Blown To Bits

The iPhone and the DMCA: i is for “imprisonment”

Saturday, February 14th, 2009 by Hal Abelson

iPhones are prisons: iPhones have software locks to ensure that the only applications that run on them are applications you get from Apple.  The Trusted Platform Module (TPM) technology for constructing such locks is explained in chapter 6 of Blown to Bits, illustrated there with the fictitious example of Fortress Publishers.   Now Apple is playing the role of Fortress, and the example is anything but fictitious.

The process of removing those TPM locks, a process called jailbreaking, violates the anticircumvention provision of the Digital Millennium Copyright Act (DMCA).  Apple wants to keep it that way.

As chapter 6 of B2B explains, Congress in the DMCA charged the Librarian of Congress with conducting hearings every three years on proposed exemptions.¬† In 2006, Americans got the right to undo the lock-in on their mobile phones for the purpose of shifting to a new service provider.¬† Last October, the Electronic Frontier Foundation requested a new exemption to let smart-phone owners undo the locks for the purpose of letting the phones run legally-acquired software of their choosing.¬† In the words of EFF, this would “foster competition in the software market, thereby encouraging innovation and expanding consumer choice.”

When we we buy computers, we’re used to the idea that we can use them to run whatever software we like, and that for someone to create new successful software requires only talent and ideas, not permission from Apple or MIcrosoft.¬†¬† Jonathan Zittrain’s highly recommended book The Future of the Internet and How to Stop It (see my review of Zittrain’s book in American Scientist) argues that this “openness” in the personal computer is has been a critical enabler for the digital explosion’s enormous outpouring of innovation.

Not so for the smart phone, if Apple has its way.

Yesterday Apple filed an objection to the proposed exemption, on the grounds the letting users run unauthorized software could result in “potential damage to the device and other potential harmful physical effects.”¬† More to the point, Apple says that the lock-in is necessary for their business model for the iPhone (Apple gets 30% of the proceeds from applications sold through the iPhone Store) and argues that the DMCA doesn’t give the Copyright Office the power to make decisions based on business models.

This is another example, like the ones in chapter 6, of why the DMCA’s anticircumvention provision might be better described as an anticompetition provision.¬†¬† Congress passed this in 1998 in an attempt to crack down on music file sharing.¬† It didn’t work; and as I blogged last September, the recording industry itself is largely abandoning DRM for software distribution. Yet anticircumvention remains as a legal club that enables technology lock-in and prevents competition in areas having little connection to the original motivation for the law.

One Response to “The iPhone and the DMCA: i is for “imprisonment””

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