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.
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.
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.
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.
Comments
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.
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.
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, 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!
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.