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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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Mar
2002
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[1] About this publication
[2] Government tries again with Parallel
Importation Bill
[3] Dutch court clears 'Australian' file-sharing
network
[4] New name, same terrible idea: CBDTPA to mandate copy protection
[5] 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/ipwfeb02.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] Government tries again
with Parallel Importation Bill
The Australian Government
re-introduced its 'Books and Software' Parallel Importation Bill into the House
of Representatives on 13 March 2002. This is identical to the Bill which lapsed
with the October 2001 Federal Election and which the Government promised to
re-introduce as part of its arts policy.
The Bill would remove
restrictions on the importation of legitimately-produced "computer software
products, including interactive computer games, books, periodical publications
(such as journals and magazines) and sheet music". It aims to do the same for
these products that was done for music CDs through previous legislation. The
Government claims that the removal of such restrictions promotes competition
while rights-holders oppose it because they say it promotes piracy.
Last
year's Bill faced a stormy time before the Senate Legal and Constitutional
Affairs Committee last year (see here
http://www.digital.org.au/issue/ipwmay01.htm)
and is likely to face trouble in the Senate again, due to opposition from the
ALP and Democrats.
The Bill can be found here:
http://www.aph.gov.au/bills/index.htm
('Bills by Title').
>[3] Dutch court clears 'Australian'
file-sharing network
Kazaa (www.kazaa.com) which styles itself as the
'world's most popular file sharing network' won a rare victory for such a
service when a Dutch appellate court overruled a previous judgement that found
Kazaa liable for the copyright infringements of its users. Kazaa is apparently
owned by an Australian company, Sharman Networks; however, there is no company
registered by this name on the Australian Register of Companies. It also does
not appear in any Australian phonebook. However, it is apparently run by an
Australian CEO, Nikki Hemmings.
Kazaa is still facing a US lawsuit
brought by the recording industry, against which the Dutch judgement will have
little effect. It is not clear how a US court will have jurisdiction over this
Australian-based service (likewise it is not clear if this service is indeed
based in Australia, although its terms of service do refer to the laws of New
South Wales).
The US lawsuit, which was also brought against fellow
file-sharing rebels Grokster and Morpheus which are beleived to use related
technology, will test whether copyright laws can have any effect on a
'decentralised' network; ie, a file-sharing network which does not have any
central point from which the service can be shut down. (Although it remains to
be seen whether these networks are as decentralised as they claim to
be.)
In the meantime, Kazaa/Sharman Networks has been hard at work
lobbying the US Government. In late February, the Washington DC law firm
representing Kazaa wrote to the Chair of the US Senate Foreign Relations
Committee, Senator Biden, following criticisms of the file-sharing network in
hearings before his committeee.
The letter, signed by Philip Corwin of
Butera and Andrews, reads: "We are deeply offended by the gratuitous
accusations made against KaZaA by witnesses before the Committee, including
ludicrous attempts to associate an extremely beneficial, next-generation
software program with organized criminal gangs and even terrorist
organizations."
Corwin adheres to the view that sales of music have not
declined following wide-spread take-up of file-sharing networks and that: 'P2P
software such as that provided by KaZaA has the capability for numerous,
substantial noninfringing uses. These include potential benefits to musicians
and their audiences through new, independent promotion and distribution
mechanisms.' Corwin goes on to attack the recording industry, claiming that
this 'foreign' (ie, non-US) dominated industry "routinely strip[s] U.S
recording artists of all copyrights in their creative output as a standard
aspect of the industry contract."
His proposed solution is an
Intellectual Property Use Fee levied on those in the copyright-using chain of
supply: "Computer hardware manufacturers; Consumer electronics manufacturers;
Storage device and media manufacturers; Cable, telephone, and wireless
telecommunications firms; Providers of "ripping" and media player software."
The revenue raised through this compulsory licence would then be distributed,
somehow, to rights-holders.
It is difficult to see where groups like
Kazaa fit into this model from a revenue perspective. After all, they
distribute their software for free. Any file-sharing network that attempted to
charge for its software would not attract many users. So if users pay for the
music through a levy on their hardware or internet connectivity, from where
does Kazaa get its cut? (Sharman networks must foresee revenue coming from
somewhere to pay for an LA-based PR firm and a DC-based law firm).
If
the user only needs to visit Kazaa.com once to download the software, it is not
going to be attractive to advertisers. Perhaps the answer can be found in this
headline about rival file sharing networks: "'Spyware" piggybacks on Napster
rivals' (at http://news.com.com/2100-1023-257592.html).
The article suggests that some types of file-sharing software come with
additional 'features' which track user movements and feed them 'targetted'
advertising.
Whatever happens, it seems that there is a lot of money
out there to be made by the first person who hits upon a business model that
both consumers and record companies can live with.
>[4] New name,
same terrible idea: CBDTPA to mandate copy protection
Previous
editions of the ADA Monthly Wrap-up have discussed the proposed US legislation
formerly known as the Security Systems Standards and Certification Act (SSSCA).
(http://www.digital.org.au/issue/ipwfeb02.htm).
This legislation has now been formally introduced into the Senate as the
Consumer Broadband and Digital Television Promotion Act (the CBDTPA), with the
apparent belief that if you have an appropriately long and meaningless bill
title and change it sufficiently frequently, it will escape
attention.
The SSSCA/CBDTPA did not escape attention over the US
legislative recess. The law which would mandate copyright protection in digital
devices was severely criticised by a range of groups and individuals who saw it
as unworkable and harmful to technology. It was criticised (among other
reasons) for being far too broad in that it would require the inclusion of a
copyright protection scheme in all pieces of software or hardware (including
components) that could reproduce or transmit copyright material in any way. The
CBDTPA has lost little of this broadness: a 'digital media device' is now
defined as:
"any hardware or software that --
(A) reproduces
copyrighted works in digital form;
(B) converts copyrighted works in
digital form into a form whereby the images and sounds are visible or audible;
or
(C) retrieves or accesses copyrighted works in digital form and
transfers or makes available for transfer such works to hardware or software
described in subparagraph (B)."
Anyone who sells "digital media devices"
which do not include the requisite copyright protection after the prescribed
date will be guilty of a felony.
As the Wired journalist, Declan
McCullagh pointed out, this means that the following computer program written
in BASIC code could see its author go to jail if he or she dared to sell it:
10 input A$
20 print A$
This tiny program invites the user to
input a string of text (which could be copyright protected) and then prints
this text onto the screen. If the CBDTPA became law, such a program would need
to have a federally-mandated copy-protection scheme included in it if it were
to ever to move beyond the machine (or piece of paper) on which it was written
without breaking the law. This example, while a tad absurd, demonstrates the
incredible broadness of this proposed law.
And if this tiny program were
to have a copy-protection scheme included in it, how would this sceme
distinguish between infringing input and fair use/dealing input? In short, it
couldn't.
Doubtless as this Bill progress through the Congress, it will
be watered down slightly and its opponents will congratulate themselves for
this. However, if it passes in anything like its present form it will
irrevocably shatter the copyright balance between rightsholders and
users...
Find out more on the progress of this incredible legislaiton
here: http://www.politechbot.com/docs/cbdtpa/
>[5]
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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