THE DIGITAL MILLENNIUM COPYRIGHT ACTS FAILURE TO PREVENT PIRACY AND CAPACITY TO HINDER PROGRESS IN THIS MILLENNNIUM Steven

Helton I. INTRODUCTION

Copyright laws must promote the Progress of Science and useful Arts1 by incentivizing the creation and dissemination of copyrighted works.2 The Digital Millennium Copyright Act (DMCA)

sought to further both ends by prohibiting the creation, distribution and use of technology that circumvents technological measures employed by copyright holders to prevent unauthorized access to their works.3 Many manufacturers of mobile phones, tablets, and video game consoles (platform providers) utilize technological protective measures (TPMs) that prevent users from running unlicensed and infringing copies of software on their platforms.4 This provides third-party copyright owners a more secure platform, which encourages them to disseminate and create

content for that platforms.5 Platform providers utilized TPMs for this purpose prior to the DMCAs enactment, and would continue to do so if it were to be repealed.6 Platform providers claim,7 and the courts appear to agree, that the creation of software that circumvents these TPMs likely violates the DMCAs antitrafficking provision.8 Corporations must act in their shareholders best interest,9 and most platform providers financial interests are better served by allowing circumvention rather than taking steps necessary to prevent it.10 While refraining from utilizing the DMCA to prevent circumvention, these companies simultaneously credit it with their success.11 This note explains how platform providers could utilize the current law to reduce circumvention and all of its negative effects; why they have not; and how, in this context, an

unutilized but available protection hinders creation, dissemination, and access, and offers no countervailing benefit. II. BACKGROUND

With a few exceptions,12 the DMCA prohibits the creation, distribution and use of software that circumvents technological measures that control access to copyrighted work.13 This general proscription was thought to be necessary to grant writers, artists, and other creators of copyrighted material global protection from piracy,14 and readjust incentives altered by digital piracy.15 A. DRM, Protection from Piracy, and the DMCA Copyright owners often digitally distribute their work works with a form of access control referred to as digital rights management (DRM).16 DRM can be used to do things such as cause a file to delete itself after it has been accessed, which allows for digital rentals; or prevent software from running on

a second device if a license only permits it to be installed on one.17 In this context it protect[s] the expectation of copyright holders and encourages dissemination by providing more assurance that their licensing agreement will be respected than a shrink-wrap or click-through promise from consumers can offer.18 An individual who circumvents DRM that prevents an application from fully functioning without a valid software key violates 1201(a)(1)s prohibition of circumvention.19 When he next emails that application to his friend he violate the Copyright Acts prohibition of unauthorized distribution.20 When

he emails the software that he used to circumvent he violates 1201(a)(2)s prohibition of trafficking.21 Because DRM promotes efficiency and dissemination, it was logical to conclude that prohibiting its circumvention would promote dissemination.22

However, the law does not appear to deter individuals from defeating DRM.23 The Copyright Act already prohibited traditional infringement.24 The breach of licensing agreements that restrict the use of copyrighted works had already been held by some courts to constitute infringement, and such agreements were already being written to prohibit circumvention.25 Additionally, the sanctions for violating 1201 and 501 are practically indistinguishable.26 It could have been predicted that individuals undeterred by copyright, contract, ethics, and technology, would remain undeterred from infringement and unauthorized use by the enactment of the DMCA. Rights holders appear no better equipped to bring suits against individuals who circumvent and traffic circumvention software than those who download and distribute unlawful copies of their work.27 If the DMCA reduced access to circumvention technology by removing the financial incentive to create it, its goals could

be furthered.28 Lack of financial incentive, however, has not hindered the creation and distribution circumvention software.29 B. DRM, TPMs, and Protection from Piracy Copyright does not distinguish between computer operating systems (OSs) and computer software.30 Both are treated as literary works.31 Elements of software that are ideas, unoriginal, functional, dictated by efficiency, or in the public domain are not protected; the remaining original expressive fixed elements are.32 The copyright owner of an OS may utilize DRM to prevent users from installing their OS on multiple or unauthorized computers.33 Additionally, the companies that own the copyrights in OSs upon which mobile phones, tablets, and video game operate (platform providers) often build TPMs into multiple levels of their devices OS and firmware in order to prevent users from, inter alia, gaining access to and modifying certain files and

preferences, and running unlicensed, pirated, and potentially malicious software.34 The same TPMs that prevent pirated and malicious software from loading also prevents unlicensed but noninfringing software from loading.35 Copyright owners who utilize DRM often do so to protect their work from unlicensed use on these platforms as well as personal computers (PCs).36 TPMs enhance the value of platform providers copyright by allowing them to ensure a better user experience and generate wider use of the platform.37 A large user base can be monetized in many ways.38 Additionally, TPMs allow them require others that wish to make their work available to a platforms users enter into licensing agreements and pay royalties.39 That TPMs are effective in reducing piracy can be shown by comparing the rate of piracy on platforms where circumvention of the OSs TPMs must occur before pirated and unlicensed software can be installed

(closed), with platforms where this additional step is not necessary (open).40 Microsofts Windows desktop OS is open.41 Works that are

distributed for Windows often contain DRM,42 but Windows does not contain TPMs that prevent unauthorized use or circumvention of these works.43 The softwares DRM is often removed before it is illegally distributed, or the circumvention software needed to do so is distributed alongside the unauthorized copy.44 This download and play simplicity makes unauthorized copying and use fairly easy for Windows users.45 Conversely, video game consoles like Microsofts Xbox 360 are closed.46 Disabling the Xbox 360s TPMs in order to play unauthorized copies of games requires a fair bit of technical knowledge, as well as risks to the consoles hardware.
47

Loading such games on Windows does

not present these risks or costs.48 Unauthorized copies of Windows versions of games are downloaded at a much higher rate

than console versions of the same games.49 The pattern holds true with mobile devices as well. Unauthorized downloading and use occurs at a greater rate on Googles open Android OS than on Apples closed iOS.50 Because of this, many developers refuse to develop or release programs for open platforms.51 Thus, platform providers appear to be correct in their assertion that closed systems that utilize TPMs can increase the availability of . . . copyrighted works by creating a secure platform for distribution.52 Because developers are required to pay royalties, prices are higher on closed platforms,53 and some content is simply not offered or never created.54 C. Platform Providers Business Models, Protection from Piracy, and TPMS Google makes its Android OS freely available to any manufacturer that wants to use Android as their phone or tablets OS.55 Google receives no immediate financial benefit

when a consumer buys an Android device or purchases software through its app store Google Play.56 Android is profitable for Google because it helps Google to better target advertising to users.57 Google uses Androids openness as a way to market Android to tech savvy consumers.58 Because Googles primary goal is attracting more users, it does not prevent users from installing software from any source onto their phone or tablet.59 Google compromises Androids openness by allowing hardware manufacturers to utilize TPMs to increase their own profits.60 This presumably increases the number of Android manufactured, and thus in use.61 Manufacturers that use Android and sell hardware below cost use TPMs to block access to competing sources of content.62 The vast majority of desktop and laptop computers run on either Microsofts Windows Desktop OS (Windows) or Apples Mac OS X (OS X). Both Windows and OS X are open.63 Microsoft makes

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money by licensing Windows to computer manufacturers and consumers. Apple is the exclusive manufacturer of computers that run OS X (Macs),64 which it sells above cost.65 Apple is also the exclusive manufacturer of the iPhone, iPad, iPod Touch, and Apple TV, which are the only devices that are authorized to utilize Apples iOS.66 It generated $67 billion in revenue in 2011 by selling those four products,67 which are sold well above the cost of production.68 iOS is closed, and Apple receives a 30% of all licensed iOS software, and all content sold through iOS apps.69 It also generates income through targeted advertising like Google, related hardware sales, and by selling its own software.70 Apples revenue selling Macs, iPhones and iPads is nearly twenty times greater than its revenues from selling its own and third-parties copyrighted works.71 The business model for iOS devices and Macs is essentially the same, but Apple appears to

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leave Mac open and iOS closed because it is today customary for [computer] operating systems to enable interoperability, and users do not necessarily expect this of their phones.72 Circumventing TPMs in the iOS in order to use unlicensed and pirated software is as easy for a user as connecting an iOS device to a computer and running a program.73 Companies that own the OSs that video game consoles utilize also exclusively manufacture the console itself.74 Most consoles are sold at a loss when they are initially released, and costs are recouped through software and media royalties, software sales, and the sale of peripherals.75 The TPMs in consoles appear to be considerably more difficult to circumvent than those in mobile devices,76 and the manufacturers appear more vigilant in using judicial and non-judicial means to prevent circumvention.77 D. Circumvention of Technological Protections Digitally Distributed

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Computer programs that circumvent or bypass TPMs on mobile phones, tablets, and videogame consoles are commonly referred to as jailbreaks.78 They essentially work to make a closed platform

open.79 Jailbreaking enables users to make greater customizations, install homebrew software, install alternative app stores, play back up copies of games, and engage in piracy.80 Jailbreaks for iOS81 and Android,82 and Sony,83 Microsoft84, and Nintendos85 video game consoles are easily located and freely distributed online.86 Most users who jailbreak their devices are too technologically unsophisticated87 to create technology to circumvent these TPMs on their own.88 Jailbreak developers create technology that makes jailbreaking fairly simple for users.89 The same five to ten people or teams are primarily responsible for developing jailbreaks for any given platform, and for updating them when the platform provider updates its platform to defeat

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their previous method of circumvention.90 Disabling these jailbreaks through system updates is a cat and mouse game.91 If approximately a hundred or so individuals who currently develop jailbreaks were prevented from doing so, closed platforms, once updated to defeat current jailbreaks, would linkely remain closed for longer than they do today.92 Jailbreak developers make little, if any attempt to remain anonymous.93 Platform providers are either aware of their identities,94 or could easily obtain them if they so chose.95 Platform providers could utilize the DMCA to prevent the creation of new jailbreaks,96 and thus increase their own royalties from software and protect third-parties from piracy.97 The Analysis explores the disconnect between platform providers claimed need for the DMCA to promote the goals of copyright, and their failure to utilize it to serve those ends. III. ANALYSIS

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The DMCA can be viewed as a policy determination that the benefit of protecting copyrighted works from unauthorized and infringing use outweighs the detrimental effect of ceding control over access to those works to platform providers. However, platform providers do not effectively utilize the DMCA to protect third-party creators.98 The law therefore has all of the costs associated with concentrating power in those who often benefit when work is not created, accessed, or technologically protected, with few of the benefits of strengthened copyright protection for third-parties. Because an increasing amount of copyrighted content is being accessed from platforms controlled by fewer and fewer companies,99 the DMCA will have an increasingly detrimental effect on the creation and dissemination of novel works, and the availability of alternative sources from which to access all works.

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A.

Non-Legal Reasons the Civil Justice System is Not Used to Prevent Jailbreaking When the music and movie industries sue individuals who

illegally download, they are suing their customers in a general sense;100 the defendant likely purchases music when she is not stealing it, but did not purchase the music she is being sued for having stolen.101 However, if a platform provider were to bring suit against an individual for jailbreaking, it would literally be suing its customer; the defendant purchased plaintiffs product. Those who develop jailbreaks are among a platforms most engaged and enthusiastic customers.
102

They are

young, not profit motivated, and would likely make sympathetic defendants.103 Exemptions, lawsuits, and the creation of new jailbreaks lead to news stories, which increase awareness of the jailbreak, and likely results in increased jailbreaking.104 On the flip side of the coin, news stories bring publicity to the platform, and

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advertise new, previously unavailable features to potential customers.105 A platform is only closed to the extent that its owner believes that it see greater profits from increased royalties and a better user experience than it will from selling the platform itself.106 One means of selling a platform is a high quality integrated user experience.107 Another means involves allowing greater customization at the expense of the integrity of the platform; allowing rampant piracy at the expense of third-parties; and allowing greater access to more content at the expense of exposing users to malicious software.108 With jailbreaking, platform providers attempt to have it both ways. Mainstream consumers [] enthusiastically enjoy[] the benefits of a closed platform,
109

buy the platform, and pay

the provider royalties for third-party content. Platform providers allow a small number of hobbyists110 to develop and

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distribute jailbreaks to users who prefer open platform for both legitimate and illegitimate reasons. If a consumer wants a device with an OS that can interoperate with independent applications, the consumer can purchase an unlocked Android device [or a PC].111 Because of jailbreak developers, this consumer can also purchase an iPad, iPhone, Xbox 360, Playstation 3, or Wii.112 The platform may lose some software royalties to piracy or unlicensed software, and some developers may abandon the platform,113 but the net benefit of additional users often outweighs the detriment of subsidiz[ing] purchases of devices for unintended uses.114 Users generally choose to obtain software from the platform provider even when they are able to pirate software or obtain it from alternative sources without circumvention;115 royalties are not the only way platform providers recoup costs;116 and the hardware itself may be sold for large profit.117

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Because platform providers control the difficulty of circumvention,118 as well as when to disable a particular method of circumvention,119 that jailbreaks are often developed in months by teenagers, and remain functional months after their dissemination,120 signals a begrudging tolerance towards openness.121 B. Platform Providers Support of the DMCA Platform providers have consistently opposed Rulemakings initiated by the Copyright Office that seek comment on whether to exempt circumvention of their platforms TPMs for limited purposes.122 In doing so, Apple, Microsoft, Sony, and Nintendo have laid out their reasoning regarding why the DMCA promotes progress by increasing access to and the creation of copyrighted works. The DMCA was enacted to promote[s] the flow of copyrighted material to the public.123 It does so not only [by] preventing

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piracy and other economically harmful unauthorized uses of copyrighted materials, but also [by] support[ing] new ways of disseminating copyrighted materials to users124 and by supporting business models that make use of TPMs to increase access and dissemination. They argue that the DMCA has encouraged copyright holders to make more work available on their platforms.125 Because mainstream consumers are enthusiastically enjoying greater access to copyrighted work than ever before in history, and much of this access is occurring from their platforms, the DMCA has been successful in its goals.126 If the DMCAs prohibition of circumvention were repealed, some copyright owners might stop offering their content [on closed platforms] altogether, and others might opt to restrict the content made available through these platforms.127

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These arguments fail to distinguish between the use of TPMs to promote creation and dissemination, and the benefits the DMCA offers in proscribing circumvention of those TPMs. In doing so, platform providers attempt to confuse correlation with causation. More individuals enjoy more access to copyrighted works today than ever before in history128 because the world is more populated than ever before129 and technology continues to advance,130 so more people exist and have greater opportunity to both create and access more creative works. Because more creative work receives protection than ever before131 and the duration of that protection has increased;132 works which in previous decades would be in the public domain are today copyrighted works that individuals may access. TPMs likely encourage some third-parties to create and disseminate content that is more expensive to create, which can benefit consumers and promote progress. However, this does not equate to increased

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access overall.133 Platform providers deserve credit for their productive use of TPMs, for attracting users, and for creating innovative platforms. However, the DMCA has not been utilized to prevent piracy on closed platforms,134 and third-party copyright holders are likely aware of this.135 As such, the DMCA does not deserve the credit platform providers try to give it. Platform providers also claim that if it were not illegal to circumvent a platforms TPMs, users would be encouraged to circumvent.136 This encouragement would enable and encourage widespread content theft and piracy.137 Individuals who wait for an activity to become legal before engaging in it may jailbreak their iPhones,138 but they do not pirate software.139 If more jailbreaking occurs because news stories of the exemption result in increased awareness that the possibility of piracy exists, it is logical to argue that exemptions increase piracy. However, if

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the DMCAs sole means of promoting progress is preserving ignorance then it is probably bad law. That an exemption is virtually certain [to cause] successful hackers [to] create tools that enable even novice users [to jailbreak]140 ignores the fact that successful hackers have already created these tools, without the guise of the exemption, and despite the fact that trafficking cannot be authorized through rulemaking.141 Platform providers have not utilized the DMCA to prevent this, and the law itself does not appear to deter.142 It is also claimed that jailbreaking necessarily results in infringement of the platform providers rights to reproduce and create derivatives of their OSs.143 If this analysis is correct, then the DMCA is superfluous, and platform providers are fully equipped to prevent trafficking and circumvention without its protections.144

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For the DMCA to have any of its claimed benefits, it would need to reduce circumvention that decreases incentive, dissemination, and access. This could, but has not occurred. A survey of its actual use demonstrates this. C. Where Platform Providers Have Utilized the DMCA Psystar, a computer manufacturer circumvented TPMs within Apples Mac OS X, which enabled it to install Mac OS X on nonApple computers.
145

This allowed it to sell non-Apple computers

with Mac as the OS.146 Apple was successful in obtaining a permanent injunction and damages for Psystars violation of 1201(a).147 Apple also threatened to bring a DMCA action against a company that marketed software that modified Apples iDVD software, and allowed Mac users to burn DVDs using third-party DVD burners.148 The company immediately stopped selling the software.149

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Apple uses its OSs and other software to sell Apple-branded hardware.150 It makes sense economically for Apple to take legal measures to prevent others from selling non-Apple branded hardware that utilize its OSs and software, which it has done.151 Apple markets the ability to run PC software on Macs;152 it takes legal measures to prevent the opposite from occurring.153 Because jailbreaking does not undermine, and may actually enhance Apples ability to sell iPhones and iPads,154 Apple has not taken action against individuals who manufacture and distribute jailbreaks.155 In its personal computer and mobile business, Microsoft sells or licenses software as well as its Windows OSs, but does not sell computers or phones.156 It utilizes the DMCA to prevent the circumvention of DRM that enable companies to sell unauthorized copies of its Windows and Office software.157

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Like Apple, video game console manufacturers own their platforms OS, and exclusively manufacture their console, as well as some other related hardware.158 These companies have utilized traditional copyright laws and the courts to prevent companies from offering software that emulates their platform,159 as well as to prevent game developers from offering unlicensed games that function on their consoles.160 Microsoft has invoked the DMCA to prevent third parties from offering unlicensed hardware that functions with its Xbox 360 consoles.161 Console manufacturers also invoke the DMCA to prevent the sale and distribution of mod chips. Mod chips are similar to jailbreaks in that they circumvent consoles TPMs and allow users to play unlicensed and pirated games.162 In the mid-2000s Sony was apparently so successful in bringing 1201(a)(2) actions against companies that sell Playstation mod chips163 that it was able to disrupt their availability, and was also able to

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obtain multimillion dollar enhanced statutory damages and injunctions against the defendants for their violations of the DMCA.164 Nintendo has also utilized the DMCA to prevent the sale and distribution of mod chips.165 D. The Theoretical Use of the DMCA to Prevent Jailbreaking 1. Establishing Unlawful Circumvention

The Circuits disagree on the extent of 17 U.S.C. 1201(a)s prohibition.166 At a minimum, a plaintiff must

establish it utilized a technological measure that effectively controlled access to copyrighted work, that the defendant circumvented this technological measure, and that it was harmed as a result.167 A technological measure controls access if it ordinarily requires the application of information, or a process or a treatment . . . to gain access to the work.168 In the ordinary course of [] operation TPMs in closed platforms require the

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application of encrypted sequences designed by the owner of the operating system to prevent unauthenticated software from gain[ing] access to the devices firmware and OS.169 Operating systems and firmware are thinly protected literary works.170 The TPMs within them control whether a user may access more expressive works.171 There is disagreement among the Circuits regarding the extent of 1201(a)s prohibition.172 Platform providers endorse the Ninth Circuits stricter standard prohibiting circumvention of all TPMs that control access to a copyrighted work,173 even where the circumvention does not enable access to elements of a work protected by copyright.174 The Federal and Sixth Circuits have held that the circumvention of TPMs that control access to purely functional elements of a copyrighted work is not prohibited 1201,175 and the DMCA prohibits only forms of access that bear a reasonable

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relationship to the protections that the Copyright Act otherwise affords copyright owners.176 The Sixth Circuit distinguished Lexmark from Sony v. Gamemasters.177 TPMs in ink cartridges that prevent cartridges from printing only control access to something purely functional: printing.178 Because copyright does not protect

purely functional aspects of works,179 1201(a) does not prohibit their circumvention.180 In Gamemasters, the Sixth Circuit held that TPMs that prevent game consoles from loading legally purchased, but region locked games, do control access to at expressive elements copyrighted works: video games.181 That circumvention did not enable infringement was irrelevant to the analysis.182 The acts of printing, opening a garage door, and clicking a ballpoint pen are not protected by copyright;183 operating systems, video games, and the works within them are.184

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Commentators have argued that even if a particular jailbreak was held not to violate the DMCA, a platform provider could simply change how its authentication sequence works in ways that courts would protect.185 It would likely not come to

that, especially due to the fact that any suit would likely be brought in the Ninth Circuit.186 2. Establishing That Jailbreak Developers Unlawfully Manufacture Technology in Violation of 1201(a)(2)

17 1201(a)(2) prohibits manufacturing, making available, or otherwise trafficking any technology...that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a copyrighted work.187 Mod chips and jailbreaks circumvent a platforms TPMs in essentially the same way.188 Mod chips are physical devices that cost money to manufacture, ship, and purchase.189 Once a mod chip is impounded it no longer facilitates circumvention. Once a

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platform is updated, a jailbreak no longer works.190 Jailbreaks are distributed freely online.191 Because of this, they almost certainly enable more circumvention than mod chips. Jailbreaks require users to supply their own hardware to circumvent; mod chips do not, but both are technologies used to circumvent.192 Jailbreak developers primary purpose is to create technology that enables others to circumvent a platforms TPMs, in order to make the platform more open.193 Courts do not consider a defendants nobler purpose for having created the software.194 Even where the act of jailbreaking has been exempted from 1201(a)(1)s prohibition, one who provides to tools for those uses still violates 1201(a)(2).195 In the absence of a defense or statutory exemption, all jailbreak developers who traffic in devices that circumvent rights controls necessarily facilitate infringement necessarily violate 1201(a)(2) and (b).196 Jailbreaks necessarily enable

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infringement.197 Whether s plaintiffs design choice to require that a jailbreak enable infringement in order to enable interoperability weighs against finding liability has not been decided.198 When George Hotz became the first person to jailbreak the Playstation 3, Sony became the first platform provider to bring suit against a jailbreak developer.199 Sony sells the console at a considerable loss,200 and was apparently motivated by its perception that jailbreaking and piracy lead to the failure of its portable console, its PSP platform.201 Sony claimed irreparable harm,202 and magnified this harm by bringing the action,203 and by its attempts to stop Hotzs jailbreak and its derivatives from functioning.204 The court ordered a preliminary injunction and held that success on the merits was likely.205 Rather than pressing forward to obtain a judgment for damages and potentially deterring future attempts to jailbreak its

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consoles, Sony settled with Hotz for his promise that he would never again hack a Sony products.206 Hotz was either done jailbreaking anyway, or the publicity from the suit enabled him to land him a coveted job with Facebook.207 Either way its safe to say the end result has deterred few if any from developing jailbreaks.208 That this is the closest a jailbreaking suit has ever come to being fully litigated indicates that the DMCA can only be used by platform providers to prevent commercial circumvention and trafficking. 3. Mainstream Companies Offer to the Public, Provide, or Otherwise Traffic Technology That Violates 1201(a)(2)

Parties that link to circumvention software violates 1201(a)(2) when: those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology.209

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Major newspapers and magazines like The New York Times210 and PC World211 provide instructions and links to jailbreaks that enable their readers to circumvent. Stores like Amazon sell books on how to do so.212 There is an obvious tension between proscribing linking to circumvention technologies on one hand, and fair use and the First Amendment on the other.213 However, the DMCA has been held constitutional in this context.214 Google has a page specifically designed to allow copyright holders injured by circumvention software to report the site and have it removed from Googles search results.215 However, when one searches Google for any platforms jailbreak, the original source of the jailbreak continues to appear towards the top of the page.216 That the tools necessary to jailbreak are accessible from mainstream sources raises doubt about platform providers actual interest in preventing jailbreaking. At the least it highlights

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the fact that the DMCA grants rights to platform providers that they are unable or unwilling to receive. E. Use of Technology Instead of the DMCA to Prevent Circumvention Technology, not the law, is the most effective tool for keeping a platform closed. The strength of the Playstation 3s TPMs prevented circumvention for five years.217 It is apparently becoming increasingly difficult to jailbreak the iOS.218 Circumvention of the Xbox 360 requires difficult hardware modifications.219 Platform providers frequently push updates that disable previously working jailbreaks.220 Access to services are often withheld until the update is downloaded and installed.221 Jailbreak developers in turn find new ways to jailbreak the platform.222 Steve Jobs described the process as a cat-and-mouse game.223 People [] try to break in, and it's our job to stop them breaking in."224 Jobs apparently did not consider the courts

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to be a viable option.225 Platform providers more invested in software royalties may take steps to punish users who have circumvented.226 F. Legal Response to a DMCA Action Against Jailbreakers The software licensing agreements (SLAs) that iOS,227 Playstation,228 Nintendo,229 and Xbox230 users must agree to before they are able to activate their device precludes them from jailbreaking. Despite their adhesive nature, these SLAs are generally upheld.231 Users who jailbreak their devices are in breach of contract,232 and may also be considered to have infringed.233 Those who induce others to breach their SLAs may be liable for contributory infringement and tortious interference with contract.234 Like the DMCA, SLAs are only used by platform providers in a defensive posture,235 or when a breach threatens their business model.236 Contract, tort, and traditional copyright law may provide each platform provider the apparent

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legal authority to prevent circumvention and the distribution of tools that interfere with that right.237 These SLAs may also create an affirmative defense for those accused of circumvention or trafficking. The affirmative defense of copyright misuse prevents a plaintiff from prevailing in an action for infringement of its copyright where it has attempted to use its copyright to secure an exclusive right or limited monopoly not granted by the Copyright Office and which it is contrary to public policy to grant.238 A copyright holder that conditions a license to use its copyright on a promise not to use competitors products misuses its copyright.239 A misused copyright is rendered

unenforceable during its period of misuse.240 Platform providers frequently face allegations of misuse when they bring civil

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actions against those who circumvent for traditionally noninfringing purposes.241 In defense of a 1201(a) claim, a jailbreak developer would likely contend that the platform provider had misused its copyright by leveraging the copyright in its OS and its SLA to force developers to accept the terms of its SLA, and to deny customers the ability to access content from competing sources. The plaintiff leveraged its copyrights to become the exclusive outlet for all copyrighted works available from the platform. This offends public policy and discouraged progress by hampering the development of novel software otherwise unavailable on the platform. The DMCA is only violated when a TPM controls access to a protected work.242 Because a misused copyright is left unprotected,243 no violation of the DMCA occurred. In Psystar copyright misuse had not occurred when Apples SLA restricted the installation of Mac OS X exclusively to Apple

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computers.244 As a copyright owner, Apple had the right to limit the use of its copyright.245 The exact opposite occurs when a platform provider uses its copyrights to prevent developers from putting their copyrighted software on its OS. Platform providers do not use their copyright to prohibit[] others from independently developing and using their own operating systems.246 Nor do they, in a broad sense, control competition in an area outside the[ir] copyright.247 They do however restrict competitor's [sic] ability to develop their own software that functions within their operating system, preclude customers from using [for example] non-Apple components with Apple computers,248 and condition the grant of a license on their customers promise not to use competitors' products, while using their platform.249 More and more copyrighted works are being accessed from computers that utilize only a handful of operating systems.250 A

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court could hold that a platform providers use of its copyright to block or collect a toll from other copyright owners offends public policy, the goals of copyright, and extends the platform providers limited monopoly well beyond that which was ever intended.251 It may also hold that progress is hindered by restrictive TPMs and SLA used to require consumers to purchase multiple devices when only one is necessary to run all software. On the other hand, equitable decisions must weigh the public interest, which could be disserved by removing some incentive to develop new platforms where new works can be enjoyed.252 Even a small chance at a narrow holding of misuse is likely not worth the benefits of stopping one jailbreak developer. One cannot argue the affirmative defense that a copyright has been misused when the rights associated with were not invoked. By not triggering these claims through the enforcement of their legal

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rights, platform providers retain substantially all control that they currently enjoy. G. The DMCA Conflicts with Goals of Copyright and Antitrust Copyright law balances the need to motivate creative activity of authors and inventors through the grant of exclusive rights with the public's need for access to creative works.253 If the DMCA is a copyright law, it grants additional monopoly power to platform providers without providing any offsetting benefit to Progress. The denial of this right to the public therefore violates the laws constitutional command.254 If the DMCA is a law that solely seeks to regulate commerce, then it conflicts with antitrust principles by injuring competition while protecting a few individual competitors that possess substantial market power.255 Companies that rely on royalties to sell their platform below cost are more effective at preventing circumvention.256

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This is not because they utilize the DMCA to prevent circumvention, but because they are motivated to create TPMs that are more difficult to circumvent. If one assumes they

truly would prefer users buy an open platform rather than jailbreaking their platform, but do not do so because of possible negative consequences, their arguments in support of the DMCA highlights that it is not necessary to motivate them create platforms,257 or for third-parties to disseminate works on their platforms.258 Game console manufactures sold consoles below cost before the DMCA was enacted,259 and used early forms of TPMs to collect royalties.260 Increased access to circumvention technology has coincided with platform providers ability to remotely defeat that technology.261 Because platform providers must act in the best interest of their shareholders, they cannot utilize the law to prevent the

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circumvention of their own platforms, and thus cannot protect the works of others from infringement or unauthorized use. The tolerance of circumvention ends when the benefit of attracting users who desire a more unlicensed content is outweighed by the cost of competition or loss of control.262 Established companies cannot distribute software through the same channels as less established developers without provoking a legal challenge by the OSs owner.263 Apple receives 30% of all sales initiated from iOS apps, and prevents apps from linking to websites where sales can be made through a browser without a royalty,264 making it economically unfeasible to sell music, films, books, and magazine subscriptions through iOS apps.265 It also refuses to sell e-books that contain links to purchase physical copies of books from competitors.266 When Apple instituted this policy, most parties that offered this type of content simply removed

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the ability to purchase it from within their iOS app.267 One would assume that these apps would be made available through alternative channels if doing so did not present a legal threat. It is unlikely that the ability to make in-App will be factor into a consumers choice to purchase an Android or an iPhone. Therefore, any sales funneled to iTunes or iBookstore because purchasing the same content from competing outlets is more difficult has no offsetting cost to Apple. Apple would likely contend that it is reaping the reward copyright offers to incentivize creation. Apple is not incentivized to create and update its OSs to sell content.268 After securing a large and loyal user base, it has simply realized that it can supplement profits without harming its ability to sell phones and tablets.269 It is difficult to rationalize how copyrights goals are served by incentivizing conduct that makes it more difficult for consumers to access

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copyrighted works and less likely that creators can profit from the works theyve created.270 It is debatable whether Apples actions violate traditional antitrust law,271 but it is harder to make a case that copyright law should bolster these efforts. All closed platforms use technology to block content that they cannot directly profit from when that content is not needed to draw users to their platform, and blocking that content may increase sales that they can directly profit from.272 All that

the DMCA has done in this context is remove the options of those who may make investments sufficient to create works that generate significant royalties.273 They can no longer shift distribution to alternative channels if a platform providers royalty rate or licensing restrictions become unreasonable.274 Thousands of homebrew apps for the Xbox 360 and Playstation 3 exist,275 and millions of iOS users have installed the alternative app store Cydia on their iPhones, iPods, and

45

iPads.276 That mainstream software or media companies do not offer content through these channels despite obvious incentives to do so indicates that the DMCA has hindered dissemination, access, and creation. The additional layer of protection offered by the DMCA discourages instances of circumvention that would result would be progress, while doing very little to discourage instances of circumvention that lead to piracy. IV. CONCLUSION

We are told that tablets and smart phones are replacing PCs and laptops;277 game consoles are replacing traditional entertainment devices like DVD players and cable;278 and apps are replacing the web.279 Platform providers already have an uncomfortable amount of power over what types of content we may be offered, and what content we may easily access.280 From the 1930s through the mid-1960s mainstream filmgoers enthusiastically enjoyed [a] greater variety of

46

[films] . . . than before in history,281 with vertically integrated studios and theatres, and the self-imposed Motion Picture Production Code preventing the production of morally ambiguous films.282 The break up of the integrated system lead to competition from independent theatres, which eventually lead the Codes abandonment.283 This allowed producers to invest in films that were previously economically unfeasible to create because there were not enough theatres in which they could be shown.284 Audiences in the fifties were likely captivated by CinemaScope, color, and 3D, but the removal of some studio power in the late 1960s lead to an explosion of creativity.285 People are only interested in jailbreaking a platform because they like the platform.286 All of these companies create incredibly innovative and interesting products, which is the ultimate reason that jailbreaking occurs.287 At the same time, these companies are the vertically integrated studio-theatres of

47

today. The difference being that most make their money from concessions and advertising, and have little motivation to stop patrons from sneaking into the films so long as they buy popcorn and watch commercials. They do not necessarily need to be broken up, but we do not promote progress by increasing their respective influence over their platforms, or by vesting them with a power they do not need and will not use positively. The DMCA highlights the error in affording operating systems the same protection as software, and software essentially the same protection as other creative works. Platform providers are in technologically and legally the most efficient position to prevent circumvention and piracy. They should, and will do what is in their own best interests. It is irrational, however, to offer afford companies that have a demonstrated tolerance of activities which decrease incentives, additional monopoly power that is used to hinder access,

48

competition, and innovation. 1 U.S. CONST. art. I, 8, cl. 8; Eldred v. Ashcroft, 537 U.S. 186, 212 (2003); Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6, (1966); Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349 (1991).
2

Golan v. Holder, -U.S.-; 132, S.Ct. 873, 888-89 (2012) 17 U.S.C. 1201(a) (West 2012); S. REP. NO. 105190, at 59, 65

(1998); Information Infrastructure Task Force, United States, Intellectual Property And The National Information Infrastructure: The Report Of The Working Group On Intellectual Property Rights, 230 (1995), available at http:// www.uspto.gov/web/offices/com/doc/ipnii/ipnii.pdf [hereinafter White Paper] ([P]rohibition of devices . . . that defeat technological methods of preventing unauthorized use . . . furthers the Constitutional purpose of copyright laws [because]

49

 the price of legitimate copies of copyrighted works may be higher due to infringement losses suffered by copyright owners. The public will also have access to more copyrighted works [if] they are not vulnerable to [circumvention].
4

See generally Joint Creators and Copyright Owners Comments in

re Exemption to Prohibition of Copyright Protection Systems for Access Control Technologies, No. RM 2011-7 (U.S. Copyright Office 2012) available at http://www.copyright.gov/1201/2012/comments/Steven_J._Metalitz.p df [hereinafter Joint Creators Comments]
5

See, e.g., id. at 9 (The willingness of rights holders in this . largely

wide range of works to license their works . .

dependent on . . . a secure environment.); Responsive Comment of Apple, Inc. in Opposition to Proposed Exemption 5A and 11A (Class #1) at 9, In re Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies,

50

 No. RM 2008-8 (U.S. Copyright Office) [hereinafter Responsive Comment of Apple] ([T]he number and quality of applications written to run on [a] platform . . . is related to . . . the availability of safe and secure means of distributing these applications to consumers.).
6

Joint Creators Comments, supra note 4, at 4 (Copyright owners

have used these measures for many years, long predating the enactment of the [DMCA], and will continue to do so whenever conditions warrant.).
7

See, e.g., id. at 4 n.1. 17 U.S.C. 1201(a)(2); See discussion infra Part III.D. See, e.g., Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 360

(Del. 1993) (directors are charged with an unyielding fiduciary duty to protect the interests of the corporation and to act in the best interests of its shareholders.).
10

See discussion infra Part III.H-I.

51

 11 See generally Joint Creators Comments, supra note _.

12

17 U.S.C. 1201(a)(1)(B), (d)-(j); 37 C.F.R. 201.40 (2010). 17 U.S.C. 1201(a). William J. Clinton, Statement on Signing the Digital

13

14

Millennium Copyright Act, (Oc. 28, 1998) available at http://www.presidency.ucsb.edu/ws/index.php?pid=55169#axzz1jf4J9 TW7.

15

Statement of Bruce A. Lehman, S. 1284 & H.R. 2441 (1995),

available at http://www.uspto.gov/web/offices/com/doc/ipnii/niihill.html.
16

R. Anthony Reese, Will Merging Access Controls and Rights

Controls Undermine the Structure of Anticircumvention Law?, 18 Berkeley Tech. L.J. 619, 620 (2003).
17

Christian H. Nadan, Software Licensing in the 21st Century:

Are Software Licenses Really Sales, And How Will the Software Industry Respond?, PRACTICING LAW INSTITUTE, PLI Order No. 19037

52

 (Feb-Apr. 2009) (license manager software code can limit the use of software in a number of ways, such as preventing the software from working on other than a single computer, causing the software to stop working after exceeding a specified length of time or by allowing only a specified number of concurrent users.).
18

Ed Foster, In Defense of DRM, INFOWORLD (Jul. 25, 2006),

http://www.infoworld.com/d/adventures-in-it/in-defense-drm-305
19

17 1201(a); Davidson & Associates v. Jung, 422 F.3d 630, 641

(8th Cir. 2005).

20

17 U.S.C. 106(c), 501(a); Vault Corp. v. Quaid Software

Ltd., 847 F.2d 255, 262 (5th Cir. 1988).

21

1201(a)(2); Universal City Studios, Inc. v. Corley, 273 F.3d

429, 456-68 (2d Cir. 2001).

22

Lehman, supra note __.

53

 23 See Reuven Ashtar, Licensing as Digital Rights Management, from the Advent of the Web to the iPad, 13 YALE J. L. & TECH. 141, 155 (2011) ([M]embers of the public seem to either misunderstand the meaning of circumvention or deem it generally permissible.). See also Adam Dachis, How Youre Breaking the Law Everyday, LIFE HACKER (Feb. 27, 2012), http://lifehacker.com/5888488/how-youre-breaking-the-law-everyday-and-what-you-can-do-about-it (Website operated by AOL instructing readers If you're breaking copy protection . . . without sharing it, it's virtually impossible for anyone to find out. It's also very unlikely that you'd prosecuted for breaking copy protection solely for personal use.).
24

17 U.S.C. 106, 501. Metro-Goldwyn-Mayer Distributing Corp. v. Bijou Theatre Co.,

25

59 F.2d 70, 77 (1st Cir. 1932) (holding that a violation of a licensing agreement constitutes copyright infringement); Atari

54

 Games Corp. v. Nintendo of Am., Inc., 897 F.2d 1572 (Fed. Cir. 1990) (Nintendos licensing agreement with developers prohibited reverse engineering).
26

Compare 17 U.S.C. 501 with 17 U.S.C. 1203, 1204. See sources cited infra, note 28. Rights holders have been

27

somewhat successful in preventing the commercial distribution of circumvention technologies. See, e.g., Realnetworks, Inc. v. DVD Copy Control Ass'n, Inc., 641 F. Supp. 2d 913 (N.D. Cal. 2009); 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F.Supp. 2d 1085 (N.D. Cal. 2004).
28

See Realnetworks, 641 F. Supp. 2d 913 (enjoining large

software and media company from distributing circumvention software necessary to rip DVDs to ones hardware); see also discussion infra Part III.B on platform providers use of the DMCA to upset mod chip market.

55

 29 DeCSS software may is freely available online from multiple sources. See, e.g., HANDBRAKE, http://handbrake.fr/ (last visited Dec. 12, 2011). It is also available for sale through mainstream sources. See, e.g., Xilisoft DVD Ripper Platinum Version 6, AMAZON, http://www.amazon.com (search: Xilisoft DVD Ripper) (last visited Feb. 12, 2012).
30

See Joint Creators Comments, supra note __, at 20 n.32

([N]othing in the Copyright Act indicates that [operating systems] are less deserving of protection than other works.) (citing MAI Systs. Corp. v. Peak Computer, Inc., 991 F.2d 511(9th Cir. 1993); Apple Computer, Inc. v. Formula Intl. Inc., 725 F.2d 521 (9th Cir. 1984)).
31

See, e.g., Formula Int., 725 F.2d at 523-25; Franklin Computer

Corp., 714 F.2d at 1253-54 (operating systems are entitled to copyright protection as literary works).

56

 32 17 U.S.C. 102(b); Computer Associates Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 707-08 (2d Cir. 1992) (elements in computer software that are dictated by efficiency and external constraints are not protected against copying);
33

Psystar, 658 F.3d at 1153; Microsoft Corp. v. EEE Bus. Inc.,

555 F. Supp. 2d 1051, 1059 (N.D. Cal. 2008).

34

See, e.g., Joint Creators Comments, supra note _ at 15;

Responsive Comment of Apple, supra note _ at 7-8; Complaint for Injunctive Relief and Damages Based on Violations of the Digital Millennium Copyright Act. Sony Computer Entmt America, LLC. v. Hotz, et. al., 2011 WL 147657 (N.D. Cal. 2011)[hereinafter Sonys Complaint Against Hotz].
35

See Joint Creators Comments, supra note _, at 29 (all known

methods for circumventing game console TPMs necessarily eliminate the measures ability to preclude the play, reproduction and distribution of infringing content.).

57

 36 See WIDEVINE, Multiplatform DRM http://www.widevine.com/drm.html (last accessed Feb. 26, 2012) (DRM service available across PC mobile and other platforms); Erik Brudvig, Digital Rights Management and Xbox Live, IGN (Feb. 29, 2008), http://xboxlive.ign.com/articles/855/855763p1.html.
37

Joint Creators Comments, supra note _, at 28. See discussion infra Part II.C. Sony Complaint v. Hotz, supra note _. Matthew Ingram, Open vs. Closed: In the Ongoing Battle Over

38

39

40

Control, How Much is Too Much?, GIGAOM (Apr. 20, 2010) http://gigaom.com/2010/04/20/open-vs-closed-in-the-ongoingbattle-over-control-how-much-is-too-much/. In reality the difference between open and closed platforms is not nearly so binary. For example, platforms that are considered open may prevent certain types of software from loading, or make users take additional steps in order to load software from third-party

58

 sources. Platforms that are considered close often still allow users to access the world wide web, from which they may access content and HTML apps not available from the platforms official app and media stores.
41

Peter Bright, Oh, the Humanity: Windows 7s Draconian DRM, ARS

TECHNICA (Feb. 18, 2009), http://arstechnica.com/microsoft/news/2009/02/oh-the-humanitywindows-7s-draconian-drm.ars.

42

E.g., Jash Lowensohn, Ubisofts Controversial always on PC

DRM Hacked, C|NET NEWS (Apr. 21, 2010), http://news.cnet.com/830127076_3-20003120-248.html.

43

Bright, supra note _. Kyle Orland, Console Game Piracy vs. PC Game Piracy, GAME THEORY

44

(Aug. 30, 2010), http://gametheoryonline.com/2010/08/30/consolepiracy-pc-game-pirate/.

45

Id.

59

 46 Id.
47

Id.; XBOX SCENE, More on Live Bans, HDD Crippling, Possible Ban

Causes, http://www.xboxscene.com/xbox1data/sep/EkVZyEFyFpeyBGdGIN.php (last visited Dec. 28, 2011).

48

Bright, supra note 36. Koroush Ghazi, PC Game Piracy Examined, TWEAK GUIDES (Dec. 2010)

49

http://www.tweakguides.com/Piracy_1.html.
50

Craig Chapple, Android App Pirated 2,300% More Than iOS

Edition, DEVELOP (Oct. 11, 2011), http://www.developonline.net/news/38848/Android-app-pirated-2300-more-than-iOSedition.

51

See, e.g., CNN, Googles Android Piracy Problem (May, 26,

2011), http://money.cnn.com/video/technology/2011/05/09/ctd_playfirst_c eo_android.mov.fortune/ (interviewing major iOS developer

60

 cautious about Android development); John Robertson, Despite the Bitching, Piracy Means I Am Alive is Not Likely on PC, INC. (Nov. 23, 2011), http://www.incgamers.com/News/29694/despitethe-bitching-piracy-means-i-am-alive-is-not-likely-on-pc (Quoting major game publish, because theres so much piracy and so few people are paying for PC games a PC port of a popular console game would not be created).
52

Joint Creators Comments, supra note __, at 28. Rick Lane, Is PC Gaming Really More Expensive than Consoles?,

53

IGN (Dec. 13, 2011), http://pc.ign.com/articles/121/1214544p1.html

54

See discussion infra Part III.I.2. See, Eric Chu, Android Market: Now Available for Users, ANDROID

55

DEVELOPERS (Oct. 22, 2008), http://androiddevelopers.blogspot.com/2008/10/android-market-now-availablefor-users.html; Adrian Kingsley-Hughes, How Much Money Does

61

 Google Make from Mobile?, ZDNET (Oct. 16, 2011), http://www.zdnet.com/blog/hardware/how-much-money-does-googlemake-from-mobile/15539.

56

Id. Erik Sherman, Android Crushes iPhone, Makes Google $5 Billion,

57

CBS NEWS (Dec. 21, 2011), http://www.cbsnews.com/8301-505124_16257346049/android-crushes-iphone-makes-google-$5-billion/ (estimating that Google makes $20 per year for every Android user).
58

Nick Saint, Google Android is Only Open if Youre the Phone

Company, CNN (Oct. 29, 2011), http://www.cnn.com/2010/TECH/mobile/10/29/google.open.android/in dex.html.

59

Timothy B. Lee, How I Learned to Stop Worrying and Love the

App Store, ARS TECHNICA, Oct. 16, 2011, http://arstechnica.com/tech-policy/news/2011/10/the-

62

 iconstitution-how-to-protect-user-freedom-in-an-app-storeworld.ars.
60

Saint, supra note _. Google Annual Report, supra note __. Amazon sells its Android tablet, the Kindle Fire below cost in

61

62

order to guide its users to purchase e-books, videos, and music through Amazon. Ironically, but somewhat expectedly, Kindle

Fire users cannot access Googles Market unless they circumvent the Fires TPMs. Andrew Rassweiler, Kindle Fire Costs to Manufacture,
ISUPPLI

$201.70

(Nov. 18, 2011),

http://www.isuppli.com/Teardowns/News/Pages/Amazon-Kindle-FireCosts-$201-70-to-Manufacture.aspx Alex Wawro, How to Install the

Android Market on Your Kindle Fire, PCWORLD (Nov. 28, 2011), http://www.pcworld.com/article/244474/how_to_install_the_android _market_on_your_kindle_fire.html.

63

 63 Ghazi, supra note _. It does utilize TPMs to protect its own software and OS from unlicensed use. See, MICROSOFT, Protect Yourself from Piracy, http://www.microsoft.com/piracy/mpa.aspx (last visited Feb. 8, 2012); Zach Whittaker, OS X Mountain Lion Unifies Software Update Into Mac App Store, ZDNET (Feb. 16, 2012), http://www.zdnet.com/blog/btl/os-x-mountain-lion-unifiessoftware-update-into-mac-app-store/69728. NEILSON MAC / WINDOWS NUMBERS
64

Psystar, 658 F.3d at 1160. E.g., Michelle Malsto, Apple's $600 Mac Mini Costs Nearly $400
EWEEK

65

to Make, Says iSuppli,

(Jun. 6, 2009),

http://www.eweek.com/c/a/Desktops-and-Notebooks/Apples-600-MacMini-Costs-It-Nearly-400-to-Make-Says-iSuppli163404/?kc=EWKNLNAV06302009STR2.
66

WIKIPEDIA, iOS, http://en.wikipedia.org/wiki/IOS (last visited

1/12/12).

64

 67 APPLE PRESS INFO, Apple Reports Fourth Quarter Results, (Oct. 18, 2011) http://www.apple.com/pr/library/2011/10/18Apple-ReportsFourth-Quarter-Results.html.
68

For example, the least expensive iPhone 4S costs $196 to

produce, and is sold to consumers without a service contract for $649. See, Chloe Albanesius, How Much Does It Cost to Make the

iPhone 4S?, PC MAG (Oct. 20, 2011); APPLE STORE, http://store.apple.com/us/browse/home/shop_iphone/family/iphone/ iphone4s (last accessed Feb. 12, 2012).
69

APPLE, Distribute Your App - iOS Developer Program,

http://developer.apple.com/programs/ios/distribute.html (last visited 1/12/12).

70

APPLE PRESS INFO, supra note _. Id. Apple made $25,787,000,000 in computer and iOS hardware

71

sales in the third quarter of 2011, compared to $1,325,000,000 from iTunes, App Store, and iBookstore.

65

 72 Joint Creators Comments, supra note __, at 20 fn 32. But see Whittaker, supra note _ (By default, the next version of Mac OS X will only allow installation of software through Mac App Store and other trusted sources. This can be changed by the users to completely close system and only allow installation through Mac App Store or to open the platform and all installation of software from all sources.
73

See, JAILBREAKME 3.0, http://www.jailbreakme.com/# (last visited

Feb. 12, 2012).

74

See, e.g., Sonys Complaint Against Hotz, supra note _. John Sterman, et. al. Sonys Battle for Video Game Supremacy,

75

MIT SLOAN TEACHING INNOVATION RESOURCE (Dec. 8, 2011), available at https://mitsloan.mit.edu/MSTIR/systemdynamics/SonysBattle/Pages/ default.aspx; Don Reisinger, Sony Still Losing Money on Every PlayStation 3 It Sells, C|NET, (Feb. 5, 2010), http://news.cnet.com/8301-13506_3-10448137-

66

 17.html?part=rss&subj=news&tag=2547-1_3-0-20; but see Eric Bangeman, Wii No Loss Leader, Says Nintendo, ARS TECHNICA (Sep. 15, 2006), http://arstechnica.com/gaming/news/2006/09/7752.ars (Microsoft and Sony have historically sold their consoles as loss leaders. Both the Xbox and PlayStation 2 cost more to build than they sold for at launch. Nintendos Wii sells above cost and is easier to jailbreak than the Xbox of Playstation.). See infra note _.
76

It took five years for Sonys Playstation 3 to be Antone Gonsalves, Sony Sues Hacker Over PS3

circumvented.

Jailbreak, INFORMATION WEEK. Jan. 13, 2011, http://www.informationweek.com/news/security/attacks/229000603. Users must make physical alterations to their Xbox 360 to circumvent TPMs. THE TECH GAME, How to Flash Your Xbox 360, http://www.thetechgame.com/Tutorials/id=1568/how-to-flash-yourxbox-360-lt-20.html (last accessed Feb. 12, 2012).

67

 77 See, e.g., discussion infra Part III.B; note 44; MAJOR NELSON, Xbox 360 Console Bans (Nov. 4, 2009), http://majornelson.com/2009/11/04/xbox-360-console-bans/ (Microsoft commenting on the necessity of banning modified Xbox 360s from Xbox Live); More on Live Bans, HDD Crippling, Possible Ban Causes, supra note _; Jeff Rubenstein, Official Statement Regarding PS3 Circumvention Devices and Pirated Software, PLAYSTATION.BLOG (Feb. 16, 2011) http://blog.us.playstation.com/2011/02/16/official-statementregarding-ps3-circumvention-devices-and-pirated-software/
78

See Joint Creators Comments, supra note _, at 18, 24. The term

jailbreak is generally applied to software that circumvents TPMs within iOS, Playstation, and Nintendo Wii. root their Android and Users general All

flash or mod their Xbox.

refer to circumvention of their platforms TPMs.

For the sake

68

 of simplicity all will be referred to as jailbreaks. See infra, notes __-__.

79

See, e.g., Jason Koebler, Sony, Microsoft Battle Hackers Over

Right to 'Jailbreak' Video Game Systems: Hackers Ask the U.S. Copyright Office for The Right to Modify Powerful Video Game Consoles, U.S. NEWS & WORLD REPORT (Mar. 1, 2012), http://www.chicagotribune.com/news/sns201203011028usnewsusnwr201202290229jailbreakingmar01,0,5164629.s tory
80

Id. (Thousands of amateur game makers began to create

"homebrewed" software that could be played on modified Playstation or Xbox systems. Thousands of pirates modified their systems to play "backup" copies of commercial games.);
81

JAILBREAKME, supra note _ (providing instructions and software

necessary to jailbreak iOS devices to play unlicensed and pirated games).

69

 82 Robert Strohmeye, Root Android the Easy Way, PC WORLD, Sep. 14, 2010, http://www.pcworld.com/businesscenter/article/205336/root_androi d_the_easy_way.html (instructing how to root ones Android device, and providing links to software necessary to do so).
83

Comment of Sony supra note __ at13 (Today even novice users

can obtain [the PS3 jailbreak].); PS3 JAILBREAK COMMUNITY, Downloads Here, Jan. 21, 2012, http://www.ps3jailbreaking.com/download-section/downloads-here/ (providing instructions and software necessary to modify the Playstation 3 to play unlicensed and pirated games).
84

Daniel Terdiman, Microsoft Bans 1 Million Xbox Live Players,

CNN, Nov. 12, 2009, http://articles.cnn.com/2009-1112/tech/cnet.xbox.live.ban_1_banned-modern-warfareinformationweek?_s=PM:TECH (Microsoft bans a million jailbroken consoles from Xbox Live in a day); XBOX-SCENE, Xbox 360 Tutorials,

70

 http://www.xboxscene.com/xbox360-tutorials.php (last visited Feb. 26, 2012) (providing instructions and software necessary to modify the Xbox 360 to play unlicensed and pirated games).
85

THE TECH GAME, How to Jailbreak a Wii in 6 Easy Steps (Jan. 29,

2011), http://www.thetechgame.com/Forums/t=809634.html (providing instructions and software necessary to modify the Wii to play unlicensed and pirated games).
86

See supra notes 81-84. Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d

87

294, 324 (S.D.N.Y. 2000)

88

See, e.g., Josh Stephens, Jailbreak iPhone4S, iPad 2:

Absinthe Brings Untethered Jailbreak To Apples A5 Devices, HUFFINGTON POST (Jan. 23, 2012), http://www.huffingtonpost.com/2012/01/23/jailbreak-iphone-4sipad-2-absinthe_n_1224074.html (discussing how most recent jailbreak for iOS took a dream team of most prolific jailbreak

71

 creators ten months to complete. "The endless war we fight to jailbreak has become more and more difficult with each new device released.); Gonsalves, supra note _ (discussing how it took five years for Playstation 3 to be jailbroken).
89

See supra notes 81-84. See, e.g., iOS Jailbreaking, WIKIPEDIA,

90

http://en.wikipedia.org/wiki/IOS_jailbreaking (last visited Dec. 21, 2011) (comex, iPhone Dev Team, and George Hotz responsible for being the first to jailbreak the first nine iterations of iOS).
91

Gregg Keizer, Jobs Says Apple Will Fight iPhone Unlocking

Hacks, PC WORLD (Sep. 8, 2007), http://www.pcworld.com/article/137330/jobs_says_apple_will_fight _iphone_unlocking_hacks.html.

92

See, e.g., Stephens, supra note __.

72

 93 George Hotz appeared on CNN after being the first person to jailbreak the iPhone, and G4TV after being the first person to jailbreak the PS3. YOUTUBE, George Hotz @ CNN, http://www.youtube.com/watch?v=Wh3VqA1sp40 (last visited Dec. 21, 2011); Sony vs GeoHot Hacker Lawsuit (Jan 11, 2011) http://www.g4tv.com/videos/50733/sony-vs-geohot-hacker-lawsuit/. Some appear on television, the radio, or give interviews to major newspapers, and use their real names. E.g., Yukari Iwatani Kane, How I Spent My Summer: Hacking Into iPhones with Friends: Teens Bond by Jailbreaking the Mobile, WALL STREET JOURNAL, at A1, July 7, 2009. John Freeman operates jailbreakme.com as well as the Cydia alternative app store which itself traffics circumvention software, writes letters to the Copyright Office, in which he provides his address. Comment of Jay Freeman (Saurik) (Copyright Office, 2012).

73

 94 See, e.g., Andy Greenberg, Apple Hacker Extraordinaire Comex Takes an Internship At Apple, FORBES (Aug. 26, 2011), http://www.forbes.com/sites/andygreenberg/2011/08/26/applehacker-extraordinaire-comex-takes-an-internship-at-apple/ (Apple hires prolific jailbreak creator as a summer intern);
95

Dan Goodin, Sony Wins Subpoena Revealing Visitors to PS3

Jailbreak Site, THE REGISTER (Mar. 5, 2011) http://www.theregister.co.uk/2011/03/05/geohot_visitors_unmasked

96

See, e.g., discussion infra Part III.D.1. See discussion Parts II.B, III.A. See discussion infra Part III.C. See notes _-_.[Bogaty-Zittrain | in conclusion]. James M. Burger, "Rock 'n Roll Is Here to Stay": Napster and

97

98

99

100

Online Music Distribution, 19-SPG Comm. Law 1, 36 (2006).

74

 101 E.g., Arista Records LLC v. Does 1-27, 584 F. Supp. 2d 240 (D. Me. 2008).
102

Iwatani, supra note _. Id. Joint Creators Comments, supra note _, at 4, 7; David

103

104

Kravets, U.S. Declares iPhone Jailbreaking Legal Over Apples Objection, WIRED (Jul. 26, 2010), http://www.wired.com/threatlevel/2010/07/feds-ok-iphonejailbreaking/ (announcing exemption); Gonsalves, supra note _.
105

See, e.g., Koebler, supra note _. For example, Microsofts commitment to combat piracy and

106

support safer and more secure game play compels it to take action against users who jailbreak their Xbox 360s. MAJOR NELSON, supra note _. In the mobile realm preventing piracy, safety, and security is worth $9 dollars to Microsoft. Bright, supra note

75

 __. On Windows users can engage in piracy and be exposed to malicious software and keep their $9. Ghazi, supra note __.
107

Comment of Apple, supra note _, at 10. Tom Spring & Robert Strohmeyer, Head to Head: iPhone v.

108

Android, PC WORLD (Jan. 30, 2011), http://www.pcworld.com/article/2181044/head_to_head_iphone_vs_android.html (discussing the benefits and detriments of Android); NIELSEN WIRE, In U.S. Smartphone Market, Android is Top Operating System, Apple is Top Manufacturer (Jul. 28, 2011), http://blog.nielsen.com/nielsenwire/online_mobile/in-u-ssmartphone-market-android-is-top-operating-system-apple-is-topmanufacturer/ (Googles Android operating system (OS) now claims the largest share of the U.S. consumer smartphone market with 39 percent.).
109

Joint Creators Comments, supra note __, at 7.

76

 110 Comment of ESA, supra note _, at 6 (purported frustrations of a small number of hobbyists); Joint Creators Comments, supra note __, at 29 (accommodating the frustrations of a disproportionately small segment of hobbyists who prefer [open platforms]).
111

Joint Creators Comments, supra note __, at 26. See citations supra notes __-__. Dille, supra note _. Joint Creators Comments, supra note __, at 20. Google sells

112

113

114

Android at a loss: $0. Console manufacturers may be harder hit by unintended uses due to the cost of production. See Discussion supra Part II.C.3.
115

APPLE PRESS INFO, Apples Mac App Store Downloads Top 100

Million (Dec. 12, 2011), http://www.apple.com/pr/library/2011/12/12Apples-Mac-App-StoreDownloads-Top-100-Million.html; GOOGLE OFFICIAL BLOG, 10 Billion

77

 Android Market Downloads and Counting (Dec. 6, 2011), http://googleblog.blogspot.com/2011/12/10-billion-androidmarket-downloads-and.html.

116

See, Discussion, supra Part II.C. See citations, supra note _. Joe Linhofff, Video Games and Reverse Engineering, 3 J.
ON

117

118

TELECOMM & HIGH TECH L. 209, 228 (2004).

119

Peter Smith, Kindle Fire and Nook Tablet Both Get Upgraded

with Reduced Functionality, IT WORLD (Dec. 21, 2011), http://www.itworld.com/mobile-wireless/234809/kindle-fire-andnook-tablet-both-get-upgraded-reduced-functionality.

120

Stephens, supra note _. This does not appear to be true of Sony, which has taken

121

aggressive steps to prevent users from jailbreaking their Playstation 3s. However, it could be argued that the Playstation 3 was sold so far below cost to subsidize Blu-ray disc format,

78

 and enable it to prevail over HD DVD. Sterman, supra note _. Now that this has been accomplished, the ability to attract users who desire a more open platform truly does not outweigh the expense of selling more consoles below cost. Eric Bangeman, Format Wars: Blu-Ray to Come Out on Top, ARS. TECHNICA (Oct. 10, 2006), http://arstechnica.com/hardware/news/2006/10/7947.ars. Compare, Koebler, supra note _ (In 2006 . . . a vice president of Sony said the Playstation 3 is a computer. We do not need a PC [because the PS3 supports Linux].) with Comment of Sony, supra note _ at 39-40 (suggesting in 2012 that users who want to create and play homebrew games can install Linux on a PC that they attach to their televisions).
122

Comment of the Entertainment Software Alliance in Opposition

to Proposed Class 3, No RM 2011-07, at 2 (Copyright Office 2012) (representing all major platform providers in opposition to exemption in 2012), available at

79

 http://www.copyright.gov/1201/2012/comments/Lindsey_Tonsager.pdf [hereinafter Comment of ESA]; Responsive Comment of Apple, supra note ___, at 1 (opposing exemption in 2008); Initial Comments of Sony Computer Entertainment America, in re Exemption to Prohibition on Circumvention of Copyright Protection Systems

for Access Control Technologies, No. RM 99-7 (U.S. Copyright Office 2000) (opposing exemption in 2000).
123

Joint Creators Comments, supra note __, at 8 Joint Creators Comments, supra note __, at 29. Id. at 6. Id. at 6-7; Comment of ESA, supra note _, at 5. Comment of ESA, supra note __, at 36. Joint Creators Comments, supra note __, at 6-7. The worlds population was 5.9224B in 1998, when the DMCA was

124

125

126

127

128

129

enacted, compared to 6.8045B in 2012. See GOOGLE PUBLIC DATA EXPLORER, Population,

80

 http://www.google.com/publicdata/explore?ds=d5bncppjof8f9_&met_y =sp_pop_totl&tdim=true&dl=en&hl=en&q=world+population (last accessed Feb. 16, 2012)

130

See, e.g., Ashtar, supra note __, at 177-78. See, 17 U.S.C. 201(a); U.S. COPYRIGHT OFFICE, Circular 1, (Jul. 12, 2006),

131

Copyright in General, 3-4

http://www.copyright.gov/help/faq/faq-general.html ([Today] Copyright is secured automatically when the work is created. Before 1978 federal copyright was generally secured by the act of publication with notice.).
132

See, e.g., Copyright Term Extension Act of 1998, 17 U.S.C.

108, 203(a)(2), 301-304.

133

TPMs are often used to increase costs to consumers and

creators, and thus decrease access. Discussed infra, Parts II.B, III.H.2.
134

See discussion Part III.B.

81

 135 See Peter Dille, Sony: PSP Piracy Levels Are Sickening, KOTAKU (Apr. 21, 2009), http://kotaku.com/5221988/sony-psp-piracylevels-are-sickening. Sonys senior vice president of marketing said, third-party publishers were "just about ready to jump off the cliff and pull support for the [the PSP]" due to piracy, despite the fact that circumvention of the PSPs TPMs was necessary for piracy to occur, and this circumvention was prohibited by the DMCA. See discussion infra Part III.C.
136

Joint Creators Comments, supra note __, at 4, 7. Comment of ESA, supra note __, at 17; Responsive Comment of

137

Apple, supra note _, at 10. Piracy harms not only not only the owner of the pirated work, but also the platform provider. They also contend that they are unfairly forced to subsidize their users purchase when users purchase content and software unlicensed sources. Joint Creators Comments, supra note _, at 22. This is argument calls for wasteful duplication of economic

82

 and environmental resources, and also divorces the argument from goals of copyright. If the goal is more creation, software is created for platforms that would not be created if circumvention were not possible. If the goal is dissemination and access, fewer people will have access to both unlicensed and licensed content because not everyone will purchase separate platforms for licensed and unlicensed work. See discussion Part III.G.-H.
138

37 C.F.R. 201.40(b)(2). 17 U.S.C. 105, 501. Jailbreaking causes users to void

139

their warranty and breach their licensing agreements. Comment of Sony, supra note _, at 59. However, these are problems platform providers manufacture when they write their warranty and licensing agreements.
140

Comment of Sony, supra note __, at 2. 17 U.S.C. 1201(a)(1)(E); See supra notes Discussed, supra Part III.D. __-__;

141

142

83

 143 Responsive Comment of Apple, supra note ___, at 12; Comment of ESA, supra note _, at 19.
144

17 U.S.C. 105, 501 (making the unauthorized reproduction,

distribution, and creation of derivative works an act of infringement,

145

Psystar Corp, F. Supp. 2d at 947 (Psystar replaced a part of

Mac OS X called a bootloader, which runs when a computer first turns on and locates and loads portions of the operating system into random access memory. Without a bootloader, Mac OS X would not operate. Psystar also disabled and/or removed Mac OS X kernel extension files and replaced them with other kernel extension files. Psystar's modifications enabled Mac OS X to run on its non-Apple computers.)
146

Id. Id. at 953. The utilization of the DMCA was actually

147

unnecessary because the damages and injunction were also granted

84

 based on Psystars violation of Apples exclusive right of distribution and reproduction. Psystar purchased a license of Mac OS X for each computer upon which it was installed. The Mac OS X software licensing agreement (SLA) prohibited Mac OS X licensees from installing Mac OS X on non-Apple computers. Psystars violation it from invoking the first sale doctrine and caused it to infringe. Apple was also successful in claims for trademark infringement and dilution, breach of contract, and unfair competition. Id. at 933-47, 956.
148

Declan McCullagh, Apple: Burn DVDs-And Well Burn You, C|NET

(Aug. 28, 2008), http://news.cnet.com/2100-1023-955805.html

149

Id. Chris Thompson, Why Hasnt Apple Introduced Bootcamp for OS X on PCs, QUORA (July 13, 2011),

150

Running

http://www.quora.com/Why-hasnt-Apple-introduced-Bootcamp-forrunning-OS-X-on-PCs.

85

 151 McCullagh, supra note __ (Matt Deatherage, a former Apple employee . . . said Apple's legal threat reflects the company's

underlying business strategy: If iDVD is useful only on internal drives, people may buy more computers.)
152

APPLE PRESS INFO, Apple Introduces Bootcamp, Apr. 5, 2006,

http://www.apple.com/pr/library/2006/04/05Apple-Introduces-BootCamp.html.
153

See generally Psystar, 673 F. Supp. 2d 943. See discussion infra Part III.G. Max Chafkin, iPhone Apps You Wont Find on iTunes, INC. MAGAZINE

154

155

(Dec. 1, 2009), http://www.inc.com/magazine/20091201/iphoneapps-you-wont-find-on-itunes.html (Wendy Seltzer, a fellow at Harvard's Berkman Center and an expert in Internet law and intellectual property [said] it's hard to see Apple suing over jailbreaking unless its business model is threatened.").

86

 156 Jenny Williams, What Does the Future Hold for Microsofts Business Model, Computer Weekly (Nov. 2011), http://www.computerweekly.com/feature/What-does-the-future-holdfor-Microsofts-business-model.
157

See, Microsoft Corp. v. Silver Star Micro, Inc., 1:06-CV-

1350-WSD, 2008 WL 115006 (N.D. Ga. 2008); EEE, 555 F. Supp. 2d at 1052.
158

JOSEPH LAMPEL, JAMAL SHAMSIE, & THERESA K. LANT, THE BUSINESS

ON

OF

CULTURE:

STRATEGIC PERSPECTIVES
159

ENTERTAINMENT

AND

MEDIA 79-80 (2005).

See Sony Computer Entm't, Inc. v. Connectix Corp., 203 F.3d

596 (9th Cir. 2000) (Company that created software that enabled users to play Playstation games on their PCs and Macs did not infringe Sonys copyright or dilute its trademark).
160

See, e.g., Sega Enters. Ltd. v. Accolade, Inc. 977 F.2d 1510

(9th Cir. 1992); Atari, 897 F.2d at 1574-75.

87

 161 See Datel Holdins LTD. v. Microsoft Corp., 2010 WL 3910344 (N.D. Cal. Oct. 4, 2010). When Microsoft pushed a system update to the Xbox 360 that disabled third-party peripherals from functioning, the manufacturer of these peripherals claimed a violation of antitrust. To dispose of the action, Microsoft counterclaimed that the plaintiff had violated 1201(a)(2) because its peripherals had circumvented TPMs that prevent third-party peripherals from functioning. The case has not been fully adjudicated. Datel Holdings Ltd. v. Microsoft Corp., 712 F.Supp. 2d 974 (N.D. Cal. 2010).
162

See, e.g., XBOX-SCENE, Modchips Generation 1, http://xbox-

scene.com/modchips1.php (last accessed Feb. 23, 2012).

163

Sony Computer Entm't Am., Inc. v. Filipiak, 406 F.Supp. 2d

1068, 1070 (N.D. Cal. 2005) (Mod chips are computer chips that circumvent the technological copyright protection measures in

88

 PlayStation consoles and allow users to play unauthorized and illegal copies of PlayStation video games).
164

See id. at 1071 (discussing other unpublished cases in which

Sony, Microsoft, and Nintendo had brought actions against mod chip suppliers, successfully drying up the market for the HD Loader); Sony Computer Entm't Am., Inc. v. Divineo, Inc., 457 F. Supp. 2d 957, 959 (N.D. Cal. 2006); Filipiak, 406 F. Supp. 2d 1068 at 1071; Gamemasters, 87 F. Supp. 2d 976, 981, 990 (N.D. Cal. 1999).
165

See, e.g., Nintendo of Am. Inc. v. Chan, CV 09-4203JFW

(PLAX), 2009 WL 2190186 at 4-5 (C.D. Cal. 2009). One could logically argue that the DMCAs success in reducing the number of mod chips distributed alone justifies its existence. However, the console manufacturers that received damages were not the parties who lost the majority of revenue caused by piracy enabled by the circumvention. This again shows how the DMCA

89

 skews in favor of those who own valuable platforms at the expense of those who create and disseminate content that makes those platforms valuable. Additionally, modern platforms do not require specially designed hardware for circumvention to occur. See discussion supra part II.D. If the DMCA is not used to prevent digitally distributed circumvention technology, then it will not prevent infringing and unauthorized uses of third-party content in the future.
166

Compare Chamberlain Group Inc. v. Skylink Tech., 381 F.3d

1178, 1202-03 (Fed. Cir. 2004); and Lexmark Int. v. Static Control Components, 387 F.3d 522, 545-547 (6th Cir. 2004) with MDY Industries, LLC v. Blizzard Entmt, Inc., 629 F.3d 928, 949 (9th. Cir. 2010).
167

17 U.S.C. 1201(a), 1203. 1201(a)(3)(B)

168

90

 169 1201(A)(3)(B). The legislative history specifically identifies authentication schemes as being a measure that effectively controls access. H.R. NO 105-551(II), 37, 1998 WL 414916, 39. Sonys Playstation 3 contains a series of encrypted keys at in layers of its firmware and operating system. The firmware will not load the operating system unless the operating system contains a matching encrypted key. Only discs licensed by Sony or downloaded through Sonys online store contain a matching key. The firmware and operating system prevent software that does not contain an encrypted key from opening. Sonys Complaint Against Hotz, supra note _. Apples iOS uses

three levels of TPMs: a TPM within the devices read only memory ensures that the a bootloader originated from Apple when the device is turned on; the bootloader then verifies that the operating system originated from Apple; and the operating system and bootloader ensure that all applications that a user attempts

91

 to run from iOS originated from Apple. If the bootloader, operating system, or program did are modified or replaced, they will not load. Responsive Comment of Apple, supra note __, 7-8.
170

17 U.S.C. 102(b); See, e.g., Altai, 982 F.2d at 707-08 (2d

Cir. 1992) (elements in computer software that are dictated by efficiency and external constraints are not protected against copying); Formula Intl, 725 F.2d at 523-25; Franklin Computer Corp., 714 F.2d at 1253-54 (operating systems are entitled to copyright protection).
171

See, e.g., U.S. v. Chan, 2009 WL 2190186 (C.D.Cal 2009). Compare Chamberlain, 381 F.3d at 1202-03; and Lexmark, 387

172

F.3d at 545-547 with MDY, 629 F.3d at 949.

173

Joint Creators Comments, supra note __, at 8. MDY, 629 F.3d at 950 (circumventing access restriction in

174

online video game that prevents users from allowing the computer to essentially play for them and cheat is prohibited by

92

 1201(a), because the game itself is protected by copyright, even though the TPM did not control access to an element that is otherwise copyrightable).
175

Chamberlain, 381 F.3d at 1184, 1202-03 (circumventing TPM

that prevents garage door openers made by third parties from opening plaintiff manufactured garage doors does not violate 1201(a) since opening a garage door is purely functional); Lexmark, 387 F.3d at 546-47 (circumvention of authentication sequence that prevented third-party ink cartridges from working with plaintiffs printer did not violate 1201(a) because the TPM did not control access to the literal copyrightable software on plaintiffs printers, only the functional elements that caused the printer to work with an ink cartridge).
176

Chamberain, 381 F.3d at 1202. Lexmark, 387 F.3d at 547. Id. at 539.

177

178

93

 179 17 U.S.C. 102(b).

180

Id. at 539. Gamemasters, 87 F. Supp. at 987-88. Id. Lexmark, 387 F.3d at 549 Id. Michael K. Cheng, iPhone Jailbreaking Under the DMCA: Towards

181

182

183

184

185

a Functionalist Approach in Anti-Circumvention, 25 Berkeley Tech. L.J. 215, 240 (2010).

186

See, e.g., Sonys Complaint Against Hotz, supra note _

(bringing 1201(a)(1) claim in California against New Jersey resident). The administrative costs associated with using the courts to enjoin individuals from jailbreaking would make doing so illogical. Dachis, supra note _. Additionally, jailbreaking mobile phones to enable interoperability is currently exempted from the DMCAs prohibitions. 37 C.F.R. 201.40(b)(2).

94

 However, showing that a technology can be used to violate 1201(a)(1) is a necessary step to showing a violation of 1201(a)(2). Trafficking may not be exempted by the Library of Congress. 1201(a)(1)(E).
187

17 U.S.C. 1201(a)(2). Sonys Complaint v. Hotz, supra note _ (describing

188

Playstation 3 jailbreak) with Complaint for Damages and Injunctive Relief, Sony Computer Entmt America, LLC. v. Zoomba LDC; 2010 WL 3459391 (N.D.Cal. 2012) (describing Playstation 3 mod chip).
189

Filipiak, 406 F.Supp. 2d at 1070. Keizer, supra note _. See supra, notes 81-84. 17 U.S.C. 1201(a)(2) (No person shall . . . traffic any

190

191

192

technology . . . primarily designedfor the purpose of circumventing a technological measure that effectively controls

95

 access to a [protected work.]) (emphasis added); Sony Computer Entm't Am. LLC v. Hotz, CV11 0167, 2011 WL 347137 (N.D. Cal. Jan. 27, 2011)(defendant likely violated trafficking prohibition when he freely distributed jailbreak). Mod chip retailers may be able to satisfy a monetary judgment. Such a prospect that seems unlikely with jailbreak developers, due to their youth and the fact that they do not sell their software. Filipiak, 406 F.Supp. 2d at 1070; Kane, supra note _.
193

E.g., Hotz, 2011 WL 347137 E.g., Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.

194

2d 294, 310, 346 (S.D.N.Y. 2000) (holding that a defendant who distributes decryption code to enable others fair use of protected films violates 1201(a)(2)).
195

17 U.S.C. 1201(a)(1)(E) Chamberlain, 381 F.3d at 1195.

196

96

 197 Joint Creators Comments, supra note _, at 29 (all known methods for circumventing game console TPMs necessarily eliminate the measures ability to preclude the play, reproduction and distribution of infringing content.)
198

Koebler, supra note _. See Chamberlain 381 F.3d at 1200 n.14

([B]ecause any access enables some fair uses, any act of circumvention would embody its own defense. We leave open the question.)
199

Sonys Complaint Against Hotz, supra note _. Reisinger, supra note _. Dille, supra note _. Complaint for Injunctive Damages Based on Violations of the

200

201

202

Digital Millennium Copyright Act, supra note _.

203

Catharine Smith, Facebook Hires Hacker George Hotz, HUFFINGTON

POST (Jun. 26, 2011),

97

 http://www.huffingtonpost.com/2011/06/26/facebook-hires-georgehotz-geohot-hacker-jailbreak-iphone-playstation_n_884734.html ([Sonys] action against the hacker led to a major cyberattack on the PlayStation gaming network that was allegedly carried out by hacktivist collective Anonymous. A host of other attacks on the PSN followed, including one that led Sony to take the entire global network offline for weeks.).
204

Sony disabled popular feature to prevent the jailbreak from

working, which motivated a class action against it. In re Sony PS3 Other OS Litig., C-10-1811-RS, 2011 WL 672637 (N.D. Cal. Feb. 17, 2011).
205

Hotz, 2011 WL 347137. Final Judgment Upon Consent and Permanent Injunction, supra

206

note _.
207

Smith, supra note _.

98

 208 See, PS3 JAILBREAKK, New PS3 Jailbreak 4.11 (Feb. 16, 2012), http://www.ps3jailbreakk.com/tag/new-ps3-jailbreak-4-11/. Apple offers jailbreak developers summer internships. This carrot approach would seem to have the effect of encouraging others to jailbreak iOS. Greenberg, supra note _.
209

Universal Studios, Inc. v. Corley, 111 F.Supp.2d at 341. Sara Perez, How to Jailbreak iOS 4.21 on iPhone, iPad, or

210

iPod Touch, N.Y. TIMES (Nov. 24, 2010), http://www.nytimes.com/external/readwriteweb/2010/11/24/24readwr iteweb-how-to-jailbreak-ios-421-on-iphone-ipad-or20716.html?partner=rss&emc=rss.

211

Sarah Jacobson Purewal, How to Jailbreak Your iOS 5 Device,

PC WORLD (Oct. 18, 2011), http://www.pcworld.com/article/242116/how_to_jailbreak_your_ios_ 5_device.html.

99

 212 Hacking the Xbox 360 for Dummies: Kindle Edition, AMAZON KINDLE STORE, http://www.amazon.com/Hacking-Xbox-360-Dummiesebook/dp/B0077QTMP4/ref=sr_1_5?ie=UTF8&qid=1330637924&sr=8-5 (last visited Feb. 2, 2012).
213

Corley, 273 F.3d 4 at 453. Id. at 458-60. GOOGLE, Report of Circumvention Product or Service

214

215

http://support.google.com/bin/request.py?contact_type=lr_circumv ention (last visited 1/12/12).

216

See, e.g., Xbox 360 Jailbreak, GOOGLE SEARCH,

http://www.google.com/ (search: flash xbox 360 and note links to Youtube videos describing the process and bline.ca and ixtreme.net) (last visited Jan. 1, 2012). Google.com ps3 jailbreak ; Google provides similar results when one searches for iphone jailbreak, flash xbox, jailbreak wii, root kindle, ps3 jailbreak etc.

100

 217 CURRENT TV, Has the Previously Unhackable PS3 Been Hacked? (Jan. 25, 2010), http://current.com/technology/91991773_has-thepreviously-unhackable-ps3-been-hacked.htm.
218

See, e.g., Stephens, supra note _ (discussing how most recent

jailbreak for iOS took a dream team of most prolific jailbreak creators ten months to complete; "The endless war we fight to jailbreak has become more and more difficult with each new device released.)
219

How to Flash Your Xbox, supra note _. Keizer, supra note _. See, e.g., PS3 Other OS Litig., 2011 WL 672637; Chris

220

221

Brandrick, iPhone OS 3.1.3 Update Brings Jailbreak Woes, PC WORLD (Feb. 2, 2010), http://www.pcworld.com/article/188384/iphone_os_313_update_bring s_jailbreak_woes.html;
222

Id.

101

 223 Id.
224

Id. Leander Kahney, Apples Official Response to the DMCA

OF

225

Jailbreak Exemption, CULT

MAC, Jul. 26, 2010,

http://www.cultofmac.com/52463/apples-official-response-to-dmcajailbreak-exemption-it-voids-your-warranty/ (The spokeswoman would only say on background that Apple hasnt in the past prosecuted such companies or individuals.)
226

MAJOR NELSON, supra note _; Jeff Rubenstein, supra note _. More

on Live Bans, HDD Crippling, Possible Ban Causes, supra note __.
227

Apple iPhone Software License Agreement, 2(c), available at

http://images.apple.com/legal/sla/docs/iphone.pdf. (You may not and you agree not to, or to enable others todecompile, modify, or create derivative works of the iOS Software or any services provided by the iOS Software, or any part thereof)
228

System Software License Agreement (Version 1.4) for the

102

 Playstation 3 System, 2, available at http://www.scei.co.jp/ps3-eula/ps3_eula_en.html (You may notmodifyany portion of the system software [or] use any hardware or software to cause the System Software to accept or use unauthorized, illegal, or pirated software or hardware);
229

Wii Network Services Agreement, NINTENDO, chapter 2, available

at http://www.nintendo.com/consumer/systems/wii/en_na/gi_system.jsp ?menu=documents (last visited Feb. 2, 2012) ([Y]ou may not use unauthorized software, services, or devices or non-licensed accessorieswith your Wii Console).
230

Xbox LIVE Terms of Use, 14, available at

http://www.xbox.com/en-US/legal/livetou (You agree thatyour software and hardware have not been modified in any unauthorized way).

103

 231 Psystar, 673 F. Supp. 2d at 1159 ([S]uch licensing arrangements are also firmly rooted in the history of copyright law . . . [C]ourts have long held that copyright holders may also use their limited monopoly to leverage the right to use their work on the acceptance of specific conditions.) (citations omitted).
232

Id. Stephen J. Sand, Validity, Construction, and Application of 1, 10

233

Computer Software Licensing Agreements, 38 A.L.R.5th

(1996) (citing Tingley Sys., Inc. v. Norse Sys., Inc., 49 F.3d 93 (2d Cir. 1995); MacLean Associates, Inc. v. Wm. M. Mercer952 F.2d 769 (3d Cir. 1991); S.O.S.,

Meidinger-Hansen, Inc.,

Inc. v. Payday, Inc., 886 F.2d 1081 (9th Cir. 1989)).

234

See, e.g., MAI, 845 F. Supp. at 367. See PS3 Other OS Litig., 2011 WL 672637; Datel, 2010 WL

235

3910344

104

 236 See Psystar, 673 F.Supp 2d at 1157 Sonys Complaint Against Hotz, supra note _ (alleging breach of contract and tortious interference based on breach SLA).
237

Discussed supra note 211. Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d 772,

238

792 (5th Cir. 1999) (citing Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 974 (4th Cir. 1990)). The standard is different than

proving an antitrust violation. See, A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 973 (9th Cir. 2001)
239

See, Practice Mgmt. Info. Corp. v. Am. Med. Ass'n, 121 F.3d

516, 521 (9th Cir. 1997) amended, 133 F.3d 1140 (9th Cir. 1998)
240

Lasercomb, 911 F.2d at 979 n. 22; Practice Mgmt., 121 F.3d at

520 n.9 (9th Cir. 1997).

241

Plaintiffs Motion for Summary Judgment (DMCA Counterclaim)

Datel Holdings, ITD v. Microsoft, 2011 WL 3920730 (N.D.Cal.) (contending Microsoft had misused its copyright in response to

105

 Microsofts DMCA claim, where Datel had circumvented TPMs within the Xbox 360 so that its memory cards would work); Gamemasters, 87 F. Supp.2d at 988-89 (defendant alleging Sony had attempted to extend the copyright in its operating system to sell other hardware and software); Appellants Opening Brief, at 42 Sega Enterprises Ltd. v. Accolade, Inc., 785 F. Supp. 1392, 1399 (N.D. Cal. 1992) (alleging console manufacturer Sega misused the copyright in its consoles TPMs to crush competitors who elect not to become its licensees [and to] force developers to pay royalties); Psystar, 658 F.3d at 1159 (alleging Apple misused its copyright in its operating system to sell computer hardware); Atari Games Corp. v. Nintendo of Am. Inc., 975 F.2d 832, 845-46 (Fed. Cir. 1992) (alleging Nintendo had misused the copyright in its TPMs to force of its licensing agreement).
242

developers to agree to the terms

17 U.S.C. 1201(a).

106

 243 Lasercomb, 911 F.2d at 979 n. 22

244

Psystar, 658 F.3dd at 1160. Id. Psystar, 673 F. Supp. 2d at 939. Lasercomb, 911 F.2d at 979. Psystar, 658 F.3d at 1160 (implying that such action may

245

246

247

248

qualify as misuse; referencing Alcatel, Inc., 166 F.3d 772).

249

Practice Mgmt., 121 F.3d at 521; See discussion, supra Part

III.D.
250

See discussion, infra. See, Chamberlain, 381 F.3d at 1201. The DMCA does not allow

251

misuse of copyrights. A copyright owner who utilizes the DMCA to restrict consumers' rights to use its products in conjunction with competing products
252

misuses its copyright.

Comment of ESA, supra note _. Stewart v. Abend, 495 U.S. 207, 228 (1990).

253

107

 254 Graham, 383 U.S. at 6.

255

See, e.g., Leegin Creative Leather Products, Inc. v. PSKS,

Inc., 551 U.S. 877, 895 (2007).

256

See Discussions, Parts II.B-C. Despite the fact that each iOS device is jailbroken within

257

months of its release,257 and the very substantial expenses Apple incurs due to jailbreaking, the iPhone product and platform has been a boon to the creation and advancement of intellectual property, and Apples stock price has quadrupled since introducing iOS. Apple utilizes technology, not the law, and access, dissemination, and creation have all increased. Stephens, supra note _; Comment of Apple supra note _, at 7, 16; AAPL Historical Prices, YAHOO FINANCE, http://finance.yahoo.com/q/hp?s=AAPL&a=08&b=7&c=1984&d=01&e=18&f =2012&g=m (last visited Feb. 17, 20

108

 12) (Apples stock sold at $122 on June 1, 2007, and sells at $502 as of February 1, 2012). Similarly, console manufacturers continue to introduce new platforms, continue to update their existing platforms to provide users with more options from which to access copyrighted work, and third parties continue to offer their work on their platforms. Kahney, supra note _. Should this calculus shift other legal tools are available to prevent circumvention that relates to infringement. See discussion infra, Part III.D.
258

Joint Creators Comments, supra note __, at 6-7. LAMPEL, supra note _, at 79-80. Linhoff, supra note _, at 216-220. Users can download circumvention technology freely and

259

260

261

circumvent easily. See, e.g., discussion supra Part II.D. Platform providers can remotely push updates that prevent them

109

 from functioning. See, e.g., Comment of Apple, supra note _, at 16.

262

See, discussion, supra Part III.B. Chafkin, supra note _ ("[I]t's hard to see Apple suing over

263

jailbreaking unless its business model is threatened." A fellow at Harvards Berkman Center told Inc.).
264

APPLE PRESS INFO, Apple Launches Subscriptions on the App Store

(Feb. 15, 2011), http://www.apple.com/pr/library/2011/02/15Apple-LaunchesSubscriptions-on-the-App-Store.html (quoting Steve Jobs as saying, Our philosophy is simplewhen Apple brings a new subscriber to the app, Apple earns a 30 percent share; when the publisher brings an existing or new subscriber to the app, the publisher keeps 100 percent and Apple earns nothing.).
265

See, e.g., Richard Ziade, An Open Letter to Apple, READABILITY

BLOG (Feb. 21, 2011), http://blog.readability.com/2011/02/an-

110

 open-letter-to-apple/ (describing how e-book cannot give Apple 30% royalty when it is required to pay publisher over 70% of all royalties).
266

Sam Goldin, Who Decides What Gets Sold in the Bookstore,

HUFFINGTON POST (Feb. 29, 2012), http://www.huffingtonpost.com/seth-godin/who-decides-what-getssol_b_1310763.html?ref=technology&ir=Technology (discussing

Apples refusal to sell an e-book through iBookstore that contained to links to purchase physical copies of books Amazon in the bibliography section).
267

through

See, e.g., Jacqui Cheng, Financial Times Pulls iOS Apps,

Directs Users to New Web App, ARS TECHNICA (Aug. 31, 2011), http://arstechnica.com/apple/news/2011/08/financial-times-pullsios-apps-directs-users-to-new-web-app.ars.
268

See Jim Dalrymple, Apples Strategy: Rent iTunes to Sell

Macs, PC WORLD (Jan. 23, 2008),

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 http://www.pcworld.com/article/141692/apples_strategy_rent_itune s_to_sell_macs_ipods.html (When asked by an analyst during the earnings conference call if the goals for iTunes rentals was profitability or incremental Apple TV sales, Apple CFO Peter Oppenheimer responded that the company hoped to run the iTunes Store a little above break even, but selling iPods and Macs was the main strategy.).
269

Claire Cain Miller, Apple Moves to Tighten Control of App

Store, NY TIMES (Feb. 1, 2011), http://www.nytimes.com/2011/02/01/technology/01apple.html?_r=1

270

Julianne Pepitone, Apple vs the World: App Store Showdown

Looms, CNN (June 29, 2011), http://money.cnn.com/2011/06/29/technology/apple_app_store_kindl e/index.htm (Removing all links from within their apps to make new purchases is pretty user-unfriendly.).

112

 271 Thomas Catan, Antitrust Enforcers Eye Apple Anew, WALL STREET JOURNAL (Feb. 18, 2011), http://online.wsj.com/article/SB10001424052748704657704576150350 669475800.html (the FTC, DOJ, and European Commission are examining whether Apple is running afoul of U.S. antitrust laws by funneling media companies' customers into the payment system for its iTunes storeand taking a 30% cut.).
272

See, e.g., Koebler, supra note _ (discussing Sonys changed

policy towards an open platform); Miller, supra note _ (The company has made more money selling hardware than music, e-books or apps. If people could have access to more content from more sources on their iPhones and iPads, the thinking went, then they would buy more devices. This sudden shift [to remove media outlets] tells you something about Apples understanding of the value of its platform).
273

Atari Games Corp. v. Nintendo of America, Inc., 30 U.S.P.Q.2d

113

 1401, 1408(Prior to the DMCA if third party developers who entered license agreements later find the license agreements too onerous, there still exists the option of reverse engineering.) with Gamemasters, 87 F.Supp. 2d at 989 (holding that circumvention of TPMs required to play imported games violates the DMCA).
274

Id. The vast majority of developers continued to pay

royalties even after circumvention proved possible due to the benefits of official licensing and the cost of circumvention. Id.; see Collin David, Collecting Vintage Nintendo Games: Unreleased and Unlicensed, COLLECTORS QUEST, Oct. 11, 2008 (describing how there are a few dozen unlicensed Nintendo games that are rare and hard to find, compared to 779 officially licensed Nintendo games).
275

Koebler, supra note _.

114

 276 Brian X. Chen, Rejected By Apple, iPhone Developers Go Underground, WIRED (Aug. 6, 2009), http://www.wired.com/gadgetlab/2009/08/cydia-app-store/ (about 4 million as of 2009 prior to the exemption).
277

See, e.g., Sarah Bogaty, Migrating Tasks from PCs to Tablets

Comes with Ease and High Satisfaction for Consumers According to The NPD Group, NDP GROUP (Feb. 18, 2011), https://www.npd.com/press/releases/press_110218.html
278

See Comment of ESA, supra note _, at 2-4. Ashtar, supra note _, at 176(citing JONATHAN ZITTRAIN, THE FUTURE INTERNET--AND HOW
TO

279

OF THE

STOP IT, 3 (2008)).

280

See, e.g., Xbox 360 Publisher Licensing Agreement, 5,

available at http://agreements.realdealdocs.com/LicenseAgreement/XBOX-360-PUBLISHER-LICENSE-AGREEMENT-1008933/ (Microsoft will not approve any Software Title or Online Content that, in its opinion, contains excessive sexual content

115

 or violence, inappropriate language or other elements deemed unsuitable for the Xbox 360.).
281

Joint Creators Comments, supra note __, at 7. United States v. Paramount Pictures, Inc., 334 US 131 (1948);

282

GREGORY BLACK, HOLLYWOOD CENSORED, 44 (1944).

283

DAVID E JAMES, ALLEGORIES

OF

CINEMA, AMERICAN

FILM IN THE

SIXTIES, 14-26

(1989)
284

GEOFF KING, NEW HOLLYWOOD CINEMA: AN INTRODUCTION, 12-13, 25-29 (2002)

(attributing the result of Paramount Pictures with New Hollywood movement).

285

Id. (The period from the late 1960s to early mid or late

1970s has gained almost mythical status). Films such as The Graduate (1968), Bonnie and Clyde (1968), and The Godfather (1972) would not have been made had this not occurred. Id. at 53.

116

 286 See, e.g., Greenberg, supra note _ (iPhone jailbreak developer called himself an Apple fanboy.).
287

Id.

117