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AU House Standing Committee on Legal & Constitutional Affairs Report: They Get It
Thursday, March 02 2006 @ 06:50 AM EST

Open Source Law's Brendan Scott has a report for us from down under:
I'm pleased to report that the Australian House Standing Committee on Legal and Constitutional Affairs has presented its *unanimous* report on exceptions to Technological Protection Measures and it is largely good news for open source and bad news for cartels.

The report is available here. The report makes recommendations consistent with those requested by the Australian Open Source Industry Association (OSIA Limited).

I haven't had a chance to digest it all, but here are some of the more interesting recommendations:

#2 - the definition of technological protection measure/effective technological measure clearly require a direct link between access control and copyright protection. (this is the nub of the Stevens v Sony decision)

#3 - 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.

#4 - region coding TPMs be specifically excluded from the definition of effective technological measure in the legislation implementing the Australia-United States Free Trade Agreement - In other words, (if implemented) you can play DVDs on Linux!

#6 - there be exceptions for interoperability, specifically for interoperability between a program and data, for removing involuntarily installed software (think Sony DRM), for security and for individual privacy online;

#11 - clarification aimed at permitting the noncommercial creation of circumvention measures to make use of the exceptions.

#14 - exception for investigating infringement but only where a court makes such an order (I'm not sure whether I should count this as good or bad)

#16 - that the government monitor threats against legitimate security researchers

#28 - access to software protected by obsolete TPMs

It's nice to start the day with some good news, eh? Of course, this is a report, not law, but the good news I see is that more and more, people are coming to understand tech issues, particularly issues that impact FOSS, and that inevitably leads to a more balanced viewpoint.

As an example of how extreme technological protection measures can be, on page 117 of the full report, we find that the committee realized that unless there is an exception made, someone who wished to investigate copyright infringement of his or her own copyrighted work would be breaking the law to do so, if it meant bypassing such a TPM. So one of the exceptions being proposed is "4.8 - Non-infringing use the use of copyright material by a copyright owner in this context will not be infringing if done for the purposes of s.43 of the Copyright Act 1968."

Of course, a mere child might notice that a law that has the effect of outlawing a person's being able to investigate infringement of his own copyrighted works, or making him pay a licensing fee to do so, is a law that has gone over the top to begin with. That's the real problem here. This love the entertainment industry has for DRM and TPM, like all toxic love affairs, is costing the world already, and it's only just begun. The solution, in my view, is to refuse to buy anything that I feel is unreasonably offered. The entertainment cartels can do whatever they please, but all they can do is make an offer of goods. If I don't like the terms, I'm under no obligation to accept their offer and buy their goods. Neither are you. It's a free market after all. And I see no point in complaining about such terms and then accepting them, just to listen to some music or read a book or whatever. If I do that, they'll certainly never understand. For that reason, I'll never buy a "Trusted Computing" computer of any kind, because I don't like being spied on. That's what those chips do and I don't like it. Why would I give them money to do something to me I don't like? Some things are just obvious.

When the entertainment industry shut down Napster and began suing grandmothers and children, I stopped buying their goods. I don't approve of such behavior and while I believe in respecting copyright, I think they crossed a line. I don't like doing business with people who behave heartlessly. (Magnatune "We Are Not Evil" founder John Buckman lists some other issues here that inspired him to start Maganatune.) When iTunes first came onto the scene, I thought they made a fair offer, and so I bought from them. Then when iTunes later changed its terms midstream, I stopped buying from them too.

I thought I'd simply die without my music, but here I am, still in the land of the living, so I conclude we can say no to terms we find offensive and we won't die. If enough folks do just that, it would balance out the marketplace, which at the moment is seriously tipped against the best interest of consumers.


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