazon, vaporized some e-books on its Kindles and even destroyed the work of one person as collateral damage. Amazon seems to be facing an appropriate civil lawsuit, but I have not heard of any criminal complaint against Amazon for its “burglary”.

    Second, laws are supposed to work for the benefit of society as a whole. Laws that give entitlements to special interests at the expense of society tend to be unpopular and ignored. As you point out: “The DMCA hasn’t stopped millions of iPhone owners from jailbreaking their phones …”. Essentially this is a form of civil disobedience. If we are to be a nation where the law means anything, onerous laws where one entity is somehow more equal than another have to be abolished. If these oppressive laws are not abolished respect for the law will continue to decline.

  • Ryan Radia

    I think you make a good point. I'm generally skeptical of criminalizing copyright infringement. I suppose large-scale commercial piracy probably may merit some criminal penalties, but non-commercial person infringement should not be a criminal matter.

    You're also right that mass disregard for the DMCA could be considered civil disobedience. That's certainly a reason why it's a bad law. I don't necessarily think all laws that are widely disregarded should simply be taken off the books, but civil disobedience does raise the question of whether the law in question is actually worthwhile in the first place.

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  • dmarti

    Don't forget the Elcomsoft case — a rare example of a DMCA prosecution of a non-infringer. The result was a jury nullification.

  • dmarti

    Don't forget the Elcomsoft case — a rare example of a DMCA prosecution of a non-infringer. The result was a jury nullification.

  • http://srynas.blogspot.com/ Steve R.

    Good points, but I think that there are unstated bigger issues here with the the DMCA. First, why should a corporation be entitled to use the power of the state to (in an Orwellian sense) protect its so-called property through a criminal action, but the abused user has no such recourse? For example, Amazon, vaporized some e-books on its Kindles and even destroyed the work of one person as collateral damage. Amazon seems to be facing an appropriate civil lawsuit, but I have not heard of any criminal complaint against Amazon for its “burglary”.

    Second, laws are supposed to work for the benefit of society as a whole. Laws that give entitlements to special interests at the expense of society tend to be unpopular and ignored. As you point out: “The DMCA hasn’t stopped millions of iPhone owners from jailbreaking their phones …”. Essentially this is a form of civil disobedience. If we are to be a nation where the law means anything, onerous laws where one entity is somehow more equal than another have to be abolished. If these oppressive laws are not abolished respect for the law will continue to decline.

  • Ryan Radia

    I think you make a good point. I'm generally skeptical of criminalizing copyright infringement. I suppose large-scale commercial piracy may merit some criminal penalties, but non-commercial person infringement certainly should not be a criminal matter.

    You're also right that mass disregard for the DMCA amounts to civil disobedience. That's certainly a strike against the law. I'm not sure I'd say that laws that are widely disregarded should simply be taken off the books, but mass civil disobedience of a law does raise the question of whether the law in question is actually worthwhile in the first place.

  • dmarti

    Don't forget the Elcomsoft case — a rare example of a DMCA prosecution of a non-infringer. The result was a jury nullification.

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