The jailbreaking exemption has its limits

Editors' note: This is a guest column. See Larry Downes' bio below.

The U.S. Copyright Office on Monday granted an exemption to users who install unapproved applications or switch carriers on their smartphones. That act, when applied to the Apple iPhone, is often referred to as "jailbreaking."

Apple and others have argued that such activities violate provisions of 1998 revisions to federal copyright law known as the Digital Millennium Copyright Act, specifically provisions that forbid the circumvention of security technologies a copyright holder uses to ensure that its software is not modified without permission.

The Copyright Office rejected those arguments, finding instead that modification of Apple's firmware constituted a "fair use" under copyright law. Opponents of strong copyright and the DMCA's anticircumvention provisions in particular have hailed that decision as a dramatic victory. But the extensive coverage of this decision has largely ignored important limits to the Copyright Office's decision that are well worth exploring.

Fair use is a limited exception
The Electronic Frontier Foundation, which submitted the request for exemption, proposed several legal justifications for jailbreaking, arguing that circumvention of Apple's technology did not constitute copyright infringement in the first place. The Copyright Office rejected all of these arguments, however, approving the jailbreaking exemption on the narrow ground of "fair use."

Technically speaking, a "fair use" violates the rights of the copyright holder. But such uses are excused as having minimal negative impact on the rights infringed. In the case of iPhone firmware, for example, the Copyright Office found that while jailbreaking modified the software without authorization, that modification affected fewer than 50 bytes of an 8 million byte program, or only a 160,000th of the work.

Likewise, the Copyright Office found that jailbreaking for the purpose of switching from an authorized carrier to another carrier was privileged by another provision of the copyright law, which allows modifications to software essential for its use.

But the "essential use" exemption applies only to the actual owner of the device. Third parties are still prohibited from offering "circumvention services." This means that only the customer can perform the jailbreak. Anyone else who provides material assistance to a consumer wishing to switch carriers could still be subject to civil or criminal charges under the DMCA.

Still, the exemption is an important development in fair use
Despite the narrow ruling, the Copyright Office's acceptance of a fair-use argument represents a significant change in the law. In many respects, fair use is an important limit to copyright, one that has existed in one form or another since the very beginnings of copyright law in 18th century England.

Since copyright grants a powerful set of monopoly rights to the author or a work (including a monopoly on modified versions of the work and other adaptations), economists worry about potential abuses. As with any monopoly, the normal market forces that set price based on supply and demand are suspended, giving monopoly holders the incentive to set prices too high. That is why, in most other contexts, monopolies, however achieved, are illegal.

Fair use is the key safety valve that ensures that copyright holders do not unduly restrict the market for their works. It allows, for example, for short quotations in reviews, parodies of the work, and other limited copying or modification. Without fair use, the copyright holder might refuse permission or charge too high a price for such uses, which have important social value. In some cases, fair use allows for uses that might be authorized but for which the costs associated with negotiating permission are higher than the value of the use.

Since the 1980s, however, U.S. courts have generally taken a dim view of the fair-use defense, accepting arguments from rights holders that nearly any copying or modification unduly damages the future market for their works.

In a 1985 case, for example, the U.S. Supreme Court rejected a fair-use defense from The Nation magazine, which excerpted without permission fewer than 400 words from President Gerald Ford's 500-page memoir. Because the quote described Ford's pivotal decision to pardon former President Richard Nixon, the court agreed with the publisher that the excerpt was likely to reduce the number of copies of the book it could sell.

Apple had similarly argued to the Copyright Office that the modification of its firmware in a jailbreaking damaged the market for its products. In rejecting that argument, the Copyright Office has taken a significant step in moving the fair-use balance back in the direction of consumers. With regard to anticircumvention technology, the safety valve is now opened, at least a little wider.

Apple can appeal the rulemaking...somehow
Although the Copyright Office's decision constitutes the end of its rulemaking process, Apple and other parties affected by the new exemptions can ask that the rule be overturned. An Apple representative declined to comment on whether the company planned such an appeal, saying only "the vast majority of customers do not jailbreak their iPhones, as this can violate the warranty and can cause the iPhone to become unstable and not work reliably."

According to EFF Civil Liberties Director Jennifer Granick, the most likely form of appeal would be for Apple to file a lawsuit in federal court, claiming that the rulemaking violated provisions of the Administrative Procedures Act. The APA governs rulemaking actions across the federal bureaucracy.

Under an APA lawsuit, Granick confirmed, a judge would review both the form and substance of the Copyright Office's decision under an "arbitrary and capricious" standard. In essence, that would require Apple to prove that the Copyright Office's interpretation of the DMCA is not a rational reading of the law or court cases that have already reviewed it. This is one of the most restrictive standards of review that courts apply, making it difficult, though not impossible, to prevail.

However, it is unclear if, in fact, that or any other appellate process would apply. Several legal scholars with whom I spoke were unaware of any successful challenges to DMCA exemptions made by the Copyright Office in the 12 years since the law was enacted. (The DMCA requires the Copyright Office to consider applications for exemptions every three years.)

In fact, there is only one case I could locate that even attempted to overturn a DMCA exemption. Following an earlier review process, in 2006, TracFone Wireless challenged the Copyright Office's grant of an exemption for programs that enabled "wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless communication network."

In its briefs defending the Copyright Office, the Department of Justice argued that the APA did not apply to the Copyright Office because it is an arm of Congress and not an administrative agency. But according to EFF's Granick, TracFone abandoned the case. There is no reported opinion that indicates the trial court ever made any determination as to how, if at all, exemptions could be challenged.

An appeal by Apple or any other party to the jailbreaking exemption would, at a minimum, be plowing new legal grounds and would inevitably lead to further appeals to higher courts. That process could take years, during which a court may or may not issue an injunction blocking application of the exemption.

DMCA was the least effective arrow in Apple's quiver
Although jailbreaking by end users is now a legally protected form of copyright infringement, the EFF's victory may prove to be pyrrhic. To date, Apple has made no effort to enforce the DMCA to prohibit jailbreaking, though estimates put the number of U.S. customers who have done so at 400,000.

While the company strongly objected to the exemption and may, as noted, have an avenue to appeal the decision, Apple has much more effective means of protecting the iPhone from unapproved applications and from use on unauthorized networks.

Most important, the contract between the company and the user forbids jailbreaking. Violating that provision of the contract voids any warranties and would still constitute a breach of contract the company could enforce in court. (The parties to a contract can waive many rights the law might otherwise give them.)

The company can also implement technical measures to limit or otherwise disable the use of unauthorized applications. One easy way for the company to stop jailbreaks, for example, would be to condition updates to the firmware on proof that the product has not been modified without permission, or to reset the device to factory defaults as part of any update procedure.

There is also nothing to stop Apple from modifying the firmware so that it doesn't run, if modified, and certainly nothing that requires Apple to make changes to its software, if unapproved applications crash or otherwise damage the device.

Finally, as several commentators have noted, disconnecting an iPhone from the authorized AT&T network doesn't necessarily make the device compatible with another carrier. The phone is designed to work only on networks that support the GSM standard. Although GSM is a popular standard, iPhones that have been successfully jailbroken cannot, for example, operate on Verizon's CDMA network.

The Copyright Office's decision to deem jailbreaking a fair use under copyright law represents an important milestone in the ongoing battle to adapt the law for the Digital Age. But it is hardly the end of that struggle.