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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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February
2003
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[1] About this publication
[2] Misapplication of DMCA: Lexmark v
Static Controls
[3] Music Co's Target Australian Universities
[4] DMCA:
the new international copyright law?
[5] German PC Levy Creeps Closer
[6] I can copy, 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]
Misapplication of DMCA?: Lexmark v Static Controls
The reach of Digital
Millenium Copyright Act 1998 (US) (DMCA) has come under intense scrutiny from
the legal and technical sectors again in the last month over the Lexmark
printer cartridge case. The decision of the case will have repercussions for
makers of interoperable products and end users' control over their
technological devices.
In late December last year, Lexmark, the second
largest maker of printers in the US, brought a suit against Static Control
Components for infringement under the circumvention devices provision (section
1201) of the DMCA for selling its Smartek chips to toner cartridge
remanufacturers. Lexmark claimed that the Smartek chip "circumvents the
technological measure" that the printer uses to verify that the cartridge is a
Lexmark original.
In February, a Kentucky court granted Lexmark a
preliminary injunction having found that a sensor in Lexmark cartridges that
authenticates the refills as "official", qualified as a technological measure
and therefore could be protected under the DMCA. The order prohibits Static
Control from selling its Smartek chip, which when installed in compatible
Lexmark printers, allows the printers to use (cheaper) recycled toner
cartridges that would otherwise be rejected by the Lexmark printer's sensors.
This case is the first to pit the long established right to
reverse-engineer against copyright law as embodied in the DMCA and the latest
in what many legal experts and technologist argue is a misapplication of the
Act which was originally put in place to protect things like movies, music and
software applications.
Static Control argued in its brief that its
Smartek chip qualified for an exemption under the Act which permits
reverse-engineering "for the purpose of enabling interoperability of an
independently created computer program with other programs". Static Control
also claimed that Lexmark's code allegedly protected by the DMCA is nothing
more than "bare-bones implementations of mathematical formulae and scientific
observations that cannot be protected by copyright". Static Control cited the
decision of landmark case
Sega
v Accolade (US) (1992) where the court asserted that "here disassembly is
the only way to gain access to the ideas and functional elements embodied in a
copyrighted computer program and where there is a legitimate reason for seeking
such access, disassembly is a fair use of the copyrighted work, as a matter of
law."
If Lexmark's claims were successful, the possibility that
DMCA-protected chips would sprout in many consumer other products across
different sectors to lock consumers to any one manufacturer may become real and
not only will the DMCA have extend copyright owners' rights but created new
categories of rights as well.
The Electronic Frontier Foundation has a
log of the case court documents
.
[3] Music Co's target Australian Universities
Federal
court proceedings have been commenced by Universal Music, EMI and Sony against
the University of Sydney, University of Melbourne and the University of
Tasmania to release information needed to identify users who have allegedly
infringed copyright using the universities' networks. Under strong pressure
from the music conglomerates, the University of Sydney and the University of
Tasmania agreed to preserve data relating to the alleged copyright infringement
and after prolonged negotiations, the University of Melbourne, agreed that it
would attempt to preserve the relevant data, ahead of a further hearing in
March at which the music industry is expected to request the information be
handed to their investigators.
Many universities in Australia and
overseas have long instigated IT policies that are wary of student use of
networks for peer-to-peer file sharing and in the current climate, disciplinary
action past disabling of accounts has been contemplated especially by
institutions in the US who face greater and imminent pressure from
entertainment conglomerates. Concern has been raised that in taking
disciplinary action against students accused of copyright infringement,
universities start down a slippery slope of assuming responsibility for their
conduct, to become obligated to undertake monitoring activities which, apart
from raising privacy issues, is deeply destructive to the university
environment with its established traditions of academic freedom and personal
privacy.
Pursuit of universities for harbouring music "piracy" is a
damaging but mainly exemplary exercise by the music companies. The amount of
music piracy is unlikely to decrease in any significant way even if the present
suit against the unis are successful. It is difficult to believe that students
are likely tochange their behaviour until they are presented with a viable
alternative to peer to peer.
The matter has been adjourned until the
middle of March when all three universities in the action will fight the
application to turn the data over to the recording companies.
[ 4]
DMCA: the new international copyright law?
The Australian suit
against the universities is simultaneous to aggressive efforts in the US by the
entertainment industry on institutions, corporations and ISPs to "crack down"
on the use of file-sharing networks to trade music and movies.
Record
labels and movie studios are engaging detection firms such as NetPD and
MediaForce to scour networks for copyright infringement. The detection firms
use search tools to hunt for unauthorized copies of a song or movie, then
record as much information as possible about each suspected user, including the
time, date and, in some instances, the unique Internet Protocol address of the
computer. ``Notice and take-down orders'' are then sent, notifying the school,
workplace or Internet provider to remove the alleged infringing work from its
system. This process follows a procedure outlined by the DMCA, which gives
Internet providers and institutions immunity from prosecution but an obligation
to expose copyright infringers if they are found.
US detection
companies have not only been exerting pressure on networks within the US
jurisdiction but also to Australian ISPs and Australian network providers who
have been receiving notices that alert to alleged infringement. The notices
issued to Australian ISPs include (outrageous) requests to disable access to
accounts that are facilitating the alleged breaches and requests also the the
ISP terminate that account with any other accounts that the account holder may
have with the ISP, because of the suspicion of copyright infringement under the
DMCA.
Although such notices have been by and large ignored so far by
Australian ISPs, the volume of notices and the force with which the US rights
holders have been pursuing ISPs over alleged acts of "piracy" on its networks
in the US (see issue of
Verizon /Kazaa in January 2003 issue) has caused concern to Australian
network administrators. The unresolved international issues over internet use
and jurisdiction combined with the apparent aim of the DMCA to extend to
infringement outside the borders of the United states (at least as claimed by
the US recording and motion picture industries) are exacerbated by
technological advances that afford promising but imperfect approaches for both
the rights of owners and users. The approach taken by the US entertainment
companies in effect forces institutions and ISP's to become agents of copyright
holders, conveniently displacing the bad blood of users from copyright owners
who do not wish to be seen to take action against its consumers.
[5]
German PC Levy creeps closer
The German Patent and Trade Mark
Office (Deutsches Patent-und Markenamt or DPMA) has given a non binding
recommendation to set a levy of 12 Euros on all PC systems sold in Germany.
The fee is intended to cover content rights compensation although other
levies already exists in some countries on products such as blank compact discs
and other blank recordable materials. The push for the levy has come from
various copyright collecting agencies that have been fighting a long battle
against the IT industry trade associations for the levy. Not surprisingly IT
industry groups will pass the fee on to PC users.
As with levies imposed on
blank recording media- both the collection and the distribution of the levy,
intended to reimburse copyright holders are unsatisfactory. The levy will be
levied on every PC sold regardless of whether or not the user of the PC in fact
breaches any copyright with the machine. Similarly, blanket presumptive
compensation is channelled to a rights licensing agency that has no certain way
of distributing the proceeds equitably to compensate copyright owners whose
rights have been infringed.
Blanket taxes are a poor solution to the
problem of illegal copying; the decision of the DPMA poses a frightening
precedent establishing a flow of funds to copyright holders without any
accurate or effective ways of determining from who the fee should be collected
and to whom the compensation should be distributed.
Both sides have
expressed the view however, that if in the future, suitable digital rights
management technology exists, PC vendors could avoid paying the levy by
installing digital rights management technology in their systems. Consumers
should be equally guarded about this forecasted "compromise" which will be no
more satisfactory than the levy; such an eventuality would make the ability to
assert the rights of consumers reliant on the efficiency and effectiveness of
technology.
[6] 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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