Why Jailbreaking Your iPhone Is Legal But Hacking eBooks is Not


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Are you confused by the inconsistencies of U.S. copyright law? Join the club.

Last week, the Librarian of Congress ruled that it’s okay to tinker with the software on your car, your phone, and your smart TV— good news for geeks and consumers alike. But if you want to mess with the code on your e-book reader, you have no ready defense against being sued by Amazon, while your ability to make copies of your DVDs is still a great big heap of It Depends.

And if you don’t like those rulings, just wait. In another three years the Librarian could take add to those rights or take some of them away.

If you are wondering why the Librarian could be so indecisive about how and when we get to manipulate the devices we’ve purchased or the apps that run our lives—or how the nation’s bookworm-in-chief gets a say on these matters at all—that’s entirely understandable.

It’s all an artifact of one of the most controversial pieces of tech legislation ever passed: The Digital Millennium Copyright Act. The DMCA been the law of the land since 1998, but big parts of it still don’t make much sense.

It’s no fun to stay at the DMCA

Now the DMCA has some good parts — like the clause protecting sites that host content uploaded by their members, without which the world of social media would be a desert. But a part of the law called section 1201 poses big problems to fans of high-tech gadgetry.

That section leads off with a flat ban on breaking any sort of digital usage restriction: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”

That translates to a massive grant of power by the state to anybody who slaps “digital rights management” (an Orwellian euphemism I have grown to resent) around a copyrighted work.

You, the customer, can have perfectly legitimate reasons to override “DRM”—to make a backup copy, to remix part of the creative work, to make it accessible to somebody with impaired vision or hearing, to get a file to play on your system, and so on—but this anti-circumvention clause is not interested in any of them.

Even the United States Congress, in its highly finite wisdom, recognized how unbalanced section 1201 of the DMCA could become. So it deputized the Librarian of Congress, with help from the Copyright Office and the National Telecommunications and Information Administration, to grant exemptions from this clause every three years that would preserve people’s fair-use rights.

Permissions granted and denied

That brings us to last week’s 1201 rulemaking. In that, we got permission to break DRM to:

  • Copy video from DVDs, Blu-ray discs and other sources for various educational purposes as well as criticism and commentary.

  • Make e-books accessible to the visually impaired through third-party read-aloud software.

  • Unlock used phones, tablets, mobile hotspots, and wearable devices to use on different wireless networks.

  • Jailbreak mobile devices to add or remove particular apps.

  • Jailbreak smart TVs to install third-party software.

  • Tinker with the embedded software in cars and trucks for diagnosis, repair, and personalization.

  • Conduct security research on software in cars, voting machines, and medical devices.

  • Resume playing video games that required an authorization from a server that’s no longer online.

  • Use the plastic feedstock of your choice in a 3-D printer.

  • Inspect the data collected about you by networked medical devices.

Does that sound like a sweeping expansion of our digital liberty? Or maybe even a rebuke to companies like Volkswagen, which have carried out all kinds of misdeeds in their closed computer code?

Don’t go too far with that line of thought. At the same time, the Librarian (author and scholar James Billington held that post from 1987 until Oct. 1) turned down exemption requests that would legalize:

  • “Space-shifting” and “format-shifting” copying of digital content (read: backing up your kid’s favorite DVD to a computer before she inevitably destroys it).

  • Hacking e-book readers to let them open third-party content.

  • Jailbreaking video-game consoles to install new apps.

  • Running old music-recording software without “copy protection” hardware keys that are no longer available.

Revokable “rights” are wrong

But the really frustrating part of this latest bit of copyright rewriting is that we’ve seen this movie five times before: in 2000, 2003, 2006, 2010, and 2012. And over those years, there’s been a scary lack of consistency: Getting an exemption in one review does not guarantee that it will be renewed in the next, even though the underlying problem hasn’t changed that much.

The most infamous example happened in 2012, when the Librarian revoked consumers’ right to unlock phones, after granting it in 2010. That got people mad enough that Congress actually did something about it and passed a law reversing that ruling. But the same lack of logic exists throughout the latest decisions: If it’s fine to break DRM to watch different video sources on a smart TV, why does it remain a crime to do the same thing to put different books on an e-reader?

While our rights to use digital things we own have varied throughout this process, however, one thing hasn’t: Many of these arguments have little to do with content creators suffering the kind of economic threat that would discourage them from getting into the market in the first place. And that is, lest we forget, the entire reason copyright law exists.

But because the DMCA’s section 1201 elevates DRM to a godlike status, the inevitable result is control-freak behavior by companies that realize they can use this leverage to compel other sorts of behavior they couldn’t get away with in a open market. Like, say, telling people that they can only use printers (3-D or otherwise) with their own ink.

A saner law that didn’t treat this behavior as a sound foundation for jurisprudence would make it a crime to break DRM in order to infringe copyright. But we don’t have that law, so we’re stuck in this loop of bad copyright policy. Aren’t you already looking forward to the next episode in 2018?

Email Rob at rob@robpegoraro.com; follow him on Twitter at @robpegoraro.