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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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July
2001
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[1] About this publication
[2] The Panel and the White pages:
recent Australian legal action
[3] The jailing of a programmer and the
death of 'fair use': US v Sklyarov
[4] Feeling chilly? Get a weather report
from the Chilling Effects Clearinghouse
[5] How 'limited' are 'limited
times'? Disappointing result in Eldred v Ashcroft
[6] New Zealand announces
digital copyright reform
[7] 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/ipwjul01.htm.
If you have any suggestions as to what should go in the next issue, please let
the Nick Smith know by email: (nsmith@nla.gov.au).
Nothing in this
publication constitutes legal advice.
>[2] The Panel and the
White pages: recent Australian legal action
As reported in the May
issue of the Update (http://www.digital.org.au/issue/ipwmay01.htm),
the Federal Court ruled in favour of Telstra, affirming copyright protection
for its White and Yellow pages. It had been argued that this 'database' of
unprotected facts (people's names, addresses and phone numbers) was itself not
subject to copyright protection as a compilation.
The losing party,
Desktop Marketing Systems, has since been granted leave to appeal to the Full
Bench of the Federal Court. It is not known when this case will be heard.
In other Australian court news, the second part of the decision
involving Cha nnel 10's TV program, 'the Panel', has been handed down. The case
involved a lawsuit brought by Channel 9 against Channel 10's show on the
grounds that its frquent habit of showing snippets of programs from other
networks is an infringement of copyright. In the first part of the case,
concerning the actual broadcast of the snippets, the court found that they were
not sufficiently 'substantial' to infringe copyright.
The second part
of the case involved the making of video tapes of the snippets in order to
later broadcast them. Nine contended that each and every separate visual image
in a 'cinematograph film' is subject to copyright protection. Justice
Finkelstein pointed out that this would involve a 'copyright duration of
broadcasting time of less than 0.001 per cent of the total of an average
television feature film.' Ten contended the opposite, that the duration of the
work extended to the continuous 24-hour broadcast. Finkelstein J somewhat
sensibly held that the duration of a program is the actual length of that
program 'exclusive of advertisements.'
Having rejected Nine's
contention that every split-second is a separate copyright work, he reaffirmed
his earlier judgement that the snippets copied and rebroadcast by Channel 10
were 'insubstantial'.
>[3] The jailing of a programmer and the
death of fair use: US v Sklyarov
FBI agents have arrested a Russian
programmer for distributing software that removes the restrictions on encrypted
Adobe e-book files. His is one of the very first criminal prosecutions under
the Digital Millennium Copyright Act, the US equivalent of our Digital Agenda
Act.
Dmitry Sklyarov, a programmer for Russian software company
ElcomSoft, was visiting the United States for a convention to give a talk on
the often-flawed security of e-books, including details of how he was able to
break Adobe's encryption.
ElcomSoft argue that their product allows
users to get greater legally-permitted functionality from legitimately
purchased e-books only (eg, allowing them to be used on machines other than the
one the e-book was downloaded on or to translate the text to speech for the
deaf). Adobe contends that the software's purpose is e-book piracy.
It
is also argued that company agreed not to distribute the product even prior to
Sklyarov's arrest so that Sklyarov could not possibly have been 'trafficking'
in the software (which is what he has been charged with). His arrest and
subsequent detention without bail has radicalised the online community. The
ferocity of the reaction, which included street protests in many cities in the
US and elsewhere, surprised Adobe. It promptly backed and requested Sklyarov's
release (though while still endorsing the DMCA) in this media release:
http://www.adobe.com/aboutadobe/pressroom/pressreleases/200107/20010723dcma.html
Sklyarov remains in jail however as the decision to continue with the
prosecution rests with the US Attorney's Office. The head of the San Francisco
office which is prosecuting the case is Robert Muller, George W. Bush's nominee
for Director of the FBI. Mueller prides himself on being 'tough on e-crime' so
Sklyarov is not expected to be released any time soon.
This case has
enormous implications for the future of copyright. If the prosecution succeeds,
it may well signal the end of copyright as a creature of statute, at least as
far as the electronic environment is concerned; all conditions of usage will be
dictated by commercial vendors rather than Congress or Parliament. Fair use
rights will still exist on the statute books but will have little practical
value if those who seek to enforce them are jailed as felons.
Lawrence
Lessig weighed into the debate with an op-ed article in the New York Times (at
http://www.nytimes.com/2001/07/30/opinion/30LESS.html).
He commented that: "The D.M.C.A. outlaws technologies designed to circumvent
other technologies that protect copyrighted material. It is law protecting
software code protecting copyright. The trouble, however, is that technologies
that protect copyrighted material are never as subtle as the law of copyright.
Copyright law permits fair use of copyrighted material; technologies that
protect copyrighted material need not. Copyright law protects for a limited
time; technologies have no such limit."
The decision to prosecute has
also been criticised by many security researchers who assert that the DMCA is
having a chilling effect on IT security research. In another recent DMCA case,
the Recording Industry Association of America earlier threatened Princeton
researcher Professor Ed Felten with a lawsuit if he gave a planned paper on his
(invited) cracking of the Secure Digital Music Initiative; as a result he
declined to give his paper.
As Jon Katz of slashdot.org commented:
"[Sklyarov's] arrest chills criticism of software, and of new technologies and
the powerful companies that create them. It also undermines security -- one of
the very things the DMCA is supposed to protect. How can weaknesses and flaws
in security and encryption programs be discovered if they can't be shared,
discussed or explored?"
Some commentators have even suggested that, in
future, US IT security conferences will move to Canada or offshore to maintain
the right of researchers to freely discuss encryption issues.
One
positive aspect of Sklyarov's arrest is that the constitutionality of the DMCA
will be challenged as well as subjecting it to greater public scrutiny.
Meanwhile Dmitry Sklyarov, a 27 year old father of two, remains in jail far
from home…
More information can be found at:
The
Electronic Frontier Foundation,
http://www.eff.org/Legal/Cases/US_v_Sklyarov/
and
The Politech site,
http://www.politechbot.com/cgi-bin/politech.cgi?name=sklyarov
>[4] Feeling chilly? Get a weather report from the Chilling
Effects Clearinghouse
Feel the need to pull your cardie tight
against the cool prevailing legal wind? You're not alone. Harvard's Berkman
Center for Internet & Society and the Electronic Frontier Foundation are
collaborating on a new project called the 'Chilling Effects Clearinghouse'.
While the law itself can be constraint on freedom of expression (see
the May issue of the ADA Monthly IP update
http://www.digital.org.au/issue/ipwmay01.htm),
perceptions of the law can prove an even bigger restraint. The Chilling Effects
Clearinghouse aims to document the 'chilling effect' that 'cease and desist'
letters can have. According to the site itself:
"On the Internet, we
often see more powerful actors sending vaguely worded legal threats and
cease-and-desist notices to individuals who comply because they lack the legal
resources to mount a challenge. The chilling effects of these threats on speech
and activity are easy to discuss, but harder to quantify or to counter."
Recent examples of issues which have been the subject of 'chilling'
letters include: "the Motion Picture Association of America's letters implying
that the injunction against 2600 bars the world from linking to the DeCSS code,
Cyberpatrol emails regarding the CPhack posting as a copyright violation, and
letters claiming that reverse engineering the CueCat bar-code reader's protocol
'conflict[s] with intellectual property rights owned by Digital Convergence.'"
Alleged trademark violations are also popular targets for cease and desist
letters; parodies of Barney the dinosaur and the Mastercard 'priceless'
advertisements being two recent examples.
A central aim of the Chilling
Effects Clearinghouse is to put out information clarifying areas of the law
which are subject to such letters in order to defuse nebulous legal threats.
The site asks those who have received cease and desist letters to submit them.
The site can be found at www.chillingeffects.org .
>[5]
How 'limited' are 'limited times'? Disappointing result in Eldred v Ashcroft
An appeal decision was recently handed down in the case of Eldred v
Ashcroft (it was formerly known as Eldred v Reno, following the name of the
then US Attorney-General). Plaintiff Eric Eldred, a publisher of public domain
works, is challenging the constitutionality of the Sonny Bono Copyright Term
Extension Act (named after the no longer extant entertainer and Congressman).
It is argued that the extension of copyright duration from life of the
author plus 50 years to life plus 70 (or 95 years for corporations) violates
the copyright clause in the US Constitution. (Bear in mind that the duration of
copyright was once 14 years with an additional 14 being available upon
re-registration). This clause allows Congress to "promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries."
Eldred, represented by cyber law guru Lawrence Lessig, argued that the
'founding fathers' were not just wasting ink when they used the phrase 'limited
Times'; that there must be some constitutional constraint on the frequent
extensions to copyright duration. They also claimed that the increasing level
of copyright protection violates the First Amendment guarantee of protection of
freedom of expression.
So far the case has not been terribly
successful, lately having by rejected by the DC Appeals Court (though there was
a heartening dissent from two justices). Apparently the only option remaining
is to appeal to the Supreme Court. At least, however, this action has forced
attention upon the ever-increasing duration of copyright.
This case
reveals a division within the US Court System about the relationship between
copyright and the First Amendment. While the DC Appeals Court held that
'copyrights are categorically immune from First Amendment scrutiny', the
Eleventh Circuit Court of Appeals lifted a copyright-based injunction in the
Wind Done Gone case (see May issue
http://www.digital.org.au/issue/ipwmay01.htm)
calling the copyright injunction an 'extraordinary and drastic remedy' that
'amounts to an unlawful prior restraint in violation of the First Amendment.'"
The latest decision can be found at:
http://biotech.law.umkc.edu/cases/IP/copyright/eldred_v_reno.htm
Further discussion an open invitation to participate in working out
the next step:
http://eon.law.harvard.edu/openlaw/eldredvreno/
>[6] New Zealand announces digital copyright reform
Hot on the heels of Canada's recently reported digital copyright
reform, comes a digital copyright discussion paper from New Zealand's Ministry
of Economic Development. The discussion paper, entitled Digital Technology and
the Copyright Act 1994: A Discussion Paper can be found at
http://www.med.govt.nz/buslt/int_prop/digital/index.html
The Ministers responsible for releasing the paper, Laila Harre and
Paul Swain, said that: "copyright law has traditionally aimed to balance the
interest of rights holders and users of works of copyright. The challenge we
face now is maintaining this balance while taking into account the impact of
new technologies."
The paper seeks comments from copyright owners,
users and the public on such issues as the protection of electronic
reproduction and communication; the liability of ISPs; the legal protection of
technological protection measures and electronic rights management information;
the legal protection of electronic databases; and 'whether any new exceptions
or permitted uses are required to protect the interests of the users of
copyright works and the wider public interest in the digital age.'
Submission must be received by 12 October 2001. There is also a second
discussion paper on performers' rights.
>[7] I can copy, right?
Yes, you can copy this publication. Feel free to send it to
friends, colleagues or people you've never met; print it off or put 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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