Here’s another NY Times Op-Ed, this one by Rebecca MacKinnon, titled Stop the Great Firewall of America. MacKinnon compares effects of the the proposed Stop Online Privacy Act–the Senate version is the Protect IP Act–to the Great Firewall of China, i.e. Chinese censorship of online content. These proposed laws would upend the DMCA notice-and-take down provisions that establish the ISP safe harbor from liability for copyrighted content and impose affirmative duties on ISPs to screen for unauthorized posting of copyrighted content. These are dangerous laws that would protect copyright at the expense of speech and other democratic principles.

Treaty Draft Makes ISPs Liable for Illegal Content

PC World reports that a draft treaty leaked from the Anti-Counterfeiting Trade Agreement talks would make ISPs liable for civil damages for user-generated uploads and downloads of copyrighted content.  According to PC World, the draft treaty would require ISPs to take affirmative steps, such as terminating violators’ accounts, to avoid being liable for their users’ copyright infringement.  France last year enacted a “three-strikes” law requiring ISPs to terminate an account after a user’s second warning for copyright violations.  Participating in the ACTA talks are the U.S., the E.U., Australia, Canada, Jordan, Mexico, Morocco, New Zealand, Singapore, South Korea, and the United Arab Emirates.  If adopted by the U.S the draft proposal would change current law. Under the Digital Millennium Copyright Act U.S. based ISPs can avoid liability for users’ copyright infringement by adhering to the DMCA’s notice and take-down procedures.  A U.S. ISP has no duty to monitor its site for user-posted copyright-infringing material, but if a copyright holder notifies the ISP of the presence of its copyrighted material on the site then the ISP must “expeditiously remove or disable access to” the targeted content to maintain the liability safe harbor.  (See DMCA §512 for the complete text of the safe harbor requirements and procedures.)

Real Crackers

Internet law students will recall RealNetworks’ DMCA anti-circumvention claims against Streambox, Inc. for selling two software products, the Streambox VCR and Streambox Ripper.  RealNetworks sells the RealPlayer media player, among other things.   The VCR emulated the RealPlayer’s “secret handshake” and allowed users to save content that was distributed for streaming only.  The Ripper allowed users to convert RealPlayer and other files into different formats.  In 2000  the federal trial court in the Western District of Washington held that sale of the VCR violated the DMCA, but sale of the Ripper did not because it had other uses than circumventing technological measures as defined by the DMCA.

RealNetworks is at the other counsel table in an anti-circumvention case currently being tried in federal court.  The MPAA sued RealNetworks for violating the DMCA, copyright infringement, and breach of contract for its sale of the RealDVD, “$30 software enables users to create and store copies of DVDs to their computer hard drives,” and Facet, “a proposed DVD player that can copy and store films.”  Closing arguments are expected this week.  RealNetworks has argued that making backup copies of DVDs is protected by fair use and that the MPAA licensed RealNetworks to use its circumvention technology.  c|Net’s Greg Sandoval reports that RealNetwork “is trudging on very shaky legal ground” and that Judge Marilyn Patel–who heard some of the cases that shut down Napster–“isn’t buying Real’s story.”

I’ll cover Judge Patel’s decision when it comes.

More on the iPhone

A former student emailed a helpful response to one part of the iPhone post:

[Y]ou asked if unlocking it violated the DMCA. It looks like the answer is no. The DMCA provides an exception (since Nov. 06) to phone owners who unlock their phone in order to use it on another network. From what I have read, this was to allow customers to use their phones for their intended purpose, regardless of network. Apparently even ATT will give unlock codes to customers after 90 days. However, they will not give such a code for the iPhone, and claim not to have access to one . . . Check out this link. In general “Know Your Rights” is a very good series discussing copyright and DMCA issues. I think they have done another post about ringtones, which shouldn’t be hard to find.

And another former student sent this story: iPhone owner sues Apple for $1 million.

SAN JOSE, California (AP) — A New York woman is so angry at Apple Inc. for lopping $200 off the price of the iPhone that she’s filed a lawsuit seeking $1 million in damages. Dongmei Li of Queens, New York, claimed the company violated price discrimination laws when it slashed the price of the 8-gigabyte iPhone by a third, from $599 to $399, within two months of the gadget’s June debut.

Maybe I can join in. I’m still bitter that Apple stopped supporting the IIGS six months after I bought one in the late 1980s.

Thanks to Mike and JesseR.

Apple Apostasy

A month ago the media was filled with stories about the New Jersey teenager who hacked the iPhone to work on cell carriers other than AT&T. Not one of the dozen or so articles I read then addressed the most obvious questions: Won’t this hack invalidate the iPhone’s warranty? Isn’t this hack vulnerable to an Apple counter-hack? Doesn’t it violate the DMCA’s anti-circumvention provisions? Last week, after Apple issued a software update that turned hacked iPhones into $400 paperweights, the media was filled with headlines such as this from the New York Times: Altered iPhones Freeze Up

Duh. Without reading the iPhone’s Terms of Use I know that Apple’s contract specifically prohibits the carrier-switch hack and disclaims liability for user installation of non-approved software on the iPhone. I know because such provisions are boilerplate in retail tech products licenses and contracts and Apple is as PC–programatically correct–as any tech company. Exhibit 1 is iTunes, which is easy and intuitive and countenances almost no user modification of how it chooses to organize your music on your hard drive. Which makes statements like this from an editor of Gizmodo just silly: “[Disabling a phone] instead of just relocking it . . . is going way too far; I’d call it uncharacteristically evil.” Irritating, annoying, consumer-unfriendly, reason not to buy another Apple product, maybe, but since when does naked pursuit of economic self-interest upset techies? Maybe this is a corollary of last week’s a liberal is a conservative who has been arrested: “a consumer advocate is a techie whose hacked iPhone has been bricked.”

NFL versus Wendy Seltzer

One way copyright holders have been trying to protect their rights is to exaggerate the scope of those rights. Rather than repeat here what is explained clearly and concisely elsewhere, check out this story on NFL fumbles DMCA takedown battle, could face sanctions. It recounts Brooklyn Law School professor and EFF counsel Wendy Seltzer’s battle with the National Football League over her posting a video of the NFL’s copyright notice–just the copyright notice–on YouTube. The NFL overstepped its rights under the Digital Millennium Copyright Act in trying to quash Seltzer’s exercise of fair use rights. (Thanks to JH)