Originally published at: https://boingboing.net/2019/12/12/they-literally-own-you.html
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I notice that they’ve deleted the names and contact info of the lawyers who sent it in the version on GitHub. I think that the details of lawyers who abuse the legal system are newsworthy, and should be on the internet for anyone who googles them to see, and make their own judgments.
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Um, no. Subject to the whims of the law firm’s client perhaps.
Law firms don’t really have whims. Especially ones like Kirkland & Ellis.
They have billable hours targets and PEP levels to raise.
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All your glucose are belong to us!
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Oh, Mister Subtle!
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Cory, Worth noting that this is arguably (IANAL) covered by an explicit DCMA exemption for the circumvention. The supposedly copyright infringement is arguably governed by free use.
So this wasn’t them claiming copyright on the data, but saying that modifying their program was a copyright infringement and a DCMA violation. basically they encrypted the data between the device and use an app to decrypt it, and the code modified the app instead of directly decrypting the data.
DCMA exemption per https://library.osu.edu/document-registry/docs/1027/stream
Computer programs that enable smartphones and portable all-purpose mobile computing devices to execute lawfully obtained software applications
Where circumvention is made solely to enable interoperability between applications with computer programs on the smartphone or device or to permit removal of software from the smartphone or device.
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But what is the encrypted work that their access control is restricting? The blood data is not copyrightable so circumventing an access control that restricts access to it is not a 1201 violation.
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Is this the kind of problem that the EFF might be willing to help with?
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Are there any companies or groups currently working on creating open standards and open source medical products? If not why aren’t they? I understand that making medical devices and getting the proper approvals is non-trivial but seems like more than a worthy endeavor to tackle.
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I’m by no means an expert in this field or this particular issue but reading this blog you linked:
The author says:
So the argument about the blood data itself not being copyrightable may not be relevant.
If the data has been subjected to some process which outputs some sort of different information, that process and its result could well be protectable intellectual property.
Having done a bit more digging it does appear that what the Abbott product does and the app accessed is a bit more than just the blood data, there is also software that evaluates that data and produces the actual reading.
Other third party apps appear to have been using their own conversion algorithms.
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Open source standards, no – there’s no money in that – but this project can talk to three generations of the competing Dexcom CGM. (My wife has their latest CGM but does not use this software.)
Getting FDA approval is far beyond “non-trivial”. It’s beyond the scope of any volunteer project. So OpenAPPs users in the U.S. must build their own kit.
Yeah i meant not just software but also hardware, i’m sure that purely looking at it from an economic point of view making a truly open medical device would be pretty ambitious (if not impossible). However i do wonder if it might be a problem worth pursuing, this might be the kind of thing that might not be doable in the US but might be elsewhere?
Ah big pharma fuckery, I know it well.
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Must be nice to create a product, write your own copyright laws, then write your own policy decidng which devices will be covered by insurance.
Lobby money is the REAL freedom.
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Dexcom isn’t without faults here, either. Their servers were down for how long last week? 24 hours? That meant no alerts, no mobile, no nothing for all the people who use it to remotely monitor their diabetic loved ones’ health.
Which brings me back to Abbott. Do they have actual fiscal liability if their servers go down, their monitoring stops, and someone is injured or killed as a result? Seems to me if they own the rights to the data, they own all the responsibility that goes along with it.
Big pharma fuckery, indeed.
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Cory, you missed a great chance to mention LibreOffice (the main fork of OpenOffice, which is moribund) which can read Word docs. I’ve never even heard of Apple’s Pages…
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Even if there are, it isn’t just regulatory approval. It’s also getting insurers to pay for it, and getting doctors to prescribe it.
The process can be, but there’s no creative content in the output, so they output isn’t copyrightable. Running a copyrightable work through a mechanical process doesn’t create a new work. There has to be a human element of selection involved.
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An argument could be made that the processed data belongs to the patient even more, since the raw data output by the glucose sensor is likely unintelligible on its own, whereas the processed data is an accurate and meaningful measurement of the patient’s actual blood glucose.
What is the process run on the raw readings, and what’s the result? Is it more than 24-hour avergae, 30-day average, highest high and lowest low? Trend for for certain times of day like waking, pre-meal, post-meal? If that’s what it is, with that “transformation” being so simple, the math being so widely used (hello Excel), and any results being rooted in the patient’s own data, that I don’t see it being worthy of any IP protection.
Which makes me wonder if end users have to click through an agreement granting IP rights to the maker of the device.
