EFF accuses Apple of muzzling iPhone hobbyists
Reverse engineering posts censored
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The operator of a wiki website has filed a federal lawsuit that accuses Apple of trying to squelch protected speech after it demanded the removal of posts discussing ways hobbyists can make iPods and iPhones work with software other than iTunes.
OdioWorks claims Apple's demands that the posts be removed from BluWiki violate its First-Amendment rights to free speech. The suit, which was prepared by the Electronic Frontier Foundation, seeks a judgment that the statements don't infringe Apple copyrights and an order forbidding Apple attorneys from claiming otherwise.
"Apple's conduct has forced OdioWorks to choose between risking legal liability or stifling the free expression BluWiki was created to promote," the complaint (PDF) states. "The sole purposes of the [removed] pages is to enable interoperability of current iPod and iPhone software with independently created media management programs."
An Apple spokeswoman declined to comment.
According to the complaint, Apple's attorneys demanded three postings be removed because they constituted copyright infringement under the DMCA, or Digital Millennium Copyright Act. Collectively referred to as "iTunesDB Pages," they discussed ways Apple goes about making sure its devices don't work with competing audio software such as Winamp and Songbird.
iPods and iPhones use the iTunesDB file to provide its owner with access to media files indexed by artist name, playlist, or song title. Since September 2007, the devices have had to check a cryptographic hash value that is generated by iTunes to be able to access iTunesDB. If the hash can't be located, the devices show the file as empty, "thereby making it impossible for the iPod or iPhone owner to play media files stored on her device," the suit asserts.
Hackers figured out how to circumvent the measure, so last July Apple revised its hash generation system so hobbyists once again were unable to use third-party software with newer iPhones and iPod Touch models.
One of the posts Apple demanded be removed contained "initial discussions and information intended to assist those interested in reverse engineering Apple's revised July 2008 hash generation mechanism to enable third party media management software to interoperate with new models of Apple's iPod and iPhone devices," the complaint states. Included in the discussion was code identified as "memcpy."
Although the participants were unsuccessful in their attempts to reverse engineer the hash generator, Apple lawyers demanded the thread be killed. Their emails claimed BluWiki was "disseminating information designed to circumvent Apple's FairPlay digital rights management system." It went on to state that "the DMCA explicitly prohibits the dissemination of information that can be used to circumvent such technology."
Fearing legal action, OdioWorks quickly responded by removing all three posts.
The lawsuit, filed in US District Court in San Francisco, takes strong exception to Apple's legal analysis. None of the censored pages constitutes a "technology, product, service, device, component, or part thereof" so Apple's claims that they violate applicable copyright statutes are false, the complaint argues. "iPod and iPhone users, not Apple, own whatever copyright may inhere in the iTunesDB files contained in their iPods and iPhones, and therefore are authorized to access and modify these files as they see fit."
Over the past few years, EFF has repeatedly advocated on behalf of hackers to modify the devices they own. Late last year, for instance, the group pressed for an extension to exemptions in the DMCA that would make it legal to unlock iPhones and other kinds of handsets. The group has also worked to ensure that free speech online isn't trumped by content owners claiming intellectual property rights.
But this time around, the EFF is on less tested ground, said Eric Goldman, a professor specializing in internet law at Santa Clara University. That's because the DMCA and free speech have largely been viewed by courts as being independent doctrines that stand alone rather than deciding one trumps the other.
"It's really a First-Amendment challenge to the DMCA provisions," he said. "That raises some complex, tough issues that we don't have legal clarity about. It's unclear how courts are going to feel about this type of free-speech challenge to the DMCA." ®
COMMENTS
Hmm
The iPhone registered developer programme sucks.
It sucks about as much as buying a tape recorder and then finding out you have to spend a fortune buying the special microphone that goes with it, if you want to make any recordings of your own.
You have three options, besides claiming a cash refund because the goods were not as described: Pay under protest for the special mic; try and borrow a special mic off someone else (but they are being discouraged against lending them out); or attempt to bodge a standard mic into the weirdy socket (note the dire warnings on the danger of electric shock and/or damaging the machine, some of which may be exaggerated in a deliberate attempt to discourage you from doing this).
UK and EU consumer law means Apple aren't allowed to use the courts to prevent you from doing things with stuff you own; but it doesn't mean they have to make it easy for you, either.
@Charles Manning
Freedom of speech is, most assuredly, *not* overrated I would contend. So far as the matter at hand goes: The anti-circumvention portions of the DMCA are a particularly egregious part of a (mostly) misbegotten law. In addition to every other argument which can be brought to bear against anti-circumvention, there is the fact that enacting laws that a substantial number of people do not accept as legitimate breeds contempt for the rule of law in general, a loss all the way around.
Then there is the fact that reverse engineering can be a fair-use exception to anti-circumvention under US law, the bone of contention being whether this applies in this specific case. Even if this were found not to be the case, it would still be a huge (and, IMO, unwarranted) assumption, to suggest that this allows muzzling of a discussion of potential methodologies that might be used for circumvention.
Although IANAL, my layman's view of US Constitutional jurisprudence is that the Supreme Court strictly scrutinizes when free speech may be curtailed. The upshot of this is to tend to limit permissible cases of free speech abridgment to when speech becomes action (or at least quasi action). For this reason, your first 2 examples would likely pass muster, by trying to induce panic or by making a threat of violence, it seems clear to me that you are acting as much or more than you are speaking, and acting in a criminal fashion to boot.
I would take exception to your third example. Mouthing pro-nazi slogans at a Holocaust memorial is beyond insulting and distasteful, evil would work as a characterization for me. That said, it is not likely to be something for which one can arrest the speaker (nor should it be, IMO). It might get the nazi ejected from the memorial if shouted loud enough to be a disturbance (or merely if heard, if the memorial is a private one, where the 1st Amendment doesn't constrain the owners of the memorial to suffer an overt nazi on their property).
This isn't just my opinion, BTW, there is a fairly famous Supreme Court case which comes very close to this: National Socialist Party of America v. Village of Skokie. To summarize, the Nazis wanted to be able to hold a march through the (predominantly Jewish, including Holocaust Survivors) neighborhood of Skokie. The Supreme Court ruled that they could not be forbidden to do so (they never did actually hold the march, although they did hold 3 rallies nearby, at their initial venue of choice).
Perhaps things are different in the UK, but here in the US, where the litigation is taking place, abridging free speech is not something the courts sign on to readily. It is my hope that this will continue to be the case.
Should be an easy one
This ought to be an easy one. The Law of the Land is quite clear that if you have bought and paid for something, whatever you do with it afterward is none of the seller's business (unless e.g. you throw it through their window).
However, common sense seems to break down whenever computers are involved.
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