Saturday, July 29, 2006
"That tradition is the way our culture gets made. As I explain in the pages that follow, we come from a tradition of "free culture" - not "free" as in "free beer" (to borrow a phrase from the founder of the free-software movement), but "free" as in "free speech," "free markets," "free trade," "free enterprise," "free will," and "free elections." A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain /as free as possible/ from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a "permission culture" - a culture in which creators get to create only with the permission of the powerful, or of creators from the past."
Inside Higher Ed by Scott Jaschik:
“At a certain point, we can’t be held prisoner within the publication system,”
R. Michael Tanner, provost and vice chancellor for academic affairs of the University of Illinois at Chicago
- Le dernier alinéa de l’article 21, qui instituait, dans des conditions imprécises et discriminatoires, une cause d’exonération de la répression prévue par le reste de cet article à l’encontre de l’édition de logiciels manifestement destinés à échanger des oeuvres sans autorisation.
The Court erases the exception that protected software developers who were specifically working on collaborative software, research or file sharing. Given the decision, any French developers working on such softwares could be sued by DRM producers or copyright holders. Even when it software is intended for non-copyrighted contents. So, no matter whether people use P2P software for some distributed business model or just to share Creative Commons-music, it’s already illegal.
- En raison de la définition imprécise de la notion d’ " interopérabilité ", les références à cette notion figurant aux articles 22 et 23 de la loi déférée, qui exonéraient de responsabilité pénale le contournement des " mesures techniques de protection " voulues par les auteurs et titulaires de droits voisins, ainsi que l’altération des éléments d’information relatifs à leur régime de protection, lorsque de tels actes étaient " réalisés à des fins d’interopérabilité".
The Court deletes the interoperability exception that was supposed to protect competition and free software developers. Without prior authorization, it will not be possible anymore to develop a software that could interact with DRM-encumbered content. This is true for Free Software developers, but it is also true for start-ups like Archos or Dailymotion.
Thursday, July 27, 2006
iTunes is protected by the anti-circumvention provisions in the 1998 Digital Millennium Copyright Act (DMCA), itself a law passed to comply with the 1996 UN World Intellectual Property Organization (WIPO) "Internet Treaties." The DMCA makes it a crime to circumvent "effective means of access control." That means that breaking the locks off a digital work is illegal, even if you're breaking the lock to accomplish a legal end.
It's otherwise legal to back up a DVD, or put a song on a home media-server, or quote an ebook in a college essay. But if you have to break through some copy-restriction technology to do this, you're breaking the law.
It doesn't even matter if you're the creator of the work the lock controls! You can't even access your own work on your own terms if you need to break a lock to do it.
The DMCA makes the kind of reverse-engineering that's commonplace in most industries illegal in copyright works. For example, in the software industry, it's legal to reverse-engineering a file-format in order to make a competing product. The reason: The government and the courts created copyright to provide an incentive to creativity, not to create opportunities to exclude competitors from the marketplace.
Reverse engineering is a common practice in most industries. You can reverse-engineer a blender and make your own blades, you can reverse-engineer a car and make your own muffler, and you can reverse-engineer a document and make a compatible reader. Apple loves to reverse-engineer -- from Keynote to TextEdit to Mail.app, Apple loves reverse-engineering its competitors' products and making its own competing products.
But the iTunes/iPod product line is off-limits to this kind of reverse-engineering. No one but Apple can authorize an iTunes/iPod competitor, and Apple's not exactly enthusiastic about such authorization --the one major effort to date was the stillborn Motorola ROKR phone, which was so crippled by ridiculous Apple-driven restrictions that it barely made a ripple as it sank to the bottom of the cesspool of failed electronics.
Study suggests DMCA takedown regs abused
One third of all requests to Internet service providers to remove stolen copyrighted material from their servers could likely be defeated in court, according to a study of some 900 notices by two legal experts.
The survey examined takedown notices served to Google and another large Internet provider under the Digital Millennium Copyright Act (DMCA) Section 512. Two provisions of that section require that hosting providers and search providers remove content and links to content in order to gain exemption from possible copyright lawsuits. The music and movie industry typically use a different provision of the section to ask for suspected infringers to be cut off from the Internet.
According to the study, thirty percent of the notices could be readily challenged in court on clear grounds, such as a substantial fair-use argument and the likelihood that the material is uncopyrightable. One out of 11 notices had such a significant legal flaw--such as not identifying the infringing material--as to render the notice unusable. Moreover, more than half of the notices for link removal that were sent to Google were sent by businesses targeting apparent rivals, the report said.
While the authors of the study admit it uses a small sample set, the conclusions support contentions that the DMCA has been used to hobble expression on the Internet, even among security researchers, who have an explicit exemption in the law. The row with media giant Sony BMG over its controversial copy protection technology had some researchers worried that investigating the protection would place them at hazard from a DMCA lawsuit.
If more Internet service providers published every takedown notice they receive, as Google does, a more statistically valid study could be performed, the authors stated.
And its not for want of input from Australian business:
The Age: Drop copyright changes, say ISPs
The Age: Copyright changes anti-industry: claim
The Age: Clamour against copyright changes grows
OzEmail has joined the ranks of those calling for the Federal Government to rethink copyright amendments which have been introduced to accommodate provisions of the US-Australia free trade agreement.
Ms Salier said, in her view, potential issues with item 11 and 13 of the Copyright Legislation Amendment Bill 2004 were:
- It is unclear when web material is likely to be infringing. For example, is material the subject of a court case 'likely to be infringing?' If so, an ISP would be required to disable access to websites merely on an allegation that the website may contain infringing material.
- The new provisions create a 'pick and choose' scenario for copyright owners. A copyright owner could choose whether to issue a formal notice in accordance with the new FTA regulations, or it could choose to merely put an ISP on notice that material is 'likely to be infringing'.
- The provisions appear to open ISPs up to the very situation the Government was trying to avoid - the use of automatic web-generated notices in Australia.
- The FTA requires a process to allow users to object to their material being taken down, or access to their website being disabled. The new provisions do not contain this important consumer protection.
- The FTA notice and take down scheme contains important protection for ISPs - if an ISP acts on a notice from the copyright owner to remove material from the internet, it is protected from damages claims from the person who put that material on the internet.
- The new provisions require ISPs to act even on suspicion of an infringement - without any protection if the claim turns out to be wrong.
- There is also a strong possibility that the new provisions could be abused. As an ISP would have to act on every claim of infringement (not just a claim from the copyright owner), the provisions could be used:
- by a competitor, to try and remove information about products from a company's website
- to stifle free speech - by an organisation who may not wish certain views to be expressed over the internet.
- by a competitor, to try and remove information about products from a company's website
Tuesday, July 25, 2006
"We are honoured to announce the official launch of the A2K (access to knowledge) English version website of Fundação Getúlio Vargas (FGV) School of Law in Rio de Janeiro, from the Centre for Technology and Society (CTS)."
The first post sets the scene:
[NGO Files Law Suit Against Brazilian Publishers Association]
Monday, July 24, 2006
ARC, Centre of Excellence for Creative Industries and Innovation
has written an essay "What price a creative economy?"
In an interview with Geraldine Doogue
"We need to include the creative sector in our thinking about innovation, we need to think about it as a participant in that which is driving economic and social change in this country."
but Monkey has permanently blessed this word with wonkiness for me.
Here is a link to Amnesty's petition for online freedom
This petition is being presented to the upcoming Internet Governance Forum.
Get in there and make your opinion count.
Saturday, July 22, 2006
DMCA dismissed from tape backup lawsuit
"The CD's could be viewed using both DVD players. Both DVD players made use of unlicensed CSS decoders, which is required because of the conflicting requirement to keep this technology a trade secret with the publicly released source-code nature of Open Source and Free Software.
These two players were both produced outside of the United States since the new controversial DMCA law has allowed the DVD-CCA cartel to declare a competitive DVD player to be an "anti-circumvention device". Considerable information on this case can be found from EFF and other related organizations.
While it is currently legal for me to use these Open Source players to play these videos in Canada, a change in the Canadian Copyright law to label unlicensed CSS decoders as anti-circumvention devices will then tie my ability to view my already purchased copy of the movie "AntiTrust" with an additional purchase of a DVD player licensed by the DVD-CCA cartel."http://www.flora.ca/copyright-2001-cmpda-reply.shtml
McOrmond is proprietor of FLORA Community Consulting, a primarily Free Software, Open Source and Open standards based consulting company operating out of Ottawa, Ontario.
track the best and worst of EUCD implementations.
Friday, July 21, 2006
The body should be set up by statute and modelled on industry regulators such as OfCom. Its task would be to ensure intellectual property laws serve the public interest by encouraging more creativity and innovation. It would follow the principles of the RSA Adelphi Charter on Creativity, Innovation and Intellectual Property.
There is an urgent need for a new body to provide government with independent, expert, policy-oriented research, said John Howkins, Director of the Creative Economy Forum.
We propose the government restructure the Patent Office as a statutory body with explicit public interest responsibilities. It would function as a regulatory body. One model is Ofcom, which regulates the communications industries according to the public interest and fair competition. The new Office of Intellectual Property (OfIP) would take on all the Patent Office's existing powers and responsibilities but operate within a policy framework shaped by the public interest. Government would have to account for the public interest instead of a narrow business focus as now.
In essence, the new body would have wider responsibilities, which might worry some people, but it would be much more accountable.
RSA Adelphi Charter on Creativity, Innovation and Intellectual Property. http://www.adelphicharter.org/adelphi_charter_document.asp
Wednesday, July 19, 2006
"The petitioners want the House to maintain this balance by not extending the term of copyright and preserving all existing user rights to ensure a vibrant public domain. They also request that users be recognized as interested parties and, as such, be consulted about any proposed changes to the aforementioned Copyright Act."
The signatures were brought to Mr. McGuinty by Russell McOrmond, a constituent of Ottawa South who has been helping coordinate the petition. This software creator, ISP and Internet consultant first became involved in copyright in the summer of 2001 with that round of digital copyright consultations.
"The issue that remains the most important to me is the question of who controls communications technology. I believe it is critical for protecting citizens rights that any hardware assistance for communications, whether it be eye-glasses, VCR's, or personal computers, must be under the control of the citizen and not a third party. ", Russell McOrmond stated. "This is why we demand in the petition that the government recognize the right of citizens to personally control their own communication devices."
"It is important for people to understand the anti-circumvention proposals in the 1996 WIPO treaties, itself laundered policy from the United States Patent and Trademark Office. What citizens are circumventing is not copyright, but inappropriate legal protection for an unaccountable and non-transparent form of remote-control over communications devices that we own. Governments are offering to protect technological measures which links content like movies and music to devices which the media companies control. This does not protect copyright, but serves as a way to circumvent Canadian competition, privacy, property and other laws."
Canadian Music Creators
Digital Copyright Canada
The Pig and the Box is about a pig who finds a magic box that can replicate anything you put into it. The pig becomes so protective of it, and so suspicious of anyone that wants to use it, that he makes people take their copied items home in special buckets that act as... well, they're basically DRM. It's like a fable, except the moral of the story is very modern in tone.
15 July Deadline for Contribution to IGF "Synthesis Papers"
24 Aug Deadline for Athens Workshop Proposals
Available at: http://www.ipjustice.org/WSIS/IGF_070106.shtml
***The IGF Secretariat has extended the deadline for written contributions to be included in the IGF "Synthesis Papers" until 2 AUGUST (it had previously been 15 July).***
The 30 Oct. - 2 Nov. 2006 inaugural meeting of United Nations Internet Governance Forum (IGF) in Athens, Greece provides plenty of opportunity for discussion on a wide variety of topics related to “Internet governance”.
This is IP Justice’s call for participation for civil society contributions to the Athens IGF meeting. Participation at the Athens IGF meeting can be through written contributions, workshop proposals, prepared video statements, and a “plaza” to showcase institutions and projects.
Four Main Themes in Athens: Openness, Security, Diversity, Access
- Freedom of Expression
- Free flow of information and ideas
- Access to knowledge
- Building trust online
- Protecting users from spam, phishing, viruses
- Maintain security while protecting privacy
- Multilingualism including IDN
- promoting local content
- Respecting geographical diversity
- Internet connectivity, policies and costs
- Interoperability and open standards
IGF Written Contributions:
The IGF Secretariat has issued a call for contributions on its website.
Written contributions are intended to shape the discussion at the Athens meeting. The IGF Secretariat will prepare synthesis papers of all written contributions that will be translated into all UN languages and submitted to the Athens meeting as official conference documents.
15 July 2006 – Deadline for submitting written contributions to be included in synthesis papers.
Papers submitted after the 15 July deadline will be included on the IGF website, but not included in the synthesis papers.
Many more details regarding the submission of written contributions are available on the IGF’s website:
IGF Work Shop Proposals:
The IGF Secretariat has issued a call for work shop proposals and template for submitting proposals on its website.
24 August 2006 is the final deadline for submitting workshop proposals in English. The deadline for submitting proposals in UN languages other than English is 31 July 2006.
The Secretariat encourages proposals to be submitted as early as possible, as proposals will be accepted on an ongoing basis. The final selection of workshops will be made by the IGF Advisory Group at its meeting on 7-8 September 2006. All valid proposals will be posted to the IGF website.
Many more details and the template for submitting workshop proposals is available on the IGF’s website: http://www.intgovforum.org/workshops.html
IP Justice recommends submitting written contributions and workshop proposals on the following sub-issues (non-exhaustive):
1. OPENNESS - Freedom of expression, free flow of information, ideas and access to knowledge:
- Freedom of expression rights
- Free flow of information
- Access to knowledge
- Appropriate balance of intellectual property rights for protecting free expression and free flow of information
- Promotion of accessible public domain
- Government censorship on Internet
- Corporate censorship on Internet
- Impact of technological protection measures and anti-circumvention laws on the free flow of information
- Impact of software patents on freedom of expression
2. SECURITY - Building trust online, protecting users from spam, phishing, viruses, maintain security while protecting privacy:
- Civil liberties concerns from government surveillance programs
- Relationship of protecting privacy rights and promoting consumer trust on Internet
- Role of free and open source software in promoting information security
- Impact on freedom of expression from spam and content filtering
- Privacy right violations from publication of ICANN's "WHOIS" database on Internet
3. DIVERSITY - Promoting multi-lingualism, local content, and geographical diversity:
- Ability of ICANN to meet needs of international Internet community
- Role of Creative Commons licenses to promote local content
- Ability of non-proprietary development and licensing schemes to meet local needs
- Management of critical Internet infrastructure resources
- Role of Internet to promote democratic participation
- Internationalized Domain Names (IDNs)
4. ACCESS - Internet connectivity, policies and costs:
- Open standards
- Interoperability of technology
- Role of free and open source software to provide access
IP Justice Recommendations regarding Substantive Agenda for UN Internet Governance Forum
UN Press Release Announcing Internet Governance Forum Advisory Group
IP Justice Statement at UN IGF "Open Consultations" - 19 May 2006
UN Internet Governance Forum (IGF) webpage
Saturday, July 15, 2006
This audio file or transcript is a great introduction for those new to the DRM landscape from someone who has covered the territory for several years.
Cory Doctorow is an EFF fellow. He's one of EFF's spokespeople, works on policy research and participates in standards bodies. In a previous life, he was a software entrepreneur, co-founding a company called OpenCola. He is an award-winning science fiction writer, and his first novel, "Down and Out in the Magic Kingdom" was recently published by Tor Books. He is co-editor of the popular weblog Boing Boing and is a frequent contributor to Wired Magazine and the O'Reilly Network.
Two years ago, Cory Doctorow spoke at Microsoft Research, giving a talk called
"DRM and MSFT: A Product No Customer Wants." The talk (see the transcript) has become a very widely cited resource on DRM, and has been translated into several languages, repurposed as an audiobook and a PowerPoint presentation, and so on. The video has apparently been one of the most-requested videos on the Microsoft internal network for years.
Now Microsoft has released this video to the public, though you need Microsoft Internet Explorer and Windows Media Player to see it.
Wednesday, July 12, 2006
The delegation of Australia showed considerable flexibility in supporting in principle proposals to examine non-exclusionary models for fostering innovation and transfer of technology (e.g. free software development and creative commons models) as well proposals which promoted "models based on open collaborative projects to develop public goods". This was perhaps the only OECD Member State that voiced support of proposals to look at open collaborative models.
Now imagine writing the legal advice to the makers of The Panel TV show. It runs a bit like a script for that show, doesn't it?
Lawyer: Well guys, your use might be:
* reporting news (but we'll have to look at all those old English and Australian cases on what that means) or it might be
* criticism or review (but we'll have to look at all those old English and Australian cases on what that means), or it might be
* parody or satire (but then we have to look at the decisions of the WTO and some European courts who have interpreted what the three step test means, to work out whether this complies
with the three step test'
The Panel guys: Um, ok. so why are we looking at different courts again?
Lawyer: well, the legislation says we have to take different things into account depending on whether this is parody or whether it is criticism and review. We've got old caselaw on the criticism and review and the news stuff, but this parody defence - well, it's got this new set of conditions on it, and the only people who've interpreted that are international courts,
The Panel guys: So how much is that going to cost?
Lawyer; well, we'll have to get in a consultant who knows something about international trade law, because they'll have to read those WTO decisions because the court is going to want some help on what these factors mean ...'
See also Kim Weatherall's paper on performers rights:
On the Insanely Complicated New Regime for Performers' Rights in Australia, and how Australian Performers got Gypped
would like to venture forth and interview people from the open source community across Australia:
"Karin and I produce the Linux Australia Update, a fortnightly podcast examining different aspects of the Australian Free and Open Source Software community.
Recently we have been considering making changes to the podcast which would allow us to increase the content we can provide as well as increase our interaction with the Free and Open Source Software community in Australia.
As part of these changes we plan on doing the following:
- Move from a podcast only format to a weekly online broadcast with each segment available as a seperate podcast feed the day after broadcast
- Combine the LA Update and the LUG Roundup into one program
- Introduce two new segments to the program:
- "Ooooh Shiny": Where we have a look at new tech toys and equipment
- "FOSS Business Report": Where we take an in depth look at the FOSS based business sector, examining both users and providers of FOSS based services and products.
- Introduce a monthly Question and Answer session with well known FOSS personalities, both local and international.
The aim is to broaden the focus of the programme and capture more listeners and hence increase the listening base for our advertisers/sponsors.
In order to fund this new programme format and also expand our range of programming, we are seeking sponsorships from both the private and public sectors. We are still nailing down the exact details of any sponsorship plan however we are seeking to gauge the interest there would be in participating.'
Scott Shawcroft and Brandon Hines are venturing forth in the US
Would be great to see something similar here.
Monday, July 10, 2006
As a musician I find the notion of using DRM technology abhorrent -- not only because of the risk that my works could be locked up indefinitely by technological means, despite my signing a non-exclusive distribution contract. Under anti-circumvention laws such as the DMCA and the forthcoming EUCD, it could well prove impossible for me to share my own work with my friends, or to distribute DRM-controlled content to another publisher.
A practical illustration of the joys of DRM.
Downhill battle, music activism
"Five major record labels have a monopoly that's bad for musicians and music culture, but now we have an opportunity to change that. We can use tools like filesharing to strengthen independent labels and end the major label monopoly.
How do musicians get paid for downloads? Simple: collective licensing lets people download unlimited music for a flat monthly fee ($5-$10) and the money goes to musicians and labels according to popularity. This solution preserves the cultural benefits of p2p, gets musicians way more money, and levels the playing field.
Our plan is to explain how the majors really work, develop software to make filesharing stronger, rally public support for a legal p2p compensation system, and connect independent music scenes with the free culture movement."
Death by DMCA
Canadian Musicians for Consumer Friendly Laws
The EU Team are petitioning Bono
RIAA free Gift guide
vsound - An Australian invention, A digital loopback device.
An innovative project moved offshore by DMCA, already, and its not even here yet.
This group is taking this issue on from the international policy and treaty perspective.
The mail lists and draft documents are open and readable.
Check it out.
From the Paris Accord meeting between Creators and Consumers
"This workshop aims to bring people together to examine relations between creative communities and the public, seeking to identify common interests and new opportunities to collaborate. Discussions will explore new and existing social and business models for the intermediary between creative communites and consumers. The meeting will look at models and relationships that recognize the importance of creative community earning a living, the interest of the public in obtaining affordable access to works, and the interests of both parties in supporting an environment for creativity and innovation."
Sunday, July 09, 2006
I love the idea of digital books. I love books. I especially love old dusty libraries filled with precious leather bound volumes that contain the priceless knowledge of the ages. There was such a library in a TV series about a vampire, except it had a single shelf of books, and the pages were filled on demand with the knowledge required at the time. I drooled. It seemed like all my dreams come true, the tactile pleasure of a book, with the speed and convenience of digital bits.
Saturday, July 08, 2006
by Michele Boldrin and David K.Levine
Which brings us to what the RIAA and the debate over "intellectual property" is all about. It is not about the right to the fruits of one's own labor. It is not about the incentive to create, innovate or improve. It is about the "right" to preserve an existing way of doing business. In this we agree with Robert Heinlein's fictitious judge:
"There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest."
The forum will look at issues such as:
* What TPMs are, what they do, & how the Australia-US Free Trade Agreement (AUSFTA) may affect their protection under Australian Copyright law;
* The problems that laws relating to TPMs present for information users, particularly educational and cultural institutions and their clients, and for those working in the information technology industry, including innovators and consumers;
* The relevant exceptions which may be applicable to educational & cultural institutions, consumers and innovators;As many of you are probably aware, the AUSFTA requires Australia to amend the Copyright Act 1968 to comply with the TPM provisions contained therein by 1 January 2007.
Recently, a House of Representatives Legal and Constitutional Affairs Committee made several recommendations in relation to how this might be done (see the Committee's report at: http://www.aph.gov.au/house/committee/laca/reports.htm).
However, there are several outstanding issues regarding not only how these provisions will be implemented in Australian law, but also how the these laws will impact upon ADA members.
I've thrown DMCA into the pot as a potential campaign for this site. Will be interesting to see if this format can work. If it does it could be a ripper.
An excerpt from the mission statement from Jimmy Wales:
This website, Campaigns Wikia, has the goal of bringing together people from diverse political perspectives who may not share much else, but who share the idea that they would rather see democratic politics be about engaging with the serious ideas of intelligent opponents, about activating and motivating ordinary people to get involved and really care about politics beyond the television soundbites.
Together, we will start to work on educating and engaging the political campaigns about how to stop being broadcast politicians, and how to start being community and participatory politicians.
How will we do that? Is it possible? Jimbo, are you crazy?
Ok, I might be crazy. I founded Wikipedia, which is of course about as crazy an idea as anyone might imagine. And you know what? I was not and I still am not smart enough to figure out how to make Wikipedia work. The Wikipedians figured that out, my role has only been to listen and watch, and to guide us forward in a spirit of sincerity and love to do something useful.
Friday, July 07, 2006
Thursday, July 06, 2006
"Before copyright, we had patronage: you could make art if the Pope or the king liked the sound of it. That produced some damned pretty ceilings and frescos, but it wasn't until control of art was given over to the market — by giving publishers a monopoly over the works they printed, starting with the Statute of Anne in 1710 — that we saw the explosion of creativity that investment-based art could create. Industrialists weren't great arbiters of who could and couldn't make art, but they were better than the Pope.
The Internet is enabling a further decentralization in who gets to make art, and like each of the technological shifts in cultural production, it's good for some artists and bad for others. The important question is: will it let more people participate in cultural production? Will it further decentralize decision-making
And for SF writers and fans, the further question is, "Will it be any good to our chosen medium?" Like I said, science fiction is the only literature people care enough about to steal on the Internet. It's the only literature that regularly shows up, scanned and run through optical character recognition software and lovingly hand-edited on darknet newsgroups, Russian websites, IRC channels and elsewhere (yes, there's also a brisk trade in comics and technical books, but I'm talking about prose fiction here — though this is clearly a sign of hope for our friends in tech publishing and funnybooks)."
Open to temptation
It is tempting to think that references to "open content" have a meaning similar to those for "open source". It is equally tempting to want to make use of 'open content' in an open source project. Do not yield to temptation!
DRM may harm open source innovation
"Three hundred years of the old model of copyright exploitation gave us the bookstores in the CBD," he said. "Ten years of the new model of exploitation has given us orders of magnitude more content on the Internet. We should be looking to the future, not to the past."
Open Source Industry Australia
Technology including computers, electronics, e-commerce, internet, games, vehicles, industrial plant and equipment all increasingly use digital information and software. These systems also affect the businesses and daily lives of all Australians. All of these aspects of the information economy are impacted by the DMCA.
The DMCA enables primary brands such as Microsoft, Disney, Time Warner, Lexmark, to lock down hardware, software and content with DRM(digital rights management) including TPM(technological protection measures).
This will mean that the default state for technology is to be locked away. It will be illegal to interact with hardware, software, content without prior permission from the rightsholder. This of course presents a real threat to the researchers and entrepreneurial businesses for which Australia has an excellent reputation.
It is my concern that this law which is being imported as part of the latest USFTA has been pushed through by specific parties who stand to gain from its implementation. It is not a law or a process which has had the interests of Australian business and community at heart.
I am a member of an open source community and it is fairly easy to see that this law proposes a direct threat to open source software development.
What is not immediately recognised is that it poses a threat to all but the primary brand in each digital market.
Information and communications technologies do have much to offer people both socially and economically. The internet actually makes it possible for people to share information, software and ideas freely. This is seen as a threat by the DRM lobby. Many of them have business models which depend on a central distribution mechanism to a receptive consumer audience. Modern technologies offer the consumer the opportunity to also be a creator and distributor. There is less inherent value in the distributor role. The DRM lobby is defending against this threat by making the centrally distributed technology model the only legal model.
For Australia this means small innovative manufacturing businesses will have to ask permission of a primary brand to develop technologies which interface with DRM products.
Recycling groups would face the challenge of asking permission from the copyright holders of hardware components before being allowed to refurbish computers or to create new artistic forms from recycled computerised hardware.
It means that technologies will have a half-life. They will reach a point where the limited tenancy of the purchaser has expired and the DRM protection renders it unsafe for further re-use.
It is also a real threat to corporate and governmental purchasers of hardware, software and content. It is common in Australia for important systems to rely on software and hardware systems from the suppliers who are promoting the DMCA. DRM systems make the customer a tenant. The default state for a DRM system is to assume you do not have permission to access. It is up to the customer at any given time to prove that they are 'legal'. The system assumes guilt. With technological protection measures in place if the system wrongly assumes you are guilty, you would then become actually guilty if you tried to work around the TPM to access your legal digital material.
These kinds of laws are being implemented world wide, as part of a USFTA push. This despite many examples of anti-competitive court cases and cases against researchers in the US as a result of the same laws.
If Australia took the lead in providing an alternative more balanced copyright system which honored fair dealing and established sensible digital access rights then this country could truly market itself as a clever nation where innovative and creative information and communications technology (ICT) industry is recognised, valued and legal. I realise that the DMCA has some momentum but I am hoping that with commitment by industry, the universities, government and community we could provide a real opportunity for Australia.
In 2003 Hon. Jane Lomax-Smith, MP launched SolutionCity for South Australia, an initiative aimed at making the most of technology for South Australians. Lomax-Smith in her press release stated:
“The information economy is the vehicle that enables people in our health, education and other services to achieve their goals and to benefit individuals and communities. We must work together to make the best use of the information economy to create jobs, promote innovative research and development and foster skills for tomorrow while ensuring people do not miss out.”
This is exactly my concern.
DMCA is going to impact innovation broadly and business inevitably. DMCA court cases in the US are largely about defending market share against people offering new ways of doing things, generic printer cartridges, alternative server systems for games, ways of mixing music from different source file formats.
It is too easy to make a long document with all the implications of the DMCA, so instead I invite you to have a look at some websites:
http://www.lucychili.blogspot.com - a summary of the impacts on various interest groups.
http://www.linux.org.au/law – a petition to restrict TPM circumvention to nefarious acts.
http://www.eff.org/IP/DMCA/ - a comprehensive look at how the DMCA is being used already.
http://www.freedom-to-tinker.com/?cat=5 - an insightful blog on the DMCA by an academic who has been taken to court for publishing a research result.
The headings of my blog posts as they summarise the key issues
Commercial rights .v. Democratic process - both in process and content the DMCA pushes specific commercial interests over democratic rights.
DMCA ignores fair dealing - you are guilty until proven a customer.
DMCA blindfolds owners of critical systems - blackboxed systems.
DMCA complications for rural life. - no right to 'make do' with what you have at hand.
DMCA privacy for publishers but none for anyone else - spyware and rootkits with a legal entourage.(Sony and Microsoft)
DMCA hobbles recycling and innovation - small dollar players in a market place have much to offer our community by other yardsticks.
DMCA - MS to disable computers running old versions. This was threatened then put on the backburner, for now.
DMCA micromanages home entertainment - You may now rewind but may not keep a copy of a program you record.
DMCA not safe for creative folk - Publishers lobby for rights to whitewash over licenses chosen by authors, scientists, musicians.
DMCA impact on books - less accessible than paper books, you may not read aloud, lend, give to a friend, sell second hand.
DMCA set to make Australia a Penal Colony?
This is a strong metaphor, but I feel it is representative of the situation.
The control of the framework is in the hands of the off shore rights holders.
We are guilty as a starting position, our innocence is bought by putting coins in the meter. If the meter is faulty we are at a loss. This situation will reduce our choices about what to buy, when to upgrade, and what we may do with our purchases. Our legal community will be disadvantaged by a system which values the license of a US company over any Australian rights and legal systems.
Please consider the impact on economic development, innovation, the use of ICT to enhance government service delivery, infrastructure development, social inclusion, confidence and security issues, skills development and promotion of awareness among Australians.
As a small and notably innovative nation we do have much to lose.
If we take up the challenge to change tack, we also have much to gain.
Tuesday, July 04, 2006
The lead lawyer representing the plaintiff is Scott Kamber of Kamber & Associates, a New York firm. Kamber was also involved in suing Sony:
"The statute says that people have a right to know what's on their computer," Kamber said. "We're at a point in time right now where people's rights on their own computers and technology are really at issue."
Another problem with a system like this is very much the same problem with DRM and why DRM will never work. Here's why: your computer is dumber than your dog. At least your dog knows who you are and that you are really you.
With all these problems arising in the US surely there should be some people in our government thinking about looking further than adopting the same system.
Monday, July 03, 2006
Chat rooms monitored. Blogs deleted. Websites blocked. Search engines restricted. People imprisoned for simply posting and sharing information.
The Internet is a new frontier in the struggle for human rights. Governments – with the help of some of the biggest IT companies in the world – are cracking down on freedom of expression.
Amnesty International, with the support of The Observer, is launching a campaign to show that online or offline the human voice and human rights are impossible to repress.http://irrepressible.info/about
Q: Do you see the DMCA or other legislation, or the whole PR thing... as an issue, as a threat?
Linus: I'm a blue-eyed optimist. That's not an area that I get really upset about, a lot. Because "A" I think that consumers just won't buy devices that don't let them do what they want to do. We saw that with the original DIVX, right? And "B," because if flaws end up being too draconian, they will eventually reach the normal user. The computer geeks have been complaining about the DMCA for what, five years? When was it started? [Audience member responds: October 1998.]
A loooong time. Have you noticed in the last few months you have normal publications that have complained about the DMCA. Not for any computer geek kind of reasons. But because they're unhappy about the way the RIAA uses it right now. So I'm kind of optimistic. (While) it's not an area I personally get hung up about, I do send a check to the EFF every year. And I encourage everybody else to do the same. Because it's good to have people who do get hung up about it.
Q: [T]here was this twelve year old girl sued by the RIAA... and it isn't working...
Linus: That's the kind of backlash you end up getting when you start using the DMCA for things that normal people care about.
Q: What about software patents in Europe?.
Linus: There's not much to say about it. [Questioner Points to the subject on Linus' Q&A slide].
Yes. Method patents are just bad. They were bad in the U.S. And they are bad in Europe too. I haven't followed it too closely. They seem to have at least tried to make their patent law slightly better. But some of the proposals — I'm not sure which one they are now fighting over — had the requirement that it was not a pure method patent.
That it was part of an apparatus. Like the original patent requirements. It's still a bad idea. My problem with the whole discussion is kind of similar ot the TCPA thing. The subject gets so polarized that people talking to each other aren't really talking to each other. They're really at opposite ends and throwing stones at each other. Right?
Instead of even trying to see if there is a middle ground. Which means that the discussion itself is not worthwhile. That's my problem with it. I don't think you should be asked to polarize this issue. Because as long as we just have this gut reaction — Software patents are bad — it's not going to help us discuss the issue with people who have this other gut reaction of, I am greedy.
Q: (Asking if Linus would say something usefully negative about software patents.)
Linus: I would be happy to say anything bad about software patents if I could just ... formulate a sentence that makes sense. And I am not in the lobbying industry, so I don't.
Black boxed digital voting systems?
Digital voting systems have caused controversy in the US where it is alleged that the software administrators added in votes, according to how many they thought might be missing, when the software crashed. Australia is currently considering adopting digital voting systems and concurrently considering accepting laws which do not permit them to investigate the accuracy of the software or to improve or repair it if it is faulty.
Increasingly software simulation is being used to represent predicted outcomes for the impact of a development or impact of disaster. I can ask to see how the simulation was constructed to see whether it is accurate?
In a DRM world a software publisher could say that the client, let alone a member of the public, may not circumvent or unpack their software because it conflicts with their copyright. This could block access to effective community consultation as well as making it impossible to be certain a simulation is accurate.
I can find a list of my Australian Digital Civil Rights?
If you do please let me know.
It is possible to know if my action will be legal?
Prior to the drafting of the DMCA the legality of our actions are not clearly defined. Following the implementation of the DMCA, if the rights are determined by copyright holders, there can be no overarching clarity about what is generally legal and illegal.
The basic rights of Australians have not been a primary consideration in these processes. These laws are coming to us as the result of lobbying from US businesses in a trade agreement:
“The reality is that we do not spend a lot of time thinking about legal issues when we negotiate agreements in the GATT... [T]he concerns that we have are with the commercial results of what a negotiated agreement is, rather than with the legal niceties of it.“
(Emory Simon, then Director for Intellectual Property at the Office of the United States Trade Representative.) Drahos, Braithwaite, Information Feudalism. 2002
In this process the rights of Australians were addressed by inviting people to submit comments on specific kinds of use as exceptions to a default DRM law. This should be the other way around. Our access rights should be defined and consistent with exceptions for nefarious circumvention to defraud being an exception to normal use.
European Affairs Coordinator,
Electronic Frontier Foundation
Time to rewrite the DMCA
Rick Boucher c|net news
DRM provides the publisher of software the right to 'black box' systems.
This leaves the owners of these systems with reduced ability to be adaptable, innovative, accurate, safe.
Consider the impact of using a 'black boxed' system the following situations:
- air traffic control
- monitoring and managing power station loads and stresses
- risk assessment applications
- flow control systems
- digital voting
I am not the first person to consider this a risk.
Felton proposed it as an exemption to the DMCA.
Ed Felten in his Blog, Freedom to Tinker, describes the response of the DMCA lobby:
"They’re worried that there might be “serious doubt” about whether their future DRM access control systems are covered by these exemptions, and they think the doubt “would be even more severe” if the “exemption would turn on whether access controls ‘threaten critical infrastructure and potentially endanger lives’.”
One would have thought they’d make awfully sure that a DRM measure didn’t threaten critical infrastructure or endanger lives, before they deployed that measure. But apparently they want to keep open the option of deploying DRM even when there are severe doubts about whether it threatens critical infrastructure and potentially endangers lives.
And here’s the really amazing part. In order to protect their ability to deploy this dangerous DRM, they want the Copyright Office to withhold from users permission to uninstall DRM software that actually does threaten critical infrastructure and endanger lives.
If past rulemakings are a good predictor, it’s more likely than not that the Copyright Office will rule in their favor."http://www.freedom-to-tinker.com/?p=984
Choice and integration with System Control and Data Acquisition systems?
Many systems are more than just a single application.
They can be pervasive and have impact throughout a large business or organisation.
DRM legislation is being drafted which could give the software publisher the right to restrict you to the software they approve for use on the system and to ban you from circumventing their software to see if alternatives can be integrated. Much of our local media, manufacturing and social services infrastructure could be impacted.
I can choose to use non DRM software.
Yes. Currently. Open source software is an example of the kind of shared copyright which can enable consumers to choose what they would like to install use and share with others. It is important that copyright in australia be managed in a way which makes it clear that open source development and use is a legal choice.
I can customise my seeder to work with different components for planting this new seed?
Non computerised seeder – Yes.
Computerised seeder or component involved. Unclear.
Depends on how the DRM is drafted.
My car's computerised ignition is broken.
I can do a roadside fix to get back on the road?
Unclear. If the DRM act is not tied directly to copyright infringement then any workaround could be considered illegal. Even if you're stuck on the Birdsville Track.
I have the right to refuse spam?
Postal mail - you can put a post office only sticker on your letter box.
Telephone - you can advise a caller that you do not accept commercial calls and to ask them to remove you from their call list.
Email - you can delete them, some install viruses on some computers.
DVD - you must watch them and may not fastforward them or remove them.
I have the right to choose what information is collected from me and my computer?
Unclear. You may not have the right even to find out if something is collecting and forwarding your information as unpacking a suspected device or program could be considered circumvention.
I have a private password?
For over a year, Microsoft has planted a program on every modern Windows-powered PC that reported home every day. Noone was told that this was being done. Noone has been told what information has been collected. A similar spyware application installed on computers by Sony audio CD's caused thousands of people's computers to be compromised. With the new DRM laws software publishers can make it illegal for people to unpack these things and see what they do.
Sunday, July 02, 2006
I can recycle old computers and make refurbished computers, new artworks and gadgets?
Unclear. Re-using equipment for new purposes is a common practice.
Recycling is usually seen as an environmentally useful practice.
Depending on how the DRM is drafted, you could need to get permission from any manufacturer or software publisher involved in each of the components you are working with, perhaps each chip, each driver. It means that old computers would have a legal half-life, where they may be redundant and obsolete, illegal to use, but also illegal to repurpose.
I can write a game or other software to be used on my computer?
Unclear. If the DRM permits copyright holders to determine how their products may be interacted with, then it is possible that developers would have to subscribe to a membership to be allowed to develop at all.
I can write a game or other software to be played on my game console?
Unlikely. Console games developers already pay large fees to gain access to developer kits and permission to develop for these platforms.
I can network two computers?
Unclear. Do the computers run different operating systems?
Do you need to use a specific kind of networking protocol to run the service that you want? VOIP or wireless? Protocols and networking standards could easily become outlawed by copyright led control measures.
I can keep my old operating system on my computer?
No. For over a year, Microsoft has planted a program on every modern Windows-powered PC that reported home every day. MS aimed to use their new WGA(Windows Genuine Advantage) version to lock people into compulsory upgrades. Dave Farber had the following response from a Microsoft representative:
He told me that
"in the fall, having the latest WGA will become mandatory and if its not installed, Windows will give a 30 day warning and when the 30 days is up and WGA isn't installed, Windows will stop working, so you might as well install WGA now." [emphasis added]
See also 'Ed Bott at ZDNet: 'Is Microsoft about to release a Windows "kill switch"?'
Public opinion has put that on the backburner for now:
Microsoft has dropped Big Brother-style plans to track down pirated copies of Windows XP, dumping elements of its Windows Genuine Advantage Notification after they ignited a firestorm of controversy.
I can put a new video card in my computer?
Unclear. If the DRM act allows each software and hardware manufacturer to specify which cards and drivers are legal to use with their products then this could be a problem. It is also unclear if the software or hardware vendor could swap the warranty void if removed for a license void if removed sticker, ie against the law to remove.
Leon Brooks on the Microsoft's End User Licence Agreements (EULAs):
"which among other things require you to allow Microsoft to tinker with, cripple and even disable the software on your own machine, forbid you to swap parts around in it, forbid you to publish any test results based on it, or (for Windows98) rent, lend, lease, split up, decompile or on-sell it. Furthermore, you must destroy the software if Microsoft decide that you didn't stick closely enough to the EULA!
I can choose to install a new operating system on my computer?
Unclear. Depending on how the DRM act is drafted hardware and software companies could require that their products must only be used together.
I can use software I buy with my existing software and operating system
Unclear. The DRM act can use circumvention to allow publishers and manufacturers to determine what may be developed, installed and used on their products.
If this is passed then the manufacturer of your computer, or publisher of the operating system, or the purveyor of any other application on the computer, which may interact with your software, could deem it illegal. They could also change their licenses over time. It could take an exhaustive search of the licenses of each aspect of your computer to find out if a specific program is approved. Large publishers could issue licenses to specific developers to allow then to produce applications which comply. Australian software developers are likely to be operating in small markets which could easily be excluded and disadvantaged by this kind of licensing.
I can put a new printer cartridge in my printer?
Unclear. Any device which has a call response interaction can be included under DMCA.
Developing, selling or using a generic brand or alternative brand of printer cartridge could be blocked using DRM. Printer companies have already sued people for using generic printer cartridges and are threatening people who refill their cartridges. It is possible the printer could be sold with a license that requires a new printer to be purchased instead of a new cartridge. If printing companies use RFID tags in paper they could actually make it a criminal act to use plain paper. Circumvention of the relationship between the paper and the printer could be made criminal, the scope of your rights would be up to the US rightsholders.
Has not been legal since the 1970's.
You may play a video'd TV program once legally.
New changes to these laws make it legal to rewind but illegal to keep the copy.
"The Digital Video Broadcasting Project (DVB) is a standards-specifying body that creates television and video specifications in Europe, Australia, and much of Asia. Consumers, who have not been consulted, have much to fear in the digital television future that is being crafted right now behind the closed doors of DVB.
This system requires tight controls over analogue outputs. These outputs are very useful in current digital devices -- they ensure compatibility with existing consumer equipment and enable innovative products. Without unrestricted analogue outputs, sophisticated personal video recorders could not exist without special arrangement or permission from copyright holders or broadcasters.
CPCM allows rightsholders to specify restriction of playback to a single "household," granting copyright holders a veto over which households are "legitimate" and which ones are "illegitimate."
European Affairs Coordinator,
Electronic Frontier Foundation
It was distributed on a website. I can now publish it as a CD.
“The United Nations' World Intellectual Property Organization has called a last-minute meeting on June 21 in Barcelona, out of the normal diplomatic venues to try to ram through the Broadcasting Treaty. This treaty gives broadcasters (not creators or copyright holders) the right to tie up the use of audiovisual material for 50 years after broadcasting it, even if the programs are in the public domain, Creative Commons licensed, or not copyrightable.”
I wrote a digital book which a publisher once hosted.
I can save this to an archive or website for other folk to see?
Unclear. Copyright for the author of a book or artwork is far weaker than that for the publisher or distributor. The DMCA recommendations are written on behalf of large copyright holders. Authors, artists, scientists and musicians are not effectively protected from exploitation and disenfranchisement by publishing interests:
“We have very few exclusive rights that accrue to people on the basis of an investment, as opposed to on the basis of creativity. One of them is the investment in medical research. If you do original medical research you do get a monopoly over that research even though it is largely factual. But that monopoly lasts for six months. So what we are seeing is that the process of electromagnetically modulating creative common license video gives you more of a stake in it than conducting original medical research does when you've conducted original medical research, not just more but a hundred times more of a stake.”
I have developed a new way to mix music sounds from different source sound tracks.
Eric de Castro Lopo did:
“October 27th, 2002. Although I have maintained vsound for nearly three years, I can no longer do so, nor can I continue to make it available from this web site. I live in Australia which has a law (Digital Agenda Bill 2000) which is similar to the DCMA in the US in that it makes the distribution of a devices for circumventing copyright protection illegal. I have neither the time, money or inclination to make myself a possible target for such legal action by companies with endless legal and financial resources. However, vsound is probably available from other web sites. If you want a copy, you should search the web. Do not email me as I cannot and will not provide you with a copy.”
This was an open source project and so the technology is not lost, just lost to Australia.
If it was a proprietary project the same issue could result in loss of the know-how altogether. As DMCA laws are forced through in other nations, there are fewer places where new technologies can be safely developed. Wouldn't it be better if Australia could say it was one of those Clever Countries; a place where the ability to innovate is valued?
More artists take a stand against DRM
Tom Murphy, font designer develops a program to embed his own fonts
into documents and is threatened with DMCA court case for distributing it.
LinuxAU Petition and information
I can read a story aloud to my child?
Yes with a paper book. Currently not legal with some e-books.
DMCA act is based on right of way for the publishers of material.
Publishers can change their licenses on digital books at any time.
This means the DMCA leaves it up to the publisher to choose if you have this right.
Some ebooks you cannot read aloud already:
Copy: No text selections can be copied from the book to the clipboard
Print: No printing is permitted of this book
Lend: This book cannot be lent or given to someone else
Give: This book cannot be given to someone else
Read Aloud: This book cannot be read aloud
From cover of recent ebook edition of Carroll, Alice in Wonderland
See Brendan Scott's document:
I can lend a book to a friend?
Paper book – Yes, Digital book - Unclear. Currently illegal for some e-books.
I can sell a book to a second hand shop?
Paper book – Yes, Digital book - Unclear. Currently illegal for some e-books.
I can read a book I buy?
Paper book - Yes.
Digital book - Unclear. DRM act aims to provide a framework for publishers and manufacturers to determine what you may do with any of their products after you have purchased them. Licenses are reducing the permissions which consumers have to pay to play, or pay to use. The Australian Government is not balancing the development of the DRM act with development of fundamental sets of rights which the consumer can count on.
DMCA is the digital management copyright act. It has been imported from the USA as part of the latest Free Trade agreement. It is not a law about making things free and easy to trade - quite the opposite. It sets the scene for primary brands to control markets and reduces the rights of developers and owners of all kinds of software and hardware.
It is combined with DRM(digital rights management) technologies to lock down software and hardware so that only their publishers have the right to interact with them. Interaction by anyone else could be called circumvention by the publisher and described as an illegal act.
I can change this?
If this is a democracy then Australian interests can define our rights.
The laws should be developed on our behalf.
Perhaps our lawmakers have become too willing to accept international recommendations uncritically.
Time for Australian consumers, developers, inventors, artists, musicians, educational institutions and businesses to identify our Digital Access Rights and bring those to any agreement which impacts on our right to innovate, communicate and trade.
Please sign the petition and talk about these issues with
friends family and business partners. Make your digital rights
an issue for your government representative.
What should we ask for?
Providing right of way to manufacturers and publishers at the expense of all other members of our digital community establishes a feudal system of control over our rights to access and interact with digital information.
Free nations are built on a precept that freedom comes from sharing rights jointly with others. Not on excluding the rights of the many in the interests of the few. Digital media is a chattel, a commodity. Digital media should be something we can own and use flexibly, not something which then owns our future choices.
Digital products should not cause anomalies in our civil rights.
These tools and the content on them increasingly are becoming our means of communication with each other. Distortions of our rights on these products have dramatic implications for our cultural, community and business freedoms.
As an interesting contrast:
From the Universal Declaration of Human Rights:
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.