Did the Librarian forget the iPod Touch and the iPad?

Posted By: Ronald Rasmussen

The Librarian of Congress on July 26, 2010, announced six classes of works that are now exempt from the prohibitions against circumvention of technological measures controlling access to copyrighted works. This meant that persons making noninfringing uses of works in those six classes are not subject to the portions of the Digital Millennium Copyright Act (DMCA) found at 17 U.S.C. §1201(a)(1) prohibiting circumventing technological access controls to works subject to copyright. This exemption lasts until the conclusion of the next rulemaking.
The second class of works announced was defined as follows:
Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.
This ruling came about in part because of the dispute between Apple Computer Inc, and iPhone users over “jailbreaking,” the practice of circumventing the access controls in order to load and operate other, non-Apple-provided, software on the device. Apple has maintained that jailbreaking is a violation of copyright law, and of course that it voids the warranty. The Electronic Frontier Foundation, or EFF, has argued that it is a “fair use,” and therefore legal. EFF based this claim on three specific arguments. First, EFF claimed that in some situations, jailbreaking could be done within the scope of the Apple software license agreement. Second, EFF argued that an iPhone owner also owns the copy of the phone’s firmware, and therefore under 17 U.S.C. §117(a), the owner can adapt the copy to add new capabilities, as long as the changes made by the owner do not “harm the interests of the copyright proprietor.” This was the “adaptation as essential step to usage” argument. Third, the EFF contended that jailbreaking was a purely noncommercial, private use of the computer software that operates the phone, so the user was altering the firmware for their own use only, without any change in market.
The Apple iPod Touch and the Apple iPad uses the same or similar firmware as the Apple iPhone, and has been subject to the same jailbreaking practices. The Touch and iPad use many of the same apps as the iPhone. Apple has traditionally locked the Touch and iPad down in the same way as the iPhone, with applications only available through Apple. However, the Touch and iPad do not appear to be covered as phones, as they have no capability to make or receive calls, and the exemption covers only “wireless telephone handsets.” This omission appears to leave the iPad and Touch untouched by this “jailbreaking is legal” ruling.
There may be simple reason for the Librarian’s omission. In spite of Apple’s protests to the contrary, both the Touch and the iPad are computers running computer programs. As such, perhaps the Librarian believed, as EFF argued, that jailbreaking a Touch or iPad was already covered under 17 U.S.C. §117(a), just like adapting any other computer program as an essential step to utilization of the computer. Of course, one could make the same argument for any smartphone, but Apple has built its business model around locking its products down as tightly as possible.


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