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Re: [Linux-aus] Re: circumvention

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

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

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.

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.

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.
Here is advice from EFF to the DE govt on DMCA/EUCD

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:


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.