November 21, 2024

iPhone Unlocked; Legal Battle Looming?

In the past few days several groups declared victory in the battle to unlock the iPhone – to make the iPhone work on cellular networks other than AT&T’s. New Jersey teenager George Hotz published instructions (starting here) for a geeks-only unlock procedure involving hardware and software tweaks. An anonymous group called iPhoneSimFree reportedly has an easy all-software unlock procedure which they plan to sell. And a company called UniquePhones was set to sell a remote unlocking service.

(Technical background: The iPhone as initially sold worked only on the AT&T cell network – the device was pretty much useless until you activated AT&T wireless service on it. People figured out quickly that you could immediately cancel the wireless service to get an iPhone that worked only via WiFi; but you couldn’t use it on any other mobile phone/data network. This was not a fundamental technical limitation of the device, but was instead a technological tie designed by Apple to drive business to AT&T.)

Unlocking the iPhone helps everybody, except AT&T, which would prefer not to face competition in selling wireless services to iPhone users. So AT&T, predictably, seem to be sending its lawyers after the unlockers. UniquePhone, via their iphoneunlocking.com site, reports incoming lawyergrams from AT&T regarding “issues such as copyright infringement and illegal software dissemination”; UniquePhones has delayed its product release to consider its options. The iPhoneSimFree members are reportedly keeping anonymous because of legal concerns.

Can AT&T cook up a legal theory justifying a ban on iPhone unlocking? I’ll leave that question to the lawyers. It seems to me, though, that regardless of what the law does say, it ought to say that iPhone unlocking is fine. For starters, the law should hesitate to micromanage what people do with the devices they own. If you want to run different software on your phone, or if you want to use one cell provider rather than another, why should the government interfere?

I’ll grant that AT&T would prefer that you buy their service. Exxon would prefer that you be required to buy gasoline from them, but the government (rightly) doesn’t try to stop you from filling up elsewhere. The question is not what benefits AT&T or Exxon, but what benefits society as a whole. And the strong presumption is that letting the free market operate – letting customers decide which product to buy – is the best and most efficient policy. Absent some compelling argument that iPhone lock-in is actually necessary for the market to operate efficiently, government should let customers choose their cell operator. Indeed, government policy already tries to foster choice of carriers, for example by requiring phone number portability.

Regardless of what AT&T does, its effort to stop iPhone unlocking is likely doomed. Unlocking software is small and easily transmitted. AT&T’s lawyers can stick a few fingers in the dike, but they won’t be able to stop the unlocking software from getting to people who want it. This is yet another illustration that you can’t lock people out of their own digital devices.

Finnish Court: Okay to Circumvent DVD DRM

A court in Finland ruled last week that it is not a violation of that nation’s anticircumvention law to circumvent CSS, the copy protection system in DVDs. Mikko Välimäki, one of the defense lawyers, has the best explanation I’ve seen.

Finnish law bans the circumvention of “effective” DRM (copy protection) technologies. The court ruled that CSS is not effective, because CSS-defeating tools are so widely available to consumers.

The case is an interesting illustration of the importance of word choice and definitions in lawmaking. The WIPO copyright treaty required signatory nations to pass laws providing “effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of the rights …” Reading this, one can’t help but notice that the same word “effective” describes both the remedies and the measures. The implication, to me at least, is that the legal remedies only need to be as effective as the technological measures are.

The Finnish law implementing the treaty took the same approach. In language based on an EU Copyright Directive, the Finnish law defined an effective technology as one that “achieves the protection objective” (according to Mr. Välimäki’s translation). The court ruled that that doesn’t require absolute, 100% protection, but it does require some baseline level of effectiveness against casual circumvention by ordinary users. CSS did not meet this standard, the court said, so circumvention of CSS is lawful.

U.S. law took a different approach. The Digital Millennium Copyright Act (DMCA), the U.S. law supposedly implementing the WIPO treaty, bans circumvention of effective technological measures, but defines “effective” as follows:

a technological measure `effectively controls access to a work’ if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work

Some courts have read this as protecting any DRM technology, no matter how lame. It has even been held to protect CSS despite its notoriously weak design. It’s even possible that the structure of the U.S. DMCA helped to ensure the weakness of CSS – but that’s a topic for another post.

One of the tricks I’ve learned in reading draft legislation is to look closely at the definitions, for that’s often where the action is. An odd or counterintuitive definition can morph a reasonable-sounding proposal into something else entirely. The definition of a little word like “effective” might be the difference between an overreaching law and a more moderate one.

What's the Biggest Impact of IT on Copyright?

On Saturday I gave a talk (“Rip, Mix, Burn, Sue: Technology, Politics, and the Fight to Control Digital Media”) for a Princeton alumni group in Seattle. The theme of the talk is that the rise of information technology is causing a “great earthquake” in media businesses.

Many people believe that the biggest impact of IT is that it allows easy copying and redistribution of all types of content. To some people, this is the only impact of IT.

But I argue in the talk that the copying issue is only one part of IT’s impact, and not necessarily the biggest part. The main impact of IT, I argue, is that computers are universal devices that can perform any operation on digital data (except those operations that are inherently undoable and therefore can’t be done by any device).

I stress universality over copying in the talk for two reasons. First, it’s a point that most people miss, especially non-techies. Second, it lets me hint at the most important tradeoff in copyright/tech policy, which is how copyright sometimes stands in the way of developing powerful technologies for creating and communicating. Most people are quick to see the advantages of strong copyright in the digital world, but slow to see the price we’re paying for it.

This debate – whether IT is primarily a copying machine, or a creative tool – seems to run deeply throughout the online copyright debate. Those who see copying as the main impact of IT don’t much mind restricting digital technologies to further their copyright aims. But those who see creativity as the main impact of IT aim to protect the vitality of the IT ecosystem.

I come down on the creative side. I think the biggest long-run effect of IT will be in changing how we communicate and express ourselves. This is not to say that copying doesn’t matter – it clearly does – but only that we need to take the creative effects of IT at least as seriously as we take copying.

As I say in the talk, if IT’s impact is like an earthquake, file sharing is not the Big One, it’s only the first tremor.

(Thanks to Ed Lazowska, whose email exchange with me after the talk triggered this post.)

If It's Not Snake Oil, It's Pretty Awesome (Part 2)

Four years ago I wrote about a company called Music Public Broadcasting:

In today’s Los Angeles Times, Jon Healey writes about a new DRM proposal from a company called Music Public Broadcasting. The company’s claims, which are not substantiated in the story, give off a distinct aroma of snake oil.

I went on to document the snake oil indicators: (1) the flamboyant, self-promoting entrepreneur, newly arrived from another field; (2) the vaguely articulated theoretical breakthrough, described in mystical terms unintelligible to experts in the field; (3) the evidence that the product hadn’t been demonstrated or explained to its customers; (4) the claims to invalidate an accepted, fundamental principle in the field — but without really explaining how it is done. As one potential customer said, “If it’s not snake oil, it’s pretty awesome.”

Now the same company, having adopted a new name, is floating an equally improbable legal theory: that Microsoft, Apple, Adobe, Real, and anybody else making music download tools is legally required to license the company’s technology. Their theory is that these target companies are “avoiding” the use of their anti-copying technology – avoiding it in the sense of not buying it – and the Digital Millennium Copyright Act prohibits avoidance of copy protection. In other words, the target companies have a legal obligation to buy the company’s technology and, on the same theory, any other technology that claims to stop infringement. Snake oil purchases are now mandatory.

If you believe this company’s legal claim is any more solid than its technical claim, I have a bridge to sell you – and let me assure you that you’re legally compelled to buy it.

You Can Own an Integer Too — Get Yours Here

Remember last week’s kerfuffle over whether the movie industry could own random 128-bit numbers? (If not, here’s some background: 1, 2, 3)

Now, thanks to our newly developed VirtualLandGrab technology, you can own a 128-bit integer of your very own.

Here’s how we do it. First, we generate a fresh pseudorandom integer, just for you. Then we use your integer to encrypt a copyrighted haiku, thereby transforming your integer into a circumvention device capable of decrypting the haiku without your permission. We then give you all of our rights to decrypt the haiku using your integer. The DMCA does the rest.

The haiku is copyright 2007 by Edward W. Felten:

We own integers,
Says AACS LA.
You can own one too.

Here is your very own 128-bit integer, which we hereby deed to you:

[can’t display integer]

If you’d like another integer, just hit Shift-Reload, and we’ll make a fresh one for you. Make as many as you want! Did we mention that a shiny new integer would make a perfect Mother’s Day gift?

If you like our service, you can upgrade for a low annual fee to VirtualLandGrab Gold – and claim thousands of integers with a single click!