A few days before the August holidays, the now classic DMCA (Digital Millennium Copyright Act) triennial review took place in the USA. The novelties were many, and many are the reflections that the measures taken by the members of the “Register of Copyrights” raise.
A premise is necessary: with the DMCA of 1998, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty were transposed into the United States legal system; in May 2001 the European Union also adopted measures relating to Copyright with Directive 2001/29/EC of the European Parliament and Council, of 22 May 2001, on the harmonisation of certain aspects of copyright and related rights in the information society. The adoption of the measure in our legal system led in turn to an update of Italian Law 633/1941 (Copyright Law, hereafter and more briefly LDA).
If the principles of continental and overseas legislation are basically the same — as well as the same is the goal of protecting rights and (above all) the holders of rights on digital works — the United States legislation is certainly more interesting.
It provides a sort of regulatory power vested in the Copyright Office regarding the so-called “circumvention of certain technological measures” practices.
Every three years an evaluation is carried out of user behaviour not specifically provided by law on the use of works protected by copyright.
It is evaluated whether the new practices are to be considered violations of the DMCA, or whether they may fall into those cases of “fair use” that allow parties using copyright-protected works to put protection systems “out of play”.
Once the practice is identified as lawful, the use of the work by the user is deemed legitimate.
The legitimisation of the so-called “Jailbreak” — a system well known among iPhone, iPad and iPod touch users — will surely echo widely.
Through this process it is possible to modify the original system files, access the system folders of one’s device, and install application and package distribution mechanisms alternative to the official one, evading the control of the technological copyright protection measures.
After jailbreaking one’s device, the user is no longer tied to the Apple App Store and can install many applications otherwise not available, using for example Cydia. Well, in the USA this practice is now legitimate.
But are we sure that in our country it is not possible to unlock devices, avoiding violating the legislation and avoiding having to disturb the enlightened overseas measures?
In general we must consider that proprietary software applications — and iOS is one of them — are “black boxes”.
It is possible to know their input and output, but one cannot — and must not — examine what is inside the box, much less modify the content, except for some exceptions generically defined as “fair use” practices, recognised in our legal system by art. 64-quater of the LDA.
For example, the LDA provides for the possibility of achieving interoperability between different IT applications by intervening on the application owned by the third party and studying what happens “inside the box”.
In the IT field, interoperability means the ability of different software products to communicate with each other through the exchange of data: in this way, anyone is free to develop computer programmes that can rely on and/or interface with already existing programmes, extending their potential and increasing services for users — in short, creating the famous “Apps”.
Art. 64-quater of the LDA states that authorisation by the rights holder is not required to obtain interoperability, and that for this purpose it is possible to access and intervene on the source code of the original programme, provided certain conditions are met:
- One has a licence to use the original programme
- The information necessary to obtain interoperability is not already easily accessible
- One limits oneself to accessing and modifying the original programme only as far as necessary
Creating an application entails the birth in the head of the author of the rights of economic exploitation, including deciding whether, how and when to distribute that application to users.
In the case of iPhone Apps, things are a little more complicated than the generic case: developers can see their products installed on “Apple” terminals only by joining the SDK developer agreement.
Part of the agreement is also acceptance of the exclusive distribution conditions:
- Through iTunes Store
- To one’s collaborators and/or partners, or to other parties, provided for educational and cultural purposes
Essentially, by joining the programme, developers — while maintaining ownership of the App — grant Apple the right to distribute it, which indeed receives a 30% fee of the price paid by users for the use of a copy.
In addition to the above, developers are obliged to use only documented APIs and submit to Apple’s discretion, which may decide whether or not to distribute the application.
It is also relevant that iOS has a “technological measure” that prevents the installation of third-party Apps except through iTunes.
Inserting these protection measures is the right of the rights holder, in the USA according to section 1201 of the DMCA, in Italy according to art. 102-quater of the LDA.
To recap, the paradox is evident: by law it is possible to develop applications that interface with iOS, but again by law it is not possible to install them, since to do so it is necessary to “unlock the iPhone” with Jailbreak — a process that violates art. 102-quater of the LDA.
Quid iuris in this case?
In the USA no problem: Jailbreak has been legal for about a month, but in Italy? Simple: in Italy we have no regulatory body that deals with fair use issues and that proactively indicates what is possible to do without incurring Cupertino’s wrath.
In our case the application of art. 64-quater of the LDA illustrated above could be invoked. After all, isn’t unlocking an iPhone “acting to obtain interoperability between computer programmes”?
Unfortunately only the Courts will be able to tell us; in any case, the absence of cases brought to the attention of the courts should be symptomatic.
Following the previous reflections, the declarations immediately following the triennial review are also interesting.
In Cupertino they immediately specified that, while Jailbreak is legitimate, in any case once the unlock has been carried out the user loses the right to warranty since they have violated the conditions of use provided at purchase.
Some interpretative doubts remain in this area too…
Firstly the warranty limitation clause is vexatious and the contract in which it is contained is standard; in this sense its acceptance must be specifically subscribed.
Beyond this, however, there is a stronger argument: if unlocking the terminal can be understood as an exercise of the exceptions to obtain interoperability, it means that the user exercises a right recognised by a mandatory rule.
A clause limiting the application of a mandatory rule must be deemed null, with the consequence of having to investigate whether the entire agreement containing the null clause is contaminated by it (and therefore is itself invalid), or whether the nullity is simply partial under art. 1419 c.c., since the parties would have wanted the agreement anyway even in the absence of a warranty limitation.
Concretely: it cannot be the jailbreak in itself that invalidates the warranty, but it must be the installation of a third-party App not certified as compatible that, by causing an unforeseen and unforeseeable software problem, exempts Apple from the obligation to fix your iPhone.
In conclusion it seems that the AppStore — from goose laying golden eggs — is becoming a more thorny problem than ever.