Apple sued for threatening wiki host over iTunes code

[AppleInsider]

A site host for a wiki covering iTunes database exploration has opted to fight back against repeated legal threats from Apple by suing the iPod maker in court on grounds of censorship.

The Electronic Frontier Foundation's (EFF) legal counsel helped site manager OdioWorks LLC file the lawsuit (PDF) in a Northern District of California court on Monday as a measure it says will help defend against "bogus" legal threats from Apple.

OdioWorks, which runs the free and open wiki service BluWiki, wants to bar Apple from repeatedly threatening its own legal action simply for letting BluWiki users host a wiki for iTunesDB, a project to learn about iTunes' database file system and create third-party software that can replicate the sync functionality of iTunes for iPhones and iPods without forcing users to run Apple's own media software. Over the course of several months, Apple has claimed the very existence of iTunesDB violates the Digital Millennium Copyright Act (DMCA)'s rules on circumventing copyright locks and, in November, successfully frightened OdioWorks into taking down the wiki entries.

Now, the plaintiff argues in its 11-page complaint that it had only agreed to the initial request to avoid the lawsuit and that it believes BluWiki posters' free speech rights are being violated by requests likened to outright censorship by both OdioWorks and the EFF.

"Companies like Apple should not be able to censor online discussions by making baseless legal threats against services like BluWiki that host the discussions," OdioWorks founder Sam Odio says.

The EFF specifically maintains that it's fully legal to perform reverse engineering for the purposes of fair competition, such as allowing an iPhone to sync outside of iTunes. It also claims that OdioWorks' decision to run BluWiki as a non-profit and entirely user-driven content service should exempt the company proper from facing legal threats. No one writing the iTunesDB wiki had even confirmed that they had cracked the code, the lawsuit notes.

The organization and OdioWorks further charge that Apple has been outright dishonest from a technical standpoint. Where Apple insists that reverse engineering a certain slice of memory copying code equated to an attempt to break the FairPlay anti-piracy protection that, until April of this year, guarded a significant number of songs on the iTunes Store. That software only related to generating a hash value that Apple deliberately instituted in September 2007 as a protection measure that would prevent accessing iTunesDB, according to the lawsuit. It implies that Apple's release of iPhone 2.0 firmware in July 2008 again revised the hash creation technique with an eye to breaking third-party support a second time.

If successful, the lawsuit would bar Apple from making any DMCA or other copyright claims against OdioWorks as well as legal fees and "any other relief" the California court believes is due.

While Apple in its typical fashion hasn't commented on the lawsuit, the iPhone era at the company has been characterized by a heightened level of secrecy around access to the software that girds the touchscreen device, the iPod touch and their relationship to iTunes. The Cupertino electronics designer has had a more relaxed attitude towards the file structure on click wheel iPods and has done comparatively little to restrict owners of iPod classics, nanos and shuffles from loading music through software like Songbird, which is one of the few jukebox programs to recognize iPods in Linux.

[ View this article at AppleInsider.com ]

[Chris_CA]

deleted

[quinney]

The EFF wants Apple to quit warning people Apple thinks are violating their
copyrights? Would they prefer Apple skip the warnings and proceed directly
to the lawsuits?

[lamewing]

Originally Posted by quinney

The EFF wants Apple to quit warning people Apple thinks are violating their
copyrights? Would they prefer Apple skip the warnings and proceed directly
to the lawsuits?

Maybe you should say allegedly violating their copyrights.

[malax]

Originally Posted by lamewing

Maybe you should say allegedly violating their copyrights.

Uh, "that Apple thinks is violating their copyright" doesn't require the "allegedly" waffle word. "Allegedly" wouldn't even make sense in this context. (E.g., "I think you allegedly stole my car," makes no sense.)

[Hiro]

The right to free speech only applies to limiting speech from government control. It has never been successfully applied as a general all-purpose freedom to do anything. And using the term allegedly is merely a journalists duty in a criminal case where guilty until proven innocent is the somewhat deferred to. The term is relatively meaningless when civil player A accuses civil player B of something, that can be reported straight up with no prejudice to either plaintiff.

The EFF will have a difficult time proving the threats are bogus because they are not bogus. Apple sent the C&D letter, and may sue if the C&D letter is not honored. Therefore the threat is quite real.

If Apple can reasonably show the wiki site violates the EULA and/or developer guidelines and that the information is covered by any number of IP laws then their C&D letter has a very good chance of holding up in court, further avoiding the bogus label.

The site can post whatever they want for now, as long as they are willing to pay dearly if they lose a lawsuit. And the host got wrapped in because they have the deeper pockets and own the system the alleged infringement is happening on. There ain't no running away from this one and if any of the filesharing cases are successfully used as precedent Apple wins walking away.

A judge will not make a pre-emptory ruling telling a site they cannot post something because the judge is part of the government, that would be a violation the First Amendment by prior censorship. But I'm sure the site's and host's lawyers have had the above conversation that's why they pulled the site already.

EFF always feels the need to drive the lawsuits anyway because if they win they push back the precedent boundary, and if they lose, they lose absolutely nothing. I have no problems with that, it helps to keep the overall system a little more balanced, but I really don't think they are going to make any progress with this one.

[ascii]

A private company can't censor you, only the government can. If some private company sends you a legal threat that you believe is invalid just ignore it.

[Cubert]

"The EFF specifically maintains that it's fully legal to perform reverse engineering for the purposes of fair competition, such as allowing an iPhone to sync outside of iTunes."

Isn't that a little anarchic?

[arangas]

I'm not sure how Apple's lawsuits achieve anything. Surely this will or already has pushed the iTunes database exploration underground. Information should be free, this is crazy (unless you're a lawyer).

[lfmorrison]

Originally Posted by Cubert

"The EFF specifically maintains that it's fully legal to perform reverse engineering for the purposes of fair competition, such as allowing an iPhone to sync outside of iTunes."

Isn't that a little anarchic?

The DMCA specifically says that, in certain circumstances, reverse-engineering with the purpose of achieving interoperability with independently created software is permitted.

Title 17, Chapter 12, Section 1201, Subsection (f).

The EFF would have to prove that these circumstances fit the required conditions.

[hill60]

Well it would be nice to sync my iPhone in Linux without having to boot into Windows or to visit the iTunes store without being denied entry when my browser detects I don't have iTunes AND Apple have shown no interest at all in making it happen.

What else can the small minority of Linux users do?

Originally Posted by lfmorrison

The DMCA specifically says that, in certain circumstances, reverse-engineering with the purpose of achieving interoperability with independently created software is permitted.

Title 17, Chapter 12, Section 1201, Subsection (f).

The EFF would have to prove that these circumstances fit the required conditions.

[vinea]

Originally Posted by hill60

Well it would be nice to sync my iPhone in Linux without having to boot into Windows or to visit the iTunes store without being denied entry when my browser detects I don't have iTunes AND Apple have shown no interest at all in making it happen.

What else can the small minority of Linux users do?

Itunes 7.6 appears to run under Wine and CrossOver Linux

Or do what OSX folks do when we need windows apps: run XP in a VM like parallels, vmware or kvm.

If folks hate proprietary apps so much they can simply forgo access to iTunes and buy from Amazon. Or get an android phone.

[JeffDM]

Originally Posted by Cubert

"The EFF specifically maintains that it's fully legal to perform reverse engineering for the purposes of fair competition, such as allowing an iPhone to sync outside of iTunes."

Isn't that a little anarchic?

Is it really such a scandal or heresy to try to sync the device to another program? People will use it to infringe on copyrights, but there are some legitimate reasons to have this too. It's so easy to infringe on copyrights of the music and videos by some other means that fighting this is silly. It's like the DVDCCA fighting RealDVD when pirates would never use that program anyway. The phrase "rearranging the deck chairs on the Titanic" comes to mind.

[vinea]

Originally Posted by JeffDM

Is it really such a scandal or heresy to try to sync the device to another program? People will use it to infringe on copyrights, but there are some legitimate reasons to have this too. It's so easy to infringe on copyrights of the music and videos by some other means that fighting this is silly. It's like the DVDCCA fighting RealDVD when pirates would never use that program anyway. The phrase "rearranging the deck chairs on the Titanic" comes to mind.

Arguably Apple has to at least TRY to protect it's IP and it's ecosystem. They probably want to make sure that access to the iTunes store and to iTunes itself is limited to Apple hardware since those are run at minimal profit (or is free) than caring that much that an iPod touch syncs with Amarok.

[Maestro64]

Originally Posted by ascii

A private company can't censor you, only the government can. If some private company sends you a legal threat that you believe is invalid just ignore it.

This is true, and you have a right to be sued too, it is you choose, if they truly feel they are in their rights they do not have to remove a thing and they can wait to be sued and prove it in court.

This sounds like a case where this guys was not sure what he was doing was violating any laws and then someone talked him into fighting back since EFF will fight the case for free for him. He has nothing to loose in this case.

The only issue is if they posted information that clearing shows how apple implemented Their DRM or IP of these. Yes can reverse engineer an idea, however, there are pretty strict guidelines you will have to show the courts that you did it independently of any knowledge of how apple originally did it. They call is clear room approach, meaning you start from scratch and work to a solution without outside influences.

[JeffDM]

Originally Posted by vinea

Arguably Apple has to at least TRY to protect it's IP and it's ecosystem. They probably want to make sure that access to the iTunes store and to iTunes itself is limited to Apple hardware since those are run at minimal profit (or is free) than caring that much that an iPod touch syncs with Amarok.

That makes sense. It's just that the "anarchy" argument didn't make sense.

[lssmit02]

Originally Posted by lfmorrison

The DMCA specifically says that, in certain circumstances, reverse-engineering with the purpose of achieving interoperability with independently created software is permitted.

Title 17, Chapter 12, Section 1201, Subsection (f).

The EFF would have to prove that these circumstances fit the required conditions.

Keep in mind that even if the Copyright Act permits reverse engineering for interoperability, there is no such fair use defense for patent infringement. Any unauthorized "use" is infringing. It's a big problem in the patent law area.

[JeffDM]

Originally Posted by lssmit02

Keep in mind that even if the Copyright Act permits reverse engineering for interoperability, there is no such fair use defense for patent infringement. Any unauthorized "use" is infringing. It's a big problem in the patent law area.

There is no mention of patents in the article.

[lakorai]

I for one hope that Apple loses this lawsuit HARDCORE.

iTunes is bland and does the job, but I prefer to use a different service. It's much cheaper to buy music online from a different vendor (Amazon etc).

Tying is illegal in the US. Why is it that Apple gets away with it on the Mac and the iPod and iPhone products? It is perfectly legal to reverse engineer products for the sake of competition. Apple has done this with Mac OS X and I'm sure Microsoft has done with with Vista and Windows 7.

There is an open source reverse engineered version of Windows XP called React OS. I'm sure MS would love to kill the project, but they CANT DO SHIT about it. You don't see Microsoft going after ReactOS. Why does Apple think they are any different?

iTunedDB needs to succeed. Apple hates competition, just like when they sued Real over Rhapsody having iPod support.

[rrod182]

According to this:

http://images.apple.com/legal/sla/docs/ipod.pdf

Apple reserves every right not explicitly granted to the user. I don't think these guys have much of a case.

[lfmorrison]

Originally Posted by lakorai

I for one hope that Apple loses this lawsuit HARDCORE.

iTunes is bland and does the job, but I prefer to use a different service. It's much cheaper to buy music online from a different vendor (Amazon etc).

Tying is illegal in the US. Why is it that Apple gets away with it on the Mac and the iPod and iPhone products? It is perfectly legal to reverse engineer products for the sake of competition. Apple has done this with Mac OS X and I'm sure Microsoft has done with with Vista and Windows 7.

There is an open source reverse engineered version of Windows XP called React OS. I'm sure MS would love to kill the project, but they CANT DO SHIT about it. You don't see Microsoft going after ReactOS. Why does Apple think they are any different?

The largest distinction between ReactOS and Hackintoshes, is that ReactOS expressly does not use ANY of Microsoft's copyrighted code. Instead, everything, from the kernel on up, has been completely re-implemented from scratch via clean-room reverse engineering. Thus there is no copyright violation.

With a Hackintosh, on the other hand, only a few small components of the operating system are being modified or bypassed, leaving the remainder of Apple's software behind exactly as-is. The result is a derivative which makes use of a huge majority of Apple's existing copyrighted code.

In this case, though, I'd be inclined to think that as long as they don't use any portion of iTunes code in their replacement utility, it's more similar to the ReactOS situation than to the Hackintosh situation.

[lfmorrison]

Originally Posted by rrod182

According to this:

http://images.apple.com/legal/sla/docs/ipod.pdf

Apple reserves every right not explicitly granted to the user. I don't think these guys have much of a case.

That license doesn't say anything at all which places limits on the type of computer program(s) you're permitted to use on a PC for synchronizing with the iPod - all it talks about making unauthorized copies of, or modifications to, the iPod's software itself.

It also acknowledges in a few places, such as the first sentence of paragraph 2(c), that you may have other statutory rights, even if they are not explicitly listed in the license.

(...to the extent expressly permitted in this License or by applicable law...)

The argument is that the right to reverse engineer to make discoveries pertaining to interoperability is one such right - and that argument has some support, such as the Copyright Act reference above.

[Dunks]

Hiro, you mean "lose" not "loose"

Originally Posted by Hiro

The right to free speech only applies to limiting speech from government control. It has never been successfully applied as a general all-purpose freedom to do anything. And using the term allegedly is merely a journalists duty in a criminal case where guilty until proven innocent is the somewhat deferred to. The term is relatively meaningless when civil player A accuses civil player B of something, that can be reported straight up with no prejudice to either plaintiff.

The EFF will have a difficult time proving the threats are bogus because they are not bogus. Apple sent the C&D letter, and may sue if the C&D letter is not honored. Therefore the threat is quite real.

If Apple can reasonably show the wiki site violates the EULA and/or developer guidelines and that the information is covered by any number of IP laws then their C&D letter has a very good chance of holding up in court, further avoiding the bogus label.

The site can post whatever they want for now, as long as they are willing to pay dearly if they loose a lawsuit. And the host got wrapped in because they have the deeper pockets and own the system the alleged infringement is happening on. There ain't no running away from this one and if any of the filesharing cases are successfully used as precedent Apple wins walking away.

A judge will not make a pre-emptory ruling telling a site they cannot post something because the judge is part of the government, that would be a violation the First Amendment by prior censorship. But I'm sure the site's and host's lawyers have had the above conversation that's why they pulled the site already.

EFF always feels the need to drive the lawsuits anyway because if they win they push back the precedent boundary, and if they loose, they loose absolutely nothing. I have no problems with that, it helps to keep the overall system a little more balanced, but I really don't think they are going to make any progress with this one.

[irnchriz]

Its pretty impressive to argue that the right to free speech forces companies to divulge their trade secrets. These guys are heading for an epic fail.

[lfmorrison]

Originally Posted by irnchriz

Its pretty impressive to argue that the right to free speech forces companies to divulge their trade secrets. These guys are heading for an epic fail.

Certainly the right to free speech doesn't force a company to divulge its trade secrets. But that doesn't appear to be the case here: the lawsuit doesn't seek to compel Apple to divulge anything.

All the divulging is being done by a 3rd party who, if all the rules governing clean-room reverse-engineering are being followed, didn't receive any help or input from Apple.
On the other hand, if the 3rd party is divulging information that they received from Apple under an NDA, and that information had not previously been made available to the public by other means, then they would be in clear contractual violation.

[Hiro]

Originally Posted by Dunks

Hiro, you mean "lose" not "loose"

No, I was suddenly attacked with a flitting foreign accent.





Fixed. I have no idea how I gooned that three times!

[lfmorrison]

Originally Posted by lssmit02

Keep in mind that even if the Copyright Act permits reverse engineering for interoperability, there is no such fair use defense for patent infringement. Any unauthorized "use" is infringing. It's a big problem in the patent law area.

It seems unlikely to me that the particular documentation they were required to take down from that web site was covered by a patent; if it had been, it would have been pointless for Apple to take action to force the web site to remove the documentation because the information would have already been in the public domain, freely accessible to anybody through a simple request at the US Patent and Trademark Office.

Anyway, the article doesn't mention any allegations of patent infringements - only DMCA infringements.