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A discussion about open source technology on the tech forum site run by Virgina-based OdioWorks is pitting the defense of a First Amendment right -- namely, freedom of speech -- against enforcement of the Digital Millennium Copyright Act, the tech industry's legal guiding light for the past decade.
OdioWorks has filed suit in federal court in San Francisco alleging that Apple (Nasdaq: AAPL) has violated the free speech rights of contributers to its forum, BluWiki. The suit was prompted by a DMCA notice from Apple demanding that posts discussing how to enable iPods and iPhones to operate outside of the proprietary iTunes systems be taken down, as they were a violation of its copyrights.
Battle Lines Drawn
The DMCA clearly does give Apple legal ammunition to protest such conversations. It was passed in 1998 in an effort to help content providers thwart efforts to break anticircumvention measures by making those actions criminal, noted Raymond Van Dyke, a partner with Merchant & Gould.
"Apple considers the cracking of their protection mechanisms a violation of the DMCA and has been proactively working to stop the dissemination of further cracking codes, such as the open source iPodhash user forum of Odioworks," he told MacNewsWorld.
It is hard for Apple or any content provider to compete with the "free" market -- that is, content and software tools that are easily pilfered, said Van Dyke. "The DMCA, although by no means perfect, does provide some protections to ward off persons engaging in cracking circumvention code."
On the other side, there is the First Amendment and its protection of free speech -- a right granted even to makers of digital child porn images.
Odioworks, with the support of the Electronic Frontier Foundation, maintains that discussions of how to separate an iPod or iPhone from iTunes do not violate Apple's copyrights.
Content Rules
The outcome of OdioWorks' case against Apple is going to depend on the court's determination of the exact nature of the material posted on Bluwiki, Christopher M. Collins, an attorney with Vanderpool, Frostick & Nishanian, told MacNewsWorld.
OdioWorks has asked the court for two judgments: 1) that the publication of certain information about the iTunesDB software and Apple's Fairplay digital rights management software does not amount to improper circumvention under the DMCA; and 2) that the information actually posted on OdioWorks' Bluwiki.com site does not infringe any Apple copyright, as it constitutes a fair use of Apple's copyrighted material or it represents an insignificant amount of copyrighted material.
For its part, Apple's position is that the iTunesDB material published by users of Bluwiki is a literal copy of its proprietary information -- or that posting it may constitute contributory infringement by providing "material assistance to others who have copied or reproduced" Apple's proprietary code, Collins said.
The bottom line? "OdioWorks believes that this information is not in the nature of anticircumvention technology," said Collins, "while Apple asserts that is the function of this code."
Shades of Gray
Drawing hard lines around the companies' respective positions is not easy. As is typical in cases of technology outrunning established law, there are shades of gray in arguments that could bolster the oposition on both sides.
"In some ways, there is always a tension between copyright laws and the right of free speech," said Peter Toren, lead IP partner with Kasowitz, Benson, Torres & Friedman.
"Copyright, by its very nature, sets limits on free speech by mandating that certain works can only be used with permission of the author," he told MacNewsWorld.
Still, it appears there is some "overreach" on Apple's part in this case, Toren said. "This could well be considered a free speech issue, but what Apple has going for it is that history has recognized that copyright is a legitimate exception to the right of free speech."
Public Perception
In the court of public opinion, though, Apple may find itself pushing uphill, said Minda Zetlin, coauthor of The Geek Gap: Why Business and Technology Professionals Don't Understand Each Other and Why They Need Each Other to Survive.
"It's hard not to root for the little guy, Odioworks," she told MacNewsWorld -- "with freedom of
speech on its side, no less."
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