Every three years, the Copyright Office hosts a rulemaking in which it considers specific exemptions to the Digital Millennium Copyright Act's (DMCA) rules against circumventing DRM, and the comments are now in for the current round. This year, the 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.

Jailbreak!

Fred von Lohmann of the EFF asked the Copyright Office for three exemptions, the first of which was 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."

In other words, jailbroken phones. And not just any phone—iPhones are the real target here.

In the follow-up explanation, 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."

Besides, why would anyone want to remove the DRM? It protects the OS against modifications, and modifications are dangerous. "If modifications of the the OS were to interfere with these control functions [volume governors, temperature sensors, charging circuitry], even unintentionally, the phone could be physically damaged or the battery could be overcharged." A bit later we learn that modifications to the OS might affect the baseband processor, which in turn could even "cause operational damage to the [cell] network."

And, of course, iPhone DRM prevents piracy. While Apple programs like Texas Hold 'Em are regularly cracked by pirates, the cracked files can only be run on jailbroken iPhones. "Apple believes that the proposed exemption would further facilitate and encourage this form of piracy."

von Lohmann has already responded, and he doesn't think much of Apple's arguments. When it comes to the claim that all jailbroken phones use a modified bootloader and therefore violate Apple's copyright, von Lohmann says that it's "true enough," but also that "the courts have long recognized that copying software while reverse engineering is a fair use when done for purposes of fostering interoperability with independently created software, a body of law that Apple conveniently fails to mention."

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

The other arguments are all called "FUD" (fear, uncertainty, doubt). "One need only transpose Apple's arguments to the world of automobiles to recognize their absurdity," von Lohmann says. "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. After all, the culture of tinkering (or hacking, if you prefer) is an important part of our innovation economy."

Slipping down the slippery slope

Those who control and enforce copyrights don't tend to like limitations or exemptions putting a crimp in their style, and this rulemaking is no exception. A joint group of copyright holders that included the ESA, MPAA, and RIAA also filed a motion that takes aim at other proposed exemptions. The group's main beef is with the idea that an exemption should apply to a certain group of people rather than to a certain group of work.

One strategy pursued by those seeking exemptions has been to claim that that DRM circumvention should be allowed by "academic researchers," for instance, or anyone doing the circumvention for fair use of the content. But the DMCA itself talks about a "particular class of works," not of users accessing the works.

Unfortunately for the rightsholders, during the 2006 rulemaking, the Register of Copyrights decided that, in some cases, the "class of users" approach would actually be acceptable. That led the rightsholders to say, this time around, that "the approach adopted by the Register and ratified by the Librarian [of Congress] in 2006 has positioned this proceeding at the edge of a foreseeable slippery slope. Some of the current crop of proposals would push the proceeding headlong down it. If unchecked, this momentum will culminate in demands for exemptions for acts of circumvention of access controls on any and all types of works if carried out by favored groups of users 'for fair use purposes.'"

The EFF asked for exactly this sort of exemption; needless to say, it's being strongly opposed by rightsholders.

As for making backups of your DVDs, don't hold your breath. The DVD Copy Control Association made clear that even after widespread cracking of DVD's CSS control mechanism, it is still out to make it as difficult as possible for people to exercise their fair use rights. Educators, for instance, who aren't film professors don't need an expanded exemption for creating "clip compilations" for use in the classroom because (really) a) Pioneer makes two models of DVD players that make this possible without breaking CSS, b) teachers can simply tape the clips in question off a TV screen or computer monitor with a camcorder, and c) teachers could really just "plan their courses in advance and seek permission from the movie studies to use certain clips."

The fear in all such cases is of the slippery slope. As the DVD CCA puts it, "permitting circumvention of CSS to enable the creation of clip compilations would expose the CSS technical and legal protection regime to possible undermining for purposes far beyond those proposed in the exemption request. Once the technology is legally circumvented, the ability to limit the scope of the use of the circumvention may well be impossible, thereby undermining the whole system."