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Someone at Telstra forgot to get their NextG advertisement checked by a copyright lawyer.

You may have seen the ad (it showed last night during Australian Idol, but I’ve seen it before): a good-looking girl having a great time at a live concert holds up her fabulous sexy slimline phone and records what’s going on. She sends it to her home computer, and a whole bunch of the concertgoers follow her home to continue the party at her place. Pan to fabulous large house with seriously rocking party.

What the Telstra people clearly didn’t check is that the Copyright Amendment Bill will make a whole bunch of these activities criminal, with strict liability and a $6,600 fine per offence. Let’s see: (more…)

It’s time, in this series of posts on the Copyright Amendment Bill, to turn back to my usual obsession: anti-circumvention law.

This is one area in the Bill has changed as compared to the Exposure Draft which I previously analysed. Some not insignificant changes have been made here, requiring some new thought. I’ve been asked what my views are on the way the Bill deals with things like region-coding and ‘the Lexmark/Skylink garage door openers/printer cartridge’ issue.

I’m afraid I have to differ somewhat with Brian Fitzgerald here. Brian has condemned the change to the law:

When the Exposure Draft of the proposed amendments was circulated three weeks ago it retained the important notion that a TPM is a device that prevents or inhibits copyright infringement. However when the legislation was introduced to parliament last week that requirement had disappeared. Now any technology used by a copyright owner “in connection with the exercise of copyright” will be protected – even if it does nothing to stop infringement.

This has enormous consequences for Australian consumers. What the High Court decided in Stevens v Sony was that copyright owners should not be able to invoke copyright law to enforce TPMs that control the “use” of lawfully acquired copyrighted material in ways that do not amount to copyright infringement. In doing so the High Court highlighted the importance of ensuring Australians have the liberty to use their legally acquired property as they wished.

In three short weeks the Stevens v Sony principle has gone from pedestal to garbage dump. The law as currently drafted will give copyright owners wide-ranging powers to restrict the use of copyright materials as they see fit.

I’m not so sure. It all depends on how the provision ends up being interpreted. Here are my summary (tentative) conclusions:

1. The law will be successful in preventing the printer cartridge/garage door opener cases, at least as we are currently seeing them.
2. The law will allow a court to make a sensible judgment about whether a TPM really is being used in connection with copyright. In doing so, an Australian court could draw on the reasoning in Stevens v Sony and the US cases on what doesn’t fall within the DMCA.
3. It is not clear how much this law will be a problem if you wish to make competing, unauthorised devices which play or render DRM-protected media formats, such as DVDs, or iTunes songs – regardless of whether your device facilitates copyright infringement or not. It might be a problem. It might not.
4. To do them credit, the government appears to have fixed a big problem I pointed out with the interoperability provisions (not claiming credit, just noting that the issue has been solved) (although there is a drafting error needing fixing).
5. This law does nothing for the person who wishes to make ‘fair dealings’ of copyright-protected and DRM-protected material. If you wish to ‘splice’ protected stuff in, even if it is a fair dealing, you will have to find unprotected formats, however you can. This last, however, was probably inevitable.
6. Particularly in relation to the latter issue, much will also depend on the attitude that the Department takes in exercising their power to make ad hoc exceptions to the access circumvention ban. If they take an approach protective of user rights, the availability of ad hoc exceptions is the potential dark horse of these laws in Australia.

Over the fold, the detail that supports these summary conclusions. As always, I’m open to being corrected on any of the conclusiosn below. (more…)

Regular readers may recall that last week I blogged the fact that proposals to change Australian copyright law to allow some format shifting – touted as allowing people to use their iPods legally – did not, in fact, fit how iPods work. It was good of course to see that there was some response to this issue (whether my commentary, or someone else’s) by the government: in the second reading speech for the Copyright Amendment Bill, we have Attorney-General Philip Ruddock making the following comments:

I note there has been some commentary on the technical aspects of the exposure draft of the bill in relation to format shifting to iPods. That is why the drafts of this bill were made publicly available for comment. The government will listen to and consider comments and make any necessary technical changes to ensure the bill achieves the government’s objectives.

That’s good. I hope they’re talking to the Zune people too. Because the Zune works differently from the iPod. (more…)

There’s a lot of copyright-amending legislation floating around in Australia right now. The penultimate piece of the puzzle is the new law on copyright enforcement. You can find it on the Attorney-General’s website, here, together with explanatory material.

The appropriate summary of this law is – my, what a long way we have come. Back when the Spicer Committee was considering what copyright law should look like – a consideration which led to the 1968 Act here in Australia, that Committee was, at best, luke-warm about criminalising copyright:

‘330. Some of us doubt the wisdom of inserting criminal provisions in a copyright Act. We realize, however, that they may be desirable in the case of an offender who is a man of little means. Also, it might be said that infringement of copyright somewhat resembles stealing, which is, of course, the concern of the criminal law. In addition, as the provision has been in operation for many years we are not disposed to recommend its repeal…’

How things have changed. Now, we have some unprecedented moves in criminal copyright enforcement:

1. there will now be offences of strict liability – that is, offences for certain commercial dealings in copyright material which do not require proof that the person knew they were dealing with infringing material;
2. a system of ‘on the spot fines’ for copyright infringement.

(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…)

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…)

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…)

The New York Times has prevented access from the UK to an article detailing intelligence on recent terrorism concerns in the UK. The article in question, “Details Emerge in British Terror Case” (published 27 August), contained details that may have run afoul of the requirement under UK law that prohibits the pre-trial publication of “prejudicial information” about defendants. The New York Times used technology designed to deliver targeted advertising to users to prevent anyone using a computer located in the UK from downloading the article. The article quotes Jonathan Zittrain (of the Berkman Center at Harvard Law School and the Oxford Internet Institute) in saying that the paper’s action is consistent with trends on the Internet to restrict information.

It is thought to be the first time that the paper has withheld access to an article to avoid contravening laws in the UK.

The New Yorker has published another interesting article on the old media-new media debate. The last such article that I posted on looked at Wikipedia versus traditional encyclopedias and research; this article (published in the 7 August print edition) is on traditional versus Internet journalism (also known as “citizen” journalism).

Although the whole article is worth a read, Lemann’s parting thought is pretty interesting on its own:

Journalism is not in a period of maximal self-confidence right now, and the Internet’s cheerleaders are practically laboratory specimens of maximal self-confidence. They have got the rhetorical upper hand; traditional journalists answering their challenges often sound either clueless or cowed and apologetic. As of now, though, there is not much relation between claims for the possibilities inherent in journalist-free journalism and what the people engaged in that pursuit are actually producing. As journalism moves to the Internet, the main project ought to be moving reporters there, not stripping them away.

(more…)

In March, it was news that Google had acquired a neat web startup called Upstartfile, which was creating a site called Writely. New registrations were closed.

Today, Google quietly re-opened Writely to the general public, who can once again sign up.

I’ve just had a quick look at the new service. In fact, I’m using it to write this blog post. As for impressions? Well, in a word: (more…)