Jailbreaking
The most surprising ruling was on "jailbreaking" one's phone (exemption number two), replacing the company-provided operating system with a hacked version that has fewer limitations. Make no mistake: this was all about Apple. And Apple lost.
The Electronic Frontier Foundation argued that jailbreaking one's iPhone should be allowed, even though it required one to bypass some DRM and then to reuse a small bit of Apple's copyright firmware code. Apple
showed up at the hearings to say, in numerous ways, that the idea was terrible, ridiculous, and illegal. In large part, that was because the limit on jailbreaking was needed to preserve Apple's controlled ecosystem, which the company said was of great value to consumers.
That might be true, the Register agreed, but what did it have to do with copyright?
"Apple is not concerned that the practice of jailbreaking will displace sales of its firmware or of iPhones," wrote the Register, explaining her thinking by running through the "four factors" of the fair use test. "Indeed, since one cannot engage in that practice unless one has acquired an iPhone, it would be difficult to make that argument. Rather, the harm that Apple fears is harm to its reputation. Apple is concerned that jailbreaking will breach the integrity of the iPhone's ecosystem. The Register concludes that such alleged adverse effects are not in the nature of the harm that the fourth fair use factor is intended to address."
And the Register concluded that a jailbroken phone used "fewer than 50 bytes of code out of more than 8 million bytes, or approximately 1/160,000 of the copyrighted work as a whole. Where the alleged infringement consists of the making of an unauthorized derivative work, and the only modifications are so
de minimis, the fact that iPhone users are using almost the entire iPhone firmware for the purpose for which it was provided to them by Apple undermines the significance" of Apple's argument.
The conclusion is sure to irritate Steve Jobs: "On balance, the Register concludes that when one jailbreaks a smartphone in order to make the operating system on that phone interoperable with an independently created application that has not been approved by the maker of the smartphone or the maker of its operating system, the modifications that are made purely for the purpose of such interoperability are fair uses."
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