Technically Legal

Google and YouTube win First Round, Congress Can Take Works out of the Public Domain, Apple Sharing Location Data

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Google, YouTube Win First Round Against Viacom

The Opinon

Congress Can Take Works Out of Public Domain

Terrible News: Court Says It’s Okay To Remove Content From The Public Domain And Put It Back Under Copyright
The Opinion

Apple Sharing iPhone Location Data

Apple Now Storing and Sharing Your Location With Others
Congressmen Ask Apple To Explain Privacy Policy Changes
Lawmakers To Introduce New Internet Privacy Bill

Comments Off Posted in: Podcast on June 28, 2010

Quon and SMS Privacy, AT&T Security Breaches, and FTC Wants to Save the Newspaper

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Quon and SMS Privacy

Analysis: Hints on texting privacy
The Opinion

AT&T Security Breaches

iPhone 4 Order Security Breach Exposes Personal Information
FBI Investigates iPad Data Breach
AT&T Explains iPad Security Breach

FTC Wants to Save Newspaper

Potential Policy Recommendations To Support The Reinvention Of Journalism

1 Comment Posted in: Podcast on June 21, 2010

Apple revises their advertising policy, Traffic Cam Gripe Site, New York Times Demands Apple Takedown a RSS Reader App

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Apple Revises Rules for in App Advertising

Apple revises iOS rules on outside advertisers, cuts out Google, Adobe by implication
FTC Preps Investigation Against Apple’s Ad Tactics
Apple’s Mobile Rules To Get FTC Scrutiny

Traffic Cam Gripe Site

Anti-speed camera activist nabs Bluff City PD’s expiring web domain
Bluff City, TN Speed Camera information
UDRP Policy

NY Times Demands App Takedown

New York Times to iPad App Developers: Hands Off Our RSS
NYT demands Pulse app be pulled from App Store
Pulse app cheered, then pulled, now back
The Takedown Notices

Comments Off Posted in: Podcast on June 14, 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

Police in Silicon Valley are investigating the loss and subsequent purchase of an iPhone prototype to see if any of the conduct rises to criminal conduct in California. It is still early in the investigation, and there’s no promise that even if there is sufficient evidence of a crime, that charges would be filed.

UPDATE: And by investigate, we mean execute a search warrant at an editor’s house.

1 Comment Posted in: Links on April 26, 2010

This is still breaking, so we’ll have more coverage as the details of the litigation emerge.

Apple has sued HTC for infringement of Apple patents relating to the user interface and underlying hardware of the iPhone. While I don’t have my hands on a complaint yet, there’s a fair bet it involves the patent for capacitive touch screens Apple was recently awarded.

UPDATE: You can now download the relevant documents. I’ll try to get a look at them later today or this evening.

Comments Off Posted in: Links on March 2, 2010

Recently, Congress and the FCC have been looking into exclusive deals between handset manufacturers (like Apple, Palm, and Motorola) and carriers (Verizon, Sprint, AT&T). The focus of the inquiry is whether they are anti-competitive, and whether they should be banned. The FCC is in a unique position to stop this practice because they are not bound by the same, narrow, requirements of antitrust law.

The FCC

The Federal Communications Commission is allowed to regulate wired and wireless communication and equipment necessarily associated with those. The regulations they pass have to be in the “public interest, convenience and necessity.” If the FCC were to conduct hearings and find that it would be in the “public interest, convenience and necessity,” it could ban the practice of exclusive licenses.

If the FCC were to make a rule like this, it would be subject to what is called a notice and comment period. The FCC would publish the proposed rule, and anyone could write in and make suggestions, or ask for explanations. The FCC would then respond to the comments and publish a final rule.

The final rule would almost certainly be challenged in court. The court would look at whether or not the regulation was within the power of the FCC (probably yes), and whether or not banning these exclusive license agreements was actually in the “public interest, convenience and necessity.” It is possible that without these exclusive licenses development costs would be higher, or they would be borne entirely by the developer, reducing innovation in the handset market. It would be hard to prove this one way or the other. So the FCC would likely get the benefit of the doubt unless the challenger could present some hard evidence.

Even with these limitations, the FCC has a better chance of stopping exclusive agreements than the the Federal Trade Commission, Department of Justice, or Private Parties.

FTC, DOJ and Private Suits

If the FCC doesn’t stop these exclusive agreements, the Department of Justice (and their Antitrust Division), the Federal Trade Commission (and their Antitrust Division), or private parties could try to stop these exclusive arrangements too.

While the Sherman Antitrust Act says that “Every contract, combination . . . or conspiracy, in restraint of trade . . . is declared to be illegal.” It doesn’t really mean that. From very early on the Supreme Court has taken this to mean that only unreasonable restraints on trade are illegal.

The DOJ and the FTC each have their own guidelines to apply when going after alleged antitrust violations. In the end, though, it comes down to whether or not a court thinks that the contract is an illegal restraint on trade.

Antitrust law is really to complicated to go into any detail here. Suffice it to say, there would be a lengthy court battle about a number of antitrust theories. Chief among the arguments would what the relevant market was (all cellphones or just smart phones), how much of the market the handset maker had, and whether the exclusive deal had an adverse effect on competition.

It is notoriously hard to guess how courts will rule on these issues, making it very difficult to predict an outcome. The cases would also be very specific from phone to phone. So the outcome would not be as even as it would be if the FCC or Congress acted to stop these exclusive agreements.

1 Comment Posted in: Analysis on June 25, 2009