Comments on: Phones and Food

By: Chris Buccafusco

Chris Buccafusco — Mon, 16 Jul 2007 17:58:46 +0000

Thanks for the post on food and IP. There is some interesting cultural history behind the development of chefs as creative artists. For any number of reasons, as musicians, painters, and poets were responding to the calls of the Romantic revolution, chefs remained in their kitchens toiling away unseen. With the eruption of public restaurants in the early 19th century, chefs had an opportunity to claim their place alongside these other newly minted geniuses. I believe that one reason they missed the chance is that the most popular and influential chefs of the day – men like Careme and Escoffier – thought of themselves as systematizers. Great cooking in the 19th century had more to do with correct reproductions of canonical dishes than it did with creating original masterpieces (although there was a place for this). It really wasn’t until the establishment of Nouvelle Cuisine in the 1970s that classic haute cuisine was even questioned. Nouvelle Cuisine, and the king-makers at Michelin and Gault-Millau, established a culinary discourse that prized creativity and originality above all else and set the stage for the recognition of chefs as artists. Of course, my suggestion raises as many questions as it answers (why were Careme and Escoffier canonizers? what role does gender play? what about philosophical and aesthetic ideas about the sense of taste?), but perhaps it helps explain why chefs have been so late to the IP party and why they seem to be coming on so strongly.

By: Mike Madison

Mike Madison — Thu, 12 Jul 2007 18:50:24 +0000

See, e.g., the dissent in Lion Oil Co. v. Marsh, 220 Ark. 678, 249 S.W.2d 569 (1952), but I’m not sure that the case applies here. It deals with state labor laws.

By: Bruce Boyden

Bruce Boyden — Wed, 11 Jul 2007 18:21:13 +0000

Hmm, good points. On “lawfully,” first, it’s modifying “connecting,” meaning that the connection has to be lawful (i.e., no phone phreaking), rather than the circumvention itself (obviously, since that’s the whole point of the exception). I haven’t seen the iPhone terms, but I bet they flat-out ban RE, not using the phone to connect to some other service per se. Of course, even if that’s true, Apple could just re-word its terms.

Which leads to my second point, which is that somewhere in the dim recesses of my brain, I recall seeing cases that stand for the proposition that “unlawful” in statutes typically does not mean “in breach of a contract,” but rather in violation of public law. Breaching a contract is not illegal; it just subjects you to damages (and maybe other remedies).

By: Mike Madison

Mike Madison — Wed, 11 Jul 2007 16:01:02 +0000

Bruce,
I hope that you’re right, and I also hope that we never have to test the proposition.
The word “lawfully” in the regulation is curious, however. Does “lawfully” have a “telecommunications law” meaning, that is, no one is hacking into the network; the subscriber has paid for access, and so on? I imagine that this is what the Copyright Office intended. But might “lawfully” have a broader meaning, so that connecting to a non-AT&T network with the iPhone might not be “lawful” because doing so violates the “no reverse engineering” covenant that the user agreed to? And what if the circumvention is not for the purpose of connecting to a wireless phone network, but for disabling the iPhone’s connection to AT&T’s network, without intending to adopt a new phone connection?
Just wondering. Of course, even if the exception doesn’t apply then there may be no 1201 liability because, as you note, there is no underlying work to be protected. But courts (.e.g, Blizzard) haven’t been resolute in applying 1201 that way.
Mike

By: Bruce Boyden

Bruce Boyden — Mon, 09 Jul 2007 18:11:27 +0000

Interesting. I don’t think a “no reverse engineering” clause can create 1201 liability where there otherwise isn’t any (e.g., no copyrighted work being protected; or an exception applies). It can create *contractual* liability, but that’s a whole different box of remedies.

On the exception, this may be an example of the open texture of law, but the text of the regulation that was actually adopted is broader than what Peters implied in her recommendation:

“Computer programs in the form of firmware 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.”

That seems to cover iPhone hacking, no matter what Apple intended for the iPhone, so long as the circumvention is limited to connecting to a different network. (I’m presuming that, e.g., opening the case is not “circumvention.”) Even beyond that, Chamberlain and Lexmark would seem to stand in the way of a 1201 suit challenging circumvention of protections on the operation of software code where reproduction of the code was not reasonably at issue.

By: Frank

Frank — Mon, 09 Jul 2007 17:04:33 +0000

re the Chef as romantic author: Those who find the cultivation of expensive tastes morally problematic can only hope that series like “My Super Sweet 16″ cultivate a counternarrative: food snobs as spoiled villains, and their “courtier-chefs” overweening enablers of a decadent elite.

Perhaps they could use this book for ideas: David Rakoff,
Don’t Get Too Comfortable: The Indignities of Coach Class, The Torments of Low Thread Count, The Never-Ending Quest for Artisanal Olive Oil, and Other First World Problems.

at http://www.amazon.com/Dont-Get-Too-Comfortable-Indignities/dp/0385510365