Electronic Frontier Foundation
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Before the U.S. COPYRIGHT OFFICE, LIBRARY OF CONGRESS In the Matter of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies Under 17 U.S.C. § 1201 Docket No. 2014-07 Reply Comments of the Electronic Frontier Foundation 1. Commenter Information Mitchell L. Stoltz Corynne McSherry Kit Walsh Electronic Frontier Foundation 815 Eddy St San Francisco, CA 94109 (415) 436-9333 [email protected] The Electronic Frontier Foundation (EFF) is a member-supported, nonprofit public interest organization devoted to maintaining the traditional balance that copyright law strikes between the interests of rightsholders and the interests of the public. Founded in 1990, EFF represents over 25,000 dues-paying members, including consumers, hobbyists, artists, writers, computer programmers, entrepreneurs, students, teachers, and researchers, who are united in their reliance on a balanced copyright system that ensures adequate incentives for creative work while promoting innovation, freedom of speech, and broad access to information in the digital age. In filing these reply comments, EFF represents the interests of the many people in the U.S. who have “jailbroken” their mobile computing devices—or would like to do so—in order to use lawfully obtained software of their own choosing, and to remove software. 2. Proposed Class Addressed: Class 17 – Jailbreaking – all-purpose mobile computing devices Computer programs that enable all-purpose mobile computing devices, such as tablets, to execute lawfully obtained software, where circumvention is accomplished for the sole purposes of enabling interoperability of such software with computer programs on the device, or removing software from the device. “All-purpose mobile computing devices” means non-phone devices sold with an operating system designed primarily for mobile use and not designed primarily for the consumption of media. All-purpose mobile computing devices include tablets such as the Apple iPad, Samsung Galaxy Tab, or Amazon Kindle Fire, and smaller-format, non-phone devices such as the iPod Touch. The category does not include desktop or laptop portable computers (PCs) sold with PC operating systems such as MacOS or Microsoft Windows, nor devices designed primarily for media consumption such as dedicated e-book readers or handheld gaming consoles. 1 3. Overview: The Need To Jailbreak Mobile Devices For Security, Privacy, and to Avoid Censorship and Obsolescence Is Evident; The Non-Infringing Nature Of Jailbreaking Is Unchallenged. All-purpose mobile computing devices such as tablets are similar to smartphones in all material respects. They run the same operating systems and most of the same application software. Like smartphones, they connect to the Internet via cellular networks or Wi-Fi. And they employ the same technological measures to prevent the device owner from installing or removing many kinds of software. The Register should grant an exemption for jailbreaking tablets because the ban on circumvention with respect to mobile device firmware causes the same hardships regardless of whether that firmware is running on a phone, a small Wi-Fi-only device like the iPod Touch, or a tablet. The markets for mobile computing devices and mobile software have thrived over the past three years. At the same time, millions of device owners in the U.S. purchase and use software obtained through the equally vibrant and successful alternative markets and independent developer communities made possible by jailbreaking.1 Three public interest organizations and over 1,800 individuals filed comments in support of an exemption. No commenter in this proceeding has produced any evidence that jailbreaking has caused market harm. The only comments filed in opposition to this proposal came from the Alliance of Automobile Manufacturers (“Auto Alliance”), General Motors, Inc. (“GM”), and the software trade association BSA. The automobile manufacturers are concerned entirely with electronics integrated into motor vehicles. This concern is misplaced, because Proposed Class 17 does not include software running on vehicle electronics. Though unnecessary, EFF does not oppose explicit regulatory language distinguishing exemptions for vehicle electronics from those for all-purpose mobile computing devices. BSA opposes the definition of an all-purpose mobile computing device that EFF has proposed, and makes several unsupported assertions with respect to the statutory factors for an exemption. None of BSA’s concerns are well-founded, and its comments lack evidentiary support.2 A. All-Purpose Mobile Computing Devices Are a Commonly Recognized Class of Devices in the Marketplace, Distinguished Primarily By Operating System. In the 2012 rulemaking, the Register recommended an exemption for jailbreaking of “wireless telephone handsets,” indicating that such handsets are a sufficiently well-defined category of devices. However, the Register declined to recommend an exemption with respect to tablets. The Register concluded that an exemption with respect to tablets should encompass a category of devices that are sufficiently similar to one another “in terms of the way they operate, their intended purpose, and the nature of the applications they can accommodate,” such that an “appropriate analysis” of the statutory criteria could reasonably apply to all devices in the 1 In the Matter of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access 2 See Notice of Proposed Rulemaking, 79 Fed. Reg. 239, 73857 (Dec. 12, 2014) (“NPRM”) (opponents of a proposal “should provide specific and detailed evidence [of, e.g., asserted alternatives] rather than unsupported assertions.”). 2 class.3 Specifically, the Register expressed concern about including “an ebook reading device . a handheld video game device or a laptop computer” within the definition of a tablet.4 The proposed class of all-purpose mobile computing devices, and the evidence on record in this proceeding, address the Register’s concerns. Manufacturers, software vendors, application developers and consumers perceive this as a distinct class of devices. Two factors unite these devices and define the proposed class: their portability, and the operating systems they are sold with. These operating systems, primarily Android and its variants, iOS, Windows Phone, Windows RT, and BlackBerry OS, are designed almost exclusively for devices small enough to carry. They are general-purpose operating systems, in the sense that they are designed to run a wide variety of applications. They also contain cryptographic access controls that substantially restrict the loading and functionality of application software and prevent replacement of the operating system. Mobile operating systems like Android and iOS differ from the personal computer operating systems that run on desktop PCs and laptops, such as Windows and MacOS. Though these operating systems run on laptops, they originated on desktop PCs and are not designed primarily for use on mobile devices. At most, they may be designed for portable and desktop devices equally, and thus do not fall within the proposed class. Other characteristics distinguish all-purpose mobile devices from laptops, though none as well as the operating system shipped with the device. For example, mobile devices typically rely primarily on touch-screen interfaces, tilt sensors, and accelerometers for user input, rather than a pointing device and keyboard. BSA’s unsupported assertion that “laptops are commonly equipped”5 with tilt-based input is simply incorrect.6 Mobile devices typically employ low- power ARM processors rather than the Intel x86 processor type more commonly used in laptops.7 These differences mean that most software built for PCs cannot run on mobile devices, and vice versa. Even though they share some common functionality, tablets and other mobile devices are not close substitutes for laptop PCs. There exist, as BSA observes,8 some devices that contain features of both tablets and laptops. These devices run mobile variants of Windows. However, contrary to BSA’s unsupported assertion that there is a “trend” towards a merger of tablets and laptops, these hybrid devices 3 Recommendation of the Register of Copyrights at 77-78, Section 1201 Rulemaking: Fifth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention (Oct. 12, 2012) (“2012 Rec.”). 4 Id. 5 In the Matter of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Dkt. No. 2014-07, Comment of BSA on Proposed Class 17, at 3 n.9 (“BSA Comment”). 6 Accelerometers in laptops are used to protect the hard drive from damage, not as an input device. See Ryan Goodrich, Accelerometers: What They Are & How They Work, LiveScience (Oct. 1, 2013), http://www.livescience.com/40102-accelerometers.html. (“Smartphones and other mobile technology identify their orientation through the use of an accelerator, a small device made up of axis-based motion sensing . accelerometers in laptops protect hard drives from damage.”). 7 Darien Graham-Smith, ARM vs Intel processors: what’s the difference?, PCPro (July 31, 2014), http://www.pcpro.co.uk/features/390064/arm-vs-intel-processors-what-s-the-difference. 8 Id. at 3. 3 have not met with acceptance in the market.9 Devices running mobile Windows variants, only some of which are hybrid devices, constitute only 2.57% of the market for tablets.10 Even for Windows variants, the operating system shipped with the device provides