September 2006

Yesterday, Engadget carried an interview with Viodentia (the guy who cracked Microsoft’s DRM). Today, it is reporting that Microsoft is now suing him for copyright infringement. He is one of 10 unidentified defendants (called “Does”, as in “John Doe”). In the lawsuit, Microsoft will seek to get discovery of documents which will allow the identification of the defendants. (more…)

Engadget has an interview with “Viodentia”, creator of software which cracks Microsoft’s Windows Media DRM (Digital Rights Management). Engadget last month confirmed that the software (FairUse4WM) will strip the protection from music files downloaded from Napster (meaning that they could continue to play the music files after their Napster subscription ended).

It’s a relatively rare interview, given that this kind of activity now opens one up to prosecution under copyright legislation. (more…)

So there was a bit of to-ing and fro-ing on Thursday, after I found out about the new legislation in copyright before I was meant to. Many other people had found them too – before they were officially released. Lots of people downloaded them, so further secrecy was pretty useless of course.

So now we can all officially say:

  1. The draft legislation for copyright exceptions (outcomes from the Fair Use Inquiry), and new laws on copyright enforcement (two bills) are now available online, officially, here.
  2. According to the e-news, The bill as a whole will be referred to the Senate Legal and Constitutional Affairs Committee (not, notably, the committee which considered TPMs before, the House of Reps Legal and Constitutional Affairs Committee).
  3. if you want to make comments now, you can make them to AGs. If you want to make comments to the Senate LACA, you can make them sometime after 10 October.


Ironically, I am teaching a Masters Course on Australian Copyright Law at the University of Melbourne this week, intensively – 9 to 5. So I will be very busy all week, but will fill you in on any comments and analysis that come up out of those classes.

As I said in my last post, there are two issues that people have been hassling me about. One was Lexmark. And the other one is whether the interoperability provisions are useless.

My thoughts on the interoperability exceptions? In short, the Exposure Draft is even less generous than the US law in the form of the DMCA. In the US, you get to distribute interoperating programs – in Australia, arguably, you don’t. amazing. and very much needing to be fixed, methinks. (more…)

I’ve been getting hassled by a few people to respond to a particular issue – or rather, two related issues, arising from the current Exposure Draft of Australia’s new DMCA:

  1. Does the TPM Exposure Draft, as drafted, actually deal with the Lexmark/Skylink ‘issue’ (that is, does it solve the ‘TPMs used to control aftermarkets’ issue); and
  2. Are the interoperability provisions actually useless, and if not – or indeed, if so – what do they mean?

These issues are of real importance in the Exposure Draft, and for many stakeholders. So let’s have a go at them, shall we? The first one we’ll have a go at is the Lexmark/Skylink issue. The next post – the more important one – deals with the interoperability issue. (more…)

The Washington Post is reporting that starting this October Term, the US Supreme Court will release transcripts of oral arguments the same day they are held. Very good news. It also looks as though the transcripts will fully identify each Justice asking a question (which has only been available in the paid transcripts in the past). It’s taken a long time, but a same-day service would be impressive: the Australian High Court (which has had transcripts posted online on AustLII for over 12 years), usually takes between one to three or four days.

This is one of a series of posts on how the TPM Exposure Draft affects particular groups. First, I want to talk about consumers.

Summary: consumers are worse off under the Exposure Draft than they are under current law. This is because they now risk liability where they did not before (liability for the individual act of circumvention has been introduced). This is the intended effect of the laws, and was inevitable under the FTA. The hot-button issues for consumers, however, are:

  1. region-coding: here, the result is a little murky;
  2. spare parts (printer cartridges, garage door openers): problem avoided;
  3. the making of back-ups: there will be no such right. Unfortunate, but probably inevitable. But note that so far, the making of more than one copy or provision of replacement copies is tending to be accommodated (iTunes).

One important point to note for consumers is that there is little in this package to protect us from malfunctioning TPMs, or even evil wicked mean and nasty Sony Root-kit type TPMs.

What consumers might say to the government: thanks for trying to restrict the ambit of these laws and relate it directly to copyright. I can see you’ve really tried here, and you appear to have listened to the concerns expressed by the LACA, and taken a restrictive view of the laws you have to introduce. As a consumer, I think that’s pretty good, really. But there are still a couple of areas where I think the score card reads ‘must try harder’:

  1. Please explain why you are protecting malfunctioning or evil nasty destructive TPMs at all? Apparently, no one is allowed to help me get past a malfunctioning or obsolete TPM.
  2. I’d like some assurance that if a Sony Rootkit Fiasco ever happens here, Australian law will provide me with a remedy. Please publish the analysis that indicates that the Sony Rootkit scenario would be illegal under Australian law, or tell us how you are going to address the issue.


Now we’ve all had a bit of time to digest the government’s TPM Exposure Draft, it’s time for a few more comments and thoughts.

My last post on this was very much an initial ‘cut’ – comments after a fairly short period of reading and thinking and trying to piece the whole thing together. It was written by a lawyer, like a lawyer – testing the text for inconsistencies, issues etc. Of course, that made it one of those posts which is just really difficult to read for everyone else. Despite a couple of years of blogging now, sometimes, I still find it hard to write right, right?

It’s time for a different approach. With submissions on the Exposure Draft due next week, I imagine there are at least a few people out there thinking – well, ok, but what does it all mean for me? I want to look at the Exposure Draft from the perspective of a few different groups who might be interested:

  1. Consumers
  2. Educational Institutions
  3. Galleries, Archives, Cultural Institutions
  4. Governments (State/Federal);
  5. Media organisations/broadcasters; and
  6. Programmers and geeks, especially of the open source variety.

These posts will come. Most immediately, we’ll start with consumers.

More quick news: the Intellectual Property Laws Amendment Bill passed Parliament yesterday. This won’t really surprise observers: it was pretty clear that while there are plenty of people in the profession jumping up and down about various provisions in the Act, this was always going to pass. A full summary of the effect of the provisions from IP Australia is available here. A quick list is over the fold. (more…)

One of the arguments that is sometimes raised in favour of stronger and more fine-grained control over copyright material is that it facilitates price discrimination. People who can pay more, do; people who can’t pay more, don’t. This looks good when you are a developing country seeking access to essential patented medicines. In that context, price discrimination with strong controls on re-export to other countries actually does look like a really good idea (and that is what the WTO Decision implementing the Doha Declaration on TRIPS Public Health in fact put in place.)

It doesn’t really look quite so nice from Australia’s perspective. Relatively affluent population. High consumers of IP-protected material. Isolated market where it ain’t so easy to nip over to nearby country to buy cheaper stuff (well, unless it’s from Bali and pirated of course). High price heaven for copyright owners, you might think. But surely not higher than the US?

Well, if you had ever wondered what the evidence was on price discrimination of copyright content (and the anecdotal little study that David Richardson did failed to satisfy your curiosity), head on over to my colleague Joshua Gans’ blog. He can tell you the answer is no. No, no, no.

Check out how much more we pay for iTunes music and games than they do in the US at his blog here. Oh well. at least it looks like we’re not quite as done over as Europe is.

A further piece of the puzzle has been published: the government has now published its Draft Regulations to go with the TPM Exposure Draft. The purpose of the regulations is to set out further exceptions being proposed to the anti-circumvention laws.

Further analysis once I’ve read through…

Google has announced that out-of-copyright titles are now available for download via Google Book Search (formerly known as “Google Print”).

Remember Project Gutenberg? 19,000 public domain titles are currently available at what is one of the first book digitization projects. The focus in this project is on providing the text (generally as ASCII files or HTML) of out-of-copyright works. By contrast, the aim of Google Book Search is to provide scanned images of actual published works — both in copyright and in the public domain. As I’ve commented before, Google’s approach to generating its library of scanned works has been controversial, particularly to publishers of works contained in libraries that are participating in the project.

Unfortunately, my expectations of Google’s library were not met. While the collection of works available on Google Book Search is broad, the access to full images of public domain works is not what I had hoped. (more…)

As I and others have noted: the Australian government has finally released the Exposure Draft of the OzDMCA: the Australian version of the DMCA anti-circumvention law, required as a result of the Australia-US FTA. It’s a big, complex piece of legislation, on a really hard area. What follows are my first thoughts on the Exposure Draft. I’ll be interested to hear what other people think. None of what follows represents a concluded view. There’s just too much there to have reached that point yet.

In summary, I think that the AG’s Department has written a piece of legislation which aims to be narrow in its application, and which aims to exclude from its clutches technologies and acts that are not related to copyright. Under this law, we will not be getting garage door opener cases or printer cartridge cases. Clearly, someone in government was listening to concerns raised by opponents of the legislation; to the LACA in its critical report; perhaps to the High Court in the Stevens v Sony case. There is a lot of language in here that seeks to tie the legislation to copyright.

Nevertheless, the government has also:

  1. Written a complex piece of legislation, aspects of which are very subtle and which are going to take a while to work out.
  2. Not fixed the region-coding problem: it is highly likely that region-coding technologies will still be protected, and circumvention of these banned;
  3. Not fixed the exceptions problem: if you have a right to circumvent an access control, you are still going to either (a) need to be a geek or (b) need to look overseas to make use of it, I suspect.
  4. Continued the present trend of writing highly complex legislation which will be very difficult for the average person to understand.

Over the fold: more comments. (more…)