Archive for the 'Copyright' Category

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.

Google’s 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 few days ago, 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 Professor Nesson 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, and if my memory serves, upon what is the appropriate amount of damages, “30 Dollars”, Charlie said after the hearing.

Chinese Posts at BlawgDog from Dec. 14th to Dec. 20th: English Abstracts

From December 14th to December 20th, 2009, seven new Chinese entries have been posted to the Blawgdog. Here are the brief one-sentence abstracts for the English readers’ reference:

  • Top Ten 2009 Copyright News in China
    Chosen by the China Copyright Journal. I added the referral links to those news that had been commented at blawgdog.
  • It’s Wrong not because of Burdening the Duty of Carefulness, but because of Providing Joint Liability
    Some Beijing academicians oppose Article 36 of the drafting China’s Tort Law Bill by saying it should not burdens the ISPs the duty of carefulness. I clarified in this essay that the key problem of Article 36 is wrongfully providing a joint liability to the ISPs. 
  • Turning Exemption Provisions to the Criterion of Liability
    This article is also about Article 36 of the drafting China’s Tort Law Bill. I noted that, in the legal transplantation in recent years in China, the exemption provisions in foreign legislations are often (intentionally or mistakenly) shifted to be the criteria of liability. For example, Sec. 230 of the CDA in US is an exemption arrangement, while Article 36 is a criterion of liability; another example can be the safe harbour to the ISPs in the DMCA (on the so-called red flag test) was wrongfully transplanted to be a criterion of liability.
  • Xinhua News Agency: China will not Resolve the un-recorded Domain Names
    This entry has been translated into English at here.
  • I See the Historical Day
    This post mentioned the latest news: the Ministry of Industry and Information is proposing that the foreign enterprises “must register domain names from Chinese registrars if the names are used for business in China. The domain names oversea registered shall not be used in the businesses toward China.” And admitted the state will “supervise the domain names that launches the website oversea, and take measures to control the foreign name registrars”.
  • Reprint: Two Articles by Mr Youxi Chen
    Chen is a lawyer, and the vice Chair of the Committee of the Constitutional Law and Human Rights in China Bar Association. He published two articles at his website blaming the newspaper misleading the mass in reporting the news that lawyers are arrested in ChongQin. He argues that the Chinese lawyers are in very hard social environment now.
  • China IP Weekly Newsletter
    Writen and edited by Luckie Hong, a co-author of BlawgDog, reporting the latest news in IP Law. This issue includes SNDA Literature (NASDAQ: SNDA’s subcompany) annouced suing Baidu for over one million in infingement of copyright, and the new development of Netac v. Sony, and other 7 latest news.

Chinese BT websites are shut down because of "No License"

The leading Chinese websites of BT sharing are shutting down since the beginning of December. BTChina  btchina.net), one of the most famous such sites, is totally shut down. And the rumour that its webmaster has been arrested was once widely spreaded. Yesterday, the webmaster of BTChina left a very brief message at the webpage:

截图00

It says:

I have to clarify that … the Radio, Film and Television Administration noticed me BTChina should be closed because the Register Serial Number of the Website (RSNW) is canceled by the Ministry of Industry and information Technology (MIIT). The reason of cancelling the Register Serial Number is BTCHINA has no “License for Dissemination of Audio-Visual Programs through Information Network” (LDAV). I am safe (not arrested). And this proved the online rumours are not reliable, especifically the news.

Not merely BTChina, many other well-known websites sharing  BT seeds are shut down since last week (read the story in Chinese at here). It is apparently that a campaign of cracking down online piracy has been kicked off by some Chinese central government officers, just following the compaign of shutting down pornographic wap sites for mobile phones.

Please, read the above story from a social-legal perspective. The compaign is obviously aiming at piracy. But the reason of shutting down those websites is not that they don’t have copyright license, but that they don’t have an administrative license of online dissemination of audio-visual programs issued by the government.

Although China has an Administrative License Law to restrict the pervasive application of it, the wide usage of licensing system can be parallel to the technical measures of GFW as the pillars of the Internet censorship. It is apparently that in China, proving a website “has no adminitrative license” is far easier than proving the content of that website “has no copyright license”. When Chinese officers say “the government administers the Internet according to the law”, they are saying mostly the licensing regulations, like the LDAV and the RSNW in the above story. In this circumstance, the copyright owners’ best strategy of fighting piracy may not be filing the case to court, but reporting the authority that the targeted website does not obtain the license of disseminating Audio-Visual programs (or license of disseminating other contents).

I personally don’t like such situation. But it is there, lively. That’s why I say the free culture in China should not merely be the freedom of amateur using copyrighted works, but also be the freedom of disseminating information. This is the premise of discussing copyright issues. I mean, either in a soceity that the freedom of dissemination exist or in a soceity that it does not exist, the copyright law may survive. But the “copyright paradox” in these two contexts should be various.

Is Google Books Infringing Copyright under Current Chinese Law?

As an Interent application or online service, “Google Books”  may not necessarily be found infringement.

But, Google would be held infringement liability if it really scanned Chinese books without authors’ consents.

First of all, I am talking about Chinese copyright Law. As for whether the same act would be held infringement in the US courts, I don’t know. I don’t know because once the Google Book Settlement is approved by judge, the case will be dismissed without ruling. Even if the settlement were not approved, and even if the case were finally ruled favoring Google, it would merely be a US judgement binding in the US, not necessarily binding in China.  In other words, so long as the case is in Chinese courts’ jurisdiction, Chinese courts shall, according to Chinese copyrigh law, make their onw decisions no matter what the US court’s ruling is. This is a crutial common sence, but I doubt many people may forget it, because for a long time, I see too many comments to Chinese cases according to US laws.

Second, the only relationship between the US court’s ruling and China is: if China thinks a US binding judgment or the approval of settlement violate TRIPS, China may file the case to the WTO.

Third, back to the dispute between Chinese writers and Google, for the forgivable exploitation of the copyrighted works, Chinese copyright law is following the European mode of “limitations to coyright” but not the US concept of “fair use”. Therefore, unless a non-liability provision has been provided explicitly, the conduct will be judged infringement once such conduct is regulated in Art. 10 of Chinese Copyright Law as the content of copyright. Until now, China only allows the search engines to store the content in other websites automatically. A conduct of scanning the books, from the first pege to the last, from the first line of each shelf to the last line, constitutes infringement definitely (unless the conductor is public library).

Fourth, Google’s self-limitation of accessing to the full-text of the scanned books is another story. The infringement has been established soon after scanning and storing books in its servers.

Last but not less importantly, this is a legal and positivist analysis. Not a value criticism. I am not saying that Google Books is a good/bad thing hereby. I am also not saying that one should not look at the case and the whole set of the current law critically. On the contrary, the real criticism should be based the fact on which some obvious good thing is hindered by the existing law, or some obvious bad thing is permitted by the existing law.

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