EFF Douchebags and EULAs
My dad sent me a link to this article from the EFF in which they are trying to vilify Apple for protecting their intellectual property rights. The EFF has filed a claim with the US Copyright office trying to get an exception granted to the DMCA that would make it legal for people to jailbreak their iPhone and violate the EULA that they freely entered into when they activated said phone. Apple is contesting their exemption request (note: this is very different than threatening to take individuals who jailbreak their phone to court, RIAA-style) stating that they are well withing their rights to protect their intellectual property in any manner formally agreed to between them and the people who license said IP.
Keyword there, folks. License.
You may own your iPhone, just like you own your other hardware, but you license the software on it. When you install or activate that software, you enter into an End User License Agreement, by your own volition and without coercion, and are then bound by the terms of the agreement, just like any other contract. Even open source software, which the EFF loves like the Virgin Child, has legal restrictions on it, albeit looser ones by comparison.
The EFF seems to think that people should be allowed to enter into a legal agreement and then for some reason, that they don’t seem to want to explain, should be allowed to violate that agreement just because doing so would allow people to do “really cool shit.” An agreement that is entered into freely, without coercion or duress and violates no existing laws or statutes is a legally binding agreement. Period.
Now last I checked my iPhone didn’t magically meld to my hand the moment I clicked the “I agree” button. I was free to read the EULA and not agree to it and return my phone. I am free to determine now, after the fact, that the terms of the EULA are too restrictive for my taste and ditch my iPhone for a less restricted device. I am free to call bullshit on the EULA to anyone who will listen. What I am not free to do is violate the terms of the agreement I entered into without the consent of all involved parties. I almost got a D in Business Law and even I know that (maybe the EFF will hire me).
To cap it off, they revisit the very tired “modifying your engine” metaphor that has been defeated over and over. Yes, if you own your car you can do whatever the hell you like to it, stupid or dangerous as it may be. If you are leasing it, or it is financed and actually owned by the bank your rights are a little different though, aren’t they? Can you get a nice flame job on that Altima you’re leasing and then just turn it back in at the end of your lease without rebuke? Don’t bother looking that one up; the answer is ‘no’. The metaphor is defeated as simply as this: you don’t own your OS and you don’t have rights to modify it if you have explicitely agreed not to do so. And yet, nobody complains about not being able to get the flame job on their Altima.
When you jailbreak your iPhone you willfully violate the terms of the agreement you entered and you have no legal right to do so. Apple is 100% justified in trying to legally preserve the sanctity of that agreement and the fact that the EFF is trying to nullify it is, legally speaking, reprehensible, regardless of their motives.
Of course, having said all that, most modern EULAs, including the iPhones, are a pile of horse shit, but that’s another post. Last I checked they don’t sell phones to todlers. We’re all big boys and girls. If you don’t like the terms of the agreement, don’t agree to them. If you agree to them, adhere to them.
There are provisions in the DMCA that specifically allow for both academic and compatibility exemptions. The EFF is applying for the later.
EULAs have nothing to do with software directly. You could make someone sign a EULA to buy a car. The difference is that that would be considered preposterous since you OWN the car. What right do they have to tell you what you do with your car?
Software in the iPhone, or any other device can be likened to the internals of a car. Once you own it, you should be able to take parts out, and put others in if you wish (and it wouldn’t cause a public safety hazard). Any digital circuit can be represented mechanically. If it was, and you wanted to tinker with a version of it that you purchased you would have full rights to do so. So to should be the case with software that you own a legal copy of.
The real problem here is the DMCA and our current broken IP laws. Software isn’t owning a car, nor is it like leasing one. It isn’t a physical object. It’s math. It’s an idea. It’s an action. Trying to write laws defining IP like a physical object is like trying to force a sonnet into a square hole.
Likened perhaps, but they are materially different. You do not own the software on your phone or your computer. You own a license to use it in the manner agreed upon between you and the developer. Maybe that isn’t the way it should be, but it is certainly the way it is. The EFF trying to nullify existing legal agreements just isn’t kosher in my book.
That paid, I agree that current IP laws, and the DMCA (which seemingly serves to protect nobody while fucking everybody) are the real problem. THAT is what they should be fighting, not individual EULAs.
yay for blockquotes. I love this theme.
They are not trying to nullify that (well ultimately they ARE trying to change the laws regarding IP, but that is a different discussion), what they are doing is seeking an exemption that is allowed for in the DMCA based on they are providing a way to enable interoperability.
Well by taking advantage of that exemption (and I use the words “take advantage” very deliberately, they’re looking for a loophole) they are serving to undermine an existing good faith agreement that is legally binding. The EFF might care about Utopian ideas, but I am more in favor of free will and capitalism. If you don’t like the EULA don’t buy the product. But don’t think you can just agree to it and then violate it and be justified.
But this is the very purpose of this exemption. It is much like the Fair Use previsions that supersede any desire to prevent any use of their work.
As for EULAs, I’d love to see (other than legal costs) Apple take me to court for installing Qik on my iPhone. My guess is that there is no jury that would find in favor the them.
I bought it. I own it. EOF
Apple isn’t trying to go after any individuals, they are trying to protect their EULA from a VERY broad interpretation of fair use as it applies to licensed software.
You may have bought it, but you don’t own it, and it’s not yours to do with as you please.
Not EOF
I don’t blame them foe trying to protect their EULA in the current economic and legal environment, but I fully support the EFF’s efforts in this, and further hope that this will go to court and see that “broad interpretation” upheld.
No two people I know can disagree more than you and I without ever disagreeing.
Wow, I agree with most everything said here, but you missed my original point entirely – Apple is trying to use the LAW to enforce their monopolistic marketing scheme.
Why in hell should any company be protected from competition by our legal system ??? Especially in this industry, where entrepreneurship and innovation are the building blocks.
I say their tactics are Un-American. We are, after all, a capitalist society.
IF you jailbreak your iphone, Apple has the right to void your warranty and terminate your service. But they don’t have the right to start legal proceedings against you to punish you economically or socially.
And regarding the EFF, they are trying to protect the rights of individuals, not the “rights” of Apple to use taxpayer money to protect their bottom line.
They also look out for the rights of bloggers (http://www.eff.org/issues/bloggers) – that link may be useful some day.
Yer Old Man
Patents are how legally-backed monopolies. They generally are a good things (as long as they expire once the patent owner has had time to make money on the product). That system has been corrupted too with the advent of patent trolls and software patents. Patents were not designed to be used on processes and business models, but on products. The current use of patents as weapons stifles creativity and entrepreneurship. Not only now does a developer have to make sure that all of his/her code is his/her own, but to make sure that he isn’t using any patented technique. This is out of the scope of most small-time developers. Code should be protected by copyright, not patents. This is another thing that the EFF fights.
In my opinion it’s the EFF that is manipulating the legal system to their ends. The exception they are seeking rests on a weak foundation of interoperability that outside the core scope of the DMCA (which is a bucket of shit, for sure).
You both are right though. It is a capitalist society and the legal system shouldn’t be involved in these matters. So here’s my solution. Let Apple write the terms of their EULA for the software they are licensing, as is well established in the software industry, and let people vote with their dollar whether they think the EULA is unfairly restrictive.
Don’t grant excuses for people who willingly and knowingly enter into an agreement and then choose to violate the terms of their agreement.
As to Apple “going after” individuals who are jailbreaking their phones, there are no examples of them doing this, nor is there anything in their history to suggest they would. Apple’s reputation is to go after those who seek to facilitate the circumvention of their restictions and that is what they are doing now.
Remember also that this is doing measurable damage to the product and the brand they invested heavily to establish. Aside from the fact that little old ladies can jailbreak their iPhone to their own demise (a theoretical problem, only geeks are doing it so far) the main problem is that there is a HUGE warez market for iPhone apps now. Developers are developing apps and selling them at a fair price only to have them ripped of and made available for free, installed of course via the jailbreak method. This serves to severely stifle the incentive to develop new iPhone apps which as anyone who owns an iPhone knows, is “where it’s at.”
As much as we can all argue whether Apple has a right to protect the distribution channel they have themselves built can go on all day, and probably will. What too few people are talking about, the EFF included, is the responsibility Apple has to their developers to protect the viability of the business model they have come to rely on.