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 cellular phone handsets and other mobile computing devices—or would like to do so—in order to use lawfully obtained software of their own choosing, and to remove software from the devices. 2. Proposed Class 16: Jailbreaking – wireless telephone handsets Computer programs that enable mobile telephone handsets 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. 1 3. Overview: The Lack Of Opposition To This Proposed Class Bespeaks An Absence Of Any Harm Caused By The Existing Exemption. EFF asks the Copyright Office to renew the exemption to 17 U.S.C. § 1201(a)(1)’s ban on circumvention of technical measures for those who jailbreak their mobile phones in order to install or remove software. As EFF has shown, the overall markets for smartphones and smartphone software have been a runaway success throughout the five years a jailbreaking exemption has been in effect.1 At the same time, a robust and valuable ecosystem of independent software development has grown to serve the tens of millions of jailbroken mobile devices in the U.S. with unique, valuable, and lawful software that cannot be run on non-jailbroken devices.2 The software ecosystems for jailbroken devices and unmodified devices are mutually reinforcing.3 In short, the exemption for mobile phone jailbreaking continues to be an economic, creative, and technological success story. Given these facts, it is not surprising that several public interest organizations and over 2,000 individuals filed comments in support of this proposed exemption. Only BSA, a trade association, filed opposition comments of just over two pages in length. According to the Copyright Office’s Notice of Proposed Rulemaking, and the Register’s recommendations in prior rulemakings, opponents of a proposal “should provide specific and detailed evidence [of, e.g., asserted alternatives to circumvention] rather than unsupported assertions.”4 BSA has not done so. It offers no facts or evidence not already placed on the record by proponents of this exemption. BSA simply asserts without support that “[g]ranting the proposed exemption would harm the market for and value of copyrighted works,”5 while not refuting EFF’s and other proponents’ substantial evidence to the contrary. “[S]peculative, hypothetical observations” bear no weight in this rulemaking.6 4. The Technological Protection Measures: Cryptographic Verification of Software, Locked Bootloaders, and Denial of “Root” Privileges on Mobile Operating Systems. In the first round of comments, EFF described the technological measures that prevent the loading of software on mobile phones, restrict the functionality of software, and prevent removal of undesired software. 7 BSA’s comments do not dispute EFF’s description of the technological measures at issue. 1 See In the Matter of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Dkt. No. 2014-07, Comment of the Electronic Frontier Foundation on Proposed Class 16 (“EFF Comment”) at 2-3. 2 Id. at 6-7. 3 See id., App’x A ¶ 1. 4 Notice of Proposed Rulemaking, 79 Fed. Reg. 239, 73857 (Dec. 12, 2014) (“NPRM”). 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 16 (“BSA Comment”) item 3. 6 NPRM at 73857. 7 EFF Comment at 4-6. 2 5. Noninfringing Uses: Installing Lawfully Obtained Software, and Removing Software. In 2010, and again in 2012, the Register and the Librarian correctly concluded that modifying the firmware in one’s mobile phone in order to run lawfully acquired software is a non-infringing fair use.8 Court decisions since 2012 lend additional weight to those determinations.9 BSA’s comments do not dispute the conclusion that jailbreaking, as defined in the proposed class, is non-infringing. 6. Adverse Effects of the Ban on Circumvention: Security, Performance, Consumer Choice and Competition Denied. EFF has described, with supporting evidence, the substantial adverse effects that would flow from the Librarian’s failure to renew the longstanding exemption for phone jailbreaking. These include the inability to fix serious security vulnerabilities on a mobile phone,10 impaired ability to secure personal information and safeguard privacy,11 the inability to remove unwanted software that can drain battery power and slow the phone’s operation,12 impediments to software development,13 the inability to avoid content-based censorship and anti-competitive exclusion of software from app stores,14 legal uncertainty and potential liability for a vibrant and commercially successful sector of mobile software development,15 and early obsolescence of functional phone hardware leading to waste.16 BSA attempts to tell a different story, suggesting that a renewed climate of uncertainty would not occur because consumers have “alternatives.”17 As EFF has explained, the ability of most Android phones to load “apps” from many sources does not alleviate the adverse effects of the ban on circumvention.18 Nor does the availability of a small number of phone models for which manufacturers provide a means of jailbreaking. Of the hundreds of millions of smartphones in use in the U.S., including Android phones, the overwhelming majority require jailbreaking in order to install or remove many types of software, to install security and privacy fixes, and to install alternative operating systems. Without jailbreaking, Android will not run software that requires access to lower-level functionality on the phone.19 iOS devices require jailbreaking to install any software not approved by Apple.20 Windows Phone devices are similar.21 8 Id. at 7-13. 9 Id. at 9 n.57, 10. 10 Id. at 13-15. 11 Id. at 15-16. 12 Id. at 16-17. 13 Id. at 18. 14 Id. at 17. 15 See id. at 18. 16 Id. at 19. 17 BSA Comment item 6. 18 EFF Comment at 5-6. 19 Id., App’x A (Statement of Dr. Jeremy Gillula at 1-2). 20 Apple Inc., iOS Security—White Paper at 4 (Oct. 2014), https://www.apple.com/privacy/docs/iOS_Security_Guide_Oct_2014.pdf. 3 Smartphones are an expensive possession for most people in the U.S. The cost of switching phones is often prohibitive, especially when penalties for terminating a mobile service contract are added. Low-cost, lower-functionality smartphones cost over $140, full-featured phones cost well over $500, and terminating a service contract for an existing phone can cost $350. 22 Contrary to BSA’s suggestion, buying a new phone is not an alternative to jailbreaking for most Americans. Buying a new phone is also not a reasonable alternative when a serious security vulnerability like 2014’s Heartbleed is discovered and mobile carriers do not provide a fix. Nor does buying a new phone alleviate the early obsolescence and waste caused by mobile carriers’ lack of timely updates.23 The Unlocking Consumer Choice and Wireless Competition Act of 201424 expresses the policy of Congress that buying a new mobile phone is not an adequate alternative to circumventing access controls on the phone to make vital, lawful uses. In 2012, the Register concluded that “a significant number of Android-based devices are ‘locked’ in the same way that Apple’s iPhone is locked,” and queried whether “unlocked devices will become the rule rather than the exception” by 2015.25 As EFF’s undisputed evidence shows, the vast majority of mobile phones on sale and in use in 2015 are still ‘locked’ (i.e., require jailbreaking) as a rule, while ‘unlockable’ phones such as Google Nexus models sold through specific retail channels are still the exception. The status quo observed by the Register in 2012 remains. Moreover, even when certain manufacturers consent to jailbreaking of particular models, most of the wireless carriers that provide service to those devices, including Verizon and AT&T, do not. Those wireless carriers can threaten suit under §1201(a)(1) despite the manufacturer’s forbearance, absent an exemption.26 In addition to cost barriers, and the reality of hundreds of millions of phones with TPMs already in use, HTC and Google Nexus phones that can be jailbroken with the manufacturer’s permission are not suitable for all uses. In particular, many users need (last visited April 30, 2014) (“[The] process described above helps ensure that only Apple-signed code can be installed on a device.”). 21 Stephen Schenck, Even Microsoft’s new WP8 sideloading rules are still seriously anti-user, PocketNow (Aug 14, 2013), http://pocketnow.com/2013/08/14/windows-phone-sideloading. 22 Victor H., Affordable, not cheap: 15 best low-cost smartphones (2015 edition), Phonearena (March 20, 2015), http://www.phonearena.com/news/Affordable-not-cheap-15-best-low-cost-smartphones-2015- edition_id58696.