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Cornell Journal of Law and Public Policy Volume 19 Article 8 Issue 3 Summer 2010 The iPhone Jailbreaking Exemption and the Issue of Openness Michael H. Wolk Follow this and additional works at: http://scholarship.law.cornell.edu/cjlpp Part of the Law Commons Recommended Citation Wolk, Michael H. (2010) "The iPhone Jailbreaking Exemption and the Issue of Openness," Cornell Journal of Law and Public Policy: Vol. 19: Iss. 3, Article 8. Available at: http://scholarship.law.cornell.edu/cjlpp/vol19/iss3/8 This Note is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Journal of Law and Public Policy by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. NOTE THE IPHONE JAILBREAKING EXEMPTION AND THE ISSUE OF OPENNESS Michael H. Wolk* The iPhone is a prominent example of an emerging breed of devices that use technological and legal protections to control the user experi- ence. Apple locks down the iPhone by adding a gatekeeper in charge of determining what users can and cannot do with the device. Apple main- tains that as the creator of the iPhone, it should be able to control the iPhone OS software, primarily to maintain a consistent user experience. Innovation advocates counter that, regardless of whether the user experi- ence is positive for iPhone users, users should be able to choose to jail- break their iPhones so that they can use their device as they see fit, instead of being limited to Apple-approved uses. The DigitalMillennium Copyright Act currently reinforces Apple's legal grip on the iPhone OS. Policymakers interested in innovation should reconsiderthis results, and revise the DMCA's anti-circumvention rules accordingly. INTRODUCTION ................................................. 796 I. PROTECTION MEASURES ................................. 799 A. Brief History of Copy Restrictions................... 799 B. iPhone TPMs and Protections ...................... 800 1. Integrity Through Code Signing ................. 801 2. Encryption ..................................... 801 3. Defeating TPMs and Running Non-Apple Approved Apps ................................ 802 4. Sum m ary ...................................... 804 II. D M C A ................................................ 805 A . H istory ............................................ 805 B . The A ct ............................................ 806 C. DMCA Exemption Process .......................... 807 III. JAILBREAKING EXEMPTION .............................. 808 * B.A., Colby College, 2007; J.D. Candidate, Cornell Law School, 2010. I would like to thank the editors and associates of the Cornell Journal of Law and Public Policy for their help throughout this process, Professor Oskar Liivak for his advice and feedback on this note, Danny Fischler for providing an extra set of eyes, Robert Zemeckis and Ivan Reitman for inspiring my curiosity and imagination, and Marcia, Dennis, and Dee for their love, patience, and support. 796 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 19:795 A. Electronic Frontier Foundation (EFF)............... 809 1. Jailbreaking Methods Vary ..................... 809 2. Section 117 .................................... 810 3. Fair U se ....................................... 810 4. Section 1201(a)(1)(C) Factors ................... 811 B . App le .............................................. 813 1. Section 117 .................................... 814 2. Fair U se ....................................... 815 3. Section 1201(a)(1)(C) Factors ................... 816 C. Other Views on the Proposed Exemption ............ 818 IV . A NALYSIS .............................................. 819 A. Consumer Harm ................................... 820 B. Potential Harm to Apple ............................ 821 C. Legal Arguments ................................... 823 1. Section 117 .................................... 823 2. Fair U se ....... ............................... 825 3. D M CA ........................................ 825 4. Policy: Innovation Incentives ................... 827 CONCLUSION ...................................................... 828 INTRODUCTION On March 31, 2009, Skype, an online communications company, released an application for Apple's wildly popular iPhone.1 Skype de- velops software for computers, stand-alone telephone devices, and mo- bile devices such as the iPhone that enables Skype users to conduct free or extremely low-cost phone calls to other Skype users or to landline and mobile numbers throughout the world.2 Two days after the application was released, Skype announced that over one million copies of the pro- gram were downloaded, equivalent to roughly six downloads per sec- ond. 3 Although the high volume of initial downloads suggested significant interest in the application, there are some limitations to its operation that may have surprised Skype users. Skype for the iPhone connects calls only through a Wi-Fi connection cannot route calls over the phone carrier's wireless data network.4 This means consumers can place Skype calls through the Wi-Fi network at Starbucks, but they will not be able to enjoy the same service in locations beyond the short reach 1 Today in Business, N.Y. TIMEs, Mar. 30, 2009, at B2. 2 See Skype International Calling, http://www.skype.com/prices/callrates (last visited Mar. 7, 2010). 3 Posting of Peter Parkes to Share Skype Blog, http://share.skype.com/sites/en/2009/04/ skype-foriphonezooms-past-on.html (Apr. 2. 2009) (noting that "Skype for iPhone zooms past one million downloads"). 4 Ryan Kim, App Connects iPhone Users with Skype, S.F. CHRON., Mar. 31, 2009, at 2010] THE IPHONE JAILBREAKING EXEMPTION of a Wi-Fi connection. 5 The obvious question is, why? The answer is complicated, but the most basic reason is because Apple Inc. (Apple) is the gatekeeper of all iPhone software and, through legal and technical methods, the company only permits iPhone users to download Apple- approved software. 6 While this type of approach provides benefits for Apple, application developers, and iPhone users, I believe there are nega- tive aspects of Apple's asserted control. The introduction of the Skype application, or "app" in Apple's par- lance, illustrates potential disadvantages of a "walled garden" or "app- liancized" approach to consumer electronics. 7 A walled garden is a system where an entity controls as many aspects of a product as possible and where features are only available if approved by a central authority. In the case of the iPhone, Apple controls the manufacturing process, the operating system that runs on the phone, the software used by other par- ties to develop apps, and the store that serves as the sole conduit for delivering apps to consumers' phones. 8 From Apple's perspective, man- aging access to the iPhone is about controlling the quality and consis- tency of the consumer's experience using the device.9 To this end, Apple took technological and legal steps to hamper the performance of certain tasks such as running unapproved apps or allowing consumers to take advantage of the iPhone operating system (OS) software's underly- 5 See, e.g., FCC Radio Frequency Devices, 47 C.F.R. § 15.249 (2008), available at http://www.access.gpo.gov/cgi-bin/cfrassemble.cgi?title=200847; DANNY BRIERE & PAT HUR- LEY, WIRELESS NETWORK HACKS & MODS FOR DUMMIES 110 (2005) (noting the relatively weak strength of Wi-Fi signals). 6 See Apple's Deal with AT&T Follows a 'Walled Garden' Strategy, ECON. TIMEs (In- dia), July 9, 2008, http://wwwl.economictimes.indiatimes.comlarticleshow/msid-3212643,fl- stry-l.cms (discussing Apple's model of control for the iPhone and how some experts view Apple's tight control over the device as a mistake); Chris Foresman, Latest iPhone Developer Agreement Bans Jailbreaks,ARs TECHNICA, Apr. 1, 2009, http://arstechnica.com/apple/news/ 2009/04/latest-iphone-developer-agreement-bans-jailbreaks.ars. But see Yukari Iwatani Kane, Breaking Apple's Grip on the iPhone, WALL ST. J., Mar. 6, 2009, available at http://online. wsj.com/article/SB 123629876097346481 .html#. 7 See JONATHAN ZIrAIN, THE FuTuRE OF ThE INTERNET AND HOW TO STOP IT 59-61 (2008) (describing an information appliance as a device which "remains tethered to its maker's desires, offering a more consistent and focused user experience at the expense of flexibility and innovation"); Apple's Deal with AT&T Follows a 'Walled Garden' Strategy, supra note 6. In this Note, I will primarily stick to the walled garden terminology as opposed to the possibly narrower terminology of information appliances or appliancized hardware as described in Professor Zittrain's The Future of the Internet and How to Stop It. According to Zittrain, the term walled garden may just refer to "a lack of interoperability" between systems while "infor- mation appliances" refers to contemporary tethered technology. E-mail from Jonathan Zit- train, Professor of Law, Harvard Law School and Kennedy School of Government, to Michael H. Wolk (Feb. 21, 2010, 00:51 EST) (on file with author). 8 Apple provides information about its App Store online. Apps for iPhone, http://www. apple.com/iphone/appstore/ (last visited Nov. 19, 2009). 9 See infra note 136 and accompanying text. 798 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 19:795 ing UNIX system to compile and run text editors and even web server software. 10 Apple's strategy for controlling the iPhone includes the use
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