[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
recently.
- 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
industries.
- 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
entrenched.
- 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
Department
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
time):[8]
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
addition,
- 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
dismissed:
"...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
printer."
- 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, ..."
[1]http://www.eff.org/IP/Video/MPAA_DVD_cases/?f=20011128_ny_appeal_decision.html
[2]http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/20050901_decision.pdf
[3]http://www.eff.org/legal/cases/Lexmark_v_Static_Control/20041026_Ruling.pdf
[4]http://www.eff.org/legal/cases/Chamberlain_v_Skylink/20040831_Skylink_Federal_Circuit_Opinion.pdf
[5]http://directory.fsf.org/all/sharpmusique.html
[6]http://www.next-gen.biz/index.php?option=com_content&task=view&id=3086&Itemid=2
[7]http://www.eff.org/IP/DMCA/hr2281_dmca_law_19981020_pl105-304.html
[8]http://www.aph.gov.au/Senate/committee/freetrade_ctte/report/final/ch03.htm
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