Mod Your iPhone – For Fun or Profit?, 2007-09-04
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Prosecution? Really? Modding your OWN iPhone is a crime?
In general, it is perfectly legal to reverse engineer software for particular purposes. Or more accurately, it is not an infringement of copyright to do so. Does this mean that reverse engineering or modifying your own copy of software is, in the language of the Apple license “permitted by applicable law?” Well, its not prohibited, and a number of cases such as Atari Games Corp. v. Nintendo of America, Inc., and Sega Enterprises v. Accolade, Inc., state that it’s perfectly OK. However, just because you are not prohibited from doing something doesn’t mean that you can’t give up your right to do it. A contractual provision where you agree NOT to reverse engineer software (which you have a right to do otherwise) can be binding on you according to Bowers v. Baystate Technologies, Inc. So the question is whether, when you agree in a contract NOT to reverse engineer or modify your own copy of software, you are now “permitted” to do so by applicable law?
What is worse, even though reverse engineering or modifying the software for permitted purposes is expressly NOT a violation of copyright law according to the case law, once you agree NOT to do it and do it anyway you are violating the software license agreement, and therefore guess what – violating copyright law by doing something you are allowed to do under copyright law.
A better reading of the term “allowed by applicable law” would be that if you are allowed to reverse engineer or copy, you are allowed to do so, and the contract can’t change that. Indeed, the problem with the Bowers v. Baystate case is that this was a fully negotiated contract between two parties about what could and could not be done with the software, not a line injected in a microprint website. Imagine if the NY Times website had a provision that said, “by using this website you agree NEVER to quote or criticize anything in The New York Times” even if, under copyright law you would have a right to do so. The copyright law is intended to represent a congressionally dictated balance between the rights of the copyright holder and the licensee, and attempts to change this balance to the detriment of the ordinary consumer through microtype in EULAs should be read incredibly narrowly.
This is true because a copyright is essentially a government sanctioned monopoly in the manner of expression of a unique thought or idea. In granting the creator of the copyrighted works certain exclusive rights (and not others), Congress intended to balance the anti-competitive nature of the monopoly against the right of the holder to exploit the product of their labor. So copyrights are for a limited time (ok, yes, we keep extending them, and the Supreme Court has said that there’s a difference between “limited” and “certain”). They confer some rights and not others (e.g., irrespective of the copyright, a person can make certain “fair uses” of the work.
What these EULA’s and Terms of Service say is, “if you want to use the copyrighted work, you must agree to give additional rights over and above the balance struck by Congress to me, the copyright holder.” So a 75-year copyright could be extended to 1,000 years BY CONTRACT. The copyright holder effectively is using the monopoly NOT to enforce copyright rights (a shield), but as a bludgeon to give them more rights than what the copyright law provides.
In other areas of intellectual property law, such as patent law, there is a concept of “abuse of a patent”, where you use the patent monopoly to do something the law doesn’t permit (e.g., in restraint of trade). The same concept should apply to copyright – especially when the “contract” extending the copyright holder’s rights is not, in any meaningful way, freely negotiable.
For example, in one famous case, a company tried to use the terms of a software license agreement to keep a company from publishing valid and accurate benchmarking tests. While the company would have had the right to perform the benchmarking and to publish the results, under the EULA, they had to agree NOT to exercise a right to ever publish the results. The New York State Attorney General found that this “muzzle clause” effectively misused the copyright law and was an unfair trade practice, particularly where “many customers did not even have an opportunity to soldier through a lengthy license agreement — which threatened their rights — until buying the product.” Sounds a lot like the contract here, no?
What is worse about the iPhone EULA is that it applies to not only the iPhone software, but any updates. However, when you update the iPhone (two updates so far), there’s a NEW EULA that you have to agree to! If you don’t agree to the terms, you don’t get the update. But you can’t return the iPhone or discontinue the service. You are stuck with the agreement.
But there are MORE agreements. The only way to “legitimately” activate your iPhone is to hook it up to iTunes – Apple’s proprietary and copyrighted software which connects you to the iTunes store. And guess what? It has its OWN End User License Agreement and terms of use. Every time you update your iTunes, you also “re-agree” to a set of terms of conditions and use. So your choices are to agree to the new terms, keep the old software, or never update or sync your iPhone. And if you don’t agree to Apple’s terms, you breach your contract with AT&T.
Which brings me to another point. Why is AT&T sending out letters if the problem is a breach of an Apple software license agreement? Did Apple assign the right to enforce the contract to AT&T? Is AT&T claiming that they are a third-party beneficiary of the no modding provision of the Apple copyright agreement? Without looking at the cease and desist letter, it is impossible to tell.
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