Case in Japan raises question of ‘safe harbor’ copyright protections for Apple

December 20, 2010
Category: Uncategorized

The Wall Street Journal

A dispute over pirated books in Japan raises an interesting question for publishers concerned with the restrictive nature of Apple’s mobile app approval policies.

A consortium of Japanese publishers is reportedly upset that apps containing illegally copied books have been sold in the iTunes store. Daisuke Wakabayashi reports that material from several well-known Japanese authors was scanned, converted into mobile apps and placed for sale. Apple has since removed the apps.

The publishers, Wakabayashi writes, are calling on Apple to be more careful in its review process:

“In a joint press release on Tuesday, the Japan Book Publishers Association, the Japan Magazine Publishers Association, The Electronic Book Publishers Association of Japan, and Digital Comic Association said Apple’s distribution of content that clearly infringes copyright is ‘illegal.’

‘The associations we represent believe that Apple bears grave responsibility for this problem,’ the statement said.”

In response, Apple claimed it has a duty to remove illegal material once notified of it, but said that it cannot monitor all such violations during the original app approval process.

As Wakabayashi points out, a similar controversy has arisen between YouTube and Viacom over pirated video content. A federal judge ruled this summer that YouTube had a “safe harbor” from copyright liability as long as it removed infringing user-published material once notified by the actual copyright owner. The safe harbor provision is part of the Digital Millennium Copyright Act (DMCA) and was created to protect Internet services that allow users to self-publish content on the Web.

Apple has apparently not used the safe harbor defense in any U.S. cases, but it is claiming protection from liability based on that principle of law. The iTunes store, however, is not a “user-generated” content platform. Apple maintains strict oversight, applying technical and content standards to any app submitted for download or sale. So, while this particular case is outside of the U.S., it raises an intriguing question and would be interesting to know how, or if, the DMCA applies to Apple’s app review process.

Hypothetically, claiming safe harbor protections might mean Apple would be allowed to dictate technical standards for apps, but not content standards as they do now.

That determination, if one were made, could go a long way toward clarifying Apple’s ability to restrict the types of materials publishers are allowed to distribute in the iTunes store.