The DMCA Down Under

First published here.

The Australian government has been looking to make some changes to the law regarding Digital Rights (*cough* Restrictions *cough*) Management tools and like any good citizen, I decided to drop them a line with my thoughts on the Copyright Amendment (Technological Protection Measures) Bill 2006.

The Exposure Drafts can be found here.

Dear Sir/Madam,

Please find my comments on the Draft Exposure Bill for the Copyright Amendment (Technological Protection Measures) Bill 2006.

116AK Section 3 (Exception - Interoperability) and 132APA Section 3 (Exception - Interoperability)

These sections do not allow for a person (such as a computer programmer) to provide a copy of a computer program to another person for the purposes of obtaining the other person's opinion of the computer program. Under this section it will be incredibly difficult for two or more people to collaborate on a project where the aim is to provide interoperability between computer programs and at some stage, someone will break the law by making an infringing copy of the original program.

Also, the only way for a programmer with limited funds available to obtain the original program which he or she intends to provide interoperability for may be by obtaining an infringing copy. In essence, this section is prejudiced against individual or hobbyist programmers in favor of large corporate software vendors.

It would be wise not to underestimate the contribution made by individual or hobbyist programmers as these people are responsible for the creation of the majority of available software and provide an invaluable service to commercial software vendors by releasing add-ons, plug-ins and patches which increase the value of the commercial vendor's products. The proposed exception for this section is a welcome inclusion, but I urge you to err on the side of freedom, rather than on the side of restriction.

116AL Section 1 and Section 132 APB

This section does not allow for "middle men" to assist researchers by providing facilities for them to trade ideas and "proof of concept" examples. It would also prevent people from improving their knowledge in particular areas where more knowledge may be of great advantage to society in general. For example, under this section it would be illegal for someone to provide a copy of a file, such as a media file, which has a TPM attached to it from that person's website. The website owner may have noticed that the file in question is sending data to the copyright holder's website but does not know what that data is. The website owner may post a message like this:

"Hey everyone, I've discovered that this file (download it here) is sending some weird data. Can anyone tell me what information it's sending and where that information is going? I don't want this file sending any private info about me".

Many people are proficient enough to provide circumvention devices, but not to create, use or modify them and many people who can create, use or modify a circumvention device are happy to leave the facilitation of their work to less knowledgeable people.

It would be ironic if someone working for the Australian government in a position of national security could only obtain the information to do their job by visiting a website made illegal under this section. After a terrorist's cypher has been broken using tools available from a public website, should the website owner be jailed for providing the cracking tools to the government officer? Would the terrorist get more jail time that the website owner?

Again, it would be wise not to underestimate the valuable service provided by individual hobbyists who may want to provide services to others in the expectation that those people will use their service in good faith.

202A

Well done. This section will go some way to ensuring that computer programmers and researchers do not suddenly find themselves the subject of legal threats. If the themes of my comments above are addressed in any material way, this section will go a long way to protecting Australians from the baseless legal threats that have become so common in other parts of the world which are now known as Strategic Lawsuits Against Public Participation (or SLAPPs).

Regarding the proposed exceptions:

*Access where a TPM is obsolete, lost, damaged, defective, malfunctioning or unusable and a replacement TPM is not provided

Lost - Please include a detailed definition of "lost". It illustrate: if a commercial TPM provider goes bankrupt, their assets, including the software which can unlock the TPM, will be transfered to another party.

If the other party does not advertise the fact that they are in possession of the master keys for the TPM, it may for all practical purposes be lost. A definition of how and when a TPM may be considered "orphaned" would be appropriate.

Damaged, defective and malfunctioning - I don't think I have heard of anyone buying a product for the TPM that comes with it, so if the damaged, defective or malfunctioning TPM does not affect the consumer's ability to use the product, I can't envisage them bothering to remove it. It would probably be a good idea to allow it though.

Unusable - As the TPM is separate from the protected work, this will need to be clarified. If the TPM itself is unusable there should be no need to remove it. If, on the other hand the TPM causes the protected work to be unusable, there will need to be strong mention of interoperability with other software or devices. A TPMed work that is unusable on one device should be allowed to be removed until a TPM is available that allows it to be used on that device. For example, a TPMed music file may not play on a particular brand of mp3 player, solely as a result of the TPM. A person who legitimately purchased the music file and who wants to listen to it on the unsupported brand of mp3 player should be allowed to remove the TPM so that they may do so.

*Access where a TPM damages a product, or where circumvention is necessary to repair a product -

I have yet to see a TPM that does not damage a product. Digital "watermarking" for instance is the practice of inserting extra data into a media file so that in the event that file is found to be freely available on the internet, the person who was assigned the watermark found in the file can be tracked down. This damages the file as it is not a true and correct representation of what the artist(s) created. All TPMs damage the product they are attached to on a fundamental level - the TPM is an "optional extra" that is attached to the product after it has been created and prevents the product from being used as it would be possible to if the TPM was not attached.

Where circumvention is necessary to repair a product, I believe allowing this is just plain common sense. It is wasteful to discard something that could be fixed and I do not believe it is in our society's interest to spend further time re-acquiring a product in it's entirety, whether in digital or in physical form if less time and resources could be spent repairing it.

Regarding the exceptions for consideration:

* Making back-up copies of computer programs
* Correcting errors in computer programs
* Allowing institutions to assist people with an intellectual disability
* Making copies of works for inclusion in broadcasts, and
* Making copies of copyright material for criticism, review or news reporting by broadcasters.

I believe all of these should be allowed. All these exceptions will be of benefit to Australians and disallowing them would work to our detriment.

On an unrelated note I would like to mention that I do not and will not support any company or individual that uses a TPM on their products. TPMs create artificial barriers that will prevent me from using the protected content as I (usually) want to use it and do not protect the content in general. People who do the right thing and purchase media from legitimate channels are stuck with a crippled product that all experiences up till now show is doomed to fail, yet those who obtain infringing copies can use them freely. For example, after purchasing a computer game I will usually look online for a crack that allows me to play the game without having to insert the game disc into my PC. I don't believe that I am acting maliciously in doing this as I have financially supported the creators of the game, but I resent the fact that I am currently labeled a criminal for making that product easier for me to use.

I will continue to support distributors like magnatune.com who allow me to use my purchases without restriction and artists who are happy to let me download and share their material.

Regards,
Alex H


Anyone not interested in seeing the Australian government importing the most backward of American laws (like the DMCA) would be well advised to keep an eye on the Attorney General's website for more juicy pickings.