Blogging Too Far: Illegal Hacking or Intelligent Ownership? How Teachers can Model Legal Practices in an Innovative Learning Environment

One of the first things I needed to research before opening the Teacher Syndicate is the use of third party devices on a primary licensed product.   Basically, if you buy an Apple iPod, are you legally allowed to plug in earphones that are not sold and branded by Apple?

I got a shock when I ordered the latest generation of genuine iPod earbuds, usually $118 but less than $20 from my supplier.  I wondered if Apple were going to start making high quality devices. 

The last thing I expected was the new earphones to have some sort of chip inside them, limiting their use to Apple iPhone use only.  My Nokia SmartPhone told me the 'Accessory was not supported' and the same message came up with my old iPods.  Thank goodness I didn't pay $118 for them.  With the help of my generic remote, I must have bypassed the compliance chip and the product worked.

But why would Apple be putting a chip like this in such a simple thing as earphones????  Is this why they are normally $118?  The cost of the chip, not better quality components?   The quality was an obvious improvement over previous Apple earbuds, they felt better and softer, but my favourite no-brand orange buds (although looking strangely like Bose brand) were clearer and had more bass. So does Apple now think it would be illegal for me to use a generic remote control connection to bypass their chip, letting me use the product that I paid for (which didn't come with any warning about its temperament)? 

This issue is critical for schools to understand.  We need to model legal and ethical behaviour to our students and wider education community.  If we want to be treated like professionals, we’ve got to act like it, and have zero tolerance for any level of illegal technology use.  There can be no grey area, but at the same time, what we model has to be easy to understand and follow.   

Secondly, we are the ones who are often supplying this technology, so as schools, we are legally responsible for what students do with it under our care, and we really want to avoid getting sued by one of the world’s biggest companies.  I can assure you it happens.  Schools are seen as easy targets – their mistakes are easy to see, and their education systems are seen as weak targets with deep pockets.  Instead of taking on Aunty Jane with her computer donated from her nephew Jim and his dodgy software, the companies will look for bigger targets – and what is bigger than an average sized education system with 50,000 employees and 500,000 student users.  Education lawsuits hardly ever go public, but if one gets traced back to you, don’t expect to be employed next week.  

This week, as I type this, Apple have seem to made it impossible for non-apple earphones to plug into their new iPods.  You’ve got to buy Apple earphones, or buy an illegal converter to use you own earphones.  But is it really illegal?  Or is that just company spin, scaring its users into buying incredibly expensive and often low-quality licensed products.  

Everyone knows the iPod earphones are awful.  No matter how much you pay for a genuine product, you’re never going to get better sound from the companies that are well known for creating great earphones.  Apple are known for making great iPods, Bose is known for making great audio accessories (just one of many suppliers that product far better products than the licensed versions).

Microsoft have now gone back on their decision to allow third party devices to plug into their Xbox 360 gaming consoles – a new automatic update of the Xbox software is going to render the devices useless, it is predicted.  Again, people wouldn’t mind this so much if the Microsoft product worked – but the exclusive contract to manufacture licensed products has been given to a company with a long history of producing products that just don’t work, are expensive and have a short lifespan when used for gaming (that is, bashed and hammered continuously). 

This seems all a bit fishy, and somewhat familiar.  Everywhere around us, in all types of shops, are iPod accessories.  If they are stocked by the biggest retailers, are they illegal?  Obviously not. 

In the news also this week the new iPhone was released, just as doubleTwist rented a billboard outside of the prime New York Apple Translucent Showcase Experience (a shop), advertising their totally free and user friendly iTunes alternative. 

And we sort of remember Microsoft getting into trouble again and again by forcing people who use Windows to also use Media Player and Internet Explorer (both duds).  And only really changing their product in France, but nowhere else. 

Press releases throwing around illegal threats are cheap to produce, and any apology or fine these companies would have to pay are nothing compared to how much money they made from controlling those original, awful products. 

As a side note, use Media Player Classic and FireFox – they are easier for your computer to use, they invade your privacy a lot less, they are safer, faster, and designed for (wait for it....) playing media and surfing the web.  Gosh.  You open the other two products and you know such a simple use is a much lower priority.  Media Player seems to be an advertising forum, and whenever I use IE, Live Search boots up and does a lot of things I’m not happy about. 

Here’s the goal of Media Player:

• "Our real rallying cry here for the player is letting you discover media, play it and take it with you," said Jonathan Usher, director of Microsoft's Windows Media Division.
• Really?  I just wanted to listen to my music and watch stuff from the web.  Not ‘discover’ new things that Microsoft want to offer me, based on my listening habits, which implies that something is monitoring what I am doing.

Here’s one of my own stories.  I own two identical phones, both Nokia N 95’s.  Both are out of contract, totally owned by me.  I use one, my partner uses the other.  I bought mine from vendor T, my partner’s from vendor V.  Both had massive issues and were pretty much garbage.  Like they had no RAM or memory, so if you opened a music file and didn’t close it properly, the whole phone would freeze and you’d be forced to turn it off and start again. 

I connected my partner’s phone to my computer, the Nokia Software loaded up, and told me new firmware (the software on the device) was available.  It would fix all of the problems, install better software for the camera, and update it from 2006 to 2009.  So that all worked and the phone surprisingly became a lot better.

Then I connected my phone, the Nokia Software came up, told me new software was available, but said that vendor T had not issued Nokia with permission to enable the update.  I would have to wait for vendor T to allow me to update my phone.  As the N 95 was getting to be an old model, I knew that vendor T would not be spending any time on it, and would never take the time to communicate it authorisation of update to Nokia.  So in 2009 I was stuck with phone software developed in November 2006, while my other identical Nokia was working great.   So I had two identical phones, both by now on the same network (obviously V), but they were incredibly different. 

I read online that if I found a dodgy employee in a vendor T shop, paid him/her $40 and made up a story about me going overseas, they would illegally upgrade the phone’s firmware for me.  This is different to unlocking – vendor T’s stupid logo would still come up when I turned it on. 

So I found out how to do it myself through a Google search, and within an hour I replaced the vendor T Australia upgrade code with the general Australia code.  All of this was done through Nokia tools and codes easily found.  And then the official Nokia software on my laptop then decided it was allowed to upgrade my Nokia phone. 

Now... was that illegal?  Did I do anything wrong?  I wasn’t in contract, I owned the phones, and I was only installing software that Nokia itself had designed to upgrade my phone, through instructions developed by Nokia.  And I wasn’t using the phone on Vendor T’s network anyway.    

It would be nice to debate about this forever, but as teachers we need a firm answer. Why?

1. Students are going to know all this stuff anyway and would have unlocked/unbranded everything ages ago
2. Students are going to know if you do it
3. Students, if not informed properly, will tell their parents that you have done something illegal, either directly or as an excuse for their own hacking (“But Mr C did it and said it was OK”)    
4. You get a headache.

This isn’t an isolated case.  Everyone who owns an iPhone or iTouch needed to ‘unbrick’ it when they first bought it.  The TV ads showed so many cool applications like a simple music keyboard, but this and other features were actually out of the device.  What you saw on TV, with lots and lots of icons, was an illegally hacked iPhone or iTouch.  When you purchased the device, there were five icons and nothing cool.

Early adopters formed massive communities, producing literally thousands and thousands of new applications you could use on your iPhone or iTouch.  My favourite were the motion controlled physics simulators, the language learning games and the application that replicated the touch screen Tom Cruise used in the movie ‘Minority Report’.  At that time it was my job to really dig deep into the software and hardware, seeing if it was good for students.  And it was.  Some of the software even started charging for its use, and it was so good that many schools gladly accepted. 

Apple remained silent about the now common unbricking process, trying to stop it with software upgrades, but not really trying too hard.  The device was popular because of these ‘extras’, not because you could shuffle though album covers on your iPod (something a child of the 60’s would only be familiar with anyway).    A popular TV show even filmed an Apple boss Apple showing off to his date by unbricking her new iPhone, so it could at least do something interesting. 

At least a year later, Apple worked out a way to integrate these applications into iTunes, therefore regaining control of the device and establishing a new way to commercialise the incredible, unsurpassed level of community goodwill, free programming and resource sharing  that helped sell so many more devices.

Then Apple announced it was now ILLEGAL to ‘unbrick’ a device and use any third party application that wasn’t provided through iTunes.  When I bought the device it wasn’t illegal, but now it was.  It’s like playing Monopoly and halfway through the rules change and the play money is replaced with my real money.  Is that legal?  Can that really happen?  What do you do with your lessons already set on your iPods? 

I remember one of my colleagues worked tirelessly with one German based software developer to move his product from the free community to iTunes.  He was not allowed to disclose the actual agreement to us, but it wasn’t a long term agreement based on free sharing and goodwill.    

Community backlash followed, of course.  And is still happening with the new iShuffles that will only work with Apple earbuds (as I understand it, there is currently a choice, as the old iShuffle is still on sale, so there is no anti-trust laws being broken...  yet).

People fell in love with iPods because they were the best quality, most reliable players.  The iPhone tarnished that slightly with its less than amazing speeds and omissions of some basic technology, like sending images in SMS messages.  No reason was given for its exclusion, but it was probably because Apple didn’t want to pay any licensing fees to the inventor of the technology, and took a while to invent a way to replicate the task with its own unique code.  

And then iTunes went the same way as the Microsoft Media Player.  It started out as a simple application to manage your iPod’s music.  Media Player used to play media.  Both applications then became a corporate tool to gather market research data, trial new Digital Rights Management concepts (DRMs) that would control how many times you could copy or listen to a song, expose customers to new products and services, support new commercial applications, establish 1-click shopping methods, and somewhere down the line...  grudgingly because they had to, include something that actually let you play your own music.  Barely. 

I drew the line when my old but reliable 3^rd Generation iPod was not recognised by iTunes.  So iTunes decided it was now a newer model, with colour, photos, videos etc.  This of course made my reliable product crash and die.  I nearly lost my 40GB of music collected over years.  I Googled for answers, but found too many other owners were experiencing the same thing.  We were being sent a very clear message, to dump our 2004 devices and buy new ones if we still wanted to listen to our music.  Much later, I got my iPod recognised by an old version of iTunes.  And after resigning to the fact that I would need at least four Apple software applications running on my computer at all times in the background, doing God Knows What, I now have an iPod that I can plug in and put new songs on. 

You know what the best media player is?  Media Player Classic – just how it started all those years ago.  It played media, had a playlist, and you know...  worked.   And it gets updated every other week with new codecs (ways to read all media files) so it continues to work, and be absolutely brilliant at what it does.  It even realises that you really only want to dedicate 5% of your computer to playing songs while you type, not 85% of resources that makes everything else crash, or hides in the background and spies on what is on my machine, for future marketing opportunities. In your home, this is annoying.  But in a school, this is a breach of student privacy. 

You can find the Media Player Classic  here  http://www.free-codecs.com/download/Media_Player_Classic.htm

It plays Windows Media Player files, Quicktime files, and everything else that’s ever been invented.

I always think of word processors when I think of the ‘darker’ side of technology.  Essentially, what people want to do is type things.  What used to be a tiny application is now massive, requiring a new computer to essentially do some pretty easy stuff.  If you don’t want to contaminate your words with the crap the new Word automatically builds in, you really don’t have a choice. 

I understood this when I worked once with the police, helping track down the source of a bullying email.  Even back in 2001, an email sent more information about you than you could ever imagine.  People trying to trick the system by using a fake email address had no chance.  Back then we used Pegasus, now the best application is Outlook Spy.  Basically a simple email is really the size of a small novel.   It is legal for software to be collecting this much information about me, without giving me any idea about what it is doing? 

And if information is being collected about me, or a student, how accurately does that happen?  I have got some lovely legal emails which irritate me beyond belief.

I purchased two copies of Macromedia Studio MX two years ago, I downloaded a standard update that it wanted to get, and then I got a legal letter telling me I was illegally using the software without purchase,  and I had better stop, or I would be sued.  I’ve got a few of them.  Last month I got an email from a lawyer representing Paramount Pictures (or someone like that) warning me that I had downloaded an illegal copy of a Harry Potter novel, and they knew about it.  I am going to be completely honest.  I have no interest, now, before or in the future, of reading any Harry Potter book, finding out anything about Harry Potter, or typing those two words into Google for myself or a member of my family.  So I was rather confused about how they had my name, email address and IP address, but were mistaken about what files were on my computer (I don’t ever remember giving Paramount Pictures authority to scan my hard drive).  I have no idea what happened – maybe someone stole my digital identity and did something with it.  But that wasn’t a possibility for the law firm.  They were sure I did it.  I wrote back to the lawyer asking for how they came up with this wonderful piece of information, and didn’t get anything back.

Threatening me with five years in prison and $650,000 in fines is no small thing. 

Now I am a protector of copyright.  I hate seeing my work get ripped off, and I especially hate seeing my work taken out of context.  If I take some photographs of a friend for a modelling portfolio, I don’t expect one of those photos to be used to advertise a non-mainstream adult service, with flyers stuck on the back of toilet doors of a very trendy bar.  My friend was upset, as he never agreed to be associated with the adult service, and of course he was recognised by his employer.  We traced everything back to the firm who commissioned the original image, who on-sold it illegally without permission.  I couldn’t find a lawyer interested in my case.  Too much work, a specialised area, and no big payout.

Copyright is an awful concept.  From 1998 to 2009 I have had the pleasure of many, many meetings with national and state lawyers, who always ended each meeting with putting the issue in the ‘too hard basket’.

Education copyright is extremely different to regular copyright.  The copyright agencies who protect an artist’s right for reimbursement don’t spend a lot of times in radio stations, dance clubs, libraries, movie theatres or fish and chip shops that play the local radio station and don’t pay a fee to the musicians customers here.  No, that would be too difficult. 

Copyright agencies get up to 90% of their multi-million dollar revenue from schools.  In the past it was sort of easy – schools would be picked at random, and their photocopiers would be monitored.  The combined fee of $86M per year in Australia would be distributed to the authors whose works were photocopied in the sample, less a hefty 20% administration fee.  

The digital works threw this into disarray.  What was a copy?  What was accessing a copy?  How long did a student need to look at a website to prove it was accessed?  What if the author wrote the website for no payment, and a copyright agency started listing his/her work as a commercial venture earning royalties, which would be a direct contradiction to information he/she would have provided to the IRS/ATO/taxation department.  What tools would be used to count access?  What if a student looked at a website, saw unsuitable adult material, reported it to the teacher and clicked away? Would the school’s account then show $1.40 being paid to hotbabes.com for accessing it?

I left the argument to others about eight months ago.  The proposed solution then was incredibly stupid.  A fee would be charged every time a student accessed any information on a computer.  If information was projected onto a screen for the whole class to view, a higher fee would be charged.   If a student starting typing a story “My Dog Spot” on Monday, they would not be charged any fee to start typing this onto a computer.  However, on Tuesday, if that student was to re-open that file and add information to it, a copyright fee would be charged.  No kidding.  The school would not be charged this fee – it would be directly billed to the education system (like it is now).  The system could then investigate, and if they found the student was accessing their own work, they could apply for a refund of the fee, less a 20% administration charge, of course.

It seems schools are the only targets vulnerable enough to be pushed around by these copyright groups.  Last week the Copyright Council was featured in the news, as providing free polarities to is employees during work time.  Obviously they need to spend more time out of the office picking on some other user groups (maybe DJ’s, who get a fortune to play music at clubs that is obviously downloaded).       

Outside of school, general copyright lacks any sort of intelligence also.  Take for example if I buy my mother a copy of the Dreamgirls DVD for a Christmas present.  I watch it with my mother, but I only purchased one copy, and it belongs to my mother, so am I watching it illegally? 

What if my mother lends the move to my sister, and her family watch it together?  Are they watching it illegally and is my mother committing an offense by providing licensed material to a third party who didn’t pay for it?

What if then my mother wants to put it on her mobile phone to watch when she’s on holiday with her sister.  And then she lends the copy to her sister to watch, who puts it back into a DVD format.  Is that pushing it too far and breaking copyright?  What if she instead gives the original DVD to her sister afterwards? Does that make it OK?

What happens if I have my whole CD collection on my iPod, and listen to it exclusively on the iPod.  Then I lose my iPod on the train, meaning someone else now has a copy of my music.  Do I have to go home and destroy my original CD collection?  Or buy them all again?

All of this confusion establishes unnecessary perceptions of wrong doing and paranoia, establishing buying patterns erring on the side of caution. As teachers, what do we model?   Do we risk it, or do we avoid doing anything at all, out of fear of the unknown.  After more than ten years of working with the best education lawyers, who could never work out copyright, I’ve got to conclude that a teacher doesn’t stand a chance of knowing if what they are doing is right or wrong.

Do we need to limit our use of technology to the boring and home made all of the time, or can we bring in music from the popular culture, from the student’s world, and work with that?  There is no better way to teach fractions than loping audio tracks.  Is that allowable?  And why, when we are teachers in a classroom doing something that has absolutely no commercial value, are we the ones most under scrutiny from copyright licensees?  As a private citizen, no-one in the world cares about what I look at on the internet.  But in a classroom, suddenly there is commercial value in what I am doing, and I am automatically clocking up financial transactions for my government to repay?  (Oh, yeah, the copyright agencies refuse to release itemised bills, as that would be a breach of privacy.)

The biggest surprise was the copyright issue that killed a $64M mega-school software system dead in its tracks.  The software was to enable teachers from all across the state to share resources, through a completely locked-down, secure intranet, only available to teachers employed by the state.  It was going to be physically impossible for a resource to leave the protected area.  Sounds like a good way to get around copyright, hey?

The answer was that under copyright law, each school was considered an individual entity, and if information leaves one entity and moves to another, that is actually a clear cut example of commercial publishing, attracting full copyright fees.  Copyright fees that would amount to an estimated $70-$90 million each year, all of which would be refunded once paperwork was complete, less a 20% administration fee for the copyright agencies.  So that project died.

And what I learnt was that since I am no longer part of the ‘system’, I can replicate the whole system legally on a normal commercial system, which because it is on the internet, is exempt from the government-regulated issues and fees that are now crippling a project from the same government, which is obviously not for profit and non commercial. 

Lucky me.  And lucky you – in the Teacher Syndicate someone will pay to access your work, but the money goes to you.  If you try to share the same work inside of a government system, the recipient school will still incur a charge, but it’s just one part of the government paying another part of the government. Which is incredibly stupid, but it kept me employed for years, it made it dead easy for me to get millions of dollars every year for schools, which my employer then passed the least amount of it onto schools as possible.  My bosses got government salary packaging Mercedes SUVs, we employed an auditor for $220 an hour to generate massive reports to confuse anyone who ever asked where the money went (no-one asks), and I fought long and hard to employ people and do things for schools (heavens forbid). 

And what happens to your ideas and your work when you quit your job?  If you make resources for a state school and move to a Catholic school, are you allowed to take your resources with you? 

A great movie dealing with copyright issues is “Steal this film II”  Just search for it on Google and download it legally.  It deals with the history of copyright, based on ludicrous examples, and predictions on how this mess will end up in the future.

Somewhere in this mass of confusion is the law.  And the law is decidedly simple.

Here it is - If you buy something, you own it, and what you do with it is up to you. 

This was set in 1968, though what is now known as the Carterfone Decision.  See the Wikipedia article here http://en.wikipedia.org/wiki/Carterfone .  This decision is still cited today, in efforts for companies to either make the internet more accessible, or make it more commercial that it currently is.  Skype currently has a petition going with the Carterfone Decision at its centre. Lexmark recently lost a case trying to ban third parties for making compatible replacement ink cartridges, ruining their business model of making super cheap printers with very expensive replacement ink.

And a more complex discussion here  http://arstechnica.com/tech-policy/news/2008/06/carterfone-40-years.ars and another one here http://www.computer.org/portal/site/security/menuitem.6f7b2414551cb84651286b108bcd45f3/index.jsp?&pName=security_level1_article&TheCat=1001&path=security/v2n4&file=drm.xml&;jsessionid=K0FM3Kw2CL1HSg8hNJXwNhLBwn2KxDk7yPQ0gznRSk5fnkhysBvn!-208374119

So basically all of the legal threats and press releases announcing changes to the law mean nothing.  They are wishful thinking with no legal substance.  If you buy software or hardware that is somehow locked down, you’re allowed to unlock it for reasonable use.   

What’s my advice after all of this?  Be reasonable and have common sense.  In the end, the law is not at all clear, but if you are obviously doing something wrong like making copies of music CDs and selling them for profit, you’re going to get in trouble.

If you work in a school, your actions will be traced back to an Education Minister (a politician).  If a TV crew asks the politician if he/she can defend and stand behind what’s happening in your classroom, then chances are the law is on your side (well, initially for a while anyway).  This is what’s known as ‘publicly defendable’.  Politicians always think “Could I defend this in public?”  Which is basically predicting the public reaction.

There’s a few laws on your side anyway.  If students have used any devices/memory cards/network devices/internet connections, then that device may contain private student information.  You must not allow any third party to access this content, without the student giving permission to this party, where the indented use is explicit.   

So if a student brings in a cell phone, iPod, memory card, disk, thumb drive etc, you are free from any responsibility to comment on what they are doing.  You cannot make any decision or put in place any action regarding that material, as the technology may contain private student information, since it has been used outside of school.  You, copyright agencies, lawyers etc, do not have access to student’s private information. 

If a parent comes to you and complains about illegal sharing of songs, files etc, you pretty much don’t have any power to investigate or make any decisions, unless the action is a direct result of your instructions and exclusively uses school equipment. 

That’s my easy way out, which is entirely reasonable.  If there is a chance or small percentage that a student has used a device or storage card for personal information, you have no place going there.  You can delete it, clean it, format it, or you could have students ‘hand in’ their finished work to you.  The rest is about you teaching morals and ethics, not monitoring it or controlling it.

Of course if you are a paid teacher, you don’t have any privacy while at work, you are responsible for your actions, and you are responsible to follow the law.  Adults have different rules than students.  With a movement towards much more student centred learning, this situation is going to much easier to live with, as students can find, select and use media – you won’t be instructing them to perform specific actions, which may or may not be clear in terms of the law. 

And on a side note, maybe there is a place for at least some restrictions, or things like this will become far too popular 

Buy it from http://www.amazon.com/iCarta-iPod-Stereo-Tissue-Holder/dp/B000HWX1J8