Apple responded with claims that the EFF's exemption would only stifle innovation, not promote it, and claims that allowing users to jailbreak the iPhone would really only result in damage to the phone, its software market, and users' experience.
The Jailbreak DMCA Exemption
The EFF wants users to be able to freely modify Apple's iPhone software so that applications independent of the official App Store can be used on it. The group has proposed an exemption to the DMCA for "computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset."
Fred von Lohmann, writing for the EFF, called Apple's software restrictions for only allowing approved software to be installed via iTunes "corporate paternalism" and said it was comparable to an automaker welding shut the hood of its cars to only allow servicing to be done by authorized dealers. In response, Apple said in its own legal filing (PDF) that the EFF's "arguments really amount to an attack on Appleâs particular business choices with respect to the design of the iPhone mobile computing platform and the strategy for delivering applications software for the iPhone through the iPhone App Store."
"Much of EFFâs arguments are based on issues that do not have relevance to a DMCA exemption, such as how Apple is compensated for distributing iPhone-compatible applications," Apple stated in the filing, noting that "Congress has already explicitly addressed circumvention for interoperability" in the DMCA, and that the "Copyright Office should not create interoperability exemptions outside that statutory structure, at least without a clear showing of specific and significant harm."
Apple said the "EFF apparently desires to use the rulemaking process to alter Appleâs business practices by negating DMCA protection for technologies that interfere with what EFF seems to assume would be a more socially desirable business model that is more 'open.' Specifically, it seeks through the proposed exemption to clear the path for those who would hack the iPhoneâs operating system so that a proprietary mobile computing platform protected by copyright can be transformed into one on which any third party application can be run, without taking account of the undesirable consequences that would ensue from the transformation."
The iPhone software business model
The response also stated that the "EFFâs submission offers no proof that this proposed transformation would actually increase innovation or investment in creative works, and as this submission demonstrates, it would not do so." After citing the success of the App Store business model (the company managed to repeat that it now has 15,000 apps for the iPhone seven different times in the document), Apple added, "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."
Apple stated that the iPhone's operating system "was designed not just to enable the making of phone calls, but specifically to provide a rich mobile computing platform so that Apple, applications developers and iPhone users could all benefit from a very wide range of functionality. In that respect, the significance of the iPhone OS to Appleâs entry and long-term product strategy cannot be overstated.
"The platform provided by the OS has created positive feedback loops so that a large community of developers has been willing to invest in iPhone technologies, elevate the platform and the iPhone user experience, and benefit themselves, Apple and consumers alike."
The iPhone security model
Apple described its security model as a "chain of trust," stating "The iPhone contains a number of TPMs [technology protection measures] that protect the bootloader and OS from modification or corruption, and verify their origin, thereby helping to ensure proper functioning of the device. A secure read only memory (ROM) in the hardware of the device contains cryptographic keys that are used to validate the bootloader and the OS.
"Upon power up, the secure ROM uses the keys to validate the bootloader before loading it (by verifying its digital signature), and the bootloader then validates the OS before loading it for execution (again, by verifying its digital signature). The validation process verifies that the bootloader and OS
originated from Apple and that they have not been altered.
"Commencing with version 2.0 of the OS, the OS similarly validates all application programs loaded into the iPhone, also by verifying their digital signatures to confirm that they have been accepted by Apple for execution on the iPhone and have not been altered. The sequence of validations from the bootloader to the OS to the application programs is referred to by Apple as the 'chain of trust.'"
Apple claims damages for jailbreaking
Apple described a number of reasons for protecting its software on the phone, stating that "modifications can readily cause significant problems in the operation of the iPhone for the following reasons, among others:
"The OS implements a number of essential safety and control functions. For example, it monitors the thermal condition of the device and shuts it down if it is overheating. It controls the charging of the battery, instructing the relevant circuitry when to start and stop charging the battery, and at what level to charge it. The OS also implements certain governors on the phoneâs volume. If modifications to the OS were to interfere with these control functions, even unintentionally, the phone could be physically damaged or the battery could be overcharged.
"The OS implements a number of security functions that protect both the iPhone itself and the telephone network to which it connects. For example, the OS implements certain controls on how application programs are able to execute on the iPhone to help prevent viruses and other forms of âmalwareâ from executing. Modification of the OS can interfere with these functions and open up security holes that could enable malware to accomplish malicious things through the iPhone, such as stealing information from the userâs contacts database. The OS also controls a critical portion of the device known as the âbaseband processorâ (BBP) that is used to connect to a telephone network and to utilize services on the network. By circumventing access controls on the OS, third parties could gain unauthorized access to the BBP, which could in turn result in gaining unauthorized access to and use of the telephone network or even causing operational damage to the network.
"The OS makes available functions and services to application programs through its APIs and system calls. Modifications to the OS can, whether intentionally or unintentionally, interfere with the proper operation of the APIs and system calls, causing application programs to fail to operate correctly on the phone. Moreover, updates to the OS distributed by Apple may not work correctly with modified earlier versions of the OS. When users attempt to update a device whose OS has been previously modified, serious functional problems can result, potentially causing the device to fail to operate."
Apple noted that "other phone vendors have done the same," citing the EFF's own submission, which described how the Android T-Mobile G1 "will load only signed firmware images, which prevents G1 users from making modifications to the operating system kernel."
Apple defends App Store restrictions
"Through the App Store, Apple is able to help prevent distribution of applications that could cause damage to its OS or cause other problems for end users. For example, through its current App Store review procedures, Apple has prevented distribution of applications that transfer excessive amounts of data to the phone network that can cause a degradation of service such as dropped calls, and applications that utilize undocumented APIs that are not designed for general usage and that can cause an application to crash when invoked. Apple currently also reviews
applications submitted to the App Store to screen for sexually explicit content and hate speech."
The filing also contradicted claims made by the EFF that that Apple refuses to approve applications that "duplicate functionality" offered by Appleâs own software. "This is incorrect. Apple has, for example, approved multiple general web browsers, which compete with Appleâs own Safari web browser, and multiple mail programs, which compete with Appleâs own mail program for the iPhone," the company said.
Apple also cited piracy as a reason for its App Store controls. "There are many instances in which unauthorized persons 'strip' the TPMs protecting such content, thereby placing it 'in the clear' (i.e., in unprotected form). With the TPM removed, pirated copies of the content in unprotected form can then be widely distributed among persons who do not pay for it, typically through unlawful peer-to-peer networks and other online distribution sites.
"Such has happened, for example, to a copyrighted game owned by Apple called 'Texas Hold 'Em,' as well as to a host of popular games from third party vendors. However, the stripped games can be played only on jailbroken iPhones, because the TPMs on the iPhone would otherwise prevent them from playing." Apple also noted the NES emulator app, which "will enable stripped Nintendo games to be played on jailbroken iPhones [contrary to the copyright of those games]."
"Apple believes that the proposed exemption would further facilitate and encourage this form of piracy. Piracy, in turn, can diminish the investment that developers are willing to make in the creation of copyrighted works for the iPhone, contrary to the fundamental purpose of the copyright law to encourage the creation of new works of authorship."
Apple's jailbreak expenses
Apple's filing also stated that "further modifications to the OS are often necessary to enable certain kinds of applications to run even after the basic jailbreaking is accomplished. Such modifications are infringing and can give rise to additional functional problems on the iPhone, such as interfering with operation of certain APIs or system calls, or creating incompatibilities with other updated components of the OS. In short, the initial infringing acts on the OS often lead to other infringing acts, which in turn can lead to yet further functional problems."
"Functional problems that result from unauthorized modifications to the OS increase Appleâs support costs substantially. Appleâs iPhone support department has received literally millions of reported incidents of software that crashes on jailbroken iPhones, although it works properly on unmodified iPhones. For example, one recent software crash caused by jailbroken phones was reported over 1.6 million times from users of just 10,000 jailbroken phones. Two other recent crashes caused by jailbroken phones were reported over 2 million times and over 2.4 million times, respectively.
"Apple has also become aware that some jailbroken versions of the bootloader make it impossible to update the baseband processor (BBP) in the iPhone, which controls the ability of the iPhone to connect up to the telephone network and make calls. Because each update that Apple distributes to the BBP contains updates and fixes, a phone that cannot update the BBP will potentially experience problems making calls. When that happens, Appleâs support department gets flooded with calls.
"Apple incurs very substantial expenses to investigate these problems reported to its support department to determine whether they result from problems in Appleâs own software, or result from unauthorized modifications performed by users in jailbreaking. Apple expects that reported problems from jailbroken phones will increase dramatically if the Class #1 exemption proposed by EFF were to be allowed, substantially increasing Appleâs support costs even more."
The fair use argument
The EFF's submission states that reproduction and modification of a phoneâs firmware incident to jailbreaking is non-infringing fair use. Apple argues that jailbreaking fails all four "nonexclusive statutory fair use factors prescribed in Â§ 107 of the copyright statute," which it cited as "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work."
"Because a jailbroken OS is often used to play pirated content, such activity should be considered of a commercial nature since it avoids paying fees for the content. Therefore, factor 1 weighs against fair use. Factors 2 and 3 also weigh against fair use because the copyrighted works at issue are highly creative and not factual in nature, and essentially the entire work is being copied. Of most importance is factor 4, because the effect of these unauthorized uses is to diminish the value of the copyrighted works to Apple."
Apple states that the "EFFâs argument that factor 4 cuts in favor of fair use because Apple makes various versions of the iPhone firmware available 'for free from its own website, demonstrating that the firmware has no independent economic value' is wholly off the mark. The iPhone firmware is not itself a product; it is a component of the iPhone mobile computing product.
"The value of the OS software to the iPhone, and therefore to Apple, cannot be assessed independent of the iPhone itself. The OSâs value is as platform software for the mobile computing experience that differentiates the iPhone from its many competitors. The value of platform software, in turn, is related to the number and quality of applications written to run on the platform and the availability of safe and secure means of distributing these applications to consumers.
"Apple created at substantial cost the ecosystem that makes the SDK and the App Store available to developers, who in turn write applications to the platform, which in turn make the iPhone a more attractive product to consumers. All of these benefits are promoted by the TPMs that safeguard the iPhone OS. EFFâs submission offers no evidence to support the bald assertions that nullifying DMCA protections for such TPMs will produce more benefits for society and more investment in copyrighted works than Apple has demonstrably created through its iPhone
product design and strategy."
Apple: no harm, no foul
"EFFâs submission does not provide any support for the assumption underlying the proposed jailbreaking exemption â that copyright advancement will be furthered and the level of innovation would be the same or better by nullifying TPMs on the iPhone in order to force a more open iPhone platform.
"Indeed, this assumption is contrary to Congressâ expressed beliefs in passing the DMCA in the first place â that without the âtechnological adjunctsâ of laws preventing circumvention of access controls, copyright expansion and innovation (so important to the U.S. economy) would be chilled, as companies questioned whether to spend millions on innovations that might not be legally protectable. In other words, that society would never even get innovations like the iPhone and the applications it has spawned in the first place."
The Copyright Office will deliberate over the proposed DMCA exemptions and issue a ruling in October.