Arguably, the Librarian of Congress’ (LOC’s) decision yesterday does not apply to the iOS.  The law authorizing the LOC to grant an exemption to Section 1201(a)(1) only permits him to grant such an exemption for non-infringing uses.  However, jailbreaking the iOS is clearly an infringing use, so the decision yesterday simply does not apply to the iOS, because jailbreaking infringes at least on Apple’s Section 106 exclusive rights to make derivatives of its iOS and make reproductions of the iOS.  That infringement takes jailbreaking the iOS outside the scope of yesterday’s declaration by the LOC.

The law also places two other important restrictions on the LOC’s declaration.  First, that law, by its own terms and as stated in the LOC’s declaration of yesterday, may not be used to as a defense to an action to enforce any other provision of Title 17, so Apple is free to prosecute a civil suit for infringement against any one who jailbreaks the iOS.  The criminal provisions of the Copyright also fully apply notwithstanding yesterday’s LOC decision.  And for those, who are considering going into the business of supplying software to jailbreak the iOS, yesterday’s decision, as the LOC said in his decision, does not affect 1201(a)(2)‘s prohibition against trafficking in technologies that circumvent any copyrighted work’s technical measures that prevent copying, which means that a business jailbreaking the iOS would still violate the DMCA for distributing circumvention technologies, even it did so for free.

The LOC did a very interesting and clever thing in his ruling yesterday.  As required by the DMCA, the LOC exemption only applies to classes of works and uses and only for particular uses in that class that are non-infringing uses.  This really avoids the issue of whether any particular use, such as jailbreaking the iOS, falls within the ambit of the ruling.  As I said, supra, I opine that the LOC’s decision yesterday doesn’t apply to jailbreaking the iOS, because, as I understand what involved in jailbreaking, it is an infringing use.  However, I’d reserve final judgment until a complete record is developed in a lawsuit in a court of competent jurisdiction.

The LOC also avoided the tricky issues of whether he even has jurisdiction to make decision apply to the iOS, where, as was the case here, Apple put forward a colorable claim of infringement.  The LOC did that by simply not applying his decision to jailbreaking or any particular use.  Now, the federal courts must decided whether jailbreaking is an infringing use, and, if it is, the LOC’s decision by its own terms and as mandated by the DMCA does not apply to jailbreaking the iOS.

Also, the DMCA does not grant the LOC any authority to permit any person to run copyrighted software on non-licensed hardware in contravention of the license that governs the use of that software.  The relevant Section of the DMCA, 17 U.S.C. § 1201(a)(1), only authorizes the LOC to grant exemptions to 17 U.S.C. § 1201(a)(1)(A) for classes of non-infringing uses.  Section 1201(a)(1) does not grant the LOC any authority with respect to any other provision of the Copyright Act (Act).  Congress carefully made clear in the express language of the DMCA that the LOC has no power that affects any other provision of the Act, which means that he does not have power to affect copyright holder’s Section 106 rights pursuant to the Act.

Daemon:  It is not my position; it is the law.  The LOC may not grant an exemption to an infringing use.  17 U.S.C. § 1201(a)(1)(D) (“The Librarian shall publish any class of copyrighted works for which the Librarian has determined, pursuant to the rulemaking conducted under subparagraph (C), that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected, and the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period.”) and see 17 U.S.C. § 1201(a)(1)(C), which provides, inter alia, that the LOC’s authority is limited to publishing exempt classes of noninfringing use, and 17 U.S.C. § 1201(a)(1)(B), which also makes it clear that the LOC’s authority is limited to noninfringing uses.

So the question becomes whether jailbreaking iOS is an infringing or noninfringing use.  There is little doubt that it is, which is why the EFF and the LOC are banking their hopes on the Fair Use defense.  Fair Use is an affirmative defense—what a law professor of mine called a yes but defense—which concedes that you have infringed but that infringement is okay because you can defend on the grounds that what would otherwise be infringement is Fair Use.  Well, is it?

The court have had a hard time applying the fair use defense in the context of the DMCA’s noncircumvention provision, 17 U.S.C. §1201(a)(1)(A).  As the most authoritative court on matter of IP law said:  “We do not reach the relationship between § 107 fair use and violations of § 1201. The District Court in Reimerdes rejected the DeCSS defendants’ argument that fair use was a necessary defense to § 1201(a), Reimerdes, 111 F.Supp.2d at 317; because any access enables some fair uses, any act of circumvention would embody its own defense. We leave open the question as to when § 107 might serve as an affirmative defense to a prima facie violation of § 1201. For the moment, we note only that though the traditional fair use doctrine of § 107 remains unchanged as a defense to copyright infringement under § 1201(c)(1), circumvention is not infringement.”  CHAMBERLAIN GROUP, INC., v. SKYLINK TECHNOLOGIES, INC., 381 F.3d 1178 at n. 14.  In other words, the Fed. Cir rejected the LOC’s position that fair use is always a defense to infringement for the purpose of achieving interoperability.  What courts have done is apply the four factor balancing test of the fair use to defense to determine on a case by case basis whether it will apply.  Unfortunately, there does not seem to be an on point case that teaches us whether jailbreaking for the purpose of app compatibility qualifies as fair use.

These are the four factors that determine the applicability of the fair use defense:  (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.  I think that Apple can make a very strong case that all of the four factors are strongly in its favor, but without a record, we can moot that point all day, and I don’t have all day. 

And like most things in the law, these four factors must be read with a professional’s understanding of the law.  For example, in this context, the third factor isn’t given much weight, for reasons that I don’t have time to explain, and the same is true for the other three factors.  But have fun with it.  I always find it instructive to see what the laity make of these things.

The bottom line is that until a federal district court of competent jurisdiction holds that jailbreaking the iOS for the purpose of interoperability is fair use, whether the LOC’s recently declaration embraces Apple’s iOS is unknown.