Many iPhone users are well aware of the technical countermeasures pre-loaded on the devices that prevent users from installing software applications not approved by Apple – behavior commonly referred to as “jailbreaking” (though, the term can have different meanings in other contexts). In support of its efforts to prevent jailbreaking, Apple relies on the anti-circumvention prohibition in Title I of the Digital Millennium Copyright Act (DMCA), which provides that “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” 

However, the DMCA also gives the Copyright Office the authority to grant specific exemptions from this provision of the Act. In an effort to address the issue of iPhone jailbreaking, the Electronic Frontier Foundation (EFF) recently filed comments with the Copyright Office seeking just such an exemption for users of the iPhone and other devices, real or potential, with similar countermeasures. (A copy of the filing is available here.) In its brief, the EFF argues that jailbreaking a telecommunications device for the purpose of installing lawfully obtained software infringes no copyright and is, therefore, outside the range of activities intended to be addressed by the DMCA.

Apple, unsurprisingly, disagrees with the EFF’s assertions. In its written objection to the filing (also available, here), Apple argues that current, widely used jailbreaking techniques do result in copyright infringement, because, according to Apple, they require the reproduction of, and creation of derivative works based on, the iPhone’s “bootloader” and operating system. Therefore, Apple urges that they are outside the scope of exemptions that the Act allows the Copyright Office to consider. Apple further argues that such techniques are not protected by the Fair Use doctrine under U.S. Copyright Law.

Beyond the copyright infringement it alleges is implicated in jailbreaking, Apple further argues that the EFF’s proposed exemption fails to satisfy the standards for exemptions imposed by the DMCA. According to Apple, granting the exemption would result in harm to its reputation, because jailbroken iPhones would be more prone to bugs and security flaws. In one interesting passage from its objection, Apple argues:

It should be clear that the iPhone ecosystem Apple has built is good for developers, good for iPhone users, good for Apple, and good for the policies underlying the copyright laws to encourage the creation of works of authorship. That ecosystem depends upon the “chain of trust” implemented in the iPhone through its TPMs. The proposed exemption would destroy that chain of trust and threaten many of the benefits the ecosystem affords, and should therefore be rejected.

Putting aside, for the sake of argument, Apple’s substantive legal arguments under traditional U.S. copyright law, such a sentiment could, if widely adopted, grant privileged and enviable legal status to software developers and electronics manufacturers whose products include integrated software. In response to Apple’s argument, the EFF countered on its web site:

One need only transpose Apple's arguments to the world of automobiles to recognize their absurdity. 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.

(Full EFF post available here.)

It will be very interesting to see whether the Copyright Office grants the exemption urged by the EFF and whether any litigation flows from such a decision. Many iPhone users, of course, may have a special interest in following the outcome of the dispute, but the ultimate decision on the issue likely would have significant impacts on consumers of a wide variety of products.