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The ADA Monthly Intellectual Property
Wrap-Up
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A monthly summary of recent legislation, cases, reports and other events
relating to intellectual property and the public interest, published by the
Australian Digital Alliance.
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August
2003
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[1] About this Publication
[2] Sony V Stevens Overturned
[3]
Consumer Privacy rights and the RIAA
[4] Open Souce forms Lobby
Group
[5] Universal to cut CD prices
[6] I can copy this,
right?
[1] About this publication
This summary of recent
IP (but chiefly copyright) happenings of relevance to Australia is published
every month by email and on the Australian Digital Alliance website at
http://www.digital.org.au/issue/issue.htm. If you have
any suggestions as to what should go in the next issue, please let Miranda Lee
know by email: (mlee@nla.gov.au).
Nothing in this publication constitutes legal advice.
[2]
Sony v Stevens Overturned
On July 31st the Federal Court reversed the
earlier decision of Sony v Stevens, confirming the illegality of mod-chips.
The matter was first brought to the courts two years ago (IPW November 2002 &
October 2001) when
Sony sued Eddy Stevens for breach of s116 of the Copyright Act for
selling "mod-chips", which allow PlayStation console owners to circumvent
Sony's regional access codes to play games not configured for the Australian
market.
The issues on appeal were whether modchips could be considered
within the definition of "technical protection measure", whether there is
reproduction of computer programs in the Random Access Memory ("RAM") of the
Playstation console or a copy of the game regarded as a "cinematograph film"
made in RAM when a game is played.
In order to ascertain whether the
modchips contravened the circumvention devices provisions of the Act, the court
had to be satisfied that the access codes which the modchips sought to bypass
come within the definition of technological protection measure (TPMs).
Sackville J, the primary judge, ruled that the Sony access codes did not
qualify as a TPM because it was not designed to prevent or inhibit post access
infringement of copyright. In order to fall within the definition, Sackville J
held that a device (ie the requirement of an access code) must, in the ordinary
course of its operation physically prevent or inhibit a person from infringing
or facitlitating the infringement of a copyright work, mere deterrence is not
enough.
In the appeal court, the judges rejected the narrow "physical"
construction of the definition of TPM and overturned the decision of the
primary judge in respect of the first issue. The judges maintained that the
device in question did prevent or hinder infringement because access codes when
used on a CD-Rom in conjunction with a boot ROM in the Play station console,
renders the infringing copies of computer games useless.
French J
seemed to urge legislative reconsideration of the provisions in delivering his
judgement, pointing out that given the wording of the definition, the court was
was unable to conclude otherswise; "it is for the legislature to spell out the
limiting words which may respond to such considerations. It is not for the
Court to cage the ordinary meaning of the words which may have been adopted by
reference to policy considerations of its own divining". (Para 25, French J).
The second ground of appeal was the question of whether playing of the
game on the console involved a reproduction of its computer program in the
console's RAM. Two of the judges (French J and Lindgren J) dismissed this
ground of appeal and agreed that the trial judge was entitled to find that the
computer program in the CD-ROM could not be reproduced from the RAM because the
electronic impulses in RAM did not constitute "material form".
The
third ground of appeal was the question of whether the playing of a game
involved a making of a copy of a cinematograph film in the console's RAM. This
was dismissed by French J and Lindgren J on the basis that the RAM was only
capable of generating images when the power to the console turned on and the
machine in operation. Finklestein J dissented on this ground of appeal and held
that the RAM should be regarded as a "thing" in which the visual images or
sounds comprising the film were embodied and that any reading otherwise is an
overly narrow reading of the provisions of the Act.
The case has been
heavily scrutinised in the process of the current Digital Agenda Review and
many of the submissions (including that made by Mr Stevens) have made reference
to the decision.
The
full
decision is available from Austlii.
[3] Consumer Privacy rights
and the RIAA
Over the past few months, the Recording
Industry Association of America (RIAA) has issued over 1000 subpoenas to US
internet service providers seeking identity of subscribers in relation to
alleged illegal copying of music and videos online. The RIAA intends to use the
information to file copyright-infringement lawsuits against those identified in
its current litigation campaign against online "music piracy".
The first
of the privacy issues has begun with a Verizon Internet Services customer
protesting the release of information by Verizon.
Verizon itself had
challenged the issue of subpoenas which it had been served in the Federal Court
earlier this year. After losing its case, it had notified all customers whose
names have been sought by the RIAA.
Some ISPs have resisted the
subpoenas but until now customers have not directly protested against the
disclosure. The unnamed contestor will challenge the constitutionality of the
RIAA subpoena process on grounds that it has violated people's rights to
privacy and due process. Verizon itself made the same case when it tried to
block the RIAA subpoenas earlier this year, the court however, rejected its
argument. The RIAA motion to force Verizon to honour the subpoena demanding the
customer's name raises new questions about whether individuals have the right
to intervene to protect privacy.
The case will be watched with interest
in Australia, given that this hits at the heart of many of the issues currently
confronting copyright legislators, stakeholders and consumers. A proposed
Cybercrime Code of Practice for Australian ISPs has been developed and a draft
has been made publicly available for comment in August (the code can be
accessed through the Internet Industry Association
website ).
The draft code has been
criticised by commentators who are concerned that the code fails to take into
sufficient account the existing provisions of the Telecommunications Act
1997 and the Privacy Act 1988. Compliance with various provisions of
the Code is likely to place an ISP in breach of one or both of those Acts.
These criticisms arise out of the data collection and retention provisions of
the Code which requires ISPs to retain proxy logs and other information that
would not normally be retained for investigation of activities by law
enforcement agencies. The IIA is currently considering the submissions it has
received on the draft code which has been two years in the
making.
[4] Open Souce forms Lobby Group
Opens source
advocates have formed a lobby group called the Open Source And Industry Alliance in the
United States to promote and protect the development of open source. Although
there is no specific legislative agenda as yet, its list of guiding principles
will see the organization advocate open source use. The primary activities of
the group will be to track intellectual property laws and international
treaties, opposing those that weigh on the software. Also listed on its agenda
are plans to examine the procurement codes of different organizations and
governments to ensure that buying plans don't discriminate against open source
software.
Although the group has not yet been formally launched, it
has been busy in its member outreach. There are no plans to release a list of
members but it has been rumoured that major tech companies such as Novell and
Oracle are considering playing a role.
The group has been formed at a
time when open source has been growing in popularity among companies and
governments while simultaneously facing lash backs from proprietary software
companies.
The issue of government procurement has been particularly
heated over the past year. Some governments such as Belgium, France and others
in the EU have leant towards preference for open source software. Groups such
Software Choice (ISC) which counts Microsoft among its members has fought
initiatives that would make it easier for, or require, governments to buy
open-source software.
[5] Universal to cut CD
prices
Universal Music Group announced in late August its plan to
cut its wholesale prices and reduce its recommended retail pricing for music
CDs in the United States to $13, from between $17 and $19.
The plans
are directed to combat the slump in CDs sales prevalent in the past 5 years
that has seen the conglomerate pare down its offices and staff. It is hoped
that the new pricing model will enable U.S. retailers to offer music at a much
more appealing price point in an effort to boost sales that have been stymied
by free online music-sharing services such as Kazaa and other entertainment
products on the market. Consumers should see reduced CD prices in the US as
early as October.
There have not been any announcements about similar
plans for markets outside the US nor announcements from other major recording
companies adopting similar strategies.
[7] I can copy, right?
Yes, you can copy this publication. Feel free to send it to
friends or colleagues, print it off or even archive it on your website provided
that all text is included or, in the case of an excerpt, appropriate credit is
given.
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