[Linux-aus] Re: circumvention

Tue Aug 1 08:59:02 UTC 2006

Note: This is a personal opinion not LA position.

Peter Miller wrote:

>         "to 'circumvent a technological measure' means to descramble a
>         scrambled work [...] without the authority of the copyright
>         owner"

Yep Bravo to Rusty and Anthony.
The guys have put in a huge effort to raise awareness on this issue.
It is great news that the AG has taken on board their ideas and Kim's work.

But as a person I am also uncomfortable with a lot of the wider implications of 
the DMCA and still trying to see what can be done to get the issues into public 
forums.

> On Thu, 2006-07-27 at 13:50 +1000, Pia Waugh wrote:
> 
>>PMiller wrote:
>>
>>>I do not accept that we, the people, must sacrifice our Fair Dealing
>>>rights, but if we must, how are we the people going to be compensated
>>>for the loss of our Fair Dealing rights?  What additional tax (the
>>>normal way of compensating the people) is to be levied on the industry
>>>in return for the economic value of the Fair Dealing rights lost to the
>>>people?

Peter Drahos AU amongst others in the UK and EU have initiated the Adelphi 
Charter which outlines base access rights. http://www.adelphicharter.org/

There is the A2K Treaty in Geneva aiming to build a new treaty jointly between 
creators and consumers http://www.cptech.org/a2k/

The UN Internet Governance Forum has a call for papers open until tomorrow.
The framework of their forum is based around access and equity, and security.
For example I have written to point out the security issues inherent in 
blackboxing using TPM, and in suing security researchers using DMCA.

I think it is a good opportunity to let them know that the DMCA stands between 
the potentials of technology and both consumers and creators and reduces the 
value of digital information in comparison with paper equivallents.

Because this is a forum on internet based communities and businesses it is an 
ideal forum to oppose the broadcast based DMCA lobby who are not native internet 
companies and who are responding to its potential with restrictive legislation.

I'm not an expert at this kind of thing. Just someone sufficiently riled to be 
active. There are other papers online if you would like some more examples.
http://www.ipjustice.org/WSIS/IGF_070106.shtml
http://www.intgovforum.org/athens_outline.htm

>>A good point.
> 
> I wish this question had also been asked of the copyright term extension
> legislation, but that horse has bolted.

Hey if it is possible for a couple of businesses to wipe out the world's fair 
use/dealing laws because its in their interests, I see no reason to take as 
sacrosanct any partisan nonsense they choose to set up.

The horse is basically public opinion. And not just public opinion here, but 
public opinion broadly. If people communicate that this is not acceptable then 
the horses change direction.

South Africa and Thailand did not sign up. South Africa because of medicine 
patents and Thailand because their people did not want it.

There are people taking petitions to their politicians all around the world. UK, 
France, Canada, Ed Felten in the US has been lobbying for change through 
exemptions to the next round of DMCA in the US.

ie Yes accepting this DMCA doesnt mean its over.
This is a ratchet system where no country may relax its position but each round 
of DMCA will contest more freedoms. Ed Felten is currently lobbying for an 
exemption to TPMs where they may cause risk to life or critical systems.
The DMCA lobby is contesting even that exemption.

These laws do not just impact digital information, there are parallel issues on
medicines and genetic seeds. To get wider support for our perspectives on DMCA 
we might need to look at how others are impacted and come to a personal
decision about what fits with our values.
http://www.accessmed-msf.org/documents/ftabriefingenglish.pdf

In a group this diverse we are likely to vary on our perspectives on issues not 
directly geeky (and even with things directly geeky). But that is the challenge. 
The DMCA lobby is a few businesses who agree. They are able to promote their 
interests through the trade process as a block. Public opinion is diffuse and we 
have to work harder to keep a single perspective. Not because we are muppets but 
because we are naturally trying to find a good fit for a range of needs and 
values not just a narrow band right of way for one group.

IMHO this DMCA business is an interesting test of democratic systems -
ie for democracy to be a credible system it must be possible for people
to protect their collective interests from this kind of corporate and
legislative piracy.

It is easy for narrow interests to hijack these processes and harder for
a range of interests to defend those laws that are important to them.

Government might have been the original defendant against those situations but 
(IMHO) does not represent an effective defensive barrier in its current flavour.

Will be interesting to see how our democratic processes and systems
shift both locally and internationally. There is a shift from WTO
system where everyone has a voice, to one on one negotiations where the US feels 
more able to negotiate right of way over smaller trading partners.
Will this continue or will nations rediscover value in the WTO and ways to work 
around the US right of way.

>>>How about this: specifically grant in the legislation a permanent and
>>>enduring authorisation (no fee, no registration, no contact of any kind
>>>required with the copyright holder or their agents) for the uses
>>>permitted by Fair Dealing.
> 
>>Yes, this is an idea.
> 
> basically, I want Fair Dealing to take precedence over the DMCA-thing.
> 
> Maybe the legislation could make it explicit that legally acquiring a
> sound recording, or motion picture, or any other creative work, such
> acquisition *includes* authorisation
> 
>   "to use and adapt [chattels], once acquired, to [the consumers]
>    advantage and for their use as they see fit."
>         
> as the High Court so eloquently put it.

That would be a great!

I think in Germany they have retained a fair use base.
But their call on making tools is more restrictive, it is even illegal to 
discuss making tools which might be used to circumvent.
http://www.afterdawn.com/news/archive/4278.cfm
http://www.privatkopie.net/files/de-eucd-passed.htm
Here is advice from EFF to the DE govt on DMCA/EUCD
http://www.eff.org/IP/DMCA/german_comments.php

The issues for developers are outside the fair use allowances because they are 
not interacting with the copyright material directly but are making 'tools' 
which may be used to circumvent there needs to be separate protections for them 
or else the act of innovating and making a new technology needs to be a new 
inclusion to fair use somehow.

I hope that LA is right that restricting the infringement to acts which directly 
infringe copyright is going to do the job for that area of concern.

Another approach would be to restrict and declare TPM products and to control 
how they interact with the marketplace and people:

Declaration of which components have TPM and what specific interactions are banned.

Exposure of their products to testing and investigation prior to being allowed 
to be in the market in an untestable format. Publically available information on
the tests so that owners can be aware of the limitations of the software without 
looking.

Checking of all copyright content in a product prior to recognising the TPM.

If a company takes a competitor to court wrongfully then they waive the right to 
use the TPM as a defence because its misuse has a cost to the market, whether 
the case is successful or not. Misuse removes the companies right to TPM 
products with legal defences.(Berkeley: 30% of cases are currently against 
competitors, 50% are not expected to survive court but still result in taking 
down of sites and dropping of technology projects in case there is a risk of 
litigation).

No TPM on critical systems such as power station monitoring, air traffic 
control, digital voting, economic or environmental modelling, etc.

No TPM permitted where the product contains the copyright of another person.

What happens in situations where person can reasonably assume that there may be 
a flaw in the product but cannot look past a TPM. What if it is set up for US 
measurements and does not work effectively here. How do we find out if there is 
a flaw?

Personally I think that while we are still aware of what we are losing we have 
the chance to turn the horses. We need to think about whether the DMCA is worse 
for us than being outside the US free trade agreement system. If AU does it 
alone maybe not, but if a number of nations start to drop the DMCA then it could 
be very interesting.

There are costs in not being a part of that process but there are also costs
in compliance. DMCA on digital information, similar laws on medicine, we need to 
look at what other industries are compromised and feeling undone.

Here are some links to material from the Medicins sans Frontieres and 
international health industry folk about US Free Trade Agreements and the impact 
in their area:

http://www.cptech.org/ip/health/trade/
http://www.msf.org/source/access/2002/ftaa/openletter.doc
http://www.msf.org/msfinternational/invoke.cfm?component=article&objectid=2B12E558-B028-4403-AF7EAA88B18BA819&method=full_html

Given Australia's current political stance tackling this stuff would be a 
challenge. It is unusual for most Australian people to talk through politics and 
to organise, we are out of training on this kind of activity for the most part. 
But perhaps thats why we are such a soft target in the first place.

Janet