I read a lot of blogs, and follow a lot of people on Twitter. While the vast majority of these defy easy classification, for some the taxonomy is easy — they are friends, skeptics, comedians (whether they know it or not), science bloggers … and social media/technology “gurus”.
There is a reason why I follow this last group — while social media gurus spout no end of bullshit, as a group they are very tuned in to new technologies and have an excellent nose for finding interesting new technologies and news stories involving current technologies. This sometimes (but sadly not always) outweighs their tendency to be blowhards — they are too often self-proclaimed experts who lack any particular expertise. The requirements for being a social media guru are to be plugged into new technology (and its jargon) and to talk a good game.
So I was a little shocked when one of these gurus — “a consulting firm specialising in emerging technology & digital media” — wrote the following:
Apparently the fact that you can legal break your phone in the US is a cause for much jubilation, well at least for US geeks. How strange.
This particular guru is interesting, as they have a tendency not to take the popular viewpoint — for instance, they think that the Times paywall is a good idea. Because of this, they make for an interesting counterpoint to the constant wall of alleged gurus who do not appear to think for themselves.
Still, not understanding the importance of the decision allowing jailbreaking seemed quite odd to me — it was a tacit admission from this guru that they do not understand the issues involved.
As we are nothing if not kind and understanding know-it-all smartypantses here at the Big Bad Blog, we have decided to explain this geeky jubilation in three steps.
A criminal provision
The Digital Millennium Copyright Act makes circumventing a digital lock a criminal act. Until last week, the generally accepted interpretation was that any digital lock picking, from the use of a felt tip marker to a complicated hack was a violation of this law.
The penalty? Up to five years in prison and a $500,000 fine for the first offense. Double that for repeat offenders.
Just to be clear: If you chain your bicycle to a fence and lost the key, you can cut the chain. Your chain. Your bicycle. Not a crime.
However, under the DMCA (and the above interpretation), if you locked your mobile phone, forgot the code, and hacked it — up to five years in prison. That’s a digital lock you broke.
While it should have clearly delineated the difference between breaking a digital lock in the commission of another offense and breaking a digital lock to get at something you own, it did not.
Perversion of the law
We can see already that a law (however flawed) designed to enforce copyright online — the DMCA — actually applies outside the realms of copyright, and prevents the removal of digital locks for any reason.
With this in mind, several businesses made an ingenious move — they built a business model using the DMCA’s protection of digital locks as their basis.
Phones are locked into a particular provider of phone services, and it is against the law for the owner of the phone to unlock that phone so it can operate under other providers. This increases the cost of switching providers (as law-abiding users need new phones) and creates an artificial financial barrier locking customers in with their current provider.
But Apple is the master of this strategy. Their devices are digitally locked — phones, music players and tablet computers — but not just to a service provider. They are locked into a software package, and require the use of Apple’s iTunes software to operate. They are designed that new software applications can be loaded to them, but locked so that those applications can only be bought in one place.
Apple profits tremendously from this artificially limited competitive landscape, but a large portion of their customer base loses out, as Apple heavily censors what is available from their store.
These tactics appear to have the backing of copyright-protection legislation, despite the locks being ineffectual and there being no copyright to violate in this situation. Circumventing the locks was considered a crime in the United States, and still is considered a crime elsewhere.
The business strategy, however, is rooted in perverting a law meant to protect copyright owners.
Finally, as in the bicycle example above, it comes down to ownership.
If I lose the key to my bicycle lock, I am perfectly entitled to saw the lock of my bike. If I lock myself out of my car, I am perfectly free to call somebody to pick the lock on my door, break the window, or use some other means at my disposal to get into the car.
My bike. My car. My stuff.
I can break it, break into it, and use it how I see fit — so long as I am not committing some other crime by doing so. It might look suspicious, and result in a question or two from a police officer — at least, I hope it would — but it’s all perfectly legal.
Applying that same logic in the digital world, the question becomes who owns my iPhone?
If the answer is Apple owns my iPhone, then fair enough — I should not be allowed to break the locks within the device. I should also have to pay them if I put it in a blender. I would be destroying their stuff, after all.
But if I own my iPhone, then I should be able to do what I want with it, including downloading an alternate Operating System, or unapproved applications. So long as all this software is legally obtained, it should not be anybody’s business but my own. And I should not have to worry about going to prison for it.
This change is good
An all-out, take-no-prisoners digital lock rule was wrong. And rules that are wrong should be changed — this change simply makes breaking locks illegal only when the lock was protecting somebody else’s stuff. Which is how it is with analog locks.
It is hard to see this as a bad thing.
But this is not why the decision makes people happy — courts were not, after all, clogged with bizarre prosecutions under this law.
The decision makes people happy because it tears away the basis of the business practices of companies like Apple, and puts the right to decide what to do with hardware back in the hands of the consumer.
It allows jailbreaking to be something other than the domain of activists protesting against the status quo, and opens up a world of possibility to those who were willing to respect a law, even if it did not make sense.
In short, the jailbreaking geeks were not just geeks — many were making a conscious act of defiance (and risking prison, however faint that risk might have been) in response to a business practice based upon a perversion of law. And they won — this battle, anyways — and winning tends to bring happiness.