Endangered First Sale Doctrine

If you're on top of your mobile technology news, you may have come across reports that as of January 26th, 2013, you are no longer legally allowed to "unlock" your smartphone in the United States. Unlocking refers to removing firmware-level restrictions that prohibit the use of a phone on a carrier other than the one it was purchased from.

The major wireless carriers have a strong incentive to prevent unlocking. Carriers like Verizon or AT&T sell most of their smartphones with a very heavy subsidy, which is how you can buy a brand new iPhone for $200 instead of $650 "unlocked". Of course this is a nice incentive to have you sign a 2 year contract for at least $80 a month (the cheapest Verizon plan offered on Apple.com as of this writing--and that's a whopping 300MB of data).

Now if this is how carriers can boost sales, there's nothing wrong there. It's marketing. We're used to that.

But in an odd quirk of digital copyright law and through, of all institutions, the Library of Congress, the new prohibitions on unlocking phones appear to step over a line previously unchallenged.

The Digital Millennium Copyright Act (DMCA) is a U.S. law that enforces international treaties regarding the regulation and protection of copyright. It grants the Library of Congress power to provide exemptions for "noninfringing uses". Copyright has traditionally, and judicially, been limited by certain key exempting principles in the U.S. The most familiar is usually called the first sale doctrine. That principle states that once a consumer legally purchases an item protected by copyright--a CD or book, for example--he or she has the legal right to pass that item on without permission from the copyright holder. It's an important tenet that allows people to share books and music and develops a robust second-hand marketplace which is crucial for a smooth economy and to prevent waste. Check out this article stub for more information.

The use of the first sale doctrine has been challenged by the development of easily copyable and transferable digital information. Now consumers can break copyright by copying their legally purchased material and sending it along without relinquishing their own version.

And now these worlds collide in a smartphone. It's a product that can only be owned by one person at a time, yet the software and firmware on it is protected by copyright. And DMCA protections specifically prohibit "circumvention" technologies except in very limited cases, like creating braille versions of books for the blind. So without a specific exemption, it is illegal to circumvent the copyrighted item--the restrictive firmware--in order to sell your phone for use on a new carrier.

CTIA-The Wireless Association, a carrier trade group, has successfully lobbied to restrict the unlocking of phones under the DMCA from now on. Their principle argument is that smartphone owners do not own the associated software, they are merely licensees. And in fact, according to the Library of Congress' interpretation of recent judicial cases, the carriers can assure that smartphone consumers are only granted licensee status by stating it's a license agreement and restricting consumers' ability to modify the software. As long as it's in the fine print, it's real.

What this all results in is a complicated mess of copyright and first sale where you own the device but not the means to make it available on the broader market. This is to protect the carriers' ability to recoup their subsidy (something that is also protected by their own Early Termination Fees). Now you have to specifically ask permission from the carriers to unlock your phone, even after your two year contract is up. It may be very likely they'll do so. But if not, you'd be breaking the law to sell your phone for use on another network.

Now the caveats and extra bits of information. As The Verge points out and as is clear in the ruling itself, this does NOT apply to jailbreaking and rooting a device. These are means to allow modifications to the basic software, like iOS or Samsung's TouchWhiz. While I believe this breaks some carriers' warranties, it is upheld as perfectly legal.

Also, this ruling does not apply to new phones purchased before January 26th (90 days after the original ruling) or to "legacy" phones--old phones that may have been unused for some time.

However, it is certainly a bizarre case where a single consumer product encapsulates the balance between critical aspects of our legal system. On one hand, copyright holders are entitled to protection under the law. On the other, consumers have the right to do with their property as they see fit. And frankly, extending the same broad class of copyright protections to restrictive smartphone firmware, well.... I'm not sure it's in the same category as protecting music and literature.

Uh oh, did that just bring up software patents? Another time, perhaps.

For more entertaining information, check out this story over at Marketplace.

A (Rainy) Bloody Sunday

Now I'm not a big cocktail guy. I'm a beer guy. I brew beer and love trying all kinds of craft beer. St. Louis is a great city for that because despite living in the giant shadow of Anheuser-Busch, STL has a thriving craft brewery scene. Schlafly of course, Urban Chestnut, 6 Row. Tons of them.

But in thumbing through this book, The Inspired Vegan by Bryant Terry, I found a great recipe for a Bloody Sunday--a Bloody Mary with beet puree instead of tomato juice. And an homage to a violent Civil Rights event.

I just happened to have beets and vodka around so it was super easy to whip up, after marinating the beets overnight. It's spiced up like a Bloody Mary and changeable to your tastes, especially the hot sauce. I might just have to pick up a cocktail shaker. It was a good use of time on a chilly, rainy Sunday. I recommend the book, by the way. I'm certainly not a vegan but the book is cohesively put together and offers great semi-gourmet menus.

Bloody Sunday

• 1/4 C. beet juice or marinated beet puree
• 1.5 oz. vodka
• 1 T. lemon juice
• 1/4 t. apple cider vinegar
• 1/4 t. hot sauce (or more to taste)
• Pinch of salt
• Pinch of pepper

Fill a cocktail shaker (or cup) with ice and the above ingredients and shake into another cup until it's all chilled. Strain into a glass. As recommended by the book, a half-pint mason jar works great.

Marinated Beet Puree

• 1 C. marinated beets
• 1.5 C water

Blend until smooth in a blender and strain into a container.

Marinated Beets

• 4 medium sized beets, scrubbed and trimed
• Salt
• 1 T. red wine vinegar (I used apple cider vinegar)
• 1 t. raw cane sugar (I used brown sugar)

Boil the beets in 3 quarts of cold water and 1 teaspoon of salt until they are easily pierced with a knife, about 25 or 30 minutes. Reserve about half of the cooking liquid and drain, then remove beet skins by scrubbing under cold water. Slice the beets as desired (it doesn't matter if they will all be pureed).

In a medium-sized bowl, combine the vinegar and sugar and enough of the reserved cooking liquid to cover the beets. Stir well to dissolve the sugar and toss with the beets. Refrigerate for at least one hour or overnight.

Science in the Garden

What do plant biologists and community gardeners have in common?

It's not the setup for a (bad) joke. It's a question I've been asking myself a lot lately. I happen to be both a plant biologist, in training at least, and a community gardener when it's warm out. But despite the obvious intersection of an interest in plants, I'm not sure where else they overlap. That's not to say that I think the two are opposed--far from it. But I do think that plant scientists and gardeners don't think about each other a lot. I think they should.

After all, many plant biologists are, like me, gardeners. We certainly all have the requisite plant-in-the-window in our offices. Gardeners and plant scientists often have strongly overlapping priorities: developing a safe, sustainable and abundant food supply. They may approach this from different directions, but I think that's a core value that should bind these unlikely siblings together.

Yet somehow modern culture keeps us apart. Science has become increasingly specialized. My teachers have told me when they were students, a biologist could sit in on another biologist's meeting and keep up. Now that some of the "easy" discoveries are behind us, the new frontier requires deeper, highly specialized knowledge. Sometimes communicating with other biologists about our work can be hard, let alone the general science community. Let alone the public. And because it's hard, and doesn't tend to bring in grant money, communicating our goals and discoveries to the public is put on the back burner. 

Maybe then it's no surprise that one of plant science's largest contributions to modern life--genetically modified foods--is seen as arcane, suspect, even dangerous. Steven Mayfield, who just visited Washington University to talk about using algae in industry, including biofuel, sat with graduate students for lunch. The way he puts it: it's our fault. Scientists' fault. He points out--accurately, I think--that many scientists naively believe that if their work is good enough, right enough, it will diffuse down into the wider culture. It will become known, accepted and lauded. Obviously that's not the case.

Just look at the science behind climate change. For decades now, the scientific consensus has been converging on a clear answer: a human-induced greenhouse effect is warming the planet. And to punctuate that, 2012 was the warmest year ever in the U.S. It was an active campaign by those who stand to lose when we regulate carbon that led to doubt. 

We need to make this a priority. Yet I know many scientists doubt the public's interest or ability to understand their work. They blame journalists for bad stories, the Media for sensationalism and a culture of anti-intellectualism for tarnishing the reputation of Science with a capital 'S'. But the response to this is not to hide in a shell or retreat. The only solution is stronger advocacy for our work, for scientific literacy and for great public education.

I've been pondering all of this because in a couple weeks I will be speaking at the St. Louis Community Garden Summit hosted by Gateway Greening. I'll be giving a presentation about plant breeding and genetics. Fortunately I'll have some help from a professor at the Donald Danforth Plant Science Center. (Fun fact: according to the DDPSC website, St. Louis is home to the highest concentration of plant biology Ph.D.s in the world. That's thanks to them, WashU and Monsanto). 

I am still working on what to cover. The crazy genomes of plants for sure. How technology can improve conventional breeding. And of course, GMOs. I have been asked to make the presentation purely educational, and not to take a side on any controversial issues. I'll do my best to the respect that. I'm honored to be invited to speak at all.

But GMOs are an important topic. And I don't think the he-said/she-said approach to controversial issues is always valid. On the issue of the health of GMOs--in my experience the main concern of skeptics--there is a very real consensus: Genetically modified foods are completely safe to eat. We've been eating them for decades and they are intensively studied and highly regulated.

I think many factors have contributed to the widespread distrust of this technology. Ad hominem attacks against Monsanto (who might be reigning in the legal team a bit). A bad job of explaining the technology. And I think most importantly: a false dichotomy between natural and artificial.  I think many skeptics feel that the 'soul' of a food is changed more by inserting a single gene artificially than by manipulating hundreds of genes naturally. 

To circle this back to the beginning: I think community gardeners and plant biologists can only gain by coming closer together. Yes, many community gardeners will be skeptical of plant genetic engineering. But with their interest in plants and a strong food supply, they could very well be great advocates for the technology if they were persuaded by its benefits. And yes, plant biologists, like all scientists, can appear lofty and unable to speak in layman's terms. But only by practicing these skills in a supportive and interested environment can they improve.

I have plans for future efforts to bring these groups closer together and I will continue to ask: What do community gardeners and plant biologists have in common? A lot more than they think.