Apple should avoid copyright fight, allow users to escape the App Store jail

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The looming copyright battle centered on Apple Inc.’s iPhone may seem obscure, but the outcome could have wide-ranging implications for U.S. mobile users and the developers who target them. It’s also a fight Apple should walk away from.
The Electronic Frontier Foundation is urging the U.S. Copyright Office to tweak the Digital Millennium Copyright Act, which prohibits consumers from circumventing DRM restrictions for copyrighted materials – and prevents iPhone users from legally “jailbreaking” their handsets and accessing applications from distributors other than through Apple’s App Store. Skype and Mozilla joined the fight last week in separate comments to the Copyright Office, which is required to consider exemptions to the ban every three years.
Apple has responded to the effort with a statement urging the office to uphold the ban.
“Of particular significance for purposes of this proceeding, it is apparent that Apple’s measured but innovative approach to the iPhone product and platform has been a boon to the creation and advancement of intellectual property, especially iPhone applications software,” Apple responded (pdf). “Here, the uses of the class of works that would result from the proposed exemption are infringing, namely, the creation of unauthorized derivative versions of Apple’s copyrighted bootloader and iPhone operating system software. This fact alone must result in denial of the exemption.”
But Apple’s earnestness would be easier to buy if it hadn’t kept such tight reins on its App Store. The EFF’s filing points to ebooks and other applications that have been banned from the App Store due to content deemed “objectionable,” and cites two offerings that “remain in limbo, victims of unexplained delays in Apple’s ‘approval’ process.”
The arbitrary nature of Apple’s vetting procedures was highlighted again this week when the company rejected a new “South Park” application for “potentially offensive” content – despite the fact that users can download episodes of the show as well as the entire film “South Park: Bigger, Longer and Uncut” from iTunes.
Tightly monitoring the storefront has paid dividends for AT&T Mobility, which would surely feel the wrath of irate customers if the App Store distributed malware or highly controversial content. But by maintaining the tightly controlled site and forbidding users from shopping elsewhere, Apple hopes to have its cake and eat it too.
Yes, a proliferation of third-party sites will surely result in some nefarious applications, but users who eschew the App Store when browsing for iPhone offerings would be hard-pressed to blame Apple or AT&T Mobility when they access a rogue app.
The Library of Congress – which oversees copyright law – is slated to decide the issue this fall after several hearings, but Apple would be wise to drop the fight and focus on making sure its App Store remains a top-notch storefront. Because this is exactly the kind of issue that could attract the attention of Congress, providing grandstanding opportunities for politicians eager to play David vs. Apple’s Goliath.
And that’s the last thing Apple wants.

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