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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…)

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’:

(more…)

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…

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…)

I was in Canberra this week, not just to speak to the ACT Society for Technology and Law (about P2P stuff), but also to talk at an ADA forum on the forthcoming OzDMCA (our new anti-circumvention laws).

Two things I learned at the forum. (more…)

Yesterday, I gave a talk in Canberra for the ACT Society for Technology and the Law (thanks for the invite, guys) about P2P file-sharing and liability for copyright infringement. One of the things I mentioned in that talk was the LimeWire suit, and one of the questions I got was about how our law of authorisation of copyright infringement mapped against US law. For people wondering about that question, one very good source is the paper by Jane Ginsburg and Sam Ricketson, Inducers and Authorisers: A Comparison of the US Supreme Court’s Grokster Decision and the Australian Federal Court’s KaZaa Ruling.

But it’s also worth looking at this post by William Patry, and the associated papers: the filing in the RIAA v LimeWire case, in which the RIAA are pleading each different form of liability that arises under the US law. (more…)

I have been asked by a reader about DVDs: specifically, I’ve been asked about whether users infringe copyright when they watch a DVD bought outside Australia. As my reader noted, the issue might be important because the argument about region coding – and in particular, the argument that new laws shouldn’t enforce region coding – depends on the view that playing material made for, and purchased in other geographical regions is a legitimate activity.

Now, it would be very ironic if there were any infringement here. After all, it is the government which has made comments that copyright law should not ‘stop people from doing legitimate things with legitimate copyright material’, and that ‘copyright law should not unduly intrude into the private sphere’.

However this, dear readers, is what is technically known as a nasty difficult question. No, really. That is because answering it requires us to delve into all kinds of complicated, interconnecting parts of the Australian Copyright Act; it also requires us to think about some of the recent caselaw. More detailed, painful legal analysis over the fold. (more…)

IPRIA has just published its most recent Australian Developments Bulletin (the email has come out, the website doesn’t appear to reflect this yet, but will go up here). Reading through it, one thing that jumps out is the number of reviews going on at the moment (and here’s me thinking that we’d had enough in the last little while….). So amongst the announced reviews are:

1. The AIC intellectual property crime and enforcement research: which I’ve already mentioned on this blog;
2. an ACIP review of post-grant patent enforcement strategies; in which ACIP expects to circulate an Issues Paper in late September 2006 with a request for written submissions in early December 2006. ACIP also expects to hold consultations in early 2007; and
3. an ACIP review of enforcement of plant breeders’ rights, in which ACIP expects to circulate an Issues Paper in early October 2006 with a request for written submissions in early December 2006. ACIP also expects to hold consultations in early 2007.

Is anyone else detecting a theme? (oh, and if you are wondering where poor old trade mark is in all of this, we had that review, relatively recently, by ACIP, although the final report wasn’t, in the end, all that much about enforcement. See here).

This is an interesting story, from Larry Thompson, the Engineering Librarian at Virginia Tech, regarding DRM restrictions on SAE Digital Library, apparently a set of technical papers used by engineers – and engineering academics and students.

The DRM which SAE is proposing will apparently allow digital access only while a computer is connected online: it will not be possible to save copies to computers – if you want ongoing access, you have to print. How very 20th century. According to Larry Thompson, Virginia Tech is now considering what to do: as he puts it,

‘Do we want to spend thousands of dollars on digital format papers that users can’t save to their computers? The professor who wants to read an SAE paper while jetting to Europe for a conference will need to print out the paper … If one publisher does this, it may not be too bad. But what if every publisher adopts this policy, and the professor wants to take 50 papers to read during the flights? Do we want to pay roughly double the cost for a corporate license, in order to legally cover the walk-ins who might use the product, because as a land-grant university our library computers are open to the public?’

Read more here.

As we await the implementation of the OzDMCA, it’s been interesting to follow the debates, over in Europe and elsewhere, about Apple’s iTunes/iPod link. The basic issue here is that iTunes-purchased music can only be played on Apple iPod players – unless, of course, you hack the Apple FairPlay encryption (which can be done using various well-known methods).

The issue, of course, is that if someone buys a whole bunch of iPod music, then you get lock in – they’ll be more reluctant to move to another player. The technological protection, in other words, might serve to raise barriers to entry in the music player market. It’s attracted a bunch of attention recently. Here’s the brief summary:

1. A few people got very excited when Microsoft announced it would be coming out with a new player/music service, so far named Zune, and that, to get out of this lock-in system, Microsoft would be looking to replace, for new users, any music they’d bought on iTunes. Have a look at the debate over on Freedom-to-Tinker (Post 1 and Post 2);
2. In France, we had the DADVSI law – originally seen as potentially ‘forcing’ FairPlay open, the final form of the law has, according to reports, seen the provisions on interoperability eviscerated (see the Wikipedia entry on DADVSI here)
3. Now, in Scandinavia, we have news today that Apple Computer Inc. met a Tuesday deadline with a 50 page response to Scandinavian regulatory claims that Apple is violating their laws by making its market-leading iPod the only compatible portable player for iTunes downloads. So far, the response is confidential.

What’s that phrase? Stay tuned? And perhaps watch for what the effect of any Australian law will be on all this…

A friend has just reminded me that today is the last day you can vote for your favourite Australian trade mark, here, to celebrate the centenary of the first registered trade mark in Australia.

Quick!

Quite literally.

Let’s face it: when someone decides to issue a cease and desist against children’s party clowns, you just have – um – laugh. I can just see it now: instead of the cream pie, clowns will splat lawsuits in each others’ faces. Oh, and instead of jumping in and out of a little Mini Minor car, clowns will get in and out of a large lawyers’ briefcase…. oh, enough already. It’s Friday.