Daniel Eran Dilger
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Apple and EFF argue over iPhone jailbreaking


Prince McLean, AppleInsider

The Electronic Frontier Foundation has filed requests with the US Copyright Office to exempt activities from legal threats under the DMCA, one of which attacks Apple’s secured software business model on the iPhone.

Apple and EFF argue over iPhone jailbreaking

Apple responded with claims that the EFF’s exemption would only stifle innovation, not promote it, and claims that allowing users to jailbreak the iPhone would really only result in damage to the phone, its software market, and users’ experience.

The Jailbreak DMCA Exemption

The EFF wants users to be able to freely modify Apple’s iPhone software so that applications independent of the official App Store can be used on it. The group has proposed an exemption to the DMCA for “computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset.”

Fred von Lohmann, writing for the EFF, called Apple’s software restrictions for only allowing approved software to be installed via iTunes “corporate paternalism” and said it was comparable to an automaker welding shut the hood of its cars to only allow servicing to be done by authorized dealers. In response, Apple said in its own legal filing (PDF) that the EFF’s “arguments really amount to an attack on Apple’s particular business choices with respect to the design of the iPhone mobile computing platform and the strategy for delivering applications software for the iPhone through the iPhone App Store.”

“Much of EFF’s arguments are based on issues that do not have relevance to a DMCA exemption, such as how Apple is compensated for distributing iPhone-compatible applications,” Apple stated in the filing, noting that “Congress has already explicitly addressed circumvention for interoperability” in the DMCA, and that the “Copyright Office should not create interoperability exemptions outside that statutory structure, at least without a clear showing of specific and significant harm.”

Apple said the “EFF apparently desires to use the rulemaking process to alter Apple’s business practices by negating DMCA protection for technologies that interfere with what EFF seems to assume would be a more socially desirable business model that is more ‘open.’ Specifically, it seeks through the proposed exemption to clear the path for those who would hack the iPhone’s operating system so that a proprietary mobile computing platform protected by copyright can be transformed into one on which any third party application can be run, without taking account of the undesirable consequences that would ensue from the transformation.”

The iPhone software business model

The response also stated that the “EFF’s submission offers no proof that this proposed transformation would actually increase innovation or investment in creative works, and as this submission demonstrates, it would not do so.” After citing the success of the App Store business model (the company managed to repeat that it now has 15,000 apps for the iPhone seven different times in the document), Apple added, “the evidence shows that a business model in which handsets can be widely jailbroken with the attendant problems that result would in fact hinder the creation and distribution of creative works for the platform.”

Apple stated that the iPhone’s operating system “was designed not just to enable the making of phone calls, but specifically to provide a rich mobile computing platform so that Apple, applications developers and iPhone users could all benefit from a very wide range of functionality. In that respect, the significance of the iPhone OS to Apple’s entry and long-term product strategy cannot be overstated.

”The platform provided by the OS has created positive feedback loops so that a large community of developers has been willing to invest in iPhone technologies, elevate the platform and the iPhone user experience, and benefit themselves, Apple and consumers alike.“

The iPhone security model

Apple described its security model as a ”chain of trust,“ stating ”The iPhone contains a number of TPMs [technology protection measures] that protect the bootloader and OS from modification or corruption, and verify their origin, thereby helping to ensure proper functioning of the device. A secure read only memory (ROM) in the hardware of the device contains cryptographic keys that are used to validate the bootloader and the OS.

“Upon power up, the secure ROM uses the keys to validate the bootloader before loading it (by verifying its digital signature), and the bootloader then validates the OS before loading it for execution (again, by verifying its digital signature). The validation process verifies that the bootloader and OS
originated from Apple and that they have not been altered.

”Commencing with version 2.0 of the OS, the OS similarly validates all application programs loaded into the iPhone, also by verifying their digital signatures to confirm that they have been accepted by Apple for execution on the iPhone and have not been altered. The sequence of validations from the bootloader to the OS to the application programs is referred to by Apple as the ‘chain of trust.’“

Apple claims damages for jailbreaking

Apple described a number of reasons for protecting its software on the phone, stating that ”modifications can readily cause significant problems in the operation of the iPhone for the following reasons, among others:

“The OS implements a number of essential safety and control functions. For example, it monitors the thermal condition of the device and shuts it down if it is overheating. It controls the charging of the battery, instructing the relevant circuitry when to start and stop charging the battery, and at what level to charge it. The OS also implements certain governors on the phone’s volume. If modifications to the OS were to interfere with these control functions, even unintentionally, the phone could be physically damaged or the battery could be overcharged.

”The OS implements a number of security functions that protect both the iPhone itself and the telephone network to which it connects. For example, the OS implements certain controls on how application programs are able to execute on the iPhone to help prevent viruses and other forms of “malware” from executing. Modification of the OS can interfere with these functions and open up security holes that could enable malware to accomplish malicious things through the iPhone, such as stealing information from the user’s contacts database. The OS also controls a critical portion of the device known as the “baseband processor” (BBP) that is used to connect to a telephone network and to utilize services on the network. By circumventing access controls on the OS, third parties could gain unauthorized access to the BBP, which could in turn result in gaining unauthorized access to and use of the telephone network or even causing operational damage to the network.

“The OS makes available functions and services to application programs through its APIs and system calls. Modifications to the OS can, whether intentionally or unintentionally, interfere with the proper operation of the APIs and system calls, causing application programs to fail to operate correctly on the phone. Moreover, updates to the OS distributed by Apple may not work correctly with modified earlier versions of the OS. When users attempt to update a device whose OS has been previously modified, serious functional problems can result, potentially causing the device to fail to operate.”

Apple noted that “other phone vendors have done the same,” citing the EFF’s own submission, which described how the Android T-Mobile G1 “will load only signed firmware images, which prevents G1 users from making modifications to the operating system kernel.”

Apple defends App Store restrictions

“Through the App Store, Apple is able to help prevent distribution of applications that could cause damage to its OS or cause other problems for end users. For example, through its current App Store review procedures, Apple has prevented distribution of applications that transfer excessive amounts of data to the phone network that can cause a degradation of service such as dropped calls, and applications that utilize undocumented APIs that are not designed for general usage and that can cause an application to crash when invoked. Apple currently also reviews
applications submitted to the App Store to screen for sexually explicit content and hate speech.”

The filing also contradicted claims made by the EFF that that Apple refuses to approve applications that “duplicate functionality” offered by Apple’s own software. “This is incorrect. Apple has, for example, approved multiple general web browsers, which compete with Apple’s own Safari web browser, and multiple mail programs, which compete with Apple’s own mail program for the iPhone,” the company said.

Apple also cited piracy as a reason for its App Store controls. “There are many instances in which unauthorized persons ‘strip’ the TPMs protecting such content, thereby placing it ‘in the clear’ (i.e., in unprotected form). With the TPM removed, pirated copies of the content in unprotected form can then be widely distributed among persons who do not pay for it, typically through unlawful peer-to-peer networks and other online distribution sites.

”Such has happened, for example, to a copyrighted game owned by Apple called ‘Texas Hold ‘Em,’ as well as to a host of popular games from third party vendors. However, the stripped games can be played only on jailbroken iPhones, because the TPMs on the iPhone would otherwise prevent them from playing.“ Apple also noted the NES emulator app, which ”will enable stripped Nintendo games to be played on jailbroken iPhones [contrary to the copyright of those games].“

”Apple believes that the proposed exemption would further facilitate and encourage this form of piracy. Piracy, in turn, can diminish the investment that developers are willing to make in the creation of copyrighted works for the iPhone, contrary to the fundamental purpose of the copyright law to encourage the creation of new works of authorship.“

Apple’s jailbreak expenses

Apple’s filing also stated that ”further modifications to the OS are often necessary to enable certain kinds of applications to run even after the basic jailbreaking is accomplished. Such modifications are infringing and can give rise to additional functional problems on the iPhone, such as interfering with operation of certain APIs or system calls, or creating incompatibilities with other updated components of the OS. In short, the initial infringing acts on the OS often lead to other infringing acts, which in turn can lead to yet further functional problems.“

”Functional problems that result from unauthorized modifications to the OS increase Apple’s support costs substantially. Apple’s iPhone support department has received literally millions of reported incidents of software that crashes on jailbroken iPhones, although it works properly on unmodified iPhones. For example, one recent software crash caused by jailbroken phones was reported over 1.6 million times from users of just 10,000 jailbroken phones. Two other recent crashes caused by jailbroken phones were reported over 2 million times and over 2.4 million times, respectively.

“Apple has also become aware that some jailbroken versions of the bootloader make it impossible to update the baseband processor (BBP) in the iPhone, which controls the ability of the iPhone to connect up to the telephone network and make calls. Because each update that Apple distributes to the BBP contains updates and fixes, a phone that cannot update the BBP will potentially experience problems making calls. When that happens, Apple’s support department gets flooded with calls.

”Apple incurs very substantial expenses to investigate these problems reported to its support department to determine whether they result from problems in Apple’s own software, or result from unauthorized modifications performed by users in jailbreaking. Apple expects that reported problems from jailbroken phones will increase dramatically if the Class #1 exemption proposed by EFF were to be allowed, substantially increasing Apple’s support costs even more.“

The fair use argument

The EFF’s submission states that reproduction and modification of a phone’s firmware incident to jailbreaking is non-infringing fair use. Apple argues that jailbreaking fails all four ”nonexclusive statutory fair use factors prescribed in § 107 of the copyright statute,“ which it cited as ”(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.“

”Because a jailbroken OS is often used to play pirated content, such activity should be considered of a commercial nature since it avoids paying fees for the content. Therefore, factor 1 weighs against fair use. Factors 2 and 3 also weigh against fair use because the copyrighted works at issue are highly creative and not factual in nature, and essentially the entire work is being copied. Of most importance is factor 4, because the effect of these unauthorized uses is to diminish the value of the copyrighted works to Apple.“

Apple states that the ”EFF’s argument that factor 4 cuts in favor of fair use because Apple makes various versions of the iPhone firmware available ‘for free from its own website, demonstrating that the firmware has no independent economic value’ is wholly off the mark. The iPhone firmware is not itself a product; it is a component of the iPhone mobile computing product.

“The value of the OS software to the iPhone, and therefore to Apple, cannot be assessed independent of the iPhone itself. The OS’s value is as platform software for the mobile computing experience that differentiates the iPhone from its many competitors. The value of platform software, in turn, is related to the number and quality of applications written to run on the platform and the availability of safe and secure means of distributing these applications to consumers.

”Apple created at substantial cost the ecosystem that makes the SDK and the App Store available to developers, who in turn write applications to the platform, which in turn make the iPhone a more attractive product to consumers. All of these benefits are promoted by the TPMs that safeguard the iPhone OS. EFF’s submission offers no evidence to support the bald assertions that nullifying DMCA protections for such TPMs will produce more benefits for society and more investment in copyrighted works than Apple has demonstrably created through its iPhone
product design and strategy.“

Apple: no harm, no foul

”EFF’s submission does not provide any support for the assumption underlying the proposed jailbreaking exemption – that copyright advancement will be furthered and the level of
innovation would be the same or better by nullifying TPMs on the iPhone in order to force a more open iPhone platform.

“Indeed, this assumption is contrary to Congress’ expressed beliefs in passing the DMCA in the first place – that without the ”technological adjuncts“ of laws preventing circumvention of access controls, copyright expansion and innovation (so important to the U.S. economy) would be chilled, as companies questioned whether to spend millions on innovations that might not be legally protectable. In other words, that society would never even get innovations like the iPhone and the applications it has spawned in the first place.”

The Copyright Office will deliberate over the proposed DMCA exemptions and issue a ruling in October.

  • davecool

    Wow, is it just me or are Apple’s arguments extremely weak and overly alarmist? There must be some well founded, logical arguments for keeping the system closed, how about use them?

  • http://www.roughlydrafted.com danieleran

    Yeah who needs a platform that just works when you can have an “open platform” with the blockbuster consumer appeal of desktop Linux in the palm of your hand?

    Isn’t it Apple’s job to simply engineer products for communists to seize, clone, and provide to the free People cheaply so they can have the freedom of freeing their own free, for free ?

    Or maybe Apple should just surrender its cash hoard to the supreme soviet community so that it can finally finish up the OpenMoko phone and maybe get Android working on it. Then they can port TuxRacer so the People can play a game on it. And we can all watch that OSS CGI copyleft movie. That would be awesome AND cheap!

  • Jesse

    Huh wha? What part of “this will totally destroy our business model and plus potentially damage the cellular network itself” seems weak to you?

  • Jesse

    Or do I smell a troll…

  • Ludor

    Mr. Dilger. Please refrain from associating EFF with communism. There is no relation.

    Also, we, the Supreme Soviet Community, NJ, do quite well for ourselves, and would nobly decline any monetary gifts from The Fruit Company.

  • Joel

    I’d also be interested why Communists would be interested in installing applications on iPhones… Here in Europe they spend more time trying to legitamise their political parties than coding Objective-C. Comments like that tend to bring down my opinion of Dan, since its quite uninformed and I tend to think he’s usually better read than that…

  • duckie

    @Joel sense of humour *FAIL*

  • Joel

    Perhaps, but I would have expected it to be highlighted more as such to avoid mis-interpretations…

  • T. Durden

    If these EFF people want a free and open mobile platform, then why don’t they build one themselves? Why try to steal from Apple?

    It’s just the same lame arguments as the whole pirating community usually bring up and which, upon scrutiny, amounts to nothing more than wanting something for nothing.

  • wordwarrior

    There are two aspects to jailbreaking:

    1) Tinkering. There are many electronics users around the world, including computer users, who are genuinely curious about how things work, and want to take them apart. It’s tinkerers who build much of the BSD underpinnings of Mac OS X, gcc (the compiler that OS X uses), and other IT innovations. I would have been shocked and quite angry if PC vendors prevented me from installing Linux on my PC years ago, since this is how I learned Unix and furthered my IT career. The people who want to tinker with the iPhone are the same sorts of people who want to do silly things like mod an XBox to install Linux on it. Despite what Microsoft would have you believe, there is absolutely nothing wrong with that. Technological progress depends on allowing people to tinker with hardware that they paid for.

    2) Getting stuff for free that you would have otherwise had to pay for, and which the author intends to charge you and make a profit. This is immoral and inexcusable.

    My problem with Apple is while they’re committed to stopping 2), they’re also working to stop 1). This I find unacceptable.

  • T. Durden

    If I try to tinker with my car in order to get a few extra bhp from the engine, that’ll void the warranty. Even if I’ll probably learn a lot from the experience, it’s not that hard to see why it’s discouraged.

  • wordwarrior

    By installing Linux on my PC, I agreed to void whatever warranty was left. I accepted that risk. I’m sure those who genuinely want to tinker with the iPhone accept that risk as well.

  • Raymond


    I used to have linux as my main desktop before I switched to Mac just after the powerbook Ti came out. So I can appreciate what you’re saying about installing alternative OSs. However I’m less sympathetic to jail breaking the iPhone since people are not trying to install an alternative OS, but instead a modified version of the iPhone OS. I see a difference between the jailbroken OS which is a derived work based on Apples copyrighted work and Linux/BSD/… which all contributers have licensed their work to be used.

  • wordwarrior

    I have no problem with people installing a modified OS as long as they don’t distribute it, and especially, don’t try to sell it for profit. As long as people are buying iPhones and nobody’s having their apps ripped off (or networks aren’t being abused), I have no problem with it.

  • Joe Sa

    @ wordwarrior “By installing Linux on my PC, I agreed to void whatever warranty was left. I accepted that risk. I’m sure those who genuinely want to tinker with the iPhone accept that risk as well.”
    Then why are they calling Apple support? Why did they cry & moan when Apple updated the iPhone & their phones stopped working?

  • Joel

    “By installing Linux on my PC, I agreed to void whatever warranty was left. ”

    Must be some strange warranty. I’ve wiped Windows and installed Linux Dell stuff before and they’ve come around and fixed their hardware when it failed within the warrently period. The same with other hardware manufacters… Perhaps you need to get a less paranoid manufactrer. :)

  • Dorotea

    I expect that Apple has to protect its investments. Apple doesn’t want a jailbroken iPhone to disrupt the AT&T cell network. Apple doesn’t want to support jailbroken iPhones. If they don’t fight to protect their IP investments then I think they could lose the rights.

  • KathyLee

    Well, has Apple actually gone after the jailbreaker writers? They seemed to have left them alone (for the Tinkerers) but having that activity be explicitly condoned in the DMCA is what they’re upset about. I say fix the DMCA overall and don’t attack Apple specifically. They have produced something truly innovative and the App publishers want their software protected from piracy. As for the schmucks who jailbreak their phone and complain to Apple when their iPhone doesn’t work – there should be some way that iTunes can determine if a connected phone is jailbroken and then have Apple know not to waste any support time on these folks.

  • NormM

    From a software-trust and bug perspective, the iPhone is not very different than an OS X laptop. How would these arguments sound if Apple tried to make them about restricting laptop software?

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  • gus2000

    And now Mozilla and Skype are getting in on the action, coming out in support of the EFF and the DMCA exemption. Not surprising, given that they sell no hardware to jailbreak, and would directly profit from open hardware.

    Note that jailbreaking is both easy and widespread, despite its current status as illegal (or at the very least unsupported). The exemption would only bring the code crackers out of the closet.

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