Technically Legal

Less than a week after the Library of Congress released the latest round of DMCA anti-circumvention exemptions, word is out that the iPhone 4 has been jailbroken.  In fact, a new website called “jailbreakme.com” offers a software app to accomplish exactly this.

Apple’s support site continues to state that jailbreaking is a violation of the iOS license agreement.  Perhaps the obvious conclusion is that Apple will continue to include anti-jailbreaking/iOS modification restrictions within the license agreement.   The bottom line:  if you jailbreak your iPhone, you still lose your warranty, and an update push might brick your device.  That’s been the norm for some time, so nothing terribly new here.  Apple remains within their legal rights also, since the DMCA exemptions do not affect contract law.

Despite the tech media’s positive support for the new exemptions, I have not seen a detailed discussion of the limitations of the exemptions (Dominik and I discussed some of them on this week’s podcast in detail).  Based on our reading, the exemptions are not a sweeping authorization for all jailbreaking activities.  Websites that provide “jailbreaking” apps or services, like jailbreakme.com,  may still have legal concerns.

If you read the official release from the US Copyright Office, you might have noted this little quirky sentence in the first paragraph:

“Persons making noninfringing uses of following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) until the conclusion of the next rulemaking.”

Important here is that the exemptions only apply to § 1201(a)(1) and no other section.  If you read the entire statute, you can see that § 1201(a)(2), which is not exempted, still prohibits the:

“manufactur[ing], import[ing], offer[ing] to the public, provid[ing], or otherwise traffic[king] in any technology, product, service, device, component, or part thereof, that –

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title”

Unfortunately, this means that it is still unlawful to provide an application or service for jailbreaking.  App developers should take notice that they are probably not exempt from these prohibitions, should Apple decide to pursue them in court.  However, based on the 5th Circuit’s latest opinion, there is still some argument that a violation of § 1201(a) does not stand on its own without an underlying infringement of a copyright owner’s exclusive rights.  Still though, I would not consider the 5th Circuit’s opinion on § 1201 to be the ultimate fix.   Be careful when dancing near the lines on these rather complex statutory provisions and don’t forget that an applicable EULA or ToS  may still be enforceable in court.

Comments Off Posted in: Commentary on August 3, 2010

Daniel Lyons, (not that Dan Lyons) a Boston College School of Law Professor has authored a paper in which he argues that Net Neturality regulations violate the Fifth Amendment. This is the best summary I could find, but it’s a nuanced and complicated argument.

The short of it is that there are two types of way the government can take your property and have to compensate you for it. The first is a physical invasion of your land, for example, emminent domain. There, the government takes your property and pays you market rate for it, or a little less. But any physical invasion is enough to trigger the need for payment. If a law says you need to install a cable TV junction box on property, the government needs to compensate you for that physical invasion of your land, even if it’s only a small portion of the property.

The next kind of taking, as it’s called, is a regulatory taking. The tricky thing about regulatory takings is that they only trigger compensation if they sap the property of any foreseeable use (this is just one way the courts state the test). One example of this would be that you buy a parcel of land with the reasonable expectation that you would build on it, and then the government passes a law that totally prohibits you from building on that land.

Professor Lyons argues that Net Neutrality fits into both of these categories. I think the argument is a bit of a strech, particularly considering that similar regulations were aimed against the telephone industry in the past, but it’s an interesting read nonetheless.

Comments Off Posted in: Commentary on August 3, 2010

We hope to have some analysis up this afternoon. Our typical podcast, which was recorded Sunday, will post late tonight. We’ll be recording a special podcast to discuss Bilski tomorrow, after we’ve all had a chance to read and digest it. That should post late Tuesday night.

Comments Off Posted in: Commentary on June 28, 2010

It seems like we just talked about the hot news doctrine on the podcast, and here it is, cropping up again.

Back in March, a Federal district court breathed new life into the dying hot news doctrine. The hot news doctrine grants a kind of copyright over facts for a short period of time, in order to reward the person who first reported those facts. The problem is that the doctrine was developed decades ago, and isn’t a good fit for modern technology.

The district court judge’s ruling was appealed, and TechDirt is reporting that Google and Twitter have argued that the doctrine is arbitrary and out moded. It’s not terribly surprising that content providers are trying to ressurect this doctrine, but courts will hopefully do the right thing, and put it to rest.

Comments Off Posted in: Commentary on June 22, 2010

In a Venn diagram of my interests, this story falls into the very narrow intersection of technology, digital media rights and showtunes.

Christina Mulligan, in a guest post on Balkinization, talks about the lack of copyright discussion on the hit TV show Glee. Mind you, this is not a discussion of the rights involved with the making of the show, which has been done legally by negotiating the rights to make cover versions. Rather, in the fictional reality within the TV show, would the RIAA or ASCAP file a lawsuit against the Glee club for their shot-for-shot recreations of copyrighted music videos and their cover versions and mashups of unlicensed songs? And would the plucky teenagers be dragged into a courtroom, only to have their case dismissed by the judge, guest star Nathan Fillion?

There’s a range of arguably infringing activities going on in the Glee club. The worst is probably the music videos they create outside of the Glee club (see Glee’s version of Single Ladies compared to Beyonce’s original). These use the original recordings of the songs, which Mulligan points out has been troublesome in the past, even for amateur non-commercial videos. Then there’s the covers of songs (for example, “Don’t Rain on My Parade”) that are reproduced without rearrangement (i.e. are performed with roughly the same notes and instruments/voices as the original), and, therefore is, arguably, not a derivative work. Next would be the derivative arrangements of the songs (“Don’t Stop Believing”, “Hello, Goodbye”, both of which have been arranged for the Glee club with extra vocal harmony), most of which constitute public performances. Lastly, there are the songs that are clearly not public performances (“Can’t Fight This Feeling”, sung alone in the shower, “Like a Virgin”, a fantasy sequence), which the RIAA probably would not pursue in court. I think there’s a reasonable expectation of privacy in your shower, and failing that, in your imagination.

Despite the glaring instances of infringement in the Glee club, they could still argue their actions constitute fair uses of the copyrighted works. The strongest argument supporting this is that these songs are used for nonprofit educational use, which is one of several factors considered under the fair use doctrine in the US Copyright Act. The fair use doctrine also takes into account whether an allegedly infringing activity was use for commercial purposes and what affect the use has on the market for the copyrighted work. This is why the Glee club found themselves trouble in the episode “Mattress” for performing “Jump” in a mattress commercial, because they received compensation for their performance.

Ultimately, most of the songs performed by the Glee club fall into a nebulous gray area, and it would be up to a judge to determine if the use was a fair use. It really could go either way. On the one hand, the RIAA and ASCAP have been known to prosecute for much less. On the other hand, there are real life groups like The PS22 Chorus which are essentially doing the same thing and presumably not being prosecuted.

Comments Off Posted in: Commentary on June 11, 2010

SCO recently lost the case it brought against Novell when a jury ruled against SCO. SCO filed some post-vedict motions seeking to overturn the jury verdict, which were denied.

It has been widely reported that the case is finally over.

It isn’t over. After summary judgment was granted for Novell (throwing SCOs claims out), SCO appealed. The appeals court said that SCO should get to present its claims to a jury. SCO did just that and lost. But, by filing the post-verdict motions, SCO has set itself up to appeal the judge’s denials of those motions. SCO has only a small chance of success on appeal, but they are likely going to argue that no reasonable jury could have found in favor of Novell, and that various rulings made by the judge at trial created error that should either reverse the verdict, or get SCO a new trial.

We’ll continue to reluctantly report on this until we’re sure it’s finally dead, an ex-lawsuit, pushing up the daisies.

Comments Off Posted in: Commentary on June 11, 2010

The new story about the Bilski case is how long it has taken the Supreme Court to release the opinion. The good folks at Patently-O have found a chart indicating the amount of time elapsed between oral argument and a written opinion in eighteen recent patent cases taken by the Supreme Court.

The average wait is about ninety days, with a median of seventy-seven. The nearest competitor to Bilski is KSR v. Teleflex, which totally re-wrote obviousness law, or, depending on how you look at it, brought the Federal Circuit back in line with what it always should have been. KSR took 153 days, meanwhile, Bilski will be a minimum of 210 days before its release. The next day opinions will be released is the 7th, with the last day to release opinions being the 28th of June. There is always a chance, albeit a slim one, that Bilski will be re-argued next term, if the Justices can’t come to a decision, or think one issue wasn’t sufficiently addressed the first time around.

So far no one is really revising what they think the outcome will be based on the delay, but delays in releasing cases generally indicates that the court is fragmented on how they want to rule. This would be a stark departure from recent patent cases taken by the Supreme Court, which have been decided unanimously.

Comments Off Posted in: Commentary on June 1, 2010

This is a bizarre story. The Free Software Foundation (FSF) issued a press release about an unnamed third party developer who released an unnamed third party application via the iTunes App store. This unnamed program uses GPL code, and is itself a port of GNU Go. So the FSF sent a letter to Apple asking Apple to bring the App Store in complaince with the GPL.

The FSF press release also indicates that they’re in talks with the application developer for violating the GPL, but they’re also implying that Apple is somehow at fault. The FSF’s theory is that Apple, by distributing this code in a non-GPL-compliant way, is also violating the GPL.

This would probably fail under a contract theory of the GPL, because there’s no evidence that Apple knew the underlying code was subject to the GPL. However, Apple cannot claim ignorance to insulate themselves from liability for copyright infringement. The safeharbor provisions of the DMCA would provide Apple protection from liability on that front, which explains why they took the application off the store as soon as they had knowledge of the infringing nature of the product.

Update: Another good reason why Apple wouldn’t be liable for breach of contract, is that they were not a party to the contract. Unless the game had the GPL as a license agreement (unlikely), and the iPhone App approval agent clicked “OK,” the FSF would have a tough time proving that Apple was party to the GPL here. Even if all of that were true, it wouldn’t be an open and shut case.

Comments Off Posted in: Commentary on May 26, 2010

At Technically Legal we’re all waiting with bated breath for the Supreme Court’s ruling on In re Bilski.  The SCOTUS Blog is covering the release of opinions from the Court on their website, but today wasn’t the day for Bilski. <insert anxious IP lawyer faces here>

The ruling may entirely change the doctrinal scope of  “patentable methods or processes”.  Although the Bilski case deals with controversial business method patents, the doctrines at issues will affect a wide range of other patents, including the ability to patent computer software.   If you haven’t been following the case, the issues stem from the Federal Circuit’s recent adoption of the “machine or transformation test” which was developed in the Bilski case in 2008.

We are now in the pipeline for Supreme Court decisions.   The Supreme Court is in session from early October until the end of June, across a calendar year (i.e., October 2009 – June 2010).  Oral arguments for Bilski were heard before the Supreme Court last November and a decision is expected any week now.  According to the SCOTUS Blog’s calendar for May and June, which tracks events at the D.C.-based Court, rulings are expected to be released on the following Mondays:

May 17 & 24th

June 7, 14, 21, & 28th

Assuming this time line is correct, we are anticipating the Bilski ruling on one of those days.  Of course,  we’ll provide links, coverage and analysis on our blog and podcast as soon as the ruling is released.  Stay tuned until then.

Comments Off Posted in: Commentary on May 17, 2010

This morning, the Chicago Sun-Times is reporting that Walgreens plans to sell genetic testing kits to consumers “that can tell people whether they’re likely to get breast cancer, Alzheimer’s Disease, become obese, or suffer from a range of other maladies.”  According to the article, the U.S. Food and Drug Administration is probing  Pathway Genomics, the company who manufacturers the tests, over concerns of “test accuracy.”

Over the last several months, I’ve been working on a research project at the Berkman Center that focuses on the genomics and proteomics sectors of the biotechnology industry.  A large portion of this research is directed at genetic and genomic diagnostic testing.  These days, it’s an extraordinarily interesting field in terms of intellectual property law and proposed regulatory actions like this.  I found this to be a good opportunity to share some of my research findings and why the FDA would be interested in implementing more restrictive regulations for over-the-counter genetic testing services.

First, the FDA does regulate certain aspects of genetic and genomic diagnostic testing.  Under the Federal Food, Drug, and Cosmetic Act, the FDA has the authority to regulate “medical devices,” including “instrument[s], apparatus[es]  . . .  [and] in vitro reagent[s]” that are “intended for use in the diagnosis of disease or other conditions.” (see 21 U.S.C. § 321(h)).  The FDA’s regulations, further include  “in vitro reagent diagnostic products” as “medical devices.” (see 21 C.F.R. § 809.3).  “Class III” medical devices are subject to very stringent regulation and require approval before they can be sold, but “Class I and Class II” do not require any pre-market approvals prior to sale, but must meet certain standards for quality assurance purposes. (21 C.F.R. § 814).  In short, the FDA can step in and require certain accuracy standards for tests that fall within this category.

Nonetheless, some laboratories have been taking advantage of an apparent gap in FDA regulation based on distinctions between genetic testing “kits” and “services.”   Device manufacturers of  genetic”testing kits” sell a set of reagents and instructions for collecting a sample specimen.  These usually qualify as either Class II or Class III medical devices and may require pre-market approval by the FDA.  However, sometimes laboratories develop their own “in-house” or “home brew” tests which are known in industry-speak as “laboratory developed tests” or “LDTs.”  Instead of including the necessary reagents in a “kit”, laboratories are obtaining the reagents from external resellers or manufacturing entities.  Although the purchase of reagents is still subject to FDA regulation, once separated from the LDT, the LDT is no longer regulated as a diagnostic medical device.  The distinction here is that laboratories believe that  LDTs are testing services, not medical devices, and therefore do not need to meet  pre-market approval or quality assurances requirements under FDA regulations.  Interestingly, the FDA’s position is that they can regulate LDTs just like medical devices.  It seems likely that further regulatory clarification will be needed down the road to establish clear standards for LDTs if the FDA continues to push regulatory standards on LDT providers.

The FDA is not the only regulatory agency in the room, either.  The Centers for Medicare & Medicaid Services (or “CMS”) have some regulatory authority over laboratory testing though the Clinical Laboratory Improvement Amendments of 1998 (or “CLIA”).  CLIA basically sets up a regulatory scheme that requires laboratories to meet certain standards of quality control and proficiency of testing, which vary depending on the complexity of specific testing conducted on site.  LDTs, which are otherwise not covered by as “medical devices” by the FDA, are covered under CLIA.  However, because certain genetic LDTs do not have established proficiency standards, CLIA only requires the laboratories to establish their own procedures to verify the accuracy of testing results.  It’s a bit like letting the inmates run the asylum.

I don’t mean to say that LDTs are categorically less accurate than the “testing kits” that fall under FDA regulation.  However, the FDA is clearly concerned with closing some potential loopholes that might give rise to questionable product marketing practices.  And, really, we’re not just talking about products on the shelf at Walgreens.  A simple Google search yields a swath of websites that offer genetic testing services for sale to the public.

Finally, another vector of concern beyond testing “accuracy” is how results are ultimately reported back to consumers.  Many genetic tests are marketed as a services that provide health risk assessments based on genetic sequencing and correlating results with propensities to develop certain diseases.  It’s not the same as a diagnosis by a physician or other medical professional.  Undoubtedly, the FDA is interested in ensuring that marketers are explaining the limitations of certain genetic testing as well as how test results are translated into disease development probabilities  in a consumer-comprehensible manner.  For instance, look at this post on Gizmodo where the anonymous-author shares his genetic test results from multiple well-known companies and remarks that “it’s a game of percentages stacked on percentages, all various levels of true based on research all confounding.”

Comments Off Posted in: Commentary on May 12, 2010