Under the first factor in Section 107,
it appears fair to say that the purpose
and character of the modification of the
operating system is to engage in a
private, noncommercial use intended to
add functionality to a device owned by
the person making the modification,
albeit beyond what Apple has
determined to be acceptable. The user is
not engaging in any commercial
exploitation of the firmware, at least not
when the jailbreaking is done for the
user’s own private use of the device.
The fact that the person engaging in
jailbreaking is doing so in order to use
Apple’s firmware on the device that it
was designed to operate, which the
jailbreaking user owns, and to use it for
precisely the purpose for which it was
designed (but for the fact that it has
been modified to run applications not
approved by Apple) favors a finding that
the purpose and character of the use is
innocuous at worst and beneficial at
best. Apple’s objections to the
installation and use of ‘‘unapproved’’
applications appears to have nothing to
do with its interests as the owner of
copyrights in the computer programs
embodied in the iPhone, and running
the unapproved applications has no
adverse effect on those interests. Rather,
Apple’s objections relate to its interests
as a manufacturer and distributor of a
device, the iPhone.
Moreover, Congress has determined
that reverse engineering for the purpose
of making computer programs
interoperable is desirable when certain
conditions are met, and has crafted a
specific exemption from Section
1201(a)’s prohibition on circumvention
in such cases. While an iPhone owner
who ‘‘jailbreaks’’ does not fall within the
four corners of the statutory exemption
in Section 1201(f), the fact that he or she
is engaging in jailbreaking in order to
make the iPhone’s firmware
interoperable with an application
specially created for the iPhone suggests
that the purpose and character of the
use are favored.
Turning to the second fair use factor,
it is customary for operating systems –
functional works – to enable third party
programs to interoperate with them. It
does not and should not infringe any of
the exclusive rights of the copyright
owner to run an application program on
a computer over the objections of the
owner of the copyright in the
computer’s operating system. Thus, if
Apple sought to restrict the computer
programs that could be run on its
computers, there would be no basis for
copyright law to assist Apple in
protecting its restrictive business model.
The second factor decisively favors a
finding of fair use.
Turning to the third factor, ‘‘the
amount and substantiality of the portion
used in relation to the copyrighted work
as a whole,’’ EFF admitted that because
the Apple firmware is necessary in
order to operate the iPhone, it is
necessary for individuals who jailbreak
their phones to reuse the vast majority
of the original firmware. However, the
amount of the copyrighted work
modified in a typical jailbreaking
scenario is fewer than 50 bytes of code
out of more than 8 million bytes, or
approximately 1/160,000 of the
copyrighted work as a whole. Where the
alleged infringement consists of the
making of an unauthorized derivative
work, and the only modifications are so
de minimis, the fact that iPhone users
are using almost the entire iPhone
firmware for the purpose for which it
was provided to them by Apple
undermines the significance of this
factor. While the third factor arguably
disfavors a fair use finding, the weight
to be given to it under the circumstances
is slight.
