inamerrata

Okay, so here’s a better summary of the forum which I’ve posted to the linux-aus mailing list. And we’re off…

Archives are at http://your.phillipsfox.com.au/digitalreview/

The format was:

• Libraries, etc
• ISP liability
• Technology and Rights
• TPM, Circumvention devices and RMI
• General discussion

There were a bunch of people from Phillips Fox and the Attorney General’s department observing; there weren’t a great number of folks in attendance.

A quote from the 2pm forum to get us started:

One thing’s not quite clear to me: are we focussed on describing problems (working out what they are, and showing that they are problems) or finding solutions to them, or both in this review? I’m finding it a little difficult to focus my responses.

We are interested in both problems (or issues) and potential solutions to those problems.

Many of the issues have been identified, and discussed. However, very few solutions have been canvassed.

— comments from Matthew Hall, partner at Phillips Fox conducting the review, in response to a question from me

In more detail:

The libraries topic didn’t get much response at all. (It doesn’t cover online stuff, just real libraries, and no one who was on at the time seemed particularly interested; Matthew Hall speculated that they’d probably already said what they wanted at the previous public fora) From that session:

It is difficult for us to know who has an interest … the forum has been publicised by us and the Department. By all means, if you know anyone that might be interested, please invite them to participate.

The big issue in our feedback so far, from publishers and authors, is that a library is allowed to create a digital copy from a hardcopy. That copy will not have any rights management information attached. Do you have any comments on this?

— comments from Matthew Hall

ISP liability (or ISP indemnities) was a bit more active. This is about working out what ISP’s have to do to ensure they aren’t liable for copyright violations that are due to the actions of their usables; and what assistance they’re expected to offer to people persuing copyright violations. The discussion seemed to be mostly in favour of producing a code of conduct for ISPs, and getting some ideas on how that shoul dbe administered.

… an indemnity may need to go further than just ISPs. If an owner is prepared to give an indemnity in respect of any damage that flows from complying with their take down request, then that may alleviate many concerns. It would be equivalent tot he undertaking they would have to give if they sought an injunction. It may also mean greater care would be taken before issuing a demand. An issue is whether this indemnity should be provided by the legislation or covered in a Code of Conduct? Thoughts?

— Matthew Hall

… I think it is also important to distinguish between an ISP’s role as ‘carrier’ of data, versus their role as a ‘host’ for data. In the former case, I think ISP’s should not be held liable for the actions of their users (IMHO); in the latter case I think ISP’s probably do have a responsibility to act when material is being hosted by them in violation of copyright.

— Raymond Smith

Page 14 of the issues paper suggests the ISPs will be caught in the middle with both take-down and put-up notices possible. The copyright holder wants the material gone and the customer wants the material there. Are ISPs in a position to recover costs?

Excellent point. To consider this further, we would appreciate data on the additional costs that are likely to be incurred by this process. This can be done in a written submission.

— Matthew Hall in response to Mark Suter

Rights and technology issues is the most interesting issue in my book: it covers the more fundamental question (IMO) of which copies should “count” as far as copyright violations. There’s already an exemption for copies that aren’t “in material form” and temporary copies made as part of the technical process of accessing a work, this covers whether those exemptions and others work, and whether they’re enough. Of interest is that there’s apparently been no responses at all wrt the reverse engineering clauses (being allowed to fix Y2k bugs without the copyright owners assitance, decompilation, etc).

The review includes issues in respect of the computer software amendments made in 1999. The issues raised include the exceptions to infringement allowing reprroduction of code in certain circumstances and the incidence, treatment or effect of orphaned or abandoned code.

No comments were made about these issues at the face to face fora. Does this mean that the amendments are working effectively? Does anyone have any views?

(I think this is referring to the reverse-engineering stuff — fixing bugs for Y2k and that sort of thing)

I think the amendments are working effectively; I’m not aware of any litigation about it, and I believe most of the people interested in this area feel fairly confident in that what they’re doing is legal.

— me in response to Matthew Hall

With regards to ISPs caching files for faster access, it definitely creates greater efficiencies. End users are able to download files faster and reducing costs for the ISPs due less repeated accesses. This should not adversely affect owner’s interests if it is done transparently to the user and only stored temporarily. However, I can see that problems may arise if works are permanently saved in a locally accessible point, outside the context of the owner’s site. For example, if an entire site is downloaded so that users no longer need to access the original location.

any information that you have (or that others may have) about actual savings or other efficiencies (in a written submission) would be helpful.

— Matthew Hall in response to taufiqkh

For example, if I purchase a CD, encode the tracks as sound files (og vorbis, mp3, etc) on my computer and then listen to the music on my computer, how do we make this legal?

Why do you say that this activity should be legal? How does this activity not affect an owner’s interests? Why should the balance of competing interests favour this format shifting?

— Matthew Hall in response to Mark Suter

Some of the discussion regarding what should and should not be legal would potentially be caught by a more generalised fair use exception, based on the US approach which is not limited in application to specific purposes. It’s fair use that has allowed time-shifting copies in the US (the old Universal v Sony “betamax” case). If we had a broad fair use doctrine in Aust, it would be flexible enough that the courts could apply the provision to excuse “copies” made in many socially/economically desirable situations. But for now, the reality is that when we record a TV program to watch later, or copy a CD to tape for listening to in the car, we breach copyright. Silly really.

— Jamie Wodetzki

Do you have any further comment on what are, or should be, “socially/economically desirable situations” and any data to support any suggestion that a situation is economically desirable?

— Matthew Hall in response to Jamie Wodetzki’s remarks above The TPM session was, unsurprisingly, a bit more confrontational.

As a consumer, what has me caused great alarm in the marketplace is the introduction of Copy Control software on Retail CDs.

In my experience of using this software, where it irrevocably installs onto PCs which you play the CDs from, causing the PC to crash, when some other retail CDs are played. This is a particularly annoying issue, and I hear that this technology has not been introduced to the US market, in fear of legal repercussions from affected users.

— Kieren Reynolds (via Matthew Hall)

Do you support the inclusion of fair dealing as a permitted purpose for the supply of a circumvention device?

In addition to any comment about the extension of permitted purposes, is there any comment about any concern of owners seeking to prohibit by contract the use of circumvention devices to make a fair dealing of a work?

This goes more to the issue of the definition of a tech protection measure. Do you have any suggestions as to how that definition can be modified or clarified to take into account your concerns?

Do you have any examples to demonstrate that copy protection is failing in controlling piracy in Australia?

— Matthew Hall (in various posts)

I just wanted to say that the anti-circumvention laws are essentially very new and still yet to be fully understood. One thing is certain: there is no case for extending these provisions further without the evidence to support the need for such action. And as your issues paper rightly points out, the evidence is very thin on the ground.

— Jamie Wodetzki

And if removing the region lock on your dvd player is illegal, does this mean it’s illegal to view websites that tell you how to remove it? Is reading about circumventing copy protection (not that I consider dvd region codes to be legitimate copy protection) as illegal as actually circumventing the copy protection?

Supplying or manufacturing a circumvention device for that purpose is illegal, but the use of the deivce by an individual is not

— Matthew Hall in response to Sandra Milne

There were a few other issues raised in the general forums. I dislike quoting myself, so I’ve tried to avoid it, but I’m sure I said something worthwhile. As they say, read the whole thing. > I’m afraid I simply could not make it, but it’d be very interesting to > find out how it went, what was discussed etc?

We look forward to receiving your written submissions.

— Matthew Hall

(Oh, and yes, this does mean we’re back to cover-to-cover digital agenda coverage)