New Ruling Says Users Can Hack Their iPhones

A new government ruling issued last month makes it legal for iPhone users to "jailbreak" their phones so they can potentially choose a different carrier. Harvard Law professor Lawrence Lessig discusses that and other recent changes to the Digital Millenium Copyright Act.

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If you've ever tried to copy a DVD, you know how tough it is to do because it is locked. There is a bit of code on that DVD that prevents you from making a watchable copy. Of course it's easy to find software to break this code, but it's been illegal to do that. The same thing with your cell phone.

When you buy a cell phone like an iPhone, it comes locked. It's tying to the service provider that supplies your cell phone service, and it is tied to the apps that only Apple lets you download. And while it's not hard to find software that will unlock a phone for use by another phone service or software that will jailbreak an iPhone to allow you to load non-sanction apps, what you're really doing is not that kosher either.

Well, now those locks can be broken legally. Couple of weeks ago, the Library of Congress, which controls the Digital Millennium Copyright Act, the DMCA, added a handful of exemptions to the law. And the new exemptions essentially say that you're allowed to break that copy protection, that you can't legally be stopped from opening digital locks to make fair use of something you bought, whether it's a DVD, a CD or an iPhone.

Can you do anything you want with your own locked stuff? No, not everything.

Joining me now to talk more about the changes and what they mean is Lawrence Lessig, director of the Edmond J. Safra Foundation Center for Ethics, professor of law at Harvard Law School. His latest book is called "Remix: Making Art and Commerce Thrive in the Hybrid Economy." He joins us from our NPR studios in Washington. Welcome to SCIENCE FRIDAY, Dr. Lessig.

Dr. LAWRENCE LESSIG (Harvard University): Great to be here.

FLATOW: How important is this ruling?

Dr. LESSIG: I think it's a critically important ruling. It's the first time that the Library of Congress, expressing the view of the register of copyright, has really began to cut back on an extreme push that has happened in the law to lock down how people use their technology or get access to culture. And the reasoning of the register of copyright I thought was very balanced and important in showing that there was a limit to how much copyright law would try to restrict what people could do with the stuff that they bought. And so the victory here which EFF had pushed is an extremely important victory.

FLATOW: And it's not saying you can do anything you want now, is it?

Dr. LESSIG: No, that's right. I mean, the basic question here was, of course copyright law limits lots of things that you can do with culture. You can't take a DVD and share it with your 10,000 best friends, and I don't think you should be allowed to either. So that's what copyright law says. But this law, the DMCA, said that if the copyright owner uses technology to protect their copyrighted material, then you can't circumvent that technology for the purpose of violating the copyright of the copyright owner.

The big question that has been out there was, well, what if you circumvent the technology for the purpose of doing something which is legal under copyright?

So, if I circumvent the technology to make a fair use of the underlying copyrighted work, does that violate the DMCA? And the series of decisions that the register of copyright issued just last month make it pretty clear that the law - that the line the DMCA draws is that the DMCA and technology can be used to make sure that copyright is respected, but it can't be use to restrict you beyond the lines of copyright.

FLATOW: Uh-huh. So it allows you to jailbreak your iPhone. It allows you to get - to put apps that you would like to on your iPhone, but still respect the copyrights of those apps and things.

Dr. LESSIG: Yeah. More precisely, it's a little geeky, but geeks...

FLATOW: Mm-hmm.

Dr. LESSIG: ...have become the god here. So I'll be a little bit geeky about it. More precisely, it says that copyright law can't stop you from jail-breaking your iPhone. Now, Apple says, for example, that the user agreement you sign when you get your iPhone and you click through to be able to do anything with your iPhone restricts you and says you can't jailbreak your iPhone.

And they had argued that before the copyright office. And the copyright office had actually said they're not sure whether that's what that means with respect to the iPhone. So they didn't decide it on the basis of the fact that you were free from Apple's contract that says you're not allowed to break your iPhone. They said it's just a fair use if you do break your iPhone and so - jailbreak your iPhone - and so therefore it wasn't a violation of copyright law or the DMCA.

Now, Apple might - and I hope they don't, because I think it would be a very bad decision for the company - but Apple might try to continue to fight this battle, both using their own technology to basically turn your iPhone into an iBrick if you try to jailbreak it or by actually trying to use contract law to sue people who are violating the agreement that they have with Apple.

But what this ruling says is that copyright law is not going to be Apple's tool to restrict the freedom of their customers to get applications which Apple doesn't approve of.

FLATOW: What about other uses? For example, if I have a digital video recorder and I want - I have a movie on there that I have downloaded, paid for, from let's say my cable company, or a service like that, it's in digital form, and right now the only way I can get it off of that digital recorder is using analog, is using some output terminals that are left for me to record on my, you know, my VCR or something. Am I allowed now to break that code and download it digitally off my DVR and to make a digital copy of it?

Prof. LESSIG: So what's very interesting about these proceedings - which are regulatory proceedings that happen every three years - is that they're very specific. So whereas the Copyright Office had recommended five changes, and the Library of Congress added one more, so there are six exemptions, they also rejected a whole of slew of other kinds of exceptions. And some of those exceptions sound very much like what you're talking about. One of them was somebody who wanted to be able to crack the encryption that might limit your access to an online video streaming service if that service goes out of business, and similar ones like that.

So in this case, the rules that the Copyright Office or the Library of Congress are articulating are really specific to the particular technology. And here, the one that's most directly relevant to your question, is DVDs of movies. And that's very interesting, because it really just covers motion pictures. It doesn't cover television shows. It doesn't cover news reports. It's motion pictures. And what's even weirder about it, in some ways, is that it gives an exemption - for example, it says, for college and university professors and students, but only those in media studies or in film classes.

So if you're an economist or economics professor, you don't necessarily have the same freedoms. And I thought - I think it's a bad part of the decision, but it thought it's kind of funny. If you're in K to 12, you're not allowed to take advantage of this exemption. If you're K to 12, you can only get low-quality versions of the movies by, you know, capturing it as you're watching it on your TV, on your computer. So it's very specific, but I think it signals the right kind of balance that the Copyright Office is pushing. And that's a very good sign.

FLATOW: So I can't even make a copy as a backup copy, then.

Prof. LESSIG: Well, these...

FLATOW: By taking it away - let's say - you know, you go on the road, you want to take your DVD with you. You know, these are arguments that had been talked about for years.

Prof. LESSIG: Mm-hmm.

FLATOW: Right? Why can't I make a backup copy? In case I lose my DVD copy, I still have the original at home.

Prof. LESSIG: Well...

FLATOW: This did not allow us to do that, either.

Prof. LESSIG: This does not talk about that. But, you know, many people - and I'm sure - yes, Apple would be the first in line to do that -would say, of course, you have the right to make a backup DVD. And if somebody tries to sue you for a copyright violation for that...

FLATOW: Right.

Prof. LESSIG: ...then they would be - they would probably defend you, saying that that would be a fair use. But all the Copyright Office here is speaking of is particular cases that were presented to them...

FLATOW: Right.

Prof. LESSIG: ...in this course of these proceedings. They've now had four of them. And this is the most dramatic example of them, striking a much more balanced system for the DMCA.

FLATOW: And the EFF being the?

Prof. LESSIG: Electronic Frontier Foundation. And for disclosure, I used to be on their board. I'm not on their board right now. But I'm very proud of what they've done here, because they've been fighting in these issues for many, many years. You know, they were born in the beginning of the 1990s. But they've taken a real lead here in pushing this issue, and this has been a very important victory.

FLATOW: Was this limited to cell phones, or is this - are devices like the iPad included with this ruling?

Prof. LESSIG: Huh. So, certainly, the ruling would apply to, you know, cracking your iPad to be able to download applications on your iPad that are different. But there are two kinds of cell phone issues on these rulings. One was about applications, like the App Store with the iPhone. But the other one is also extremely important. It was about whether you could use technology to unlock your phone so you could switch to a different carrier. So you might have a phone that's locked to AT&T. Can you use technology to unlock it so that you could use Verizon instead? And the Copyright Office said that that, too, was not a violation of the DMCA.

They very interestingly said this is not to announce that there's national policy in favor of allowing you to switch to whatever carrier you want. But I think - and this is exactly the right analysis - that the Copyright Office says the point is copyright law does not block you from switching to another carrier. It has to be another area of law or another contract that might do that.

FLATOW: Let's talk about some other issues about digital copyright laws. I saw you give a talk where you said, we need to, quote, "to decriminalize the act of being a teenager in America." What did you mean by that?

Prof. LESSIG: Well, I think that the - we are in the middle of a very unfortunate war, where, you know, an extraordinary technology is enabling people to do all sorts of things they've not been able to do in the past, to create and to share and to comment and to be the kind of creative people that all of us parents want our kids to be. But on the other hand, the law has traditionally now been interpreted to be extremely restrictive in what they say people can do with technology. And so my view is we need to not abandon copyright law - I'm a strong believer in the importance of copyright law - but to update copyright law so that it encourages the kind of activity that we should be encouraging here, while ensuring that artists continue to be paid.

So we've been fighting for the last decade a war against peer-to-peer file sharing, you know, suing kids, suing grandmothers, doing whatever we can to stop kids from sharing music. That war has been a failure. There continues to be an extraordinary amount of file sharing, more than there was 10 years ago. And so in these 10 years, artists have not been paid for the music that's been shared.

Businesses that have had new ideas about how to develop technologies have been chilled from doing that for fear of the legal liability. And kids have been the target of this war, which they're told - and they begin to think of themselves they're criminals. And the problem with that is I don't want to raise a generation of kids who thinks of themselves as criminals. I think that's extremely destructive and corrosive for the way they think about law in general.

So my view is we need to be updating the law to assure that it does what copyright law is supposed to do, to pay the artists for their creative work, but not through a system that makes it impossible for kids to get access or use the Internet without tripping across these felony violations.

FLATOW: Mm-hmm. We saw also - let me just move ahead to another subject that was in the news, and that was about the possibility or that the FCC may be wading into a territory that regulates the use of the Internet. Do you want to comment on that?

Prof. LESSIG: Yeah, we - you know, it's actually a little premature. We don't know exactly what's going to happen. Barack Obama promised during his campaign that he was going to support what's called network neutrality, which means that we make sure that the owners of the pipes don't try to control the applications or content that are on those pipes, so that any new innovator can come and put their content up and it flows just as freely as anybody else's. He promised that as president. And when Julius Janikowski, the current chairman of the FCC gave his first speech about it - I was down here and watched the speech. It was a fantastic speech about the importance of network neutrality and the importance of defending it.

Well, it looks like now there's a possibility that the FCC is going to back away from that commitment. And Google and Verizon - Google, which has been a traditional strong defender of network neutrality - might be striking a deal that some people think is inconsistent with these principals of neutrality. Now, I think it's - we don't yet know...

FLATOW: Do they - the FCC said that this is not happening, and they said yesterday in a news conference, but, you know, publicly.

Prof. LESSIG: Yeah, that's right. That's why I think it's premature to know. Google may or may not have this deal. The FCC may or may not back down, but it has been disappointing that the FCC has not acted more quickly to deliver on the promise that was a central part of the technology vision that the White House articulated when they were running for president.

FLATOW: 1-800-989-8255 is the number, talking with Lawrence Lessig, director of the Edmond J. Safra Foundation Center for Ethics and professor of law at Harvard. His latest book is "Remix: Making Art and Commerce Thrive in the Hybrid Economy" on SCIENCE FRIDAY, from NPR. I'm Ira Flatow, talking with Lawrence Lessig.

These issues - you say, as long as the fight is happening, the war is happening sort of on the sidelines, nothing is going to really happen that regulates anything useful.

Prof. LESSIG: Yeah. I think that, you know, we've been waging this hopeless war for - you know, at least 10, maybe 12 years. And I think when we wage a hopeless war, what we ought to do is recognize that it's time to sue for peace and find a better way to achieve the objectives of the war.

FLATOW: And you say - and you have said publicly that one simple phrase, use common sense, is something that maybe a way out of this.

Prof. LESSIG: Yeah. I think that - we're going to see - and the next generation already sees this right now - that there's - that what we've lost in the context of this fight is common sense about technology and copyright. I mean, even in the ruling that the Copyright Office issued, there was some of this going on, where, you know, technically, copyright law, the way it was architected the last century, gets triggered every time a copy gets made.

Now, in the world before digital technologies, that didn't matter much because the number of times you actually made a copy in analog space was small, and maybe it made sense that copyright law tried to regulate every time you try to make a copy someplace. But in digital space, absolutely everything you do, anytime you do it - read a book on a computer - triggers a copyright law because it makes a copy. And in this ruling itself, Apple and other cell phone companies are arguing that even to turn on your cell phone is to make a copy of the program inside it, so that's why it would be a violation of copyright law for somebody to try to hack that or to change that.

And I think that what common sense would say is that that system -triggering copyright law, triggering this federal law when there's a copy made - may have made sense in a world before digital technologies, doesn't make sense in a world of digital technologies. That doesn't mean we give up copyright law. It means we find the copyright law that achieves its objectives without turning our next generation into criminals.

FLATOW: And who will reach that middle ground someplace?

Prof. LESSIG: Well, as I've talked about this, and it feels like I've been talking about this for 100 years. But I - as I've been talking about this, it strikes me that, you know, a lot of people get it who didn't get it a decade ago. Businesses get it. Technology companies get it. Parents get it. Teachers get it. Librarians get it. And, of course, anybody under the age of 25 gets it.

The one group that doesn't quite get it yet is Congress. And that, you know, deeply connected to the economy and influence of Congress, you know, the people who get it don't seem to give as much money as the people who don't get it to elect them. So not many members of Congress are incentivized to actually think about this differently.

FLATOW: Mm-hmm.

Prof. LESSIG: But I think that what has to happen is that we begin to recognize that the cost of this war that are being waged against our kids are not just lost revenues for copyright companies. The cost of this war is that we turn the generation into a criminal generation. And there's a stronger reason to sue for peace than just to find a way to get better profits to the artist sector. There's a strong reason to sue for peace here in that we no longer treat our kids as if when they do what is creative and expressive, they're actually...

FLATOW: Uh-huh.

Prof. LESSIG: ...behaving like criminals.

FLATOW: Well, if you're going to wait for Congress to get it, you have -go to the back of the line. Okay. Thank you, Lawrence, for taking time to be with us.

Prof. LESSIG: Great to be here.

FLATOW: Lawrence Lessig is director of the Edmond J. Safra Foundation Center for Ethics and a professor of law at Harvard Law School. Latest book: "Remix: Making Art and Commerce Thrive in the Hybrid Economy." As I say, thanks again and good luck to you.

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