Jul 30, 2010

The Jailbreaking Exemption and Apple Peel 520


As it has been known by all creatures on earth (maybe except lawyers), the U.S. Library of Congress issued a statement on Monday that legalized “jailbreaking” wireless telephone handsets.

It is no doubt a good news for jailbreakers, the unauthorized App developers, as well as iPhone buyers. Now you can strut up to the black corner of the computer arcade, looking straight inside the eyes of the guy who knows how to satisfy your desire (of anything that Jobs don't want you do, such as watching flash video), and speak laudly: "break it, please."

"Wait, wait! It's an iPod ... OK ... if you like to call it iTouch, then it is an iTouch... It's not an iPhone, I mean ... not a telephone handset."

"What?"

Let's stop the drama and go back to the law:

At least from the literal meaning of the newly annouced exemption, iTouch owners may be excluded from the benificiaries. Here is the fulltext of the exemption:

... Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) until the conclusion of the next rulemaking.

...

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

...
Is an iTouch a "wireless telephone handset"? I don't know. At least Apple, even before such exemption promulgated, has already said it isn't a telephone - it is a great iPod, a pocket computer and a game player, but not a telephone... because only iPhone will be a telephone. (How about iPad 3G? Too big to be a "handset"?)
While in practice, if you do own an iTouch, you must have tried to make it being a telephone - The easiest way is to install a Skype. That dose not need jailbreak.

Recently, there is a more exciting way to turn iTouch to a telephone, a real GSM mobile phone. After jailbreaking, you may turn your iTouch to be a real telephone in the near future by wearing this: Apple Peel 520.
This adapter not only offers voice calling and text messaging (presumably requiring a jailbroken iPod touch for the apps; GPRS not possible yet), but it also doubles up as an 800mAh battery and provides 4.5 hours of call time or 120 hours of standby juice.

This is interesting... And by the way, this is made in China. China do have the regulation prohibiting the circumvention tools. While such regulation does not have a mechanism of the administrative exemption.  It's hard to say whether the copyright law can be used to prohibit the distribution of Apple Peel 520. In fact, from my knowledge, another heavier sword over Apple Peel would be: "Network Access License for Telecommunication", which is issued by the Ministry of Industry and Information Technology. Each model of cellphone must be licensed before being sold legally in China...again, license issued by the government might be a bigger problem than the copyright license.

BTW, "520" means "I love you" in Chinese SMS language.

Jul 10, 2010

Google’s ICP License Renewed, and ISP Liability Released

The game of “Spoting the Difference" starts again!
Google's ICP license renewed. See the captured today's Google.cn web page below (left), and compare it with the page in last week (right).

Google.cn on 9 July 2010:

Google.cn on 4 July 2010:

Exactly as what I predicted, Google is trying to make Google.cn being a non-search engine website. It now places "Music", "Translation" and "Shopping" at the web page. These are what Google wishes to keep on running in China. While the search engine service of Google.cn is replaced by a link to google.com.hk. Legally speaking, Google.cn is not providing search engine service currently. It is merely a link to another website. Just like the links added in any of our own web posts.
Interestingly, please pay attention to those minor changes. It seems Google's lawyers are demonstrating their legal skills. For example, in the 4 July version, it says "we have moved to (我们已经移至) google.com.hk", while in current page, "we have moved to" has been moved. Why? I assume the reason might be: The sentence "WE have moved to" acknowledged that the one who runs "google.com.hk" is identically the same one who runs "google.cn". In that circumstance, Google.cn would still be critisized by Chinee authority on providing searching results including "illegal" materials. Without such sentence, when it is accused by the government, Google China may say that it is an independent legal entity who is distinctive from the operator of google.com.hk.
Besides the censorship topic. Let's discuss something about intellectual property law (this might be more interesting): Is there any difference between providing a link to a search engine and providing a search engine service per se?

Yes, of course.
When you place a link to a web page. You will not be a service provider, therefore you will not be liable for the copyright/trademark infringement even when the linked page is full of infringing materials. If a right owner wants your money, he/she at least has to send you a notice saying "hey! The web page you are linking is full of my proprietary stuff. Please move that hyperlink!" After you recieved such letter, in China, you may have to remove the link if there is really infringing contents at the web page you are linking to. However, now in the Google's circumstance, this will no be a problem because google.cn is linking to google.com.hk, which is owned by google.cn's parent company.

In short, by replacing search box with a hyperlink to google.com.hk, Google.cn may escape from being accused for vicarious liability, which is by far a "killing application" of the intellectual property holders in this era of the Cambrian explosion of the Internet.

Statutory Damages Flexible: Tenenbaum Case Updated


Represented by Professor Charles Nesson, Joel Tenenbaum pulled one back in his P2P downloading case, in which he was sentenced $675,000 dollars statutory damages to the copyright owners.

I was sitting in the hearing when Charlie presented his move of either placing a new trial or granting a remittitur. Briefly, Charlie's argument is: 675,000 dollars is unconstitutionally high, and therefore instructing the jury that maximum amount should be a mistrial.

After five months awaiting, Judge Nancy Gertner agreed Joel's motion of remittitur by reducing the damages Joel owes to $67,500 - one-tenth of the original one. In her ruling, she wrote:


Reducing the jury’s $675,000 award also sends another no less important message: The Due Process Clause does not merely protect large corporations, like BMW and State Farm, from grossly excessive punitive awards. It also protects ordinary people like Joel Tenenbaum.

Still, for each song, Joel has to pay $2,250 (USD), and if my memory serves, upon what is the appropriate amount of damages, "30 Dollars", Charlie said after the hearing.



Jul 5, 2010

Choice of Forum for the Possible GoogleCN Dispute

As I have discussed in a previous entry, if Google’s ICP license is conditioned to provide filtered web search results, Google may not provide search engine service via Google.cn anymore. Google.cn may become a hub of Google’s services designed specifically for China’s market. Until today, the renewal of the ICP license for Google.cn is still pending, and the webpage located at Google.cn is still a simple link to Google.com.hk. In this post, I'd rather to discuss a more lawyering thing: is there any difference between shutting down Google.CN and blocking Google.COM.HK?

Yes, they are different.

If a service provided by Google China, a Chinese company, were shut down by the government, the forum of questioning such shutting down should be Chinese judicial or administrative dispute resolutions. The game players thus are Google China and specific government agency who makes the decision. If Chinese law do request ISPs filterring the search result,  then Google would hardly be a winner of the that kind of dispute (even regardless the "political influences" to the cases).

If an online service provided by Google Inc. (a corporation in California), or Google.com.hk (operated by a company registered in Hong Kong) were denied to be accessed by China's government, a new forum could be chosen by Google - WTO.

Yes, a complaint at WTO's DSB should be filed by a government. But the industry would always be an initiative force of the international trade disputes. Furthermore, because Chinese court has not been empowered to review the legality of administrative regulations, reviewing them through an international institution can at leaste be one of the choices of challeging those regulations. 

Now the question is: whether China is burdened to open search engine market to foreign companies?

China has made its sectoral commitments  on providing market access for some "telecommunications services". Specifically, China committed to open the market for "data/online processing services", which is the class 843 of the UN Central Product Classfication (CPC). But China did not promise to open market for "database services", which is CPC 844.

In the 2009 version of the CPC, the "web search portal content" has been included in CPC 843. Although China's commitments was made based on the CPC in 2001, some WTO cases (shrimp-turtle case, and Gambling case) has supported an evolutionary approach or a dynamic approach. Both of them would be good for including search engine service in China's commitments.

The next question is: whether China's activities constitute a violation of its commitments? That would be a much longer discussion. And I would not be able to illustrate it at the current stage. Anyway, an overall strategy is of very important for both parties. Before stepping forward, both Google and China's government officials should pay attention to the differences between "blocked" and "shut down", and between domestic law and international law.

Jul 3, 2010

Would Google.CN be a "Non-Search Engine" Site?

As you may have known, the domain "Google.cn" had been automatically redirected to "Google.com.hk" since this March. And last week, Google stopped such automatic redirection, and launched a web page at Google.cn. By clicking anywhere of the page, a visitor will be linked to Google’s Hong Kong site.  (please try http://www.google.cn )
截图00
Google’s SVP David Drummond announced the official reason of such change (underlines added).

“...it’s clear from conversations we have had with Chinese government officials that they find the redirect unacceptable—and that if we continue redirecting users our Internet Content Provider license will not be renewed (it’s up for renewal on June 30). Without an ICP license, we can’t operate a commercial website like Google.cn—so Google would effectively go dark in China … instead of automatically redirecting all our users, we have started taking a small percentage of them to a landing page on Google.cn that links to Google.com.hk — users can conduct web search or continue to use Google.cn services like music and text translate, which we can provide locally without filtering. This approach ensures we stay true to our commitment not to censor our results on Google.cn and gives users access to all of our services from one page… As a company we aspire to make information available to users everywhere … We are therefore hopeful that our license will be renewed on this basis so we can continue to offer our Chinese users services via Google.cn.”
Regardless the political concern of Chinese authority,  the current web page at GOOGLE.CN and the above announcement can be described as a smart lawyering thing. By this change, Google may claim that GOOGLE.CN is not using the prohibited URL forwarding technology. And because the linked page (google.com.hk) has nothing but a blank search box and some links for the “Google.cn services like music and text translate”, Google is hardly to be condemned as an “illegal” or an “unmoral” one even in the tone of Chinese offical news agencies.
I would not like to bet that Google could be blocked out of China entirely.  But who knows what will happen? If Google is really blocked on mainland China, some clues might be found through what has happened.
Firstly, Google wish to keep its “Google.cn services” at Chinese market. Since 2005, Google has launched some unique Chinese applications at Google.cn.   These services are either not available (e.g. www.google.cn/music) or unuseful (e.g. laiba, Google Book Chinese, Google Scholar Chinese etc.) for the users outside of China. Therefore, Google hope to leave them even when its search engine is blocked.
cyberpluralism
The circled things are all Chinese applications.
Second, Google wish to “offer unfiltered search in simplified Chinese”, but please be careful, Google does not say whether such unfiltered search will be available on mainland China, or at least available through Google.CN. Technically, language preference can be individually adjusted by any user in any Google account at any Google’s gTLD domain name. Therefore, Google will definitely continue to offer such service no matter China block Google.cn or not.  Or, to some extrem, Google China (which is by law an independent Chinese company) may even continue to use Google.cn as an entrence of thlse Chinese Google services, while (if not too weird) such page may not include a search engine unless you log in with your Google.com account (which is a service provided by a foreign company).  By the way, the similiar situation has actually been happening for a long time - Google.CN has never provided E-mail service.
I will discuss this later on.