Today’s theme is IP in uncommon places.
First:Â When is an iPhone not an iPhone?Â Answer:Â When it’s a terrific handheld, stripped of the required activation of AT&T phone service.Â The iPhone comes bundled with the requirement — both technical and, apparently, contractual — that iPhone functions at all only once AT&T phone service has been activated.Â And there is a “no reverse engineering” clause in the Apple/consumer contract, put there both to bar precisely the type of hack now made available by “DVD Jon” (of DeCSS fame), and presumably to bypass the fact that according to the Copyright Office, unlocking your cell phone does not violate the DMCA.Â
Here’s some interesting text from the Copyright Office rulemaking on the DMCA question:
The underlying activity sought to be performed by the owner of the handset is to allow the handset to do what it was manufactured to doâ€”lawfully connect to any carrier.Â This is a noninfringing activity by the user. . . . The purpose of the software lock appears to be limited to restricting the ownerâ€™s use of the mobile handset to support a business model, rather than to protect access to a copyrighted work itself.
The iPhone, however, is not manufactured to lawfully to connect to any carrier, at least not in this somewhat odd sense.Â The iPhoneÂ is manufactured to lawfully connect to AT&T — at least if the Apple/consumer contract is enforceable on this point.Â It is premature to suggest that using or trafficking in DVD Jon’s iPhone hack violates Section 1201 of the DMCA, but there is a colorable argument that by contract, Apple has remade the character of the “handset,” and that as a result the Copyright Office exemption does not apply.Â Apple isn’t exactly creating an intellectual property interest, but it may be trying to trigger application of an IP statute via contract.
Second:Â Academics who study IP are familiar with arguments that the rhetoric of “romantic authorship” has driven expansion of substantive IP rights over the last century or more.Â Sunday’s Times carried this commentary on the recent Disney/Pixar animated release, Ratatouille, that has some fun with that theme.Â Chefs are the new heroic creators:
Iâ€™m not sure that two decades ago, or even a decade ago, it would have been possible to make and successfully market a Cinderella story set in the fussy world of haute cuisine, a furry fairy tale that presents a snooty dismissal of inferior victuals as a badge of honor and path to glory.
But â€œRatatouille,â€ in which a rodent scampers from gutter-dwelling anonymity to gastronomic acclaim, is one of the most lavishly promoted and rapturously greeted movies of the summer. It raked in more than $47 million at American theaters last weekend.
It establishes the toque as the new tiara and affirms the triumph of food snobs and fetishists, its special effects (the colorful fireworks that go off when a character bites into something wonderful) validating the idea of eating as enlightenment, of vegetable stew as revelation.
â€œRatatouilleâ€ isnâ€™t doing solo duty in this regard. Cable televisionâ€™s cup runneth over with populist shows (â€œTop Chef,â€ â€œThe Next Food Network Starâ€) that exalt the pursuit and appreciation of culinary excellence. Each weekâ€™s list of nonfiction best sellers includes at least one book that plumbs the finer points of ingestion.
This casts recent commentary about IP rights in food in a different light, making the case for copyright in cuisine an easier dish to digest in terms of narrative, if not necessarily in terms of policy.Â I admit, however, that I found the movie delightful — and persuasive, at least up to a point.Â Are chefs creating, and creative?Â Certainly.Â But read Frank Bruni’s Times essay carefully; he’s making a point that is at least as much about the gourmand consumer as it is about the creator.Â The romantic hero demands an understandingÂ audience.Â And food, perhaps most of all among the creative arts, is meant to be shared.
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.
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.
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.
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).
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.
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.