So will Apple and AT&T’s legal action deter hackers? Hardly. Individual users are already allowed to unlock their own phones under an exemption to the Digital Millennium Copyright Act (DMCA) that the U.S. Copyright Office issued last November. The exemption, in force for three years, applies to “computer programs…that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.”
What’s less clear is whether companies and hackers can legally unlock the phones and then sell them to others, or sell unlocking software. “The law here is unclear,” says Jonathan Kramer, founder of Kramer Telecom Law Firm in Los Angeles. “There just isn’t any case law in this area for us to figure out how it plays out.”
Experts believe that AT&T and Apple will point to the DMCA’s section 1201, stating that “no person shall circumvent a technological measure that effectively controls access to a work protected under this title.” They will claim that a phone lock is just such a technological measure that protects copyrighted work: namely, cell-phone software.
Problem is, it could be argued that, in reality, the lock only protects access to a carrier’s communications network—and communications services aren’t copyrightable under the Act, explains Jane Ginsburg, professor of literary and artistic property law at Columbia Law School. “This law was written for DVDs and video games,” she explains. “What’s going on here is using the Copyright Act to achieve another objective.”
Indeed, this time, hackers may have the law on their side. Remember, decades ago, automakers built their instrument panels so that only authorized radios of their own manufacture would fit in. Eventually, U.S. courts ended that practice.
A lawsuit filed last year by TorrentSpy–a BitTorrent search engine–that accused the movie studios trade group of intercepting the companys private e-mails, was tossed out of court last week.
But while a U.S. District judge found that the Motion Picture Association of America had not violated the federal Wiretap Act, as TorrentSpys attorneys had argued, the MPAA acknowledged in court records that it paid $15,000 to obtain private e-mails belonging to TorrentSpy executives.
The MPAAs acknowledgement is significant because it comes at a time when the group is trying to limit illegal file sharing by imploring movie fans to act ethically and resist the temptation to download pirated movies. To critics, the revelation by the MPAA is a possible sign that the organization is itself not above adopting unethical practices in its fight against file sharing.
“Ethically, its pretty clear that reading other peoples e-mail is wrong,” said Lorrie Cranor, an associate research professor and Internet privacy expert at Carnegie Mellon University. “Being offered someone elses e-mails by a third party should have been a red flag.”
But seriously, there are some troubling things here: Legal woes mount for TorrentSpy:
“Essentially, one can do ongoing surveillance of another party’s e-mails without their consent and not violate the law,” [EFF’s Kevin] Bankston said. “Not only does this open the door to privacy abuses in civil cases but it also could lead to abuses by the government…It’s an incredibly dangerous decision.”
Although it’s been going on for years, this article in today’s Boston Globe really smacks you in the face. Not just because we are working to insult one of our closest neighbors because their copyright policies are different than our own, but also because we are managing to force them to adopt not just our policies, but also our ideologies of copyright. Note that the cited change in Canadian law introduces the notion that there are things that one is not supposed to be able to do with a tool, and also that employing the tool in this fashion is a proof of guilt, removing any question of intent: Pirates of Canada’s movie theaters snare booty off Hollywood bootlegs — pdf
One in six movie copies made by illegally recording from the screen originates in Montreal, according to the Canadian Motion Picture Distributors Association. Bootlegs made in Montreal have turned up for sale as DVDs in 45 countries, said Serge Corriveau, an investigator for the group.
Canada is paying a price for tolerating pirates. The International Intellectual Property Alliance, which represents 1,900 US companies that produce films, books, software, and other goods protected by copyright, placed Canada alongside China and Russia on its list of worst offenders.
Bowing to the pressure, the federal government changed the criminal code in June. Cammers now face as long as two years in jail for recording in a theater. Police previously had to prove intent to distribute in order to bring charges.
Does this mean that camcorder manufacturs will have to include, alongside consumer warnings like “Not to be used in the shower,” a warning that use inside a movie theater may open the owner to criminal penalties?