On Apple's Use of DMCA to Control the iPhone

[Pangloss]

Interesting article in Ars Technica about the arguments taking place between the Electronic Frontier Foundation and Apple Computer as part of the ongoing appeal and request-for-exception process that exists with the government as part of the Digital Millennium Copyright Act.

 

http://arstechnica.com/apple/news/2009/02/apple-sides-with-mpaa-riaa-against-drm-circumvention.ars

 

Some interesting bits:

 

Electronic Frontier Foundation has pushed hard for an exemption on jailbreaking the Apple iPhone, allowing people to install and run applications of their choice that don't come from the official App Store. Now, Apple has responded with a ringing defense of DRM and its business practices, siding with groups like the MPAA and RIAA against exemptions.

 

[EFF's] von Lohmann claimed that "Apple imposes arbitrary, anti-competitive restrictions on independent iPhone developers." The main point was that Apple's use of iPhone DRM has less to do with "copyright" than with simple control over the device, and the iPhone might therefore be a good target for a DMCA exemption (which are only granted if DRM is blocking noninfringing uses of the product in question).

 

Apple comments hit back hard at the entire complaint, saying that "Congress did not envision the DMCA exemption process as a forum for economic restructuring of business models... As this submission will demonstrate, the evidence shows that a business model in which handsets can be widely jailbroken with the attendant problems that result would in fact hinder the creation and distribution of creative works for the platform."

 

Whatever you think of the merits of Apple's system, the company claims that the exemption challenge fails for one key reason: the uses that are sought of its DRM-protected firmware and bootloader do in fact infringe its copyright. "Here, the uses of the class of works that would result from the proposed exemption are infringing, namely, the creation of unauthorized derivative versions of Apple's copyrighted bootloader and iPhone operating system software," writes Apple. "This fact alone must result in denial of the exemption."

 

The article goes on to talk about both sides of the argument. This point from von Lohmann was particularly interesting:

 

"Sure, GM might tell us that, for our own safety, all servicing should be done by an authorized GM dealer using only genuine GM parts. Toyota might say that swapping your engine could reduce the reliability of your car. And Mazda could say that those who throw a supercharger on their Miatas frequently exceed the legal speed limit.

 

"But we'd never accept this corporate paternalism as a justification for welding every car hood shut and imposing legal liability on car buffs tinkering in their garages."

 

Interesting stuff. I didn't realize Apple was attempting to have it held that jailbreaking an iPhone is illegal.

[bascule]

"Here, the uses of the class of works that would result from the proposed exemption are infringing, namely, the creation of unauthorized derivative versions of Apple's copyrighted bootloader and iPhone operating system software," writes Apple. "This fact alone must result in denial of the exemption."

 

I could understand it if people were distributing hacked versions of the iPhone software (IPSW).

 

However, that's not how it works. A legitimate iPhone purchaser downloads the new IPSW through iTunes, runs a tool on it, then flashes their phone with the modified image.

 

How is that not fair use? Is it illegal to make mix CDs for personal use? I think it is completely within fair use rights to create "unauthorized derivative versions" of copyrighted works entirely for personal use.

 

They're asserting that their software is in some sort of final form and any modifications by the end user are illegal. What the crap?

 

All that said I have a hacked iPhone and care little what Apple thinks of the legality of jailbreaking it. As far as I'm concerned I'm completely within my fair use rights.

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Something ironic I just realized:

 

Apple is claiming it is not fair use to produce derivative versions of copyrighted works for personal use.

 

However, that's exactly what iTunes does: it makes AAC/MP3 files out of your copyrighted CDs. It also lets you build playlists of these copyrighted songs and burn them onto mix CDs.

[Pangloss]

Interesting point.

[Daecon]

Someone should tell them that.

[swansont]

Something ironic I just realized:

 

Apple is claiming it is not fair use to produce derivative versions of copyrighted works for personal use.

 

However, that's exactly what iTunes does: it makes AAC/MP3 files out of your copyrighted CDs. It also lets you build playlists of these copyrighted songs and burn them onto mix CDs.

 

How is copying a file a derivative work? What content have you modified in doing so?

[npts2020]

Problem is that Apple has two things going for it. Firstly, the primary requirements for becoming a Supreme Court nominee the past couple of decades, has been views in favor of enhanced Presidential powers and favorableness toward corporate activities (forget all of the abortion and civil rights hand-waving). Secondly, I am not sure how versed in the technology most of the justices are to even realize many of the implications of their decision in this matter, most people in their age demographic know very little about things like this.

[bascule]

How is copying a file a derivative work? What content have you modified in doing so?

 

When you make an AAC/MP3 file you're running it through Fourier transforms, filter banks, building a Huffman tree out of it, etc.

 

You end up with a compressed version of the original work which sounds similar to human listeners but will contain a number of dissimilarities.

[swansont]

When you make an AAC/MP3 file you're running it through Fourier transforms, filter banks, building a Huffman tree out of it, etc.

 

You end up with a compressed version of the original work which sounds similar to human listeners but will contain a number of dissimilarities.

 

But it's still the same song. Compression won't change that. For something to be considered a derivative work, the changes must themselves be copyrightable.

[Pangloss]

Problem is that Apple has two things going for it. Firstly, the primary requirements for becoming a Supreme Court nominee the past couple of decades, has been views in favor of enhanced Presidential powers and favorableness toward corporate activities (forget all of the abortion and civil rights hand-waving). Secondly, I am not sure how versed in the technology most of the justices are to even realize many of the implications of their decision in this matter, most people in their age demographic know very little about things like this.

 

I don't think 'requirement' is the correct word, but it's perfectly reasonable to opine that that's been the effect. I happen to not agree but perhaps that's a subject better suited for the politics board.

 

But the point about technology is interesting, but they don't operate in a vacuum -- they get the best advice of any judges in the world, because it's the top of the pyramid in that department. Clerking for a Supreme Court judge is the top honor for a graduate of the Kennedy School of Government, Harvard Law, and everywhere else of note. Those aren't technogeeks either, but they're young and intelligent, and I expect that if we were to dig into this that they would turn out to be very well advised in this area.

[bascule]

But it's still the same song. Compression won't change that. For something to be considered a derivative work, the changes must themselves be copyrightable.

 

It may be the same song, but it's not the same album

[npts2020]

I don't think 'requirement' is the correct word, but it's perfectly reasonable to opine that that's been the effect. I happen to not agree but perhaps that's a subject better suited for the politics board.

 

But the point about technology is interesting, but they don't operate in a vacuum -- they get the best advice of any judges in the world, because it's the top of the pyramid in that department. Clerking for a Supreme Court judge is the top honor for a graduate of the Kennedy School of Government, Harvard Law, and everywhere else of note. Those aren't technogeeks either, but they're young and intelligent, and I expect that if we were to dig into this that they would turn out to be very well advised in this area.

 

Well, I for one certainly hope you are right.

[The Bear's Key]

Well, I for one certainly hope you are right.

Maybe it depends who supplied the clerks?

 

Right ideology, answered questions to our liking, desperate for the position, soaks up our "advice"...Check. Check. Check. Check. In!

[bascule]

Apple is now using the DMCA to prevent third party manufacturers from making headphones for the new iPhone shuffle without express authorization from Apple, arguing that 3rd party headphones would represent a "circumevention device" because they did not license the technology from Apple:

 

http://techdirt.com/articles/20090314/1209514115.shtml

 

Is it me or is all this DMCA crap getting just a bit ridiculous? It's not being used to enforce copyright. It's being used to hurt interoperability and circumvent legal steps at reverse engineering.

[Pangloss]

I haven't fully scoped this one out yet, but the new Shuffle actually places some of the system controls on the earphone wire, so I'm wondering if third party devices connected through that port might have the ability to bypass copyright protection and/or access the OS.

 

But even if that's true I'm not clear on why they would resort to DMCA protection.

[swansont]

But even if that's true I'm not clear on why they would resort to DMCA protection.

 

Because it's there?

[Pangloss]

I guess so. In reading a bit more about it it sounds like they have a chip in the headphones that gives them the ability to control the unit. I guess the idea is to use DMCA to stop 3rd parties from manufacturing their own chips instead of licensing them from Apple.

 

I'm not sure I really see an ethical problem here.

[swansont]

Nor do I. I mean, it's a lousy situation for the consumer, but that's an underlying theme of the DMCA anyway. The law gives certain leverage to corporations, and IMO it's naive to think they won't use it.

[bascule]

I'm not sure I really see an ethical problem here.

 

The problem is this is not within the spirit of the DMCA. Apple is using the DMCA as legal muscle against reverse engineering, not to protect copyright.

[Pangloss]

Isn't that part of the purpose of protecting copyright, to stop reverse engineering? That doesn't sound like a new thing to me.

 

But what I meant was that I don't know if there's an ethical problem with Apple putting its device controls on the headphone cable. It MIGHT be an attempt to gain a monopoly over the headphone market (I feel a little saying that, but okay), but it also has a legitimate utility benefit to the consumer. And it's one that could be argued to be original enough to be considered copyrightable, since all such current systems control only volume level (and mute).

 

But I'm keeping an open mind about it, being no fan of DMCA (over the fair use issue).