Over at Ars Nate Anderson makes an important point that hadn’t occurred to me: The cell phone unlocking exception I mentioned in my last post applies only to the act of circumvention, not to trafficking in circumvention devices. That means that you’re safe if you unlock your own iPhone, but if you develop software or hardware to help others do so, you could wind up in legal hot water under the DMCA.
Of course, that depends on whether unlocking your cell phone is an act of circumvention in the first place. It’s not obvious that cell phone locks “effectively controls access” to a copyrighted work. Perhaps AT&T could argue that unlocking your phone is the first step toward pirating ringtones, but it should be possible to develop a hacking tool that enables carrier-switching without enabling ring-tone piracy.
In any event, this is almost certainly not the sort of situation Congress had in mind when they passed the DMCA.
There’s a nice piece of reporting from Ian Shapira in today’s Washington Post entitled, “Once the Hobby of Tech Geeks, iPhone Jailbreaking Now a Lucrative Industry.” In the article, Shapira documents the rise of independent, unauthorized Apple apps (especially tethering apps) and points out that what was once a small black market has now turned into a booming, maturing business sector in its own right. In fact, Sharpia notes, there are already “market leaders” in the field:
At the top of the jailbreaking hierarchy sits Jay Freeman, 29, the founder and operator of Cydia, the biggest unofficial iPhone app store, which offers about 700 paid designs and other modifications out of about 30,000 others that are free. Based out of an office near Santa Barbara, Calif., Freeman said Cydia, launched in 2008, now earns about $250,000 after taxes in profit annually. He just hired his first full-time employee from Delicious, the Yahoo-owned bookmarking site, to improve Cydia’s design. “The whole point is to fight against the corporate overlord,” Freeman said. “This is grass-roots movement, and that’s what makes Cydia so interesting. Apple is this ivory tower, a controlled experience, and the thing that really bought people into jailbreaking is that it makes the experience theirs.”
In another sign this black market is now going mainstream, advertisers are apparently flocking to it:
In what might be the ultimate sign that the jailbreak industry is losing its anti-establishment character, Toyota recently offered a free program on Cydia’s store, promoting the company’s Scion sedan. Once installed, the car is displayed on the background of the iPhone home screen, and the iPhone icons are re-fashioned to look like the emblem on the front grill.
Interestingly, however, some people now complain that Cydia is getting too big for its britches and has come to be “as domineering as Apple is in the non-jailbreak world.” What delicious irony! Yet, I do not for one minute believe that Cydia has any sort of “lock” on the “unlocking” marketplace. This is an insanely dynamic sector that is subject to near-constant fits of disruptive technological change. Continue reading →
I dashed off a piece for CNET today on the Copyright Office’s cell phone “jailbreaking” rulemaking earlier this week. Though there has already been extensive coverage (including solid pieces in The Washington Post, a New York Times editorial, CNET, and Techdirt), there were a few interesting aspects to the decision I thought were worth highlighting.
Most notably, I was interested that no one had discussed the possibility and process by which Apple or other service providers could appeal the rulemaking. Ordinarily, parties who object to rules enrolled by administrative agencies can file suit in federal district court under the Administrative Procedures Act. Such suits are difficult to win, as courts give deference to administrative determinations and review them only for errors of law. But a win for the agency is by no means guaranteed. Continue reading →
The Digital Millenium Copyright Act makes it a crime to circumvent digital rights management technologies but allows the Librarian of Congress to exempt certain classes of works from this prohibition.
The Copyright Office just released a new rulemaking on this issue in which it allows people to “unlock” their cell phones so they can be used on other networks and “jailbreak” closed mobile phone operating systems like the iOS operating system on Apple’s iPhones so that they will run unapproved third-party software.
This is arguably good news for consumers: Those willing to void their warranties so they can teach their phone some new tricks no longer have to fear having their phone confiscated, being sued, or being imprisoned. (The civil and criminal penalties are described in 17 USC 1203 and 17 USC 1204.) Although the new exemption does not protect those who distribute unlocking and/or jailbreaking software (which would be classified under 17 USC 1201(b), and thus outside the exemption of 17 USC 1201(a)), the cases discussed below could mean that jailbreaking phones simply falls outside of the scope of all of the DMCA’s anti-circumvention provisions.
Apple opposed this idea when it was initially proposed by the Electronic Frontier Foundation, arguing that legalizing jailbreaking constituted a forced restructuring of its business model that would result in “significant functional problems” for consumers that could include “security holes and malware, as well as possible physical damage.” But who beyond a small number of geeks brave enough to give up their warranties and risk bricking their devices, is really going to attempt jailbreaking? One survey found that only 10% of iPhone users have jailbroken their phones, and the majority are in China, where the iPhone was not available legally until recently. Is it really likely that giving the tinkering minority the legal right to void their product warranties would cause any harm to the non-tinkering majority that will likely choose to instead remain within a manufacturer’s “walled garden“? I don’t think so. If, as a result of this ruling, large numbers of consumers jailbreak their phones and install pirated software, the Copyright Office can easily reconsider the exemption in its next Triennial Rulemaking.
Continue reading →
I’m looking for examples of effective tech lobbyists. We’ve seen a lot of people moving from the Valley to the Hill lately. Microsoft has gone from “Jack and His Jeep ” to a giant lobbying shop. Google learned from Microsoft’s mistakes and now has a couple floors down on New York Ave. These guys are making an impact in Washington, but what are the best Baptist and Bootleggers scenarios?
Bruce Yandle was the first to put this name to the common two-man play in Washington. It involves a moral authority and an underwriter with deep pockets to fund a lobbying effort. He used Baptists and bootleggers as the most clear example of this. Baptists called for temperance and prohibition because they genuinely believed that alcohol was a great evil. This provided moral authority. The bootleggers didn’t care much about morals, but they knew they’d get rich if legitimate breweries and distilleries were made illegal.
The same thing seems to be going on now. “Lobbying 2.0” features moral crusaders fighting for net neutrality, the unlocking of cell phones, the unbundling of any service that dare be bundled and other such tech-morality causes. Meanwhile, the real beneficiaries of any regulation to come out of this are big tech companies trying to gain an advantage on one another through regulation rather than through competition and innovation.
So, by “best” stories I mean classic examples of businesses lobbying in favor of regulation as opposed to defending themselves against regulation. Who’s most guilty of being a bootlegger? What individual crusader or group is playing the role of the Baptists?
Your comments are appreciated. Also, be sure to check out this Onion discussion on lobbyists.
It hasn’t even been a week since Tim Wu made such a splash with his “Wireless Net Neutrality” proposal and already a major corporation has run to the FCC asking for it to be implemented into law! (Tim, my old friend and occasional nemesis, you know how to get results!)
Today, Internet phone giant Skype filed a petition with the Federal Communications Commission “to confirm a consumer’s right to use Internet communications software and attach devices to wireless networks.” The 32-page filing repeats many of the arguments Tim Wu made in his paper about the supposed need for regulators to step in and impose Bell System-era device attachment rules to modern cell phone operators. Specifically, Skype wants the FCC “to create an industry-led mechanism to ensure the openness of wireless networks.” I’m not sure what that means but I am certain that entire forests will fall as the paperwork flies at the FCC in an attempt to interpret and implement these new regulations.
I disagree on so many levels with the Skype petition that I don’t know exactly where to begin, but luckily I don’t have to say much. I just need to point to the excellent critiques that my TLF colleagues and current and former PFF colleagues published last week in response to the Wu paper. Here’s a sampling:
Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.