Wednesday, November 10, 2010
Jailbreaking: To Infinity and Beyond
Historically, of course, this has not been an issue. For example, purchasing a hammer with a license to only build houses would be considered nonsense. You've bought the hammer so its now yours. The previous owner has no claim what-so-ever on your use of it. Of course the seller of the hammer might attach a license but more than likely people would either ignore it or buy another hammer without one.
In the modern digital age many things we buy contain license agreements and software. For example, an iPod or iPhone is a physical thing, like a hammer, but it also involves the use of some sort of intellectual property, like software, to make it work. The software is typically covered with a license that restricts what you might do with the software - not the device ifself. For example, decrypting the software or posting it on a public web site are types of restrictions typically found in such licenses.
Most of the law on this is covered by the Digital Millennium Copyright Act. From WikiPedia: "The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself."
This protects downloaded music and DVD's from being unfairly copied as well as makes it a crime to decode or decrypt certain types of protection systems, e.g., the iTunes music system that limits your playing of music to, say, an iPod.
However, there are certain exceptions to the DMCA and an important one was added very recently: iPhone Jailbreaking.
Apple, of course, disagrees with this (see PDF here). Apple argues that A) "jailbreaking" violates its license agreement and B) that a "fair use" of the iPhone and its software under the copyright law such as jailbreaking is not allowed because the jailbreaker does not own the software and is merely a licensee.
But Apple's view was struck down on two fronts: First the Copyright Office concluded that, “while a copyright owner might try to restrict the programs that can be run on a particular operating system, copyright law is not the vehicle for imposition of such restrictions.”
Second, a Federal Appeals court ruled that "dongle protected software" can only enforce copyright issues but must allow the user to use and view the software. From the ruling (listed here): "Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners."
The next front on which this will play out is now video games.
If I buy a video game is it fair use to install "modded" hardware?
(In case you don't know what "modding" is here is the Wikipedia definition: "Modding is a slang expression that is derived from the verb "modify". Modding refers to the act of modifying a piece of hardware or software or anything else for that matter, to perform a function not originally conceived or intended by the designer. ")
In this case the defendant, Mathew Crippen, thinks so - for the same reasons I listed above - he took money from some under cover agents to jailbreak an Xbox and was arrested.
The two rulings listed above are remarkable and I predict that, by the same logic used in both of these cases, the government will lose its case against Mathew Crippen.
What does this mean for the rest of us?
Well, for one thing I think that it says that if I buy software, like a PhotoShop or Windows, and I don't like what it does I can alter it despite what any license agreement might say so long as I don't violate the copyright provisions of that license, e.g., make illegal copies for someone else because of this.
In the case of my copier spying on me, which I wrote about recently, it says that me somehow hacking the software to prevent such spying is legal.
Could I "jailbreak" my RIP for my highspeed inkjet or digital press?
Could I take apart a printer I own with a color Adobe RIP and make use of it in some other way?
Could I view the inner workings of a PhotoShop or Quark and make use of what I saw so long as I did not violate other patent or copyright law?
Could I buy a junk RIP and diddle the innards to make a new product?
I think the answer to all these questions is yes.
Posted by John Gault at 7:54 AM