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BW: Apple Can't Stop iPhone Hackers

Tuesday, August 28th, 2007 at 1:20 PM - by

Fuzzy laws will allow iPhone hackers some wriggle room, and there really is no precedent in case law that applies, according to Business Week on Tuesday.

The discussion right now focuses on what individuals are allowed to do and what the interpretation of the DMCA. While intent of the DMCA seems to suggest that individuals can unlock their phone lawfully, some point to other copyright provisions that could stop technologists from providing or selling that information.

"The law here is unclear," said Jonathan Kramer, founder of Kramer Telecom Law Firm in Los Angeles. "There just isn't any case law in this area for us to figure out how it plays out."

According to BW, some experts believe that Apple and AT&T might invoke DMCA section 1201 which states: ""no person shall circumvent a technological measure that effectively controls access to a work protected under this title."

In rebuttal, others say that that no software is being accessed [with some unlocking schemes], only access to a network. Jane Ginsburg, professor of literary and artistic property law at Columbia Law School pointed out that Communications services aren't copyrightable under the Act, and said "This law was written for DVDs and video games," she explained. "What's going on here is using the Copyright Act to achieve another objective."

A this point the law may be on the hackers side. In the past, automakers tried to force customers to buy car radios made only by them. The U.S. courts put a stop to that. "If Apple and AT&T push too hard, they might see a revision of [the Copyright Act, and it won't be in their favor]," said Richard Doherty, director of consultancy the Envisioneering Group.

The situation is different in other countries where customers buy any phone they want, then insert the SIM from their carrier of choice. Some observers see a possible, slow move to that kind of situation in the U.S. in the next few years. "It's an anomaly that the phones are tied to individual carriers, "David Chamberlain, with In-stat said. "Can we change that business as usual? Maybe. But people who want that will fight for a very long time."

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Tiger said:

member since 17 Jun 2003 with 1018 posts, unranked, send him a message or view his profile

Tue Aug 28, 2007 2:03 pm

That's a lot of blah blah blah. Can Apple stop it? Sure, because the very minute a hacked phone is brought in to be repaired, it will be evident that the device has been tampered with, the warranty will be voided and the $600 phone this person just bought WON"T BE SERVICED.

Kaput. You're done. They can deny servicing ANY hacked phone and therefore you're out all that $$ and now you have to buy a new phone and you STILL Have a contract with AT&T. In fact, they could actually make the phone useless if you try to bring it in for service. Then you won't have a working iPhone at all. Don't think it can happen? Have you ever dealt with Apple legal?

To get the phone and activate it, you have to sign up for it at an authorized dealer. So, you sign a contract. To switch it to another carrier, you're going to have bills from two carriers! I can't stand the bill from the one I do have. Is all this effort worth it? No way. Just buy another phone and skip the iPhone. Obviously, the hackers don't really care to use the cool functions such as visual voice mail if they're going to go to all this trouble to dump the service to begin with.

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daemon said:

member since 17 May 2007 with 344 posts, unranked, send him a message or view his profile

Tue Aug 28, 2007 2:47 pm

Tiger wrote:
That's a lot of blah blah blah. Can Apple stop it? Sure, because the very minute a hacked phone is brought in to be repaired, it will be evident that the device has been tampered with, the warranty will be voided and the $600 phone this person just bought WON"T BE SERVICED.

Unlocking phones from other manufacturers doesn't void their warranties, why should Apple be allowed to deviate?

Quote:
Kaput. You're done. They can deny servicing ANY hacked phone and therefore you're out all that $$ and now you have to buy a new phone and you STILL Have a contract with AT&T. In fact, they could actually make the phone useless if you try to bring it in for service. Then you won't have a working iPhone at all. Don't think it can happen? Have you ever dealt with Apple legal?

Now that would be interesting. "Yes your honor, I took in my iPhone to Apple to have the battery replaced and when they returned it to me with a letter that said my warranty was void they smashed my iPhone infront of me." Talk about a lawsuit.

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To get the phone and activate it, you have to sign up for it at an authorized dealer. So, you sign a contract.

There's no contract when you make the purchase.

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To switch it to another carrier, you're going to have bills from two carriers!

You can cancel the AT&T contract within the first month without a penalty, and after for a $175 penalty. So, you don't have to have two bills, even if you signed up for AT&T's service when you first bought the iPhone.

Quote:
I can't stand the bill from the one I do have. Is all this effort worth it? No way. Just buy another phone and skip the iPhone. Obviously, the hackers don't really care to use the cool functions such as visual voice mail if they're going to go to all this trouble to dump the service to begin with.

The hackers are looking to make the iPhone better, that's why they hack it. They also hack BlackBerries, Sony-Ericsons, Samsungs, Motorolas, and Nokias. I see no reason for them to discriminate aginst Apple.

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A guest said: (hide)

Tue Aug 28, 2007 3:24 pm

If a person infringes on the iPhone's software--but not the software that connects to the cell network--to get the iPhone to work on networks other than AT&T's, there is no exception under the DCMA for such infringement. The Digital Millennium Copy Right Act (DMCA), inter alia, prohibits circumventing the security coding (e.g., encryption) that protects a copyrighted work from infringement. It provides an exemption from that prohibition on circumvention only if: (a) the use of the underlying work is non-infringing, and (b) the Librarian of Congress determines, pursuant to the relevant provisions of the DMCA, that the non-infringing use of the copyrighted work will be unduly burdened. Since the DMCA, does not provide an exception to its prohibition against circumventing security software for an infringing use of the copyrighted work, to the extent that a person infringes on the iPhone's software to get it to work on other networks, that infringing use would certainly infringe on the iPhone's copyrighted software and could also violate the DCMA. See 17 U.S.C. § 1201(a)-(c). Thus, a person with standing to sue for infringement (usually the copyright holder, an assignee, or licensee) could sue any person who gets the iPhone to work on a network other than AT&T's by infringing on the iPhone's copyrighted software, unless there is an exception, such as the Fair Use exception, to copyright. If there is no such exception, then anyone modifying the iPhone's copyrighted software so that the iPhone can work on a network other than AT&T's would subject to a lawsuit for copyright infringement and, perhaps, for violation of the DCMA, as well. Id.

Unfortunately, the Fair Use exception--which has nothing to do with naive or colloquial notions of fairness, but which is a complex legal doctrine that balances First Amendment considerations against the protections of copyright--would not apply to modifying the iPhone's software, where the party with standing would suffer significant economic injury from the infringing modification. It is irrelevant whether the person who might be infringing on the iPhone's software benefits from doing so, unless that person is seeking a Fair Use exception to infringement. Absent a Fair Use or other exemption to infringement, what matters is the harm to the interests of the copyright holder. If there is such harm, then there is liability for infringement. In determining liability under either the DCMA or for infringement of copyright, benefit to the infringer is relevant only for the issue of analysis under the Fair Use exception.

Because it is unclear whether the methods for freeing the iPhone from AT&T's network involves an infringing use of the iPhone's software, it is unclear whether AT&T, Apple, or anyone would have right to seek damages or an injunction against any of the parties that claim to be able to modify the iPhone so that it will work on networks other than AT&T's.

In addition to copyright, there could be other legal actions such as breach of contract for users who try switch to another carrier without paying their liquidated damages to AT&T and tortious interference with contract for those persons freeing the iPhone from AT&T's network.

And for end users of the iPhone, who are not U.S. citizens, this analysis is further complicated by jurisdictional issues that affect the enforcement of copyright and contract claims. As for companies, that seek to unlock the iPhone, if they are infringing on the iPhone's software, doing business in the United States is probably sufficient "contact" with the U.S. to fall within the jurisdiction of U.S. courts.

The foregoing analysis is supported by 17 U.S.C. § 1201(a)-(c).

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daemon said:

member since 17 May 2007 with 344 posts, unranked, send him a message or view his profile

Tue Aug 28, 2007 3:49 pm

Guest wrote:
If a person infringes on the iPhone's software--but not the software that connects to the cell network--to get the iPhone to work on networks other than AT&T's, there is no exception under the DCMA for such infringement. The Digital Millennium Copy Right Act (DMCA), inter alia, prohibits circumventing the security coding (e.g., encryption) that protects a copyrighted work from infringement. It provides an exemption from that prohibition on circumvention only if: (a) the use of the underlying work is non-infringing, and (b) the Librarian of Congress determines, pursuant to the relevant provisions of the DMCA, that the non-infringing use of the copyrighted work will be unduly burdened. Since the DMCA, does not provide an exception to its prohibition against circumventing security software for an infringing use of the copyrighted work, to the extent that a person infringes on the iPhone's software to get it to work on other networks, that infringing use would certainly infringe on the iPhone's copyrighted software and could also violate the DCMA. See 17 U.S.C. § 1201(a)-(c). Thus, a person with standing to sue for infringement (usually the copyright holder, an assignee, or licensee) could sue any person who gets the iPhone to work on a network other than AT&T's by infringing on the iPhone's copyrighted software, unless there is an exception, such as the Fair Use exception, to copyright. If there is no such exception, then anyone modifying the iPhone's copyrighted software so that the iPhone can work on a network other than AT&T's would subject to a lawsuit for copyright infringement and, perhaps, for violation of the DCMA, as well. Id.

Unfortunately, the Fair Use exception--which has nothing to do with naive or colloquial notions of fairness, but which is a complex legal doctrine that balances First Amendment considerations against the protections of copyright--would not apply to modifying the iPhone's software, where the party with standing would suffer significant economic injury from the infringing modification. It is irrelevant whether the person who might be infringing on the iPhone's software benefits from doing so, unless that person is seeking a Fair Use exception to infringement. Absent a Fair Use or other exemption to infringement, what matters is the harm to the interests of the copyright holder. If there is such harm, then there is liability for infringement. In determining liability under either the DCMA or for infringement of copyright, benefit to the infringer is relevant only for the issue of analysis under the Fair Use exception.

Because it is unclear whether the methods for freeing the iPhone from AT&T's network involves an infringing use of the iPhone's software, it is unclear whether AT&T, Apple, or anyone would have right to seek damages or an injunction against any of the parties that claim to be able to modify the iPhone so that it will work on networks other than AT&T's.

In addition to copyright, there could be other legal actions such as breach of contract for users who try switch to another carrier without paying their liquidated damages to AT&T and tortious interference with contract for those persons freeing the iPhone from AT&T's network.

And for end users of the iPhone, who are not U.S. citizens, this analysis is further complicated by jurisdictional issues that affect the enforcement of copyright and contract claims. As for companies, that seek to unlock the iPhone, if they are infringing on the iPhone's software, doing business in the United States is probably sufficient "contact" with the U.S. to fall within the jurisdiction of U.S. courts.

The foregoing analysis is supported by 17 U.S.C. § 1201(a)-(c).

Should your reasoning stand up under scrutiny of a trial jury and appeals, it would mean that to use any item for anything other than it's purported purpose would be illegal, making innovation itself illegal. That takes care of the iPhone since it's not an original invention, but rather an innovation of many different pieces of technology not previously designed to work the way it does.

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gslusher said:

member since 13 Nov 2002 with 2088 posts, unranked, send him a message or view his profile

Tue Aug 28, 2007 4:08 pm

daemon wrote:

Should your reasoning stand up under scrutiny of a trial jury and appeals, it would mean that to use any item for anything other than it's purported purpose would be illegal, making innovation itself illegal. That takes care of the iPhone since it's not an original invention, but rather an innovation of many different pieces of technology not previously designed to work the way it does.

Hardly. Read it again. First, it refers to the DMCA, so it only applies to intellectual property covered by the DMCA, which is rather narrow.

Second, you seem to be conflating copyright and patent. They are different and have little to nothing to do with each other. Inventions are covered by patents. Some of the iPhone software is probably covered by patents, which covers methods, not specific code. The code may be covered by copyright.

Third, you're engaging in several logical fallacies, including the slippery slope argument.

Fourth, the guest would appear to know something about the law, given the way the message is written. The guest may be an attorney or law student. (There's at least one attorney who regularly posts on TMO, as I recall.) As I've found to my chagrin, arguing legal points with an attorney (and especially with a law student, who's immersed in a system based upon argument and debate) can be embarrassing.

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daemon said:

member since 17 May 2007 with 344 posts, unranked, send him a message or view his profile

Tue Aug 28, 2007 5:19 pm

gslusher wrote:

Hardly. Read it again. First, it refers to the DMCA, so it only applies to intellectual property covered by the DMCA, which is rather narrow.

However he's using the DMCA and 17 U.S.C. § 1201(a)-(c) to support an arguement aginst unauthorized usage of intellectual property.

Quote:
Second, you seem to be conflating copyright and patent. They are different and have little to nothing to do with each other. Inventions are covered by patents. Some of the iPhone software is probably covered by patents, which covers methods, not specific code. The code may be covered by copyright.

I'm not trying to seem to be conflating copyright and patents, I am conflating copyright and patents.

Quote:
Third, you're engaging in several logical fallacies, including the slippery slope argument.

Several logical fallacies, perhaps you'd like to name them all. All slippery slope arguements are not fallacious arguements.

Quote:
Fourth, the guest would appear to know something about the law, given the way the message is written. The guest may be an attorney or law student. (There's at least one attorney who regularly posts on TMO, as I recall.) As I've found to my chagrin, arguing legal points with an attorney (and especially with a law student, who's immersed in a system based upon argument and debate) can be embarrassing.

Being able to type in legalese does not make one correct.

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A guest said: (hide)

Wed Aug 29, 2007 1:41 pm

Tiger wrote:
That's a lot of blah blah blah. Can Apple stop it? Sure, because the very minute a hacked phone is brought in to be repaired, it will be evident that the device has been tampered with, the warranty will be voided and the $600 phone this person just bought WON"T BE SERVICED.

Kaput. You're done. They can deny servicing ANY hacked phone and therefore you're out all that $$ and now you have to buy a new phone and you STILL Have a contract with AT&T.

That logic is useless. Denying warranty service to hacked products is not a way to stop people from hacking it. How many people run Rockbox or iPod Linux on their iPods? Are you also aware at just how easy it is to hide the fact that you have installed a hacked firmware on a device when you want to bring it in for service? You just replace it with the original firmware. Sure, if people are cracking open a device, that could leave a physical trace, but with firmware hacks, which is really how people will be hacking the iPhone, just as they hack the iPod. Not only does a policy of refusing warranty service to people who have hacked their device not prevent people from doing so, it is nearly impossible to enforce.

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