Mon Jul 14, 2008 4:19 pm

Dear Guest And Sir Harry Flashman: Hacking the iPhone is patently illegal under U.S. copyright law and the Digital Millennium Copyright Act (DMCA) (Library of Congress exception does not apply to infringing use), and probably under U.S. patent law as well.

And dear Guest, you may have purchased the iPhone--which is probably depends on whether you have a new iPhone 3G, which is subsidized so that the right of ownership probably doesn't vest until the conclusion of a telecom's contract for a term of years--but you did not purchase the either OS X or any of Apple's software on the iPhone. What you purchased, with respect to OS X and Apple's other software on the iPhone is a license to use that software subject to the terms of the license. That license expressly prohibits modification of OS X, so that any such modification constitutes copyright infringement, and the DMCA prohibits and makes it a felony to circumvent the security provisions that protect Apple's software on the iPhone. And if, as I suspect, Apple also patented OS X running on the iPhone's ARM processor, hacking OS X would also infringe on Apple's patents.

Nemo, Esq.

Mon Jul 14, 2008 11:26 pm

Dear Guest: As lawyer, who's ethical conduct is govern by your state's version of either the Model Rules or Model Code of Professional Conduct, you know that those ethical codes oblige lawyers, as brothers before the bar, to treat one another with comity. That, at a minimum, requires you to refrain from engaging in ad hominem attacks or questioning my competence, but to restrict yourself to respectfully addressing my argument on the merits of the law. I hope that you shall honor your ethical obligations by in the future respectfully addressing my argument.

The ethical rules also require that when a lawyer speaks publicly about the law to either edify the general public as to the state of the law or persuade on an issue of policy, he declare whether he is speaking for himself or in his representative capacity. And when speaking for himself, he is obliged to give his honest opinion. Here, I am speaking for myself.

While it is true that there can be an implied permission for the legitimate user of a cell/smart phone (Phone) to modify the Phone's operating system (OS), which makes that modification a non-infringing use (Jennifer Garnick, Esq. at: http://www.wired.com/politics/onlinerights/commentary/circuitcourt/2007/08/circuitcourt_0829/), that implied permission does not apply, where, as in the case of the iPhone, its license expressly forbids modification of OS X and Apple's other software on the iPhone, except as permitted by the provisions of the license. Using a clever argument, our sister, Garnick, exploited a weakness in the licenses that then controlled use of the operating systems on Phones. Those licenses clearly had to allow users the right to modify the OS to get the Phone to work on the network, but were silent as to the scope of that implied permission. So relying on 17 U.S.C. ? 1201(B) and (C), she argued that modifying the Phones' OS was a noninfringing use because of the implied permission to modify the Phones' OS. The Librarian of Congress (LOC) agreed and found that modifying a Phone's OS was a non-infringing use that would be unduly burden by the Digital Millennium Copyright Act (17 U.S.C. ? 1201 et seq., hereinafter, DMCA) and, therefore, granted an exemption for circumventing the technological measures that protected access to a Phone's OS pursuant to his authority under 17 U.S.C. ? 1201(C).

The problem with Ms. Garnick's reasoning is that it is easily defeated by modifying a Phone's license to explicitly and expressly deny a user the right to modify a Phone's OS, except as specified by the license and for only the purposes set forth in the license. Makers of Phones and telecoms wasted no time in modifying the licenses governing the use of their Phones' OSs and software to do exactly that. That eliminated any implied permission and made any modification of a Phone's OS or other software in a manner inconsistent with the Phone's license an infringing use and brought it within the ambit of 12 U.S.C. ? 1201(A) and (B), which provide:

(a) Violations Regarding Circumvention of Technological Measures.?

(1)

(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.

(B) The prohibition contained in subparagraph (A) shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, as determined under subparagraph (C).

As you can see from the foregoing, the LOC only has the authority to grant an exemption from 1201(A) for a noninfringing use. Since the manufacturers and telecoms new licenses prohibit, inter alia, modification of a Phone's OS so that it can be used on another network, at least during the term of the contract, any such modification is an infringing use, and the LOC, therefore, has no authority to grant an exemption to 17 U.S.C. ? 1201(A) pursuant to 1201(C). So any attempt to modify the iPhone's OS and Apple's other software on the iPhone beyond the extent permitted by its license is an infringement of Apple's copyright, and. thus, is an infringing use, and, to the the extent such an infringing use circumvents the technical measures that Apple has in place to prevent access to the iPhone's software, is also a violation of the DMCA. And that such unlicensed uses of OS X and Apple's other software on the iPhone would be infringing uses means that 17 U.S.C. ? 1201(f) does not apply and, thus, cannot be used to permit either circumvention of the technical measures that protect Apple's software on the iPhone or the use of that software for any unlicensed use.

The doctrine of Fair Use does not authorize the modification or use of the iPhone's software beyond the scope of the permissions granted in its license. Fair Use has nothing to do with colloquial understandings of fairness. It is a complex legal doctrine whereby the U.S. Supreme Court (Court) and its subordinate courts balance the First Amendment right to speak against the proprietary interest of copyright, which, like the First Amendment, is expressly provided for in the U.S. Const. The Court's concern is that copyright should not be used suppress or abridge a citizen's right to speak, where the legitimate proprietary interests of the copyright holder are neither implicated or materially diminished by the speech. Thus, the Court has held the works of satire, criticism, and pedagogy are Fair Use, but, under Fair Use, one may only use the copyrighted work to the extent necessary to accomplish those Fair Use purposes, nor does the Court permit an alleged instance of Fair Use to derive its commercial value from the copyrighted work. Its value must lie in the permitted Fair Use, not in its use of the copyrighted work so that the use of the copyrighted work becomes a substitute for the copyrighted work.

The Court has never permitted Fair Use for the commercial benefit of an infringer, who goes beyond the use of the copyrighted that is necessary to accomplish the Fair Use purpose, nor has the Court permitted Fair Use that in effect substitutes for the copyrighted work so that it has material negative impact on copyright holder's commercial/proprietary interests. It is beyond peradventure that hacking the iPhone to either use it on an unauthorized network or to use it in a manner outside the uses permitted in its license for a purpose, which, as is the case here, does not fall into any class of Fair Use previously acknowledged by the Court or set forth in the statute (see 17 U.S.C. ? 107: no mention of hacking to use on another network or to install unauthorized third party software as a class of Fair Use), and which negatively impacts Apple's commercial interests, is not Fair Use and is, therefore, an infringement of Apple and/or its telecom partners' copyright.

Lastly, I don't know whether Apple has patented the use of OS X on a CPU as an invention. However, it is well settled that software patents are permitted in the U.S. and its territories. Though the difficult and esoteric area of software patents is not my specialty, your description of novelty has nothing whatsoever to do with determining whether an invention has satisfied the novelty requirement. To be novel, an invention must be distinct from the prior art. Even a slight difference is sufficient to satisfy the novelty requirement. Thus, the novelty requirement, as I am sure you know, is regarded among practitioners as the easiest of the four requirements of patentability.

However, I will agree with your analysis in this regard: In addition to its claims for the infringement of its IP, Apple is also likely to have claims sounding in contract (e.g., breach of contract) and in equity (e.g., misappropriation of its property).