More Freedom Necessary as Top Developers Abandon iPhone

UPDATE: Macworld reports that Apple has changed its mind and approved the "Bobble Rep" app, which is now available in the App Store.

Apple's ridiculous iPhone app approval process has hit a new low, with rejections for “ridiculing public figures" and using Apple's own APIs to access Apple icons. These are just the latest reasons why the U.S. Copyright Office should approve EFF's effort to legalize jailbreaking of the iPhone—customers and developers shouldn't need Apple's approval before using the software they want.

In a cautionary tale for both artists and developers, illustrator Tom Richmond blogged about Apple's pointless rejection of "Bobble Rep," a great civic-engagement app designed to help users connect with their senators and representatives. Using a ZIP code or the iPhone's GPS, users can can get contact information for their members of Congress. But there's style as well as substance to the app, as Richmond – a noted caricature artist – drew portraits of all 544 members of Congress, giving the app a neat, cartoony flavor. (For novelty's sake, you can flick the lawmaker's head to make it bobble.)

So why did Apple reject Bobble Rep?

...because it contains content that ridicules public figures and is in violation of Section 3.3.14 from the iPhone Developer Program License Agreement which states: "Applications may be rejected if they contain content or materials of any kind (text, graphics, images, photographs, sounds, etc.) that in Apple's reasonable judgement may be found objectionable, for example, materials that may be considered obscene, pornographic, or defamatory." [Emphasis added.]

First of all, the caricatures are no more scandalous than what you might get for paying a street artist to sketch your face. But even beyond aesthetic quibbles about whether or not John McCain's forehead is drawn as “cartoonishly huge" or “insultingly huge," how is this any of Apple's business? This episode demonstrates once again how Apple is stifling the iPhone platform and alienating would-be partners by deciding to keep the gate, paternalistically levying arbitrary judgments about what users can handle. For whatever reason, Apple allows apps that fart, but disallows apps that help you get in touch with elected officials.

It's this kind of arbitrary censorship that led the noted software developer Rogue Amoeba to leave the iPhone platform today. CEO Paul Kafasis describes the tortuous saga Rogue Amoeba went through to fix a bug in their product "Airfoil Speakers Touch" while being stymied by an unresponsive Apple at every turn. The app is cool -- it allows you to forward audio from one computer to your iPhone. As part of the app's function, it shows a picture of the computer where the audio is coming from -- a helpful visual cue that lets the user know how and if the application is working.

But later, when Rogue Amoeba found a bug, coded a fix, and resubmitted the application to Apple for approval, Apple rejected the new version because the app shows a picture of the computer sending the audio (like a picture of an iMac, or a Macbook Pro) and an icon for the application from the sending computer (like a Safari icon). Apple cited their policies, claiming:

You may not use the Apple Logo or any other Apple-owned graphic symbol, logo, or icon on or in connection with web sites, products, packaging, manuals, promotional/advertising materials, or for any other purpose except pursuant to an express written trademark license from Apple, such as a reseller agreement.

Mind you, Apple had already approved the first version of Airfoil Speakers Touch. And the pictures and icons are supplied by the transmitting computer using Apple's own APIs. Crazy!

And Facebook's iPhone developer, Joe Hewitt, recently dropped the iPhone project, saying, "My decision to stop iPhone development has had everything to do with Apple's policies. [...] I am very concerned that they are setting a horrible precedent for other software platforms, and soon gatekeepers will start infesting the lives of every software developer."

Of course, like any retailer, Apple can choose what it wants to carry in its own App Store. But if Apple doesn't carry an app you want, you shouldn't be locked in to the App Store as your only source for software. “Jailbreaking" allows consumers to use their phones however they like, and for developers to sell whatever they produce. These episodes highlight why it's important that the Copyright Office grant EFF's request for a DMCA exemption for "jailbreaking" iPhones and other handsets. There's no reason that Apple should be the sole source of applications for the iPhone (any more than it's the sole source of apps for Macintosh computers), and a DMCA exemption would go a long way toward letting competition, rather than Apple's “approval," decide which apps users want.

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Leaked ACTA Internet Provisions: Three Strikes and a Global DMCA

Update: The leaked European Commission memo is now online.

Negotiations on the highly controversial Anti-Counterfeiting Trade Agreement start in a few hours in Seoul, South Korea. This week's closed negotiations will focus on "enforcement in the digital environment." Negotiators will be discussing the Internet provisions drafted by the US government. No text has been officially released but as Professor Michael Geist and IDG are reporting, leaks have surfaced. The leaks confirm everything that we feared about the secret ACTA negotiations. The Internet provisions have nothing to do with addressing counterfeit products, but are all about imposing a set of copyright industry demands on the global Internet, including obligations on ISPs to adopt Three Strikes Internet disconnection policies, and a global expansion of DMCA-style TPM laws.

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DVR is TV's New BFF

Digital Video Recorders, once considered a mortal threat by the entertainment industry, have now become its new best friend. It's just the latest example of how the industry's constant warnings of the dangers of "piracy" frequently turn out to be baseless hysteria.

Remember 2001? Digital Video Recorders ("DVRs") like TiVo and ReplayTV were poised to win mainstream adoption, allowing consumers to fast-forward past advertisements more easily than before. In response, the entertainment industry behaved predictably — it freaked out and filed a bunch of lawsuits.

Industry analysts claimed that DVR "potentially threatens the very lifeblood of how television is funded and how it's used for marketing and advertising." A coalition of television studios including Viacom, Disney, and NBC filed suit against SonicBlue, makers of ReplayTV, arguing that skipping commercials "effectively circumvents the means of payment to copyright owners for the programming being viewed... (and) thus constitutes copyright infringement."

Fast-forward eight years, and these claims turn out to be — surprise! — wrong. This weekend, The New York Times announced that "DVR ratings now add significantly to live ratings and thus to ad revenue."

A mystified NBC President Of Research called the situation "completely counterintuitive." But the reason behind the revenue isn't counterintuitive at all — it's obvious: When consumers are granted the ability to watch television whenever and however they want, they watch more TV — not less. That's a simple result which could only be "counterintuitive" to an industry that all too frequently treats its own best customers like criminals.

It's a cycle that by now has become sadly familiar: When the industry meets a new technology, it panics and fights it tooth-and-nail. Eventually, the industry loses this fight, often squashing innovation or arbitrarily singling out a few citizens for punishment along the way. Finally, the same technology ends up benefiting the same short-sighted industry — but rather than learn their lesson, the same corporations are usually busy repeating the same cycle all over again with something else. It happened with the VCR, the audio cassette, and even the turntable.

With a track-record like this, it's mind-boggling that the entertainment industry's schemes to "fight piracy" retain any credibility whatsoever. Unfortunately, thanks in large part to the industry's deep coffers, many in government continue to take their claims seriously. As a result, the UK is close to implementing a "three-strikes" policy of disconnecting illegal file-sharers from the Internet — even as a new poll reveals that those same file-sharers are the industry's best customers. Here in the USA, Hollywood is once again lobbying the FCC to introduce "Selectable Output Control" — a scheme which would grant the industry veto-power over new technologies.

Until legislators learn to stop trusting the entertainment industry's faulty "intuition," laws will continue to hurt innovation, consumers, and — yup — even the very industry they've been designed to protect.

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Is Net Neutrality a FCC Trojan Horse?

On Thursday, Federal Communications Commission (FCC) Chairman Julius Genachowski is expected to unveil draft rules aimed at imposing network neutrality obligations on Internet Service Providers (ISPs). In the excitement surrounding the announcement, however, many have overlooked the fact that the this rulemaking is built on a shoddy and dangerous foundation – the idea that the FCC has unlimited authority to regulate the Internet.

Genachowski has announced that the draft regulations will require ISPs to abide by the "Four Freedoms" set forth in the FCC's 2005 Internet Policy Statement, as well as the additional principles of nondiscrimination and transparency. EFF strongly believes in these six principles. Our work speaks for itself: we are developing software tools to Test Your ISP in the wake of uncovering Comcast’s meddling with BitTorrent traffic, seeking a DMCA exemption to let you run applications of your choice on your mobile phone, and fighting Hollywood’s efforts to force DRM restrictions into your television.

But Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality. In place of explicit congressional authority, we expect the FCC will rely on its "ancillary jurisdiction," a position that amounts to “we can regulate the Internet however we like without waiting for Congress to act.” (See, e.g., the FCC's brief to a court earlier this year). That’s a power grab that would leave the Internet subject to the regulatory whims of the FCC long after Chairman Genachowski leaves his post.

Hence the danger. If “ancillary jurisdiction” is enough for net neutrality regulations (something we might like) today, it could just as easily be invoked tomorrow for any other Internet regulation that the FCC dreams up (including things we won’t like). For example, it doesn't take much imagination to envision a future FCC "Internet Decency Statement." After all, outgoing FCC Chairman Martin was a crusader against "indecency" on the airwaves and it was the FCC that punished Pacifica radio for playing George Carlin’s “seven dirty words” monologue, something you can easily find on the Internet. And it's also too easy to imagine an FCC "Internet Lawful Use Policy," created at the behest of the same entertainment lobby that has long been pressing the FCC to impose DRM on TV and radio, with ISPs required or encouraged to filter or otherwise monitor their users to ensure compliance. After all, it was only thanks to a jurisdictional challenge -- ironically, by many of the same groups currently celebrating Genachowski's rulemaking announcement -- that we defeated the FCC's "broadcast flag" mandate which would have given Hollywood and federal bureaucrats veto power over innovative devices and legitimate uses of recorded TV programming.

EFF's concerns are born from more than just a general skepticism about government regulation of the Internet. Experience shows that the FCC is particularly vulnerable to regulatory capture and has a history of ignoring grassroots public opinion (see, e.g., media consolidation). That makes the agency a poor choice for restraining the likes of Comcast and AT&T.

Fortunately, there are two opportunities to reign in the FCC’s expansive views of its own “ancillary jurisdiction.” A federal court is considering this important question as part of Comcast's challenge to the FCC's order last year regarding interference with BitTorrent traffic (PFF filed a strong amicus brief in the case, arguing against the FCC's power grab). Or Congress could limit the FCC's power by authorizing to regulate only to ensure network neutrality.

So while we look forward to evaluating Chairman Genachowski’s proposed net neutrality regulations, the first step must be a clear rejection of any suggestion that those regulations can be based on “ancillary jurisdiction.” Otherwise, "net neutrality" might very well come to be remembered as the Trojan Horse that allowed the FCC take over the Internet.

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Hollywood Pressuring FCC on Selectable Output Control Again

Our friends at Public Knowledge have been doing a great job in Washington, D.C., fighting against the MPAA's efforts to selectively disable the high-definition analog (i.e., "component" video) outputs on your cable box. In essence, Hollywood is telling the FCC that it won't give Americans early access to blockbuster movies unless the FCC lets it kill your analog outputs.

Public Knowledge has an update today, letting us know that Hollywood is back at the FCC pushing for this anti-consumer, anti-innovation change in the FCC rules:

The MPAA claims it needs this power in order to prevent infringement of “high value content” its members would make available to Americans “for the first time” — or, as we like to call it, “the exact same content in the exact same format at the exact same quality, 30 days earlier.” It also continues to ignore the fact that other studios already release content this early, and that the content in question is available on the Internet long before the proposed window. Clearly, something else is actually at work here: the MPAA is attempting to hold content ransom to convince the FCC to give them the ability to control how consumer electronics are built and used. And to get there, it has asked the FCC to give them a special immunity to the pro-consumer rule that bans SOC without a single iota of evidence that it is necessary.

For more, check out the comments filed by EFF, PK, and a number of other consumer groups with the FCC last year or Public Knowledge's issue page about selectable output control (SOC).

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It’s Still A Duck: Court Re-Affirms That First Sale Doctrine Can Apply to “Licensed” Software

Building on a prior ruling, a federal court has re-affirmed that a Seattle man was not infringing copyright law by re-selling software he obtained from an Autodesk customer.

The ruling is bound to frustrate the copyright industries, which have struggled for years to convince courts and their customers that the only thing you “buy" when you buy software is a limited and temporary right to use that software under certain conditions. In other words, they claim buyers aren't owners.

The distinction is no mere technicality. Under the Copyright Act, owners of copyrighted material are given substantial rights in the particular copies they purchase. One of the most important of these protections is the "first sale" doctrine, which says that once you've acquired a lawfully-made CD or book or DVD, you can lend, sell, or give it away without having to get permission from the copyright owner. Without the first sale doctrine, libraries would be illegal, as would used bookstores, used record stores, video rental shops, CD-swapping communities and so on. If those books, records, videos etc. were merely licensed, the seller could use the license to could force consumers to always buy new software, even if they would prefer to buy an older, possibly less expensive, version.

Autodesk would like to do just that, which is why it carefully polices secondary markets for its expensive AutoCad design software. After Autodesk repeatedly alleged that Timothy Vernor was violating copyright law by attempting to re-sell copies of AutoCAD software on eBay (which he had obtained from an Autodesk customer), Vernor asked a Washington federal court to declare that his activity was legal under the first sale doctrine. Autodesk predictably responded by insisting that AutoCAD is licensed, not sold, and therefore the first sale doctrine did not apply. The court ruled for Vernor. Autodesk then recruited an expert, put some additional facts on record, and effectively asked the court to reconsider its decision.

Autodesk’s arguments were no more successful the second time around. Judge Richard Jones found that while the sale was subject to numerous restrictions, it was nonetheless a sale, which means the customer had all the rights of an owner, and thus would not infringe AutoDesk’s copyright by re-selling the software. The court noted that while Autodesk imposed typical software industry contractual restrictions on use and transfer, its license agreement allowed the customer from whom Vernor bought the software to keep the copies forever, for a one-time fee. In other words, the transaction looked more like a book purchase (you pay your money, you get a copy to keep) than, say, a music subscription service.

Autodesk is likely to appeal, which means this case is headed to the Ninth Circuit Court of Appeals. The appellate court is already considering similar issues with two other cases: UMG v. Augusto (EFF represents Mr. Augusto, with Durie Tangri LLP) and MDY v. Blizzard. Let’s hope Ninth Circuit takes full advantage of this opportunity to protect the rights and expectations of consumers.

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Book Review: Bill Patry's Moral Panics and the Copyright Wars

Bill Patry is widely regarded as one of the leading copyright law experts in the United States. For the past several years, moreover, he's been Senior Copyright Counsel at Google. Yet somehow he's found the time to write a book, too, Moral Panics and the Copyright Wars, which was published earlier this month.

If you're looking for a basic primer on digital copyright, or the DMCA, or DRM, this isn't the book for you (instead, try these). Rather, Patry's contribution is to focus on the importance of metaphors and rhetoric in the policy debates (past and present) surrounding copyright. The highpoint of the book comes in Chapter 6, where Patry marshals history, copyright law, and the study of rhetoric to dissect efforts by copyright owners to (improperly) conflate copyrights with ideas of "property." This chapter, moreover, has spilled from between the covers of the book to Patry's blog, where he has a spirited exchange with Ben Sheffner, an entertainment industry attorney who has his own worthy blog on copyright issues.

There are times when Patry's frustration with copyright lobbyists shows through. In those moments, it might fairly be said that he's an energetic participant in assembling the rhetorical siege engines of the copyright wars, rather than a dispassionate neutral observer. But the book is an entertaining and informative read, representing a valuable contribution to the growing literature on contemporary copyright policy debates.

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Google Releases Complete Google Voice App FCC Response

Today, recognizing pending FOIA requests by EFF and Wired News, Google dropped its claim of confidentiality and paved the way for the FCC to release the full text of its explanation of Apple's rejection of the Google Voice iPhone app. As we've reported previously, the FCC is investigating Apple's rejection of the Google Voice iPhone app from Apple's iPhone App Store. The regulators sought to find out from Apple, Google and AT&T why the app was rejected, who was behind the rejection and if the carrier had exerted any pressure on Apple.

Last month, the three parties responded to the FCC's questions. AT&T and Apple responded publicly, with AT&T denying any involvement and Apple maintaining that it "has not rejected the Google Voice application, and continues to study it." However, Google's public response left blank the answer to the question, what did Apple tell Google about the reasons for its decision to reject Google Voice? EFF and Wired News each submitted formal Freedom of Information Act (FOIA) requests to the FCC requesting that the FCC release the full, unredacted version of Google's response.

In the letter made public today, Google directly contradicted Apple's claim that it did not reject the Google Voice app. In fact, says Google, Phil Schiller, Apple's Sr. Vice President of Worldwide Product Marketing, told Google's Alan Eustace of Apple's decision to reject the app on July 7. In an unusual public statement, Apple reiterated that it has not rejected the Google Voice app and continues discussion with Google.

Fuller analysis of Google's response appears at Wired's Epicenter, Ars Technica, TechCrunch and a number of other outlets.

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EFF's Geek Reading: xkcd Webcomic Author Randall Munroe

Monday, September 21st will be the second Geek Reading event to benefit EFF, at 111 Minna in downtown San Francisco. This time, the author in question is Randall Munroe, otherwise known as the writer and cartoonist behind the brilliant webcomic xkcd.

For those not yet part of the xkcd cult, the cartoon with the strange name consistently brings some of the sharpest satire to the world of the Internet and digital culture. Randall describes the strip as "a webcomic of romance, sarcasm, math, and language," and the New York Times calls it "wildly popular among techies the world over for its witty use of programming code in its gags." It is currently translated into three languages and receives between 60 and 70 million page views per month.

Reddit and Breadpig founder Alexis Ohanian will be emceeing the event, which will include a visual presentation as well as an interview portion, with questions culled from the top-voted comments on Reddit. Randall's new book "xkcd: Volume 0" will be available for purchase and signings as well.

The main event starts at 7 and tickets are $30. But you can also join the VIP reception ($100 donation) a bit earlier, at 6, for some extra face time with the man behind the most complex stick figures ever drawn. Numbers are limited, so get your tickets now!

Geek Reading: xkcd creator Randall Munroe
Monday, September 21, 2009
VIP Reception: 6:00
Reading: 7:00

111 Minna Gallery, 111 Minna Street, San Francisco

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Improving DMCA Takedowns at Blogger, Flickr

In the past couple weeks, two major online service providers, Blogger and Flickr, announced improvements to their DMCA takedown policies. EFF had a hand in both: Blogger contacted us to discuss their improvements, and we contacted Flickr to raise some concerns we had. We're glad to see these improvements, which make the process more transparent for users and minimize the collateral damage to free speech that can sometimes be the result when a copyright owner sends a takedown notice.

Blogger's improvements came in response to complaints from MP3 bloggers, who sometimes saw entire blog posts disappear thanks to one allegedly infringing link. These bloggers were unable to determine which links in their blog posts drew the takedown notice (many of the links were sent by record labels seeking exposure), and thus unable to edit and restore their posts. Blogger has responded by unveiling a forms-based takedown process that should make it easier for the service to parse what, exactly, in a blog post is allegedly infringing. Also, the move to electronic takedowns will speed up Blogger's ability to forward notices to Chilling Effects, where users can review them. Most importantly, rather than deleting the entire blog post in response to one link, Blogger now puts the post into "draft" mode, thereby allowing the user to edit out the link and restore the remainder of the post. These are all good steps toward minimizing the "collateral damage" caused by a DMCA takedown notice aimed at links, rather than other original content. (We remain concerned, however, that Blogger still isn't directly forwarding the takedown notice to the user -- it seems odd to force them to rely on Chilling Effects.)

Flickr also introduced a number of improvements to the DMCA takedown process, motivated by the recent controversy surrounding the Obama-Joker image posted by Flickr user Firas Alkhateeb. Most importantly, when a photo is removed, its title, description, comments, tags, and notes will remain available (YouTube could learn from this example!). This is an important improvement that preserves the discussion about the allegedly infringing material, something that a copyright owner is not entitled to censor with a DMCA takedown notice. Flickr will also restore the original image to its original context in response to a DMCA counter-notice, another important improvement. Too often, takedowns are sent for illegitimate censorial reasons, and if the user elects to submit a counter-notice, she should be able to restore the material to its original location, complete with its original context.

Kudos to Blogger and Flickr for taking the concerns of their users seriously, even as they comply with the DMCA takedown notices that they receive from copyright owners. Their actions raise the bar for other service providers, hopefully encouraging users to vote with their feet and abandon services that are sloppy about handling DMCA takedown notices.

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