No good deed goes unpunished

A reader writes:

I run a blog at ... actually, the blog is more or less dead in the water, but I'm keeping it alive for two very good reasons - one of which you'll notice if you google "F6 drivers", and the other if you google "laptop service manuals" (or many similar variations of). It's the latter I'd like to ask for your advice on.

Basically: For the last three or so years, I've been collecting laptop repair manuals for every model I can find one for (along with some extra things, like iMacs and other complicated all-in-ones), and hosting them free to download on my website. It started as a reference for myself and a few other guys at a small computer shop near Wollongong, then gradually exploded into the monstrosity you see there now. The last time I looked at stats on it, it was moving about 50gb of data every *day*.

The biggest challenge I've faced is that most laptop makers tend to guard their repair manuals behind passworded extranet sites and snarling legal notices. Dell, Lenovo and HP are the only three companies in the world that publicly publish their laptop service manuals, and the rest make it variously difficult to find (Apple and Acer models are fairly easy, while some companies like ASUS and BenQ apparently run a very tight ship). It's one such company, Toshiba, that is currently making things very awkward for me.

As you can see, my Toshiba manuals section is completely blanked out - I was contacted by the Assistant General Affairs Manager (Legal division) of Toshiba Australia at the end of July with a fairly blunt demand to take down all Toshiba copyrighted material from my site. I complied more or less immediately, because I was in no state to even start to pursue the matter down legal channels at the time, and did not want to risk more or less ruining my life for the chance to try and fight for something pretty petty.

I've been given varying reasons for Toshiba's unwillingness to play ball. They say they're concerned for the wellbeing of their customers (as if Satellite Pros are somehow intensely more dangerous to take apart than a ThinkPad?), they contain proprietary information (again, I see nothing different in what Dell/HP/Lenovo are willing to share publicly), and that they are copyrighted material (laws put in place to protect the profits of people who create original works of art - I see nothing particularly creative or artistic in their manuals). Any argument I put forward was simply rebuffed with a polite but very firm 'no'. I fully believe they are using copyright as a whitewash for controlling dissemination of information that would do nothing but help consumers, and are abusing the spirit of copyright law in how it extends to their repair manuals.

I've asked the Electronic Frontier Foundation for advice - they have no Australian legal presence but suggested I contact Electronic Frontiers Australia. EFA suggested I contact a lawyer who specialises in intellectual property matters, and the only one of those I could easily get ahold of charges more or less the same amount *per hour* for representation as I do per month in paying off my car. A friend of mine who is studying law pointed out that IP law is fairly specialised and I'm very unlikely to find a free source of legal advice on the matter. As far as I can tell, I'm completely screwed and have no legal recourse except to be a good boy and comply with their demands.

What do you think of this whole situation? Can you think of any way I can push back against Toshiba and be fairly likely to win the matter? I firmly believe I am in the moral right here (and have had a pile of emails from concerned readers more or less backing me up on that), but am getting screwed over because this is such new ground for ageing copyright laws and have no way to even have the matter addressed fairly without risking costly legal action against me.



I entirely agree with you that you're providing a valuable service to both end-users and, arguably, the laptop manufacturers themselves, but in my own non-lawyer opinion I'm not even entirely sure why you're asking me this. The manuals are unquestionably copyrighted to the manufacturer, so even if they normally give them away for free on their own (often crummy) download sites, that doesn't mean it's OK for other people to put copies of the manuals up on the Web.

This isn't a trademark-protection sort of issue; if somone is in a similar business to yours using a trade-name or mark that's similar to yours (if, say, someone other than Toshiba started selling "Satellite"-branded computer gear), then you have to make them stop if you want to keep control of your trademark. But copyright holders are free to ignore people distributing their copyrighted stuff, without that having any effect on the validity of said copyrights, and enforce or not enforce their copyright rights as and how they like.

(Tim Hunkin, for instance, allows free distribution of The Secret Life of Machines, just as Martin Pearson allows free distribution of The Unfinished Spelling Errors of Bolkien. But either of them could change his mind at any moment, and would I think easily win a case against someone who started selling those works without permission.)

I strongly doubt you could wriggle out of this by saying that a service manual isn't a creative work. Lots of things are copyrightable without being music or literature or any of the other things that first come to mind when you hear the term "creative work". Maps are copyrightable. Computer operating systems are copyrightable. Circuit diagrams, plans and blueprints are copyrightable. As they should be; you shouldn't have to file for a patent or something just to stop random people copying and selling, or giving away, a street directory that took you a great deal of effort and money to create.

The legal defining line, I think in my state of almost complete legal ignorance, is that a creative work is anything someone created that some other creator would not be expected to make in substantially the same way ("substantially" being the part that lawyers get paid to argue about), and that is also substantially different from anything someone else already created. A service manual for a given product could be written in many very different ways, so it's copyrightable.

I think the clincher is that Toshiba, unlike many other manufacturers, as you say does not make its service manuals available for simple free download. This creates a much greater need for an alternative download option like your Web site, but it also makes completely clear that Toshiba, for whatever reason, doesn't want the manuals freely available. So they are not only in my untutored opinion entirely within their rights as copyright-holder to demand you take down your copies of their manuals, but they aren't even acting inconsistently in doing so. Stupidly, perhaps, but not inconsistently.

I know actual lawyers do read this blog, and perhaps there's something I'm missing; if you know better than me, or even have something to add regarding copyright law in countries other than Australia, do please comment. But I really think it's an open and shut case.

The manuals are copyright to Toshiba, so you're not allowed to put them on a Web site for people to access unless Toshiba give you permission. End of story, I'm afraid.

11 Responses to “No good deed goes unpunished”

  1. El Mariachi Says:

    Sure, you can’t reprint their official manuals, but you can do what sites like iFixit do, which is write your own takeapart guides with your own photos or illustrations. They can copyright their particular manuals, but they can’t copyright the set of “any and all information regarding our products.” Much of the time these third-party guides are far more useful than the prohibitively expensive shop manuals anyway.

  2. timix Says:

    Tim of here. For anyone interested, I wrote a blog post about the situation this afternoon:

    I then put it on Reddit. It's garnered... some... interest.

    (Hope you're OK with these links Dan?)

  3. timix Says:

    #1, baby. I'll remember you when I'm famous/stuck in jail next to Assange.

  4. realwolf Says:

    Sadly the last backup is from 2010, but still a wealth of Toshiba manuals available:

  5. Nikola Says:

    To note the obvious, as this has now hit Slashdot, Reddit, and all the usual nerdplaces:).
    I wouldn't disagree with Tim that he might have a "moral" high-ground (though again, even this is somewhat debateable; it's nice and helpful that you include a copy on your site in an organized fashion, but the entity which created the manual in the first place has clearly invested a much larger amount of time & effort). And we nerds tend to get outraged fairly easily on the moral high grounds, especially if it comes to anything approaching "openess" - it costs us nothing to write an angry, supportive post.
    But as Dan said, in terms of actual, legal standing, and with the "IANAL" disclaimer in big bold letters --> how is this even a question? They created the darn thing, they can be jerks about it if they please, legally. You may be better off starting a petition / letter campaign to persuade Toshiba to change their mind, rather than any sort of legal defense action --> unless, and there are some fine folks in this tradition, you are trully willing to become a martyr to the cause.

    This is not to say that I don't have sympathy for your case - you've tried to do your part to make a world a nicer place, with best intentions I'm sure, and I'm sure many folks who have benefited from your site are grateful. But eventually you've been called out on it, and much as we all may think it's unfortunate, they're in the legal right.

    Best of luck!

  6. gwdonnelly Says:

    My wife is an IP lawyer at a pointy-end firm... If you want an "IAAL" response, I'll see if I can get something out of her...

  7. gwdonnelly Says:

    MWIAL, and she says:
    "they clearly own the copyright. copyright protection is based on originality ie exercise of "skill, labour, judgement" in expression, not in artistic or creative quality."

    She only had 6 minutes to listen to me, and didn't feel a more comprehensive response was warranted.

    • timix Says:

      Hey there,

      Thanks for asking for me - that more or less settles having any legal weight to my argument. I guess it's down to whether Toshiba will see the writing on the wall while their former customers vote with their feet.

    • Simon Says:

      I'm not a lawyer, but a law student. Just noting that that the test does vary by jurisdiction.

      The labour/skill/judgement test your wife gave is the traditional common-law test (presumably you guys are in Australia, like Dan and timix), which *used* to also be the test in the UK (where I am). But, in the UK, it's now been replaced for all practical purposes by the EU harmonised test of whether something is "an expression of the author's own intellectual creation" (see e.g. C-5/08 Infopaq). But, in practice, this hasn't actually changed much - e.g. a manual would definitely still be covered by the EU test just as it is the common law test.

  8. comfychair Says:

    Kinda related, but not really, as regards winXP and F6 drivers...

    You CAN trick XP into loading F6 drivers from a USB stick, but it takes some special voodoo to make it work. It's been a long time since I last did this, and it may differ depending on the machine and its bios options, and I may not be the only one to have figured this out but I haven't seen it described anywhere before.

    You have to use the 'HP Drive Key Boot Utility' to format the USB stick with an image from a bootable DOS startup disk (like drdflash)(and don't ask me why the USB stick needs to be bootable when a regular F6 disk doesn't, but in my case it wouldn't work otherwise - YMMV), and you have to have the USB stick inserted at startup during POST but then remove it before it tries to boot from it. That's the only way for it to get the A:\ label XP will look for later.

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