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| Some Quick Comments on Australia's Exposure Draft TPM Measures Bill, by Brendan Scott |
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Tuesday, September 05 2006 @ 10:45 AM EDT
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Some Quick Comments on Australia's Exposure Draft TPM Measures Bill
~by Brendan Scott, Open Source Law
inquiries@opensourcelaw.biz
Introduction
As a result of the Australia-US Free Trade Agreement (AUSFTA), Australia is required to augment its existing DMCA style provisions in the Australian Copyright Act. The AUSFTA requires that these changes be in place by the end of 2006. Following a number of reviews, draft legislation which aims at implementing the relevant provisions of the AUSFTA (i.e. paragraph 17.4.7) has been released.
Hurrah for the AGD!
The first thing to note about the Exposure Draft is that the people in the Attorney-General's Department (AGD) have clearly put a lot of effort into trying to translate into a legal reality a scheme which takes as its basis concepts which are so rarefied that only well experienced copyright sophists are able to decipher them, let alone tell you what one might smell like. The AGD has also clearly done their homework on TPM1
schemes as a number of criticisms made of the AUSFTA wording and of the existing legislation have been anticipated by this draft. Having been given the thankless task to implement a system which is increasingly being questioned by courts and business in the US and Australia, and which was roundly criticised by a committee report of the Parliament which they are employed to serve, I find it difficult to believe that any of them would have enjoyed the experience. I certainly don't envy them. They have woven a very precarious, and somewhat clever, path through the requirements of the AUSFTA and recent court decisions.
About the Exposure Draft
The structure of the Exposure Draft creates a number of definitions: -
"access control technological protection measure"
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"circumvention device" - thankfully they have corrected the wording in the AUSFTA which permitted you to advertise your competitor's products as circumvention devices, thus making their sale illegal. This was just one example of many of the problems with 17.4.7.
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"circumvention service"; and
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"technological protection measure" -- the definition ought to be changed to link the relevant infringements to the work the subject of the measure.
The term "circumvention", which is used to define many of the infringements/ offences, is not defined.
It then defines a number of infringing acts:
116AK - Circumvention of an Access Control Technological Protection Measure
116AL - Manufacture of a Circumvention Device for a Technological Protection Measure
116AM - Providing a Circumvention Service for a Technological Protection Measure
Those of you outside Australia may breathe easier, as the Exposure Draft then limits the application of the Subdivision to acts done in Australia (116AN).
It defines remedies which are available in the event of a breach of 116AK-116AM (including flagrancy damages) (116AO) and provides exceptions for some special interest groups, if they didn't realise what they were doing (116AP).
It then creates offences which mimic the infringing acts identified above, but for the addition of the action being done "with the intention of obtaining a commercial advantage or profit".
132APA - Circumventing an Access Control Technological Protection Measure
132APB - Manufacturing a Circumvention Device for a Technological Protection Measure
132APC - Providing a Circumvention Service for a Technological Protection Measure
It is not clear exactly how broad "with the intention of obtaining a commercial advantage or profit" would be. Will it attach to most dealings in the course of a business -- or of employment?
It also adds, somewhat as an afterthought, an ability to bring an action for a groundless threat of legal proceedings (202A). However, unlike an infringer, a groundless litigant does not appear to be liable for flagrancy damages.
Each of these infringements/offences are attended by an array of exceptions. However, the exceptions are different depending on what you are doing. Thus, for example, there is an exception under 116AK for interoperability between computer programs, which is not present for 116AL. You can probably blame the USTR for this, as the AUSFTA prescribes which exceptions are available in what circumstances.
The Impact on Free/Open Source Software
As the likely practical effect of these measures will be to protect incumbency, the impact of these provisions on open source must necessarily be negative (in those areas where open source is not incumbent) or neutral (in those cases where it is -- as a FOSS project would be unlikely to have a use for them).
While there are many things in the Exposure Draft which could present problems for FOSS, the main issue that Open Source Industry Australia Limited chose to address in its submission to the House of Representatives Committee was the ability to read and write customer data stored by a third party program. This issue is of fundamental importance to the open source industry, and one which could make or break it, if it is legally prohibited from reading and writing the legacy data of potential customers - witness the recent hullabulloo in MA in response to a policy requiring the use of open standards. Where would MA be if it was actually illegal for OpenOffice.org to read its legacy documents?
The Exposure Draft has an exception for interoperability, but only speaks about interoperability between programs, not between a program and a data set. While there is some subtlety in the definitions which tie TPMs to a specific work and owner, these are unlikely to be adequate. This is a preliminary note, and the matter will require more analysis, but the Exposure Draft appears to be inadequate on this most important of issues -- whether an open source program can legally read a customer's legacy data. It may be (see note below) that this aspect will be covered in the Regulations, as the AGD has flagged that some regulations may relate to interoperability. As the main use of such an exception is to promote competition -- and therefore to be used by businesses -- the possible breadth of the criminal penalties require that any exception be very clear.
Conclusion
The Exposure Draft creates a complex scheme relating to TPMs, although the complexity has been compelled by the AUSFTA. It raises many issues not discussed here. However, it does not appear to provide sufficient clarity on the issue of FOSS programs reading customer legacy data. This may be dealt with in the Regulations.
The provisions are very complex and, in the context of an already Byzantine Copyright Act, it will be difficult for mere mortals to understand the practical implications of them. There are substantial penalties, including possibly very broad criminal offences in the event that the provisions are breached. This is compounded by the fact that Courts have been reticent to recognise the frailty of the human condition in matters copyright. It would be an unfortunate result if legitimate rights were underutilised because of fear of the consequences of getting it wrong.
What can you do?
If you are in Australia, follow the proposed responses of OSIA and Linux Australia. Have a look at the House of Representatives Report (see summary on Groklaw). Talk to your local member about the issues of concern to you and remind them that the Committee's recommendations were unanimous.
If you aren't, breathe a sigh of relief! Alternatively, chip in a helping hand to put together some resources -- you never know when you might have need of them.
Not Released Yet
Oh, by the way, in addition to the Exposure Draft, it is proposed that a number of additional exceptions be dealt with by way of Regulation. The proposed regulations have not (at the time of writing) been released.
Get the draft legislation
House of Representatives Report.
OSIA Submission to House of Representatives [PDF]
1 TPM=technological protection measure. While the Exposure Draft has a complicated definition, the media release accompanying it describes it like this: "Technological protection measures (TPMs) are technical locks copyright owners use to stop their copyright material from being copied or accessed (eg. passwords, encryption software and access codes)."
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| Authored by: Just_Bri_Thanks on Tuesday, September 05 2006 @ 11:25 AM EDT |
For easy fixin'
---
Bri. Just Bri. Thank you.
(With a long i sound.)
Without qualification, certification,
exception, or (hopefully) bias.[ Reply to This | # ]
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| Authored by: Just_Bri_Thanks on Tuesday, September 05 2006 @ 11:26 AM EDT |
Make links clickable with html please.
---
Bri. Just Bri. Thank you.
(With a long i sound.)
Without qualification, certification,
exception, or (hopefully) bias.[ Reply to This | # ]
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- Not accurate - Authored by: PJ on Wednesday, September 06 2006 @ 09:00 AM EDT
- Not accurate - Authored by: Anonymous on Wednesday, September 06 2006 @ 09:46 AM EDT
- Not accurate - Authored by: PJ on Wednesday, September 06 2006 @ 10:26 AM EDT
- Not accurate - Authored by: Anonymous on Wednesday, September 06 2006 @ 11:15 AM EDT
- Conference call today - Authored by: fudisbad on Wednesday, September 06 2006 @ 09:36 AM EDT
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| Authored by: Anonymous on Tuesday, September 05 2006 @ 11:44 AM EDT |
as circumvention is not clearly defined in the document, could Tivo-isation be
classed as circumvention of the GPL. [ Reply to This | # ]
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| Authored by: kawabago on Tuesday, September 05 2006 @ 12:12 PM EDT |
The real tragedy here is that after Australia has implemented all these new
laws, the US will simply refuse to honor the agreement. Just as with the FTA
with Canada, the US will refuse to enforce the agreement whenever it favours
Australian business and will demand adherence when it favours US business.
Australia will then have to go through the arbitration process spelled out in
the FTA and when they win there, the US will simply refuse to accept the
decision. If you want to see all this in action search for items related to
Canadian Softwood Lumber and the Canada-US FTA.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, September 05 2006 @ 12:40 PM EDT |
If there are to be technological measure for copyright protection then those
measures should protect ALL aspects of copyright and not just those that suit.
If the protection is to be enhanced then the copyright rights for the USER
should be enhanced as well.
Tufty
[ Reply to This | # ]
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| Authored by: wvhillbilly on Tuesday, September 05 2006 @ 12:43 PM EDT |
Let 'em keep on. By the time the entertainment industry/media producers get
through buying out congress/whatever other nationality legislative bodies there
are and adding all their twisted regulations to copyright law, they'll have
everything so bound up with TPMs nobody will want to buy their products.
It's getting close to that now.
---
What goes around comes around, and the longer it goes the bigger it grows.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, September 05 2006 @ 06:13 PM EDT |
In australia it is not illegal to bypass region encoding on dvd's. In fact the
manufacturers sell their dvd players region free from the factory. (I have
avery nice pioneer dvd player that transparently plays USA (region1) and
Australian (region4) dvd's.
Will this stop the sale and distribution of region free players in australia? I
believe They are allowed currently because restricting dvd's to a particular
region was deemed unfair trade restrictions or something like that.
Kevin.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, September 05 2006 @ 06:37 PM EDT |
I worked at an Australian organisation that has a few different major software
installations which have compatibility issues, however, over time these are
being replaced with better integrated systems.
A classic example of legacy data/incompatibility:
Every year at stocktake time, the inventory people would turn up with a big pile
of tractor-paper records. The main problem was that the records were not in any
useful order other than by date. Yes, that's right! The records were only in
order of purchase date and could not be printed in any other order. Not by room
number, building number, price, barcode, user, manufacturer, description or
anything else. Only the linear order of date of ENTRY.
THANK YOU legacy systems. However, being a clever bunch in the workshop, we
offered to make an interface for them that would allow them to "print"
their COMPLETE database to a more workable system. Basically, a black box that
looks like a printer to the legacy system would be placed between the legacy box
and a standard PC, with some simple software on the PC to read in the data via
the printer port status pins. A bit slow but completely effective.
I had made something similar at technical college only 3 years before as one of
our student projects. It worked perfectly.
Anyway, we offered this to the admin people, but they weren't interested. They
were quite happy to wait (another 5 years as it turned out)to pay money for a
replacement "proprietary" system at a cost of $23 million.
The moral of this story, apart from the mindnumbing stupidity of admin's
decision to subject their staff to endless years of visually sorting annually
through 300 sheets of printouts of non-contiguous data, is that our "black
box" could be considered a circumvention device, albeit one that could save
$23 million.
So I recommend that everyone in Australia save their personal data on legacy
systems that expire before the government comes looking for it. If the
technology has been rendered useless by age, they won't get much. Yes. Don't
keep your data in open-source. Use something more akin to the baffling
incompatibility between Microsoft's own Word and Works formats.
Microsoft Works? That's an oxymoron![ Reply to This | # ]
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| Authored by: Brendan Scott on Tuesday, September 05 2006 @ 06:46 PM EDT |
This footnote is an editorial addition:
'The Exposure Draft defines it like this: "Technological protection
measures (TPMs) are technical locks copyright owners use to stop their copyright
material from being copied or accessed (eg. passwords, encryption software and
access codes)."'
The term TPM does refer to "technological protection measure".
However, the definition in the Exposure Draft is rather more convoluted that
what has been quoted. The quoted text comes not from the Exposure Draft but
from the release announcing its availability.
I have sent an email to PJ asking her to update.
Brendan [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, September 05 2006 @ 06:47 PM EDT |
It seems envevitable that copy protection is going to become main stream,
and it's giong to be very hard to stop. I don't have such a problem with copy
protection per se, but what I do have a problem with is when media
companies want to make digital products behave more like physical products,
but only as long as the feel like it. I guess what is missing is the element of
control, and certainty about what one has purchased.
If I buy a iTunes song, and it has certain rights and restrictions attached to
it,
the law should enforce those rights and restrictions not change until copy
protection is lifted on the item, and if the rights and restrictions are changed
then the DMCA like laws should no longer apply to the item, simple as that.
If that's too much for the media companies then they shouldn't be
distributing products with copy protection.[ Reply to This | # ]
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| Authored by: gfim on Tuesday, September 05 2006 @ 07:49 PM EDT |
...whether an open source program can legally read a customer's
legacy data... I can't see why this would be a concern. The
draft explicitly says
An owner or exclusive licensee of the
copyright in a work or other subject matter may bring an action against a person
if... Presumably the customer owns the copyright to their own
data (assuming it even qualifies for copyright at all). So the only person who
could bring an action against them is themself!! Seems unlikely.
---
Graham [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, September 05 2006 @ 07:51 PM EDT |
"It would be an unfortunate result if legitimate rights were underutilised
because of fear of the consequences of getting it wrong."
Most people never feel this fear.
What they do experience is a complete lack of understanding of their legitimate
rights, both due to a lack of genuine education on copyright matters, and
flagrant miseducation by interested commercial parties.
Any further strictening of copyright law should be accompanied in the same
legislation with mandatory rights education programs, and people who cannot be
validated as having received those programs of education should be immune to
prosecution. The situation has gotten well beyond a joke.
[ Reply to This | # ]
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| Authored by: Willu on Tuesday, September 05 2006 @ 08:44 PM EDT |
The Australian Digitial Alliance's take is here:
http://www.digital.org.au/is
sue/August06.htm
About the ADA:
ADA members include
schools, universities, consumer groups, major cultural institutions, IT
companies, scientific and other research organisations, libraries and
individuals. They are united by the common theme that intellectual property laws
must strike a balance between providing appropriate incentives for creativity
against reasonable and equitable access to knowledge.
The ADA is
physically (not to mention virtually) hosted by the National Library of
Australia in Canberra.
[ Reply to This | # ]
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| Authored by: gfim on Tuesday, September 05 2006 @ 11:10 PM EDT |
Taking one of my earlier comments a bit further, it seems to me that every
vendor of encryption products will violate this law. Suppose I buy an encryption
product from a vendor. This would invariably include both an encryptor and
decryptor. I use the encryptor to encrypt some text that I own the copyright to.
Then that encryption is a TPM. The vendor, in making and selling the decryptor,
is "Manufacturing a circumvention device for a technological protection
measure". I can't see that they are exempt under any of the other
provisions of the act. So I can bring an action against them.
---
Graham[ Reply to This | # ]
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| Authored by: old joe on Wednesday, September 06 2006 @ 05:21 AM EDT |
I’m sure I read here a while back that a US court had decided that
where TPM are used to enforce restrictions on users,
and those restrictions are additional to those in the copyright acts
then the copyright owner could not sue for breach of copyright
but had to sue under contract law instead.
Does anyone else remember seeing that or did I dream it?
[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, September 06 2006 @ 06:30 AM EDT |
The draft legislation is an improvement on the existing law, as it make clear a
lot of activities which should remain legal - like access for disability.
One of the aim of the new legislation is to legalize 'format shifting' : e.g.
converting your AC3 files to mp3. It explicitly state that region coding will
NOT be covered by TCM, (Thank you High Court of Australia and ACCC) which is
wonderful as Australia now share the same region code for Blue-Ray as China
>_<.
I will say this is what a copyright legislation should be when the politicians
are not in the pocket of big media companies : protecting both the copyright
holder and the consumers at the same time.
[ Reply to This | # ]
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