Apple and EFF argue over iPhone jailbreaking

Posted:
in iPhone edited January 2014
The Electronic Frontier Foundation has filed requests with the US Copyright Office to exempt activities from legal threats under the DMCA, one of which attacks Apple's secured software business model on the iPhone.



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 Apple?s 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 EFF?s 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 Apple?s 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 iPhone?s 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 "EFF?s 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 Apple?s 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 phone?s 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 ?malware? 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 user?s contacts database. The OS also controls a critical portion of the device known as the ?baseband processor? (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 Apple?s own software. "This is incorrect. Apple has, for example, approved multiple general web browsers, which compete with Apple?s own Safari web browser, and multiple mail programs, which compete with Apple?s 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 Apple?s support costs substantially. Apple?s 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, Apple?s 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 Apple?s 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 Apple?s support costs even more."



The fair use argument



The EFF's submission states that reproduction and modification of a phone?s firmware incident to jailbreaking is non-infringing fair use. Apple argues that jailbreaking fails all four "nonexclusive statutory fair use factors prescribed in § 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 "EFF?s 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 OS?s 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. EFF?s 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



"EFF?s submission does not provide any support for the assumption underlying the proposed jailbreaking exemption ? 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 Congress? expressed beliefs in passing the DMCA in the first place ? that without the ?technological adjuncts? 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.
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Comments

  • Reply 1 of 94
    wijgwijg Posts: 99member
    First post! (Stupid, I know...)
  • Reply 2 of 94
    solipsismsolipsism Posts: 25,726member
    I disagree with both EFF and Apple's reasoning.
  • Reply 3 of 94
    mknoppmknopp Posts: 257member
    Quote:

    Apple currently also reviews applications submitted to the App Store to screen for sexually explicit content and hate speech.



    Interesting that Apple touts one of the two worst abuses of the App store as a positive. Who the hell asked them to limit what a paying adult can or cannot view on their legally purchased iPhone. The fact that they made an author remove the f' word from the book to be hosted on the App Store was beyond terrible, as bad as anything Wal-Mart ever did against music, but nobody seems to be very upset about Apple playing moral cop on the iPhone.



    Oh well.
  • Reply 4 of 94
    hhhhhh Posts: 2member
    Quote:

    "In other words, that society would never even get innovations like the iPhone and the applications it has spawned in the first place."



    actually, tons of applications were available before the SDK "innovation" via the jailbreak
  • Reply 5 of 94
    emig647emig647 Posts: 2,413member
    Quote:
    Originally Posted by mknopp View Post


    Interesting that Apple touts one of the two worst abuses of the App store as a positive. Who the hell asked them to limit what a paying adult can or cannot view on their legally purchased iPhone. The fact that they made an author remove the f' word from the book to be hosted on the App Store was beyond terrible, as bad as anything Wal-Mart ever did against music, but nobody seems to be very upset about Apple playing moral cop on the iPhone.



    Oh well.



    Yah I agree with you. I do feel they could still screen apps on their app store (it is theirs to do with what they want). I don't feel they should restrict what applications can run on an iphone though. I agree and disagree with both sides on this one.



    I don't like how anyone can tell me what i can and can't do with something i OWN.
  • Reply 6 of 94
    nagrommenagromme Posts: 2,834member
    Since "applications independent of the official App Store" means, 99.9% of the time, "pirated applications," and since I hope to sell an app or two of my own someday and get PAID for my efforts, I can't side with the EFF here.



    I do want to see Apple loosen up its policies, though--and indeed they have been doing so.



    (Note: I'm not saying Jailbreaking is mainly done for piracy--I think modding the UI is at least as big a reason, probably THE biggest, and I'm glad that jailbreaking is alive and well. I'm saying that if you made a list of the APPS people need to jailbreak to install, 99.9% of them will be pirated apps. With only a handful of original apps that Apple rejected. And yes, all of this is separate from the issue of carrier unlocking. I'm just talking apps.)
  • Reply 7 of 94
    I have nothing against somebody who jailbreaks the iPhone if they just genuinely want to tinker with the device they pay for, without abusing the carrier's network. I'm a geek, and I love to play with my tech toys. It's geeks tinkering (ex Linux) that got IT to where it is today, and this should be strongly encouraged. Apple should absolutely not go after these people , since they paid a fair price for their device, and should be treated the same as people who mod their XBoxes to install Linux, for example. Should their warranty be violated? Probably, but I don't think they care.



    However, I have a real problem with people who jailbreak their iPhones simply to install pirated apps, or to abuse the carrier network. These people are just looking to get something for free that they should be paying for.



    Granted, a lot of the blame should go to AT&T and the other carriers, and not Apple, for wanting to lock down the device so tightly.
  • Reply 8 of 94
    Quote:
    Originally Posted by mknopp View Post


    Interesting that Apple touts one of the two worst abuses of the App store as a positive. Who the hell asked them to limit what a paying adult can or cannot view on their legally purchased iPhone. The fact that they made an author remove the f' word from the book to be hosted on the App Store was beyond terrible, as bad as anything Wal-Mart ever did against music, but nobody seems to be very upset about Apple playing moral cop on the iPhone. ...



    I noticed that also.



    The EFF would have a much better case, (and would actually do more good for the consumer) if it merely took Apple to task for these kinds of moralistic, patently unfair restrictions on content, than the case they are apparently trying to argue here. I don't really see how EFF really has any argument at all.



    I found it especially illuminating (and unexpected), to find out the volume of complaint calls Apple has to deal with over jailbreaking. That's an incredible amount of money and time down the drain just to satisfy some cranky kid jail-breakers.



    Overall, I'm starting to believe that the EFF is becoming as anachronistic as the RIAA is. This statement by Apple in particular ...



    Quote:
    Originally Posted by Apple


    The iPhone firmware is not itself a product; it is a component of the iPhone mobile computing product.



    ... makes me think that the EFF still seems to cling to the old model where a device and it's software are two separate things as if we were all back in the days of Unix terminals and 286's. An OS is not just something you buy to make an otherwise "black box" run programs, integrated technologies have been the rule for many years now. You only have a "right" to run whatever software you want on your device if you still feel like you are living in the 1970's. In today's world, this makes much less sense.
  • Reply 9 of 94
    This is good news. Apple needs to stop taking a totalitarian approach. If it's good enough for normal computers its good enough for phones. All their arguments are utter bullshit designed to give them maximum control and maximum revenue.
  • Reply 10 of 94
    Quote:
    Originally Posted by HHH View Post


    actually, tons of applications were available before the SDK "innovation" via the jailbreak



    Yeah, but that stopped dead when the SDK was released. The only new apps since then have been ripped off ones and ones that are dis-allowed by Apple.
  • Reply 11 of 94
    emig647emig647 Posts: 2,413member
    Quote:
    Originally Posted by nagromme View Post


    Since "applications independent of the official App Store" means, 99.9% of the time "pirated applications," and since I hope to sell an app or two of my own someday and get PAID for my efforts, I can't side with the EFF here.



    I do want to see Apple loosen up its policies, though--and indeed they have been doing so.



    I'm an iPhone developer myself. I've made some good change from them. So I think I am qualified to say this...



    A) I don't know what you mean by pirated apps. Most of the jail broken compatible apps are merely free apps. Supplied because there wasn't an easy way to make apps before.



    B) Most people won't be jail breaking their phones. Nor will there be an online store to grab apps from. Most of the people out there won't have the knowledge to jail break nor will want to spend the time messing with trying to find the right app.



    C) Jail breaking has been available since early on and it never really caught on. Now with the app store a lot of people don't have reasons to jail break.



    Point is, your apps will still sell just as they would have before. If someone wanted a free pirated app they would have got it regardless even now. This won't change that.
  • Reply 12 of 94
    Quote:
    Originally Posted by Virgil-TB2 View Post


    I noticed that also.



    The EFF would have a much better case, (and would actually do more good for the consumer) if it merely took Apple to task for these kinds of moralistic, patently unfair restrictions on content, than the case they are apparently trying to argue here. I don't really see how EFF really has any argument at all.



    I found it especially illuminating (and unexpected), to find out the volume of complaint calls Apple has to deal with over jailbreaking. That's an incredible amount of money and time down the drain just to satisfy some cranky kid jail-breakers.



    Overall, I'm starting to believe that the EFF is becoming as anachronistic as the RIAA is. This statement by Apple in particular ...







    ... makes me think that the EFF still seems to cling to the old model where a device and it's software are two separate things as if we were all back in the days of Unix terminals and 286's. An OS is not just something you buy to make an otherwise "black box" run programs, integrated technologies have been the rule for many years now. You only have a "right" to run whatever software you want on your device if you still feel like you are living in the 1970's. In today's world, this makes much less sense.



    Uh why? Because some corporation, acting only in self interest, tells you too? It's really idiotic to suggest that the 1970s are somehow different to today, except in performance.
  • Reply 13 of 94
    solipsismsolipsism Posts: 25,726member
    Quote:
    Originally Posted by mknopp View Post


    Who the hell asked them to limit what a paying adult can or cannot view on their legally purchased iPhone.



    Why would they need to be asked before choosing what is distributed in their own store? As for Wal-Mart, yeah I think having labels edit albums before agreeing to sell them is a bit extreme, but they have the right to not sell a product if it doesn't fit within their model.
  • Reply 14 of 94
    boogabooga Posts: 1,077member
    Quote:

    The iPhone firmware is not itself a product; it is a component of the iPhone mobile computing product.



    That's funny, because Apple used the opposite argument when they charged me for upgrading my iPod Touch.
  • Reply 15 of 94
    Quote:
    Originally Posted by HHH View Post


    actually, tons of applications were available before the SDK "innovation" via the jailbreak



    and there is still a lot of potential for innovation while following the rules.



    frankly I have to side with Apple on this one. this is no better than psystar hacking OSX to work on their machines.



    that said, I don't think Apple should waste time going after folks. Let it stand that if you jailbreak/unlock your phone, it has no more support from Apple. let folks take the risk if they dare. if someone goes up on the web and blantantly flaunts their jail breaking service, send them the old cease and desist but don't start up a massive campaign to hunt folks down. instead spend the time and money on legally providing the stuff that folks are going 'black market' to get. like video and mms. and find a way to 'adult' code the app store so those that want boobies can have them but the under 18 crowd wont' see it so your obscenity protection issue is covered (which would be required by all kinds of laws). and then let folks have at it.



    those things right there will put a lot of folks out of business and end all kinds of excuses being tossed out there.
  • Reply 16 of 94
    Quote:
    Originally Posted by merdhead View Post


    Uh why? Because some corporation, acting only in self interest, tells you too? It's really idiotic to suggest that the 1970s are somehow different to today, except in performance.



    I know your just a troll, but you used to be human once right?



    I said what I said because it's true. It was true long before the iPhone came on the scene.
  • Reply 17 of 94
    Quote:
    Originally Posted by emig647 View Post


    I'm an iPhone developer myself. I've made some good change from them. So I think I am qualified to say this...



    A) I don't know what you mean by pirated apps. Most of the jail broken compatible apps are merely free apps. Supplied because there wasn't an easy way to make apps before.



    B) Most people won't be jail breaking their phones. Nor will there be an online store to grab apps from. Most of the people out there won't have the knowledge to jail break nor will want to spend the time messing with trying to find the right app.



    C) Jail breaking has been available since early on and it never really caught on. Now with the app store a lot of people don't have reasons to jail break.



    Point is, your apps will still sell just as they would have before. If someone wanted a free pirated app they would have got it regardless even now. This won't change that.



    You have totally missed the point (three times over!)



    "pirated apps" are stolen apps (there are lots and lots of them)

    The point is (as I understand it) if the EFF wins this, jail-breaking will go "mainstream" because it will be legally protected. This will significantly increase the incidence of jailbreaking, jailbroken phones etc.
  • Reply 18 of 94
    sflocalsflocal Posts: 4,675member
    What ever happened to the whiners... uh.. I mean "disgruntled" folks explaining how Android was going to whip Apple into submission and allow true freedom to do what they want on their phone? Why pick on Apple?



    Is it possible that Android is turning out not to be the miracle-maker it was made out to be so those folks are going back to Apple and complain some more?



    If you don't like how a company does business, by all means.. take your money elsewhere. If enough people do that, most companies would listen.



    But then, it's only a vocal .03% of people kicking and screaming about it. Can't we just put the volume on "mute" for these people?

  • Reply 19 of 94
    A better one would be that BMW tells you look, use our shop and we guarantee the thing will run. Use any grease monkey who thinks they can trick out a beemer and you're on your own. And if we find someone used rogue parts to mod your baby and you bring it to us for scheduled service, we'll make it run to spec and toss the icky parts, duct tape, bailing wire and all. You have been warned. Since there's no ASE-style certification for anyone who writes a rogue app, it's hard to blame Apple for wanting to preserve the integrity of their product.
  • Reply 20 of 94
    There's only one Android phone being sold right now, and as far as I know, only in the U.S.



    It's a bit early to say that Android lost.



    Quote:
    Originally Posted by sflocal View Post


    What ever happened to the whiners... uh.. I mean "disgruntled" folks explaining how Android was going to whip Apple into submission and allow true freedom to do what they want on their phone? Why pick on Apple?



    Is it possible that Android is turning out not to be the miracle-maker it was made out to be so those folks are going back to Apple and complain some more?



    If you don't like how a company does business, by all means.. take your money elsewhere. If enough people do that, most companies would listen.



    But then, it's only a vocal .03% of people kicking and screaming about it. Can't we just put the volume on "mute" for these people?





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