[Linux-aus] Details around anti-circumvention in Australia

Rusty Russell rusty at linux.org.au
Tue Jun 6 20:16:01 UTC 2006

Hi all,

	Here is more details on the issue, with references.  Questions and
clarifications are welcome.

The AU-US Free Trade Agreement:
        - Contained a section on "circumvention of effective
        technological measures", or Technological Protection Measures
        (TPMs) in common parlance, section 17.4.7, which mirrors the US
        DMCA text.
        - Requires changes in Australian law to protect devices which
        "control access" to copyright material, not just those which
        "prevent or inhibit the infringement of copyright".
        - Requires civil offense for *using* a circumvention device:
        currently it is only an offense to sell one.
        - Requires that manufacture/import/marketing/sale be criminal as
        well as civil issue.
        - Must be implemented by 1 Jan, 2007 (two years after treaty
        start), and we are expecting to see draft legislation soon.

Indications from government:
        - This is run by the Attorney General's department, I've met
        with the department twice and the AG's advisor on copyright
        twice, in each case once during FTA enquiry and once more
        - They're not technology or IT people, and have little
        understanding of the issues for us.
        - They have excellent connections with the music and movie
        - Don't see us as a stakeholder in this debate.

Current Law:
        - The current Australian law bans supply of circumvention
        devices and there is no differentiation for devices which have
        non-infringing uses.  Does not define what "circumvention" is.
        - The current US law bans supply and use of circumvention
        devices, and there is no differentiation for devices which have
        non-infringing uses. defines circumvention as:[7]
                to `circumvent a technological measure' means to
                descramble a scrambled work, to decrypt an encrypted
                work, or otherwise to avoid, bypass, remove, deactivate,
                or impair a technological measure, without the authority
                of the copyright owner
        - An Open Source DVD player (which has to decrypt DVDs to play
        them) is fairly clearly a "circumvention device" under US law,
        and would need to find an exception in order to avoid liability.
        This is unclear under Australian law.
What we want:
        - That the government heed the recommendations by the four
        government reports listed below, and the warnings of those
        committees and Justice Kirby of the High Court against overreach
        and consumer harm.
        - That the law be clearly tied to copyright-infringing acts, not
        any access.  So region-free DVD players are clearly OK, as is
        modifying purchased games to play locally or game consoles to
        play overseas purchased games, or getting around any future
        non-copyright restrictions.
        - We recommend this be done by defining
        "circumvention" (undefined in the treaty) as a nefarious act, as
        the word implies, not a technical act such as decoding.  (Expect
        URL on legal justification on this soon).  In this case,
        circumvention is something which enables or facilitates
        infringement.  That means it's clearly OK to deactivate region
        encoding, fast-forward through DVDs, or produce a competing
        product such as DVD playing software, without needing permission
        of the DVD/games/music copyright holders. 
        - That the government resist pressure from music & movie
        industries here and in the US to weaken links between law and
        its claimed purpose (protecting copyright).

Things which are threatened:
        - Innovation: the best article on this was from the Institute of
        Electrical and Electronic Engineers, the world's largest
        professional technology association.  This month's Spectrum
        article: http://www.spectrum.ieee.org/jun06/3673
        - Competition: you can't compete if you have to get
        authorisation from your competitors or other parties to do so.
        This particularly applies to small industries, such as Free and
        Open Source software.
        - "Unauthorised" DVD players which ignore region-coding and
        growing non-skip areas of DVDs which were so rare when DVDs were
        introduced, and growing longer and longer now they are
        - Any device or software which does something the manufacturer
        doesn't like in future.  The rumours that PlayStation3 games
        won't be resellable are probably untrue[6], but we know they'd
        delight in having that control.  It could be implemented today,
        and activated (or not) at their discretion, similar to the
        increase we've seen in use of "compulsory viewing" zones in
        DVDs.  Similar restrictions could be applied to other media in
        the future, and if noone can create alternative players and
        readers, you'll have no choice.
        - Free/Open Source Software: Australia has a strength in this
        area, and yet we don't know if Open Source DVD players, or Linux
        clients to buy music off iTunes[5] are legal.  As a result,
        given the massive, aggressive and litigious nature of our
        competitors, they are not supplied with our
        otherwise-full-functioning Windows replacement, restricting
        business opportunities for our growing Free/Open Source service
        & deployment sector.
        - Our international leadership in Free/Open Source: Australia
        has a disproportionate number of FOSS developers, a history of
        groundbreaking Open Source work, one of the three key Linux
        conferences worldwide, and a reputation for government
        understanding at the state level.  Yet this reputation can be
        scuttled if we show that the highest levels of government don't
        care and don't understand.  We will not get this lead back, once
        we lose it.

Previous Government comment/reports:
        - Digital Agenda Review: independent review in 2004 of 1999's
        Digital Agenda Act which banned circumvention devices,
        recommended exceptions be introduced for uses which didn't
        infringe copyright.  Largely ignored now.
        - JSCT: Joint Standing Committee on Treaties report on the
        AUSFTA (ie. government controlled), recommendation 19:
                The Committee recommends that the Attorney General’s
                and the Department of Communications, Information
                Technology and the Arts ensure that exceptions will be
                available to provide for the legitimate use and
                application of all legally purchased or acquired audio,
                video and software items on components, equipment and
                hardware, regardless of the place of acquisition.
        - Senate AUSFTA Committee (ie. government minority at the
                A ban on TPM circumvention, while possibly assisting to
                curb some piracy, may also prevent many legitimate
                purposes. This severely interferes with the rights of
                consumers to do as they wish with property that they
                have legally purchased. It is important to ensure that
                certain classes of copyrighted work be exempt from the
                normal TPM circumvention prohibitions where the
                circumvention is for a non-infringing use.
        - Standing Ctte on Legal and Constitutional Affairs (ie.
        government controlled), which recommended a raft of exceptions
        for legitimate uses and flagged other potential future
        exceptions.  Most of these exceptions seem to go beyond the
        allowed exceptions in the treaty, if we do not interpret
        circumvention to be tied to some copyright threat.

Court interpretation of Australian law:
        - Sony sued Eddy Stevens for mod-chipping Playstation2s.  This
        went to the High Court, who ruled that since the Playstations
        only prevented playing copied games, not actually copying them,
        that there was no "technological protection measure".  This
        outcome would not be possible after the change in definition of
        TPM required by the FTA.  One judge, however, warned of the
        dangers of these laws:
                "By the combined operation of the CD ROM access code and
                the Boot ROM in the PlayStation consoles, Sony sought to
                impose restrictions on the ordinary rights of owners,
                respectively of the CD ROMS and consoles, beyond those
                relevant to any copyright infringement as such. In
                effect, and apparently intentionally, those restrictions
                reduce global market competition. They inhibit rights
                ordinarily acquired by Australian owners of chattels to
                use and adapt the same, once acquired, to their
                advantage and for their use as they see fit."

Court interpretations of the US law:
        The US courts seem to have added a requirement that, in order to
        be liable supplying a device which circumvents a technological
        protection measure, it has to enable infringement.  However, the
        Supreme Court has not ruled on any cases, and this connection
        does not exist in the DMCA text, nor in the treaty text.  In

        - DeCSS, a program which decoded and copies DVDs, was banned.
        The argument that it was required for creating a Linux DVD
        player, and that when you bought a DVD you had implied
        authorization for playing DVDs it on your platform of choice was
                "...no evidence that the Plaintiffs have either
                explicitly or implicitly authorized DVD buyers to
                circumvent encryption technology to support use on
                multiple platforms"[1]
        - Bnetd, an Open Source server on which Blizzard games could be
        played instead of the official server, was banned.  The
        arguments for exceptions didn't fly, especially because it was
        Open Source:
                "The bnetd.org emulator had limited commercial purpose
                because its sole purpose was to avoid the limitations of
                [the official servers]"[2]
        - Lexmark, the printer manufacturer, sued a maker of chips which
        allowed third-party printer cartridges to work.  Lexmark lost,
        with one judge explaining clearly why liability must be tied to
        "a purpose to pirate":[3]
                "Automobile manufacturers, for example, could control
                the entire market of replacement parts for their
                vehicles by including lock-out chips. Congress did not
                intend to allow the DMCA to be used offensively in this
                manner, but rather only sought to reach those who
                circumvented protective measures “for the purpose” of
                pirating works protected by the copyright statute.
                Unless a plaintiff can show that a defendant
                circumvented protective measures for such a purpose, its
                claim should not be allowed to go forward. If Lexmark
                wishes to utilize DMCA protections for (allegedly)
                copyrightable works, it should not use such works to
                prevent competing cartridges from working with its
        - Skylink, the manufacturer of universal garage door openers,
        was sued by the garage door manufacturer Chamberlain for making
        compatible devices.  They lost, and the court spelled out
        clearly that liability cannot exist without a "nexus to
        infringement".  The access which is obtained by circumvention
        must infringe copyright:[4]
                "A plaintiff alleging a violation of [DMCA] must prove:
                (1) ownership of a valid copyright on a work, (2)
                effectively controlled by a technological measure, which
                has been circumvented, (3) that third parties can now
                access (4)
                without authorization, in a manner that (5) infringes or
                facilitates infringing a right protected by the
                Copyright Act, ..."


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