Following the US Copyright Office decision on jailbreaking, i.e. that it’s legitimate to modify a smartphone’s operating system in order to make it interoperable with independently created applications, Computer Weekly’s Warwick Ashford quotes Dai Davis, of the legal firm Brooke North, as follows:
…even if the software is supplied as a licence, EU law clearly provides strong rights to a buyer to require Apple to supply interoperability information … This is provided by the EU Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs.
Logically enough, he argues that there’s no breach of copyright when the jailbreaker is merely modifying the firmware, not making a copy.
However, he goes so far as to suggest that:
“By trying to preclude unauthorised third-party apps, Apple may be in breach of both EU and UK competition laws.”
In Europe, it seems to me, the distinction between buying and licensing software matters less because there is no direct analogue in EU copyright legislation (that I know of) to the Digital Millennium Copyright Act’s provision that “no person shall circumvent a technological measure that effectively controls access”: not, at any right, anything that is so non-specific about the purpose of the circumvention. However, this shouldn’t be confused with the issue of unauthorized access, which is addressed by a variety of US and European legislation.
Nor, of course, does the ruling as regards the DMCA affect the status of the agreement between Apple and the customer, which specifically denies the customer the right to ”copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the iPhone Software”. However, Davis seems to be suggesting that that agreement could be in breach of European anti-competitive legislation, which has implications for many US software companies, not just Apple.
David Harley CITP FBCS CISSP
Mac Virus Administrator
Small Blue-Green World
AVIEN Chief Operations Officer
But definitely not a lawyer…