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.