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I’ve been paying attention recently to the TPM Exposure Draft: Australia’s new anti-circumvention laws. But of course, there were three other drafts released recently – and one of them represents the outcomes of the so-called ‘Fair Use Inquiry’ (formally, the Exposure Draft of the Copyright Amendment Bill 2006: Exceptions and other Digital Agenda Review Measures). The Bill and explanatory material are available here (it’s an interesting URL, isn’t it?).

The Exceptions and Digital Agenda Bill includes some interesting stuff:

1. Time-shifting (taping to watch later)
2. Format-shifting (making a copy in another format)
3. The rather strangely-named ‘Certain Purposes’ Exception (encompassing extra flexibility for educational institutions, libraries and archives, and parody and satire)
4. Some changes to the Digital Agenda Act reforms, changing the rules relating to communication.

My summary: As my colleague David pointed out in summarising it to our class last week, you can think of the Bill like this: the government did two things:

1. On fair use: they started out thinking about fair use and the ways in which US law might be more generous to users than Australian law. Having identified the instances where US law was more generous as a result of fair use, they sought to encode those instances in specific language. Thus we get some very limited private copying exceptions, we also get parody and satire.
2. On the other stuff: they’ve taken the opportunity to clarify/change some stuff that came up in the Digital Agenda Review – ‘clarifying’ parts of those reforms which were unclear or unhelpful.

Overall, it is that the’s a Bill that does increase the exceptions that are available. I’m really pleased to see that. i’m pleased to see consumers removed from the group of mass infringers. I’m pleased to see parody there, and some more flexibility for educational and cultural institutions.

But the Draft also has some significant issues for those interested in what David Vaver, and the Canadian Supreme Court (among others) have called users’ rights.

First, there is that awful, unreadable legislative drafting has unfortunately become characteristic of recent copyright law reforms. Frankly, it is just unbelievable just how much more unreadable the Copyright Act is becoming. The drafting is something only a Parliamentary Draftsperson could love – and even they would be hardpressed to see beauty here. The current style of multiple references back to definition sections – is particularly problematic in the Copyright Act where definitions are found all over the place and so many terms are defined.

More importantly, however, there are some nasty little surprises in there that actually further confine the exceptions we do have. If this was the balancing bill, in contradistinction to the tightening of criminal enforcement provisions and the tightening of anti-circumvention laws occurring via the other current Exposure Drafts – it’s maybe not the bargain some hoped. While the bill gives in some respects, it definitely takes away too.

Interestingly, the government has chosen to give more generously to the individual as consumer of copyright content, and take from (or give only in a Scrooge-like way) the individual as researcher or transformative user. This may be politically expedient and make a nice press release, but in policy terms, the government has it exactly backwards. More analysis over the fold. (more…)

Yesterday, Engadget carried an interview with Viodentia (the guy who cracked Microsoft’s DRM). Today, it is reporting that Microsoft is now suing him for copyright infringement. He is one of 10 unidentified defendants (called “Does”, as in “John Doe”). In the lawsuit, Microsoft will seek to get discovery of documents which will allow the identification of the defendants. (more…)

Engadget has an interview with “Viodentia”, creator of software which cracks Microsoft’s Windows Media DRM (Digital Rights Management). Engadget last month confirmed that the software (FairUse4WM) will strip the protection from music files downloaded from Napster (meaning that they could continue to play the music files after their Napster subscription ended).

It’s a relatively rare interview, given that this kind of activity now opens one up to prosecution under copyright legislation. (more…)

So there was a bit of to-ing and fro-ing on Thursday, after I found out about the new legislation in copyright before I was meant to. Many other people had found them too – before they were officially released. Lots of people downloaded them, so further secrecy was pretty useless of course.

So now we can all officially say:

1. The draft legislation for copyright exceptions (outcomes from the Fair Use Inquiry), and new laws on copyright enforcement (two bills) are now available online, officially, here.
2. According to the e-news, The bill as a whole will be referred to the Senate Legal and Constitutional Affairs Committee (not, notably, the committee which considered TPMs before, the House of Reps Legal and Constitutional Affairs Committee).
3. if you want to make comments now, you can make them to AGs. If you want to make comments to the Senate LACA, you can make them sometime after 10 October.

Enjoy.

Ironically, I am teaching a Masters Course on Australian Copyright Law at the University of Melbourne this week, intensively – 9 to 5. So I will be very busy all week, but will fill you in on any comments and analysis that come up out of those classes.

As I said in my last post, there are two issues that people have been hassling me about. One was Lexmark. And the other one is whether the interoperability provisions are useless.

My thoughts on the interoperability exceptions? In short, the Exposure Draft is even less generous than the US law in the form of the DMCA. In the US, you get to distribute interoperating programs – in Australia, arguably, you don’t. amazing. and very much needing to be fixed, methinks. (more…)

I’ve been getting hassled by a few people to respond to a particular issue – or rather, two related issues, arising from the current Exposure Draft of Australia’s new DMCA:

1. Does the TPM Exposure Draft, as drafted, actually deal with the Lexmark/Skylink ‘issue’ (that is, does it solve the ‘TPMs used to control aftermarkets’ issue); and
2. Are the interoperability provisions actually useless, and if not – or indeed, if so – what do they mean?

These issues are of real importance in the Exposure Draft, and for many stakeholders. So let’s have a go at them, shall we? The first one we’ll have a go at is the Lexmark/Skylink issue. The next post – the more important one – deals with the interoperability issue. (more…)

This is one of a series of posts on how the TPM Exposure Draft affects particular groups. First, I want to talk about consumers.

Summary: consumers are worse off under the Exposure Draft than they are under current law. This is because they now risk liability where they did not before (liability for the individual act of circumvention has been introduced). This is the intended effect of the laws, and was inevitable under the FTA. The hot-button issues for consumers, however, are:

1. region-coding: here, the result is a little murky;
2. spare parts (printer cartridges, garage door openers): problem avoided;
3. the making of back-ups: there will be no such right. Unfortunate, but probably inevitable. But note that so far, the making of more than one copy or provision of replacement copies is tending to be accommodated (iTunes).

One important point to note for consumers is that there is little in this package to protect us from malfunctioning TPMs, or even evil wicked mean and nasty Sony Root-kit type TPMs.

What consumers might say to the government: thanks for trying to restrict the ambit of these laws and relate it directly to copyright. I can see you’ve really tried here, and you appear to have listened to the concerns expressed by the LACA, and taken a restrictive view of the laws you have to introduce. As a consumer, I think that’s pretty good, really. But there are still a couple of areas where I think the score card reads ‘must try harder’:

(more…)

One of the arguments that is sometimes raised in favour of stronger and more fine-grained control over copyright material is that it facilitates price discrimination. People who can pay more, do; people who can’t pay more, don’t. This looks good when you are a developing country seeking access to essential patented medicines. In that context, price discrimination with strong controls on re-export to other countries actually does look like a really good idea (and that is what the WTO Decision implementing the Doha Declaration on TRIPS Public Health in fact put in place.)

It doesn’t really look quite so nice from Australia’s perspective. Relatively affluent population. High consumers of IP-protected material. Isolated market where it ain’t so easy to nip over to nearby country to buy cheaper stuff (well, unless it’s from Bali and pirated of course). High price heaven for copyright owners, you might think. But surely not higher than the US?

Well, if you had ever wondered what the evidence was on price discrimination of copyright content (and the anecdotal little study that David Richardson did failed to satisfy your curiosity), head on over to my colleague Joshua Gans’ blog. He can tell you the answer is no. No, no, no.

Check out how much more we pay for iTunes music and games than they do in the US at his blog here. Oh well. at least it looks like we’re not quite as done over as Europe is.

A further piece of the puzzle has been published: the government has now published its Draft Regulations to go with the TPM Exposure Draft. The purpose of the regulations is to set out further exceptions being proposed to the anti-circumvention laws.

Further analysis once I’ve read through…

Google has announced that out-of-copyright titles are now available for download via Google Book Search (formerly known as “Google Print”).

Remember Project Gutenberg? 19,000 public domain titles are currently available at what is one of the first book digitization projects. The focus in this project is on providing the text (generally as ASCII files or HTML) of out-of-copyright works. By contrast, the aim of Google Book Search is to provide scanned images of actual published works — both in copyright and in the public domain. As I’ve commented before, Google’s approach to generating its library of scanned works has been controversial, particularly to publishers of works contained in libraries that are participating in the project.

Unfortunately, my expectations of Google’s library were not met. While the collection of works available on Google Book Search is broad, the access to full images of public domain works is not what I had hoped. (more…)

As I and others have noted: the Australian government has finally released the Exposure Draft of the OzDMCA: the Australian version of the DMCA anti-circumvention law, required as a result of the Australia-US FTA. It’s a big, complex piece of legislation, on a really hard area. What follows are my first thoughts on the Exposure Draft. I’ll be interested to hear what other people think. None of what follows represents a concluded view. There’s just too much there to have reached that point yet.

In summary, I think that the AG’s Department has written a piece of legislation which aims to be narrow in its application, and which aims to exclude from its clutches technologies and acts that are not related to copyright. Under this law, we will not be getting garage door opener cases or printer cartridge cases. Clearly, someone in government was listening to concerns raised by opponents of the legislation; to the LACA in its critical report; perhaps to the High Court in the Stevens v Sony case. There is a lot of language in here that seeks to tie the legislation to copyright.

Nevertheless, the government has also:

1. Written a complex piece of legislation, aspects of which are very subtle and which are going to take a while to work out.
2. Not fixed the region-coding problem: it is highly likely that region-coding technologies will still be protected, and circumvention of these banned;
3. Not fixed the exceptions problem: if you have a right to circumvent an access control, you are still going to either (a) need to be a geek or (b) need to look overseas to make use of it, I suspect.
4. Continued the present trend of writing highly complex legislation which will be very difficult for the average person to understand.

Over the fold: more comments. (more…)

Recently, there has been a considerable amount of attention given to this announcement by Piratpartiet (the Pirate Party of Sweden), which says it has:

launched a new Internet service that lets anybody send and receive files and information over the Internet without fear of being monitored or logged. In technical terms, such a network is called a “darknet”.

The promise seems to be that people can send or receive copyrighted files without breaching copyright.

On the technical side, this looks to be a neat piece of coding. However, on the legal side, sadly for the Piratpartiet, I don’t think it will do what they think, for two reasons. (more…)

I was in Canberra this week, not just to speak to the ACT Society for Technology and Law (about P2P stuff), but also to talk at an ADA forum on the forthcoming OzDMCA (our new anti-circumvention laws).

Two things I learned at the forum. (more…)

Yesterday, I gave a talk in Canberra for the ACT Society for Technology and the Law (thanks for the invite, guys) about P2P file-sharing and liability for copyright infringement. One of the things I mentioned in that talk was the LimeWire suit, and one of the questions I got was about how our law of authorisation of copyright infringement mapped against US law. For people wondering about that question, one very good source is the paper by Jane Ginsburg and Sam Ricketson, Inducers and Authorisers: A Comparison of the US Supreme Court’s Grokster Decision and the Australian Federal Court’s KaZaa Ruling.

But it’s also worth looking at this post by William Patry, and the associated papers: the filing in the RIAA v LimeWire case, in which the RIAA are pleading each different form of liability that arises under the US law. (more…)

I have been asked by a reader about DVDs: specifically, I’ve been asked about whether users infringe copyright when they watch a DVD bought outside Australia. As my reader noted, the issue might be important because the argument about region coding – and in particular, the argument that new laws shouldn’t enforce region coding – depends on the view that playing material made for, and purchased in other geographical regions is a legitimate activity.

Now, it would be very ironic if there were any infringement here. After all, it is the government which has made comments that copyright law should not ‘stop people from doing legitimate things with legitimate copyright material’, and that ‘copyright law should not unduly intrude into the private sphere’.

However this, dear readers, is what is technically known as a nasty difficult question. No, really. That is because answering it requires us to delve into all kinds of complicated, interconnecting parts of the Australian Copyright Act; it also requires us to think about some of the recent caselaw. More detailed, painful legal analysis over the fold. (more…)