Legal Issues

What's Happening?

Australia is required to enact harsh new "anti-circumvention" laws under the Australia-US Free Trade Agreement. Some large business interests are pressing for the government to restrict legitimate access to digital material, even though the treaty does not require us to do so.

Things which are threatened

  • "Unauthorised" DVD players which ignore region-coding and the ever lengthening "compulsory viewing" areas of DVDs which were so rare when DVDs were introduced, and growing longer and longer now they are entrenched.
  • Programs which transfer "copy-protected" CDs onto your computer/iPod/mp3 player. See iownmymusic.org.
  • Any device or software which does something the manufacturer doesn't like in future. See Cory Doctorow's ABC interview on this. The rumours that PlayStation3 games won't be resellable are probably untrue, 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.
  • Innovation: the best article on the effects of similar laws in the US 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. No competition means no consumer 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 (SharpMusique) are legal. As a result, given the massive, aggressive and litigious nature of our competitors, they are not supplied with our otherwise-full-functioning Microsoft Windows replacement, restricting business opportunities for our growing Free/Open Source service and 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.

What can I do to help?

Make the government listen to consumers! Please download the petition, print it out, talk to friends, relatives and colleagues about the issues and ask them to sign it. Instructions are included on the last page.

More information...

Q&A Session

On Friday 16th June, Rusty Russell held a Question and Answer session. We broadcast an audio stream with questions being asked on IRC.

Keep your eye on the announce and linux-aus mailing lists as well as on the front page of http://www.linux.org.au and on Planet LA for future events.

Background

An excellent source of specifics on these issues is available on the blog of renown Australian IP lawyer Kim Weatherall.

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, Our IP advisor Rusty Russell has 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 IT producers.
  • They have excellent connections with the music and movie industries.
  • Don't see IT people or consumers as stakeholders 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 (from DMCA via EFF):

    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 and movie industries here and in the US to weaken links between law and its claimed purpose (protecting copyright).

Previous Government comment/reports

Every government review has expressed concerns about these laws, but unfortunately there's no binding requirement that the government pay them any attention.

  • 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 the FTA has restricted what changes we can make.
  • 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):

    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 Committee 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. See analysis and pointers here.

    Recommendation 3
    The Committee recommends that, in the legislation implementing the Australia-United States Free Trade Agreement, the Government ensure that access control measures should be related to the protection of copyright, rather than to the restriction of competition in markets for non-copyright goods and services.

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

Some US courts 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.

Two Bad Cases
  • DeCSS, a program which decoded and copies DVDs, was found to be illegal. 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 (from the decision):

    "...no evidence that the Plaintiffs have either explicitly or implicitly authorized DVD buyers to circumvent encryption technology to support use on multiple platforms"

  • 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 (form the decision (PDF)):

    "The bnetd.org emulator had limited commercial purpose because its sole purpose was to avoid the limitations of [the official servers]"

Two Good Cases
  • 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" (from the ruling):

    "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 (from Federal Circuit Opinion (PDF)):

    "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, ..."

Contact

Contact Rusty Russell at rusty@linux.org.au or on 0417 451212 (+61 417 451 212).