Apple sued for violating 1st ammendment rights

[Conductor42]

Late last year, after BluWiki users began a discussion about making some Apple iPods and iPhones interoperate with software other than Apple's own iTunes, Apple lawyers demanded removal of the content. In a letter to OdioWorks, the attorneys alleged that the discussions constituted copyright infringement and a violation of the Digital Millennium Copyright Act's (DMCA's) prohibition on circumventing copy protection measures. Fearing legal action by Apple, OdioWorks took down the discussions from the BluWiki site.


OdioWorks filed the lawsuit today in order to vindicate its right to restore those discussions. Filed in federal court in San Francisco, the suit seeks a declaratory judgment that the discussions do not violate any of the DMCA's anti-circumvention provisions, and do not infringe any copyrights owned by Apple.


"I take the free speech rights of BluWiki users seriously," said Sam Odio, owner of OdioWorks. "Companies like Apple should not be able to censor online discussions by making baseless legal threats against services like BluWiki that host the discussions."
The discussions on the BluWiki site focused on how hobbyists might enable iPods and iPhones to work with desktop media management software other than Apple's own iTunes software. The discussions were apparently spurred by Apple's efforts prevent the iPod Touch and iPhone from working with competing media management software such as WinAmp and Songbird.


"Apple's legal threats against BluWiki are about censorship, not about protecting their legitimate copyright interests," said Senior Staff Attorney Fred von Lohmann. "Wikis and other community sites are home to many vibrant discussions among hobbyists and tinkerers. It's legal to engage in reverse engineering in order to create a competing product, it's legal to talk about reverse engineering, and it's legal for a public wiki to host those discussions.

Go EFF!:highfive:

[lilpixieofterror]

It is Apple's product and there are other music players on the market. Apple has a right to do whatever they want with their product.

[rogue06]

It is Apple's product and there are other music players on the market. Apple has a right to do whatever they want with their product.
Including censoring discussions about it?

[lilpixieofterror]

Including censoring discussions about it?

Discussions are another thing, but they do have a right not to have their product not tampered with.

[rogue06]

Discussions are another thing, but they do have a right not to have their product not tampered with.
Once they've sold it to a private individual for private use I don't think they have any control any longer.

Ever "modify" your car? Put better tires than what came from the factory? Put in a different exhaust system? Drop in a larger engine? Any after market changes using parts that don't come from the manufacturer could be called "tampering" with the product. Do think Detroit should be allowed to stop such "tampering"?

But this isn't about tampering, this is about talking about tampering, and my Libertarian knee-jerk reaction takes over :smile:

[Philosophickle]

Discussions are another thing, but they do have a right not to have their product not tampered with.

As far as I know, they weren't tampering with their stuff on the website. They were just talking about tampering with it.

[Alsharad]

Discussions are another thing, but they do have a right not to have their product not tampered with.

I have to disagree. They have a right to prevent tampering and then resale, but if I buy a piece of equipment it is MINE. I have ownership. Legally ownership includes the rights of Use, Transferal, and Destruction. That means that I can a) Use it, b) Sell it, or c) Destroy it.

With software, the water gets murky because usually, you do not buy software but purchase a license (which is solely the Right of Use, not Transferal or Destruction). So, the SOFTWARE on the iPod might be protected. However, I don't remember if there is a license agreement on the software when you use it for the first time. There is none on many products. As such, only full ownership can be assumed (barring unknown factors) meaning that anyone can disassemble it (and talk about it as well).

This appears to be flat-out censorship, not copyright protection. If there is no software license agreement for the OS on the iPod (or whatever it is), then Apple cannot prevent Transferal (sale) or Destruction (reverse engineering) of its software.

That's my understanding in a nutshell, but I would love to hear an opinion from an actual Intellectual Property lawyer.

[Philosophickle]

I have to disagree. They have a right to prevent tampering and then resale, but if I buy a piece of equipment it is MINE. I have ownership. Legally ownership includes the rights of Use, Transferal, and Destruction. That means that I can a) Use it, b) Sell it, or c) Destroy it.

With software, the water gets murky because usually, you do not buy software but purchase a license (which is solely the Right of Use, not Transferal or Destruction). So, the SOFTWARE on the iPod might be protected. However, I don't remember if there is a license agreement on the software when you use it for the first time. There is none on many products. As such, only full ownership can be assumed (barring unknown factors) meaning that anyone can disassemble it (and talk about it as well).

This appears to be flat-out censorship, not copyright protection. If there is no software license agreement for the OS on the iPod (or whatever it is), then Apple cannot prevent Transferal (sale) or Destruction (reverse engineering) of its software.

That's my understanding in a nutshell, but I would love to hear an opinion from an actual Intellectual Property lawyer.

I'm of two minds here. I want to agree, but I also think if you agree to not tamper with the product in certain ways after you purchase it, that is a valid contract.
But legal action for talking about it is gey.

[dizzle]

Shutting down discussions is draconian to the core. I am not surprised though, as I said I have been moderated multiple times on the Apple forums.

There are some things the EFF does that I can agree with and others that I cannot. I have written quite a bit on this at World of Apple. (not this censorship which I would never defend, but on another EFF v. Apple administrative case)

[dizzle]

I have to disagree. They have a right to prevent tampering and then resale, but if I buy a piece of equipment it is MINE. I have ownership. Legally ownership includes the rights of Use, Transferal, and Destruction. That means that I can a) Use it, b) Sell it, or c) Destroy it.

Notice what it doesn't include. Intellectual ownership of protected processes. It wouldn't include torching the Apple logo off and putting your own on and selling it as your product. Ownership has its limits.

Yes software is a bit different, and there are multiple important cases going on with such issues now. And it is with software that I wrote an article on opposing the EFF.

[dizzle]

I'm of two minds here. I want to agree, but I also think if you agree to not tamper with the product in certain ways after you purchase it, that is a valid contract.
But legal action for talking about it is gey.

I agree with you on all counts. No one has the right to buy luxury items on their own terms if the producer of that item has put in place a contract to be agreed to. The only time I think that government should intervene is when the issue is one of basic necessities of life.

The market will respond accordingly and those doing things that people are unwilling to accept will suffer the due consequences.

Shutting down a discussion (and I am assuming that is all that was going on, I don't know much about this) is stupid. Now if they were giving explicit instructions on how to break a law, I am not sure that follows under free speech. Can I post explicit instructions on how to break into your house since I figured out your alarm codes? There are reasonable limits on free speech, and in a lawful society, giving instructions on how to break the law I am not so sure is something that is protected. But I am not a Constitutional expert by any means, just saying my opinion based on the little that I know.

[lilpixieofterror]

Once they've sold it to a private individual for private use I don't think they have any control any longer.

Ever "modify" your car? Put better tires than what came from the factory? Put in a different exhaust system? Drop in a larger engine? Any after market changes using parts that don't come from the manufacturer could be called "tampering" with the product. Do think Detroit should be allowed to stop such "tampering"?

But this isn't about tampering, this is about talking about tampering, and my Libertarian knee-jerk reaction takes over :smile:

They really could if they really wanted to, but they are not going to because they let it get to that state and as a result it would be nearly impossible for them to stop after market products. That being said, nobody has to buy and iPod, there are plenty of MP3 makers on the market that don't really care what you do with them. Just as even if the big 3 where to try to put a limit on after market parts, there are still Toyota, Honda, and the other car companies that exist and you can just as easily go to another company that doesn't care what you do to their products. You don't have to drive a GM and likewise, you don't have to own an iPod.

BTW, all car companies do have certain parts that you can only buy from the manufacture for all kinds of reasons, either they are too uncommon of a part for other companies to make and be profitable or they car manufacture simply doesn't allow them to make the product. As I recall, these after market part companies need permission from the company they are making parts for being they make these parts.

[lilpixieofterror]

I have to disagree. They have a right to prevent tampering and then resale, but if I buy a piece of equipment it is MINE. I have ownership. Legally ownership includes the rights of Use, Transferal, and Destruction. That means that I can a) Use it, b) Sell it, or c) Destroy it.

Do you have to own an iPod? No. Are there plenty of other MP3 players on the market that do allow you to use 3rd party software? Yes. If you do not like only being able to use iTunes, don't buy an iPod. It's as simple as that.

[rogue06]

They really could if they really wanted to, but they are not going to because they let it get to that state and as a result it would be nearly impossible for them to stop after market products. That being said, nobody has to buy and iPod, there are plenty of MP3 makers on the market that don't really care what you do with them. Just as even if the big 3 where to try to put a limit on after market parts, there are still Toyota, Honda, and the other car companies that exist and you can just as easily go to another company that doesn't care what you do to their products. You don't have to drive a GM and likewise, you don't have to own an iPod.

BTW, all car companies do have certain parts that you can only buy from the manufacture for all kinds of reasons, either they are too uncommon of a part for other companies to make and be profitable or they car manufacture simply doesn't allow them to make the product. As I recall, these after market part companies need permission from the company they are making parts for being they make these parts.
Yes, you can always choose another product, but we’re talking about modifying the one you have. And I remember back in the 70s there were a slew of lawsuits concerning after-market parts, but the auto manufacturers weren’t going after the owners of cars that used them but instead they sued the manufacturers and distributors of the parts. Our next door neighbor’s son was nervous that his souped up Charger was going to get him sued, but my father (who was a sales executive for Chrysler) assured him not to worry since Chrysler couldn’t tell you what to do with the car after you bought it and used it for personal use. Perhaps the laws have changed since that time which is why it would be nice if a lawyer with the proper expertise would post his opinion on the matter.

[lilpixieofterror]

Yes, you can always choose another product, but we’re talking about modifying the one you have. And I remember back in the 70s there were a slew of lawsuits concerning after-market parts, but the auto manufacturers weren’t going after the owners of cars that used them but instead they sued the manufacturers and distributors of the parts.

Most likely (I'd assume anyway) they were going after companies that were breaking patent laws.

Our next door neighbor’s son was nervous that his souped up Charger was going to get him sued, but my father (who was a sales executive for Chrysler) assured him not to worry since Chrysler couldn’t tell you what to do with the car after you bought it and used it for personal use.

And did he sign an agreement saying that he can't change his car? If not, he can do whatever he wants with it and I have a feeling that there might of been more going on or the agreement that you agree to when using an iPod says something. Not sure, but it is their product and they do have the right to do what they want with it.

Perhaps the laws have changed since that time which is why it would be nice if a lawyer with the proper expertise would post his opinion on the matter.

Might of, but I bet that the lawsuits were about these after market companies breaking the patent laws and making parts illegally. I'm sure they have to ask permission first.

[Alsharad]

Do you have to own an iPod? No. Are there plenty of other MP3 players on the market that do allow you to use 3rd party software? Yes. If you do not like only being able to use iTunes, don't buy an iPod. It's as simple as that.

While I agree with your sentiment, the issue here is Apple threatening legal action for people, in a public forum apparently, discussing the innermost workings of their proprietary software. It smacks of censorship and might be on legally shaky ground. The issue sits squarely in the middle of Intellectual Property Law, which is problematic for me since my legal training didn't cover it much I would have liked and since I have problems with the idea of owning an idea.

In a way, this is the result of how copyright works in America (copyright, not patent). If a challenge to a copyright isn't legally and aggressively attacked, then the copyright holder loses said copyright. This leads to companies attacking sometimes genuinely harmless challenges out of fear of losing the copyright. I don't blame Apple for their vehemence, but I regret that the system works this way simply because it causes this very type of issue.

[lilpixieofterror]

While I agree with your sentiment, the issue here is Apple threatening legal action for people, in a public forum apparently, discussing the innermost workings of their proprietary software. It smacks of censorship and might be on legally shaky ground. The issue sits squarely in the middle of Intellectual Property Law, which is problematic for me since my legal training didn't cover it much I would have liked and since I have problems with the idea of owning an idea.

I have no idea what the discussion was about, but I somehow doubt that it was as innocent as the article is trying to make it sound. I'm kind of curious if they were going further than simple discussion and maybe even designing a system.

In a way, this is the result of how copyright works in America (copyright, not patent). If a challenge to a copyright isn't legally and aggressively attacked, then the copyright holder loses said copyright. This leads to companies attacking sometimes genuinely harmless challenges out of fear of losing the copyright. I don't blame Apple for their vehemence, but I regret that the system works this way simply because it causes this very type of issue.

Like I said, I have no idea what the discussion was about, but I do doubt that it was as innocent as the article makes it sound.

[Alsharad]

Notice what it doesn't include. Intellectual ownership of protected processes. It wouldn't include torching the Apple logo off and putting your own on and selling it as your product. Ownership has its limits.

Agreed. And those limitations go both ways. If I write a book or an article, my ownership does not extend to the point where I can demand (and have the courts enforce) my wish that it cannot be discussed or criticized in a public forum.

Yes software is a bit different, and there are multiple important cases going on with such issues now. And it is with software that I wrote an article on opposing the EFF.

Yeah... I soooo don't like intellectual property...

At the same time, I can see both sides of the argument both for and against it.
*sigh*

[lilpixieofterror]

Agreed. And those limitations go both ways. If I write a book or an article, my ownership does not extend to the point where I can demand (and have the courts enforce) my wish that it cannot be discussed or criticized in a public forum.

If you are talking about illegal activities, they can indeed be censored.

Yeah... I soooo don't like intellectual property...

At the same time, I can see both sides of the argument both for and against it.
*sigh*

People need to make a living.

[Alsharad]

I have no idea what the discussion was about, but I somehow doubt that it was as innocent as the article is trying to make it sound. I'm kind of curious if they were going further than simple discussion and maybe even designing a system.

Possibly. I am certain that it has happened in the past. Unfortunately, in many cases, the intent doesn't matter as much as whether or not an actual breach of copyright/intellectual property occurred. Without more detail, it's best left to the courts.

Like I said, even if Apple isn't certain as to whether or not it was a violation, they must threaten or take legal action to protect their copyright. It sucks, but that's the way it is.

I honestly doubt there was any malice on the part of Apple. They are simply protecting what is theirs.

[Alsharad]

Cross post!

If you are talking about illegal activities, they can indeed be censored.

True.

And that is true for both civil and criminal breaches of the law. Like I said, even if Apple isn't sure that the posters in the thread were breaking the law, they would have to sue just to have the court make a ruling.


People need to make a living.

:lol:

EDIT:
In regards to the title of this thread and the OP: Note that the First Amendment does NOT extend to protection from private individuals. As I am certain you moderators and owners are aware, even in a "public" forum, the First Amendment doesn't apply. As such, the comments about suing Apple for violating the 1st Amendment speak are off the mark. This is not a Freedom of Speech issue.

[Philosophickle]

If you are talking about illegal activities, they can indeed be censored.

Can be, I suppose. But many illegal activities aren't censurable conversations. You can talk about hiding pot in your car (the ACLU has videos on YT about his), how to kill someone, etc.
It's gray.

[lilpixieofterror]

Can be, I suppose. But many illegal activities aren't censurable conversations. You can talk about hiding pot in your car (the ACLU has videos on YT about his), how to kill someone, etc.
It's gray.

Gray or not, law suits are quite effective at getting people to do what you want. Not saying that is necessary right either, but it is effective.

[Philosophickle]

Gray or not, law suits are quite effective at getting people to do what you want. Not saying that is necessary right either, but it is effective.

True, as I recently found out.
(But don't worry, I saved the stuff off my hard drive before I wiped it)

[dizzle]

Agreed. And those limitations go both ways. If I write a book or an article, my ownership does not extend to the point where I can demand (and have the courts enforce) my wish that it cannot be discussed or criticized in a public forum.

You can if the purchaser bargained away that right.



Yeah... I soooo don't like intellectual property...

At the same time, I can see both sides of the argument both for and against it.
*sigh*

There is a very fine line for sure. I side more on the side of the IP owners because the other side often come across petulant entitlement whiners. I prefer to the let the free market decide the issues and let people and businesses enter in their own arrangements particularly on luxury items.

And I don't work in criminal law, so I am not speaking from education, but it was my understanding that you cannot freely write about how to kill someone without risking prosecution. And if it was how to kill a specific person, civil liability as well.

[dizzle]

While I agree with your sentiment, the issue here is Apple threatening legal action for people, in a public forum apparently, discussing the innermost workings of their proprietary software. It smacks of censorship and might be on legally shaky ground. The issue sits squarely in the middle of Intellectual Property Law, which is problematic for me since my legal training didn't cover it much I would have liked and since I have problems with the idea of owning an idea.

In a way, this is the result of how copyright works in America (copyright, not patent). If a challenge to a copyright isn't legally and aggressively attacked, then the copyright holder loses said copyright. This leads to companies attacking sometimes genuinely harmless challenges out of fear of losing the copyright. I don't blame Apple for their vehemence, but I regret that the system works this way simply because it causes this very type of issue.

What you have said is true. Even in the Psystar case, one of their affirmative defenses is that Apple waived its rights because it didn't immediately sue or send a cease and desist letter. The way the law works makes companies have to act like that sometimes, even if they think they don't have a chance. They have to have a track record of zealously protecting their trade dress.

[dizzle]

There is a point though where this isn't simple IP issues, but contract issues. Now, I work in a contract law context (insurance defense). If there is a clear contract, the parties should be bound by that contract. However, any ambiguities will be construed against the drafter.

With EULAs, the question sometimes is the idea of a "shrink wrap license." I think that is somewhat of a red herring. Not only is there the shrink wrap license, but a person has to actively hit a button to agree to EULA. I would only have a problem with the shrink wrap issue if a purchaser was refused a refund if he broke the shrink wrap, and after reading the terms on his screen, decided he couldn't agree.

And LOL, sometimes we get so caught up that we forget the the First Amendment doesn't have anything to do with private individuals. Otherwise we are just as bad as Apple on this forum then. There are all kinds of things that cannot be discussed here. We won't sue you for it, but you can get thrown off.

[Conductor42]

You don't agree to any contract or EULA when you purchase the iPod. It is physical, tangible hardware which is owned by you and you alone. Additionally, the iPod, it's software, etc. is not modified by using 3rd party software - and it's completely legal. WinAmp and Yahoo's Music service both work with iPods. The incident is completely illegal.

I have to disagree. They have a right to prevent tampering and then resale, but if I buy a piece of equipment it is MINE. I have ownership. Legally ownership includes the rights of Use, Transferal, and Destruction. That means that I can a) Use it, b) Sell it, or c) Destroy it.

With software, the water gets murky because usually, you do not buy software but purchase a license (which is solely the Right of Use, not Transferal or Destruction). So, the SOFTWARE on the iPod might be protected. However, I don't remember if there is a license agreement on the software when you use it for the first time. There is none on many products. As such, only full ownership can be assumed (barring unknown factors) meaning that anyone can disassemble it (and talk about it as well).

This appears to be flat-out censorship, not copyright protection. If there is no software license agreement for the OS on the iPod (or whatever it is), then Apple cannot prevent Transferal (sale) or Destruction (reverse engineering) of its software.

That's my understanding in a nutshell, but I would love to hear an opinion from an actual Intellectual Property lawyer.

[rogue06]

And I don't work in criminal law, so I am not speaking from education, but it was my understanding that you cannot freely write about how to kill someone without risking prosecution. And if it was how to kill a specific person, civil liability as well.
Several years back Paladin Press sold a book called "Hitman" which was essentially a how-to manual on how to assassinate someone. Someone used it to commit a triple homicide and Paladin Press got sued and lost. But there was no criminal prosecution and the author wasn't even sued (or if he/she was it was quickly dropped). I don't know if this means they couldn't be criminally prosecuted though, just that nobody (except the actual killer) was.