KLEPAS.ORG

As you might be aware, the Aus­tralian Gov­ern­ment is adopt­ing the US DMCA laws. I don’t think most Aussies really under­stand the full impli­ca­tions of these new laws, though I feel the same goes for most Amer­i­cans - in fact, most people I’ve ques­tioned about the laws don’t know what they are about at all.

As pre­vi­ously men­tioned ^{[1, 2]} LA (Linux Aus­tralia) is fight­ing against the adop­tion of these laws. There’s been a lot of dis­cus­sion over the LA mailing lists recently about what we can do and one of them was a sort of quiz - see what you know about rights these days and offer what the DMCA laws will do to your current rights.

So thanks to the folks from Linux Aus­tralia and Janet Hawtin in par­tic­u­lar:

Whats all this then?..

DMCA is the digital man­age­ment copy­right act. It has been imported from the USA as part of the latest Free Trade agree­ment. It is not a law about making things free and easy to trade - quite the oppo­site. It sets the scene for primary brands to control markets and reduces the rights of devel­op­ers and owners of all kinds of soft­ware and hard­ware. It is com­bined with DRM (digital rights man­age­ment) tech­nolo­gies to lock down soft­ware and hard­ware so that only their pub­lish­ers have the right to inter­act with them. Inter­ac­tion by anyone else could be called cir­cum­ven­tion by the pub­lisher and described as an illegal act.

Here are some sug­ges­tions about how Aus­tralia will be impacted if the law isn’t revised or with­drawn:

I can read a story aloud to my child?

Answer: Yes, with a paper book. Cur­rently not legal with some e-books. DRM act may leave it up to the pub­lisher to choose if you have this right, includ­ing restric­tions to copying, print­ing, lending, giving (giving the book as a gift to someone else) and reading out aloud.

I can read a book I buy

Answer: Paper book - yes.
Answer: Digital book - unclear. DRM act aims to provide a frame­work for pub­lish­ers and man­u­fac­tur­ers to deter­mine what you may do with any of their prod­ucts after you have pur­chased them. Licenses are reduc­ing the per­mis­sions which con­sumers have to pay to play, or pay to use. The Aus­tralian Gov­ern­ment is not bal­anc­ing the devel­op­ment of the DRM act with devel­op­ment of fun­da­men­tal sets of rights which the con­sumer can count on.

I am a musician and composer. I created a work and licensed it. It was distributed on a website. Can I can now publish it as a CD?

Answer: Unclear -

The United Nations’ World Intel­lec­tual Prop­erty Orga­ni­za­tion has called a last-​minute meeting on June 21 in Barcelona, out of the normal diplo­matic venues to try to ram through the Broad­cast­ing Treaty. This treaty gives broad­cast­ers (not cre­ators or copy­right holders) the right to tie up the use of audio­vi­sual mate­r­ial for 50 years after broad­cast­ing it, even if the pro­grams are in the public domain, Cre­ative Commons licensed, or not copy­rightable.

For more infor­ma­tion see:http://​www.​eff.​org/​d​e​e​p​l​i​n​k​s​/​a​r​c​h​i​v​e​s​/​0​0​4​7​3​9.php.

I can rewind a movie on my VCR?

Answer: No, this has not been legal since the 1970’s. You may play a video’d TV program once legally: blogs.smh.com.au/mashup/archives//004579.html, and new changes to these laws make it legal to rewind but illegal to keep the copy.

I can put a new video card in my computer?

Answer: Unclear - if the DRM act allows each soft­ware and hard­ware man­u­fac­turer to specify which cards and drivers are legal to use with their prod­ucts then this could be a problem. It is also unclear if the soft­ware or hard­ware vendor could swap the war­ranty void if removed for a license void if removed sticker, ie against the law to remove.

I can put a new printer cartridge in my printer?

Answer: Unclear - any device which has a call response inter­ac­tion can be included under DRM. Devel­op­ing, selling or using a generic brand or alter­na­tive brand of printer car­tridge could be blocked using DRM. Printer com­pa­nies have already sued people for using generic printer car­tridges and are threat­en­ing people who refill their car­tridges. It is pos­si­ble the printer could be sold with a license that requires a new printer to be pur­chased instead of a new car­tridge. If print­ing com­pa­nies use RFID tags in paper they could actu­ally make it a crim­i­nal act to use plain paper. Cir­cum­ven­tion of the rela­tion­ship between the paper and the printer could be made crim­i­nal, the scope of your rights would be up to the US com­pa­nies.

I can choose to install a new operating system on my computer?

Answer: Unclear - depend­ing on how the DRM act is drafted hard­ware and soft­ware com­pa­nies could require that their prod­ucts must only be used together.

I can keep my old operating system on my computer?

Answer: No - for over a year, Microsoft has planted a program on every modern Windows-​powered PC that reported home every day. They are now using their new WGA (Windows Genuine Advan­tage) version to lock people into com­pul­sory upgrades. Dave Farber had the fol­low­ing response from a Microsoft rep­re­sen­ta­tive:

He told me that “in the fall, having the latest WGA will become manda­tory and if its not installed, Windows will give a 30 day warning and when the 30 days is up and WGA isn’t installed, Windows will stop working, so you might as well install WGA now.”

For more infor­ma­tion see:

• iplist.​blogspot.​com/​2​0​0​6​/​0​6​/​i​p​-​i​n​t​e​r​e​s​t​i​n​g​-​i​n​t​e​r​a​c​t​i​o​n​-​w​i​t​h​.html
• ‘Ed Bott at ZDNet: ‘Is Microsoft about to release a Windows “kill switch”?’ - blogs.​zdnet.​com/​B​o​t​t​/​?p=84

I can recycle old computers and make refurbished computers, new artworks and gadgets?

Answer: Unclear - re-​using equip­ment for new pur­poses is a common prac­tice and recy­cling is usually seen as an envi­ron­men­tally useful prac­tice, however, depend­ing on how the DRM is drafted, you could need to get per­mis­sion from any man­u­fac­turer or soft­ware pub­lisher involved in each of the com­po­nents you are working with, perhaps each chip, each driver.

can write a game or other software to be used on my computer?

Answer: Unclear - if the DRM permits copy­right holders to deter­mine how their prod­ucts may be inter­acted with, then it is pos­si­ble that devel­op­ers would have to sub­scribe to a mem­ber­ship to be allowed to develop at all.

I can network two computers?

Answer: Unclear - do the com­put­ers run dif­fer­ent oper­at­ing systems? Do you need to use a spe­cific kind of net­work­ing pro­to­col to run the service that you want? VOIP or wire­less? Pro­to­cols and net­work­ing stan­dards could easily become out­lawed by copy­right led control mea­sures.

I have the right to refuse spam?

Answer:

• Postal mail - you can put a sticker on your letter box.
• Tele­phone - you can advise a caller that you do not accept com­mer­cial calls and to ask them to remove you from their call list.
• Email - you can delete them, some install viruses on some com­put­ers.
• DVD - You must watch them and may not forward them or remove them.

I have the right to choose what information is collected from me and my computer?

Answer: Unclear - you may not have the right even to find out if some­thing is col­lect­ing and for­ward­ing your infor­ma­tion as unpack­ing a sus­pected device or program could be con­sid­ered cir­cum­ven­tion.

I can have a private password?

Answer: For over a year, Microsoft has planted a program on every modern Windows-​powered PC that reported home every day. Noone was told that this was being done. No one has been told what infor­ma­tion has been col­lected. A similar spyware appli­ca­tion installed on com­put­ers by Sony audio CD’s caused thou­sands of people’s com­put­ers to be com­pro­mised. With the new DRM laws soft­ware pub­lish­ers can make it illegal for people to unpack these things and see what they do.

I am farming with a native seed species or a new kind of fertiliser? I can customise my seeder to work with different components for planting this new seed?

Answer: For a non com­put­erised seeder, yes. For com­put­erised seeder or com­po­nent involved it is unclear. This depends on how the DRM is drafted.

My car’s computerised ignition is broken. I can do a roadside fix to get back on the road?

Answer: Unclear - if the DRM act is not tied directly to copy­right infringe­ment then any workaround could be con­sid­ered illegal. Even if you’re stuck on the Birdsville Track…

I can be sure that my information is accurate and that we are safe?

Answer: DRM pro­vides the pur­veyor of soft­ware the right to ‘black box’ systems. This leaves the owners of these systems with reduced ability to be adapt­able, inno­v­a­tive, accu­rate, safe. con­sider the fol­low­ing sit­u­a­tions:

• air-​traffic control
• mon­i­tor­ing and man­ag­ing power station loads and stresses
• cryp­tog­ra­phy
• risk assess­ment appli­ca­tions
• flow control systems

Choice and integration with System Control and Data Acquisition systems?

Answer: Many systems are more than just a single appli­ca­tion. They can be per­va­sive and have impact through­out a large busi­ness or organ­i­sa­tion. DRM leg­is­la­tion is being drafted which could give the soft­ware pur­veyor the right to restrict you to the soft­ware they approve for use on the system and to ban you from cir­cum­vent­ing their soft­ware to see if alter­na­tives can be inte­grated. Much of our local media, man­u­fac­ture and social ser­vices infra­struc­ture could be impacted by this.

An example of this could include a soft­ware appli­ca­tion you pur­chased pro­hibit­ing you from trying to install another soft­ware appli­ca­tion by another company or a free soft­ware appli­ca­tion.

Patents can be shared?

Answer: Yes - the Patents Commons, pro­vides one way for indi­vid­u­als and organ­i­sa­tions to ensure that their patents are avail­able for com­mu­nity use, encour­ag­ing and facil­i­tat­ing further inven­tion.

For more infor­ma­tion see: www.​patent​com​mons.org/

I can choose to use non DRM software?

Answer: Yes, cur­rently. Free open source soft­ware is an example of the kind of shared copy­right which can enable con­sumers to choose what they would like to install use and share with others. It is impor­tant that the DRM act be imple­mented in a way which makes it clear that open source devel­op­ment and use is a legal choice.

Democracy

Soft­ware is very often used in cul­tur­ally sen­si­tive con­texts and to provide trusted results. Without the right to under­stand how the soft­ware works, or how it may be mod­i­fied to provide more reli­able service, we can not be sure of our infor­ma­tion.

Black boxed digital voting systems? Digital voting systems have caused con­tro­versy in the US where it is alleged that the soft­ware admin­is­tra­tors added in votes, accord­ing to how many they thought might be missing, when the soft­ware crashed. Aus­tralia is cur­rently con­sid­er­ing adopt­ing digital voting systems and con­cur­rently con­sid­er­ing accept­ing laws which do not permit them to inves­ti­gate the accu­racy of the soft­ware or to improve or repair it if it is faulty.

Increas­ingly soft­ware sim­u­la­tion is being used to rep­re­sent pre­dicted out­comes for the impact of a devel­op­ment or impact of dis­as­ter. I can ask to see how the sim­u­la­tion was con­structed to see whether it is accu­rate? In a DRM world a soft­ware pub­lisher could say that the client, let alone you as a public person, may not cir­cum­vent or unpack their soft­ware because it con­flicts with their copy­right. This could block access to effec­tive com­mu­nity con­sul­ta­tion as well as making it impos­si­ble to be certain a sim­u­la­tion is accu­rate.

I can find a list of my Aus­tralian Digital Civil Rights? If you do please let us know (contact me, and I’ll pass it on the LA mailing list).

It is pos­si­ble to know if my action will be legal? Prior to the deci­sion on the DRM act the legal­ity of our actions are not pos­si­ble to deter­mine. Fol­low­ing the deci­sion, if the rights are deter­mined by copy­right holders, there can be no over­ar­ch­ing clarity about what is gen­er­ally legal and illegal. The basic rights of Aus­tralians have not been a primary con­sid­er­a­tion in these processes. These laws are coming to us as the result of lob­by­ing from US busi­nesses in a trade agree­ment.

“The reality is that we do not spend a lot of time think­ing about legal issues when we nego­ti­ate agree­ments in the GATT… [T]he con­cerns that we have are with the com­mer­cial results of what a nego­ti­ated agree­ment is, rather than with the legal miceties of it.” - (Emory Simon, then Direc­tor for Intel­lec­tual Prop­erty at the Office of the United States Trade Rep­re­sen­ta­tive.) Drahos, Braith­waite, Infor­ma­tion Feu­dal­ism. 2002

Our rights were addressed by invit­ing people to submit com­ments on spe­cific kinds of use as excep­tions to a default DRM law. This should be the other way around. Our access rights should be defined and con­sis­tent with excep­tions for nefar­i­ous cir­cum­ven­tion to defraud being an excep­tion to normal use.

I can change this? If this is a democ­racy then Aus­tralian inter­ests can define our rights. The laws should be devel­oped on our behalf and not on that of (mostly) over­seas copy­right holders. Perhaps our law­mak­ers have become too willing to accept inter­na­tional rec­om­men­da­tions uncrit­i­cally. Time for Aus­tralian con­sumers, devel­op­ers, inven­tors, artists, musi­cians, edu­ca­tional insti­tu­tions and busi­nesses to iden­tify our Digital Access Rights and bring those to any agree­ment which impacts on our right to inno­vate, com­mu­ni­cate and trade.

Please sign the peti­tion at http://​linux.​org.​au/law and talk about these issues with friends family and busi­ness part­ners. Make your digital rights an issue for your­self and your gov­ern­ment rep­re­sen­ta­tive.

What should we ask for? Pro­vid­ing right of way to man­u­fac­tur­ers and pub­lish­ers at the expense of all other members of our digital com­mu­nity estab­lishes a feudal system of control over our rights to access and inter­act with digital infor­ma­tion. Free nations are built on a precept that freedom comes from sharing rights jointly with others - not on exclud­ing the rights of the many in the inter­ests of the few. Digital media is a chattel, a com­mod­ity. Digital media should be some­thing we can own and use flex­i­bly, not some­thing which then owns our future choices.

Digital prod­ucts should not cause anom­alies in our civil rights. These tools and the content on them increas­ingly are becom­ing our means of com­mu­ni­ca­tion with each other. Dis­tor­tions of our rights on these prod­ucts have dra­matic impli­ca­tions for our cul­tural, com­mu­nity and busi­ness free­doms.

As an inter­est­ing con­trast from the Uni­ver­sal Dec­la­ra­tion of Human Rights:

Article 17
(1) Every­one has the right to own prop­erty alone as well as in asso­ci­a­tion with others.
(2) No one shall be arbi­trar­ily deprived of his prop­erty.

Article 19
Every­one has the right to freedom of opinion and expres­sion; this right includes freedom to hold opin­ions without inter­fer­ence and to seek, receive and impart infor­ma­tion and ideas through any media and regard­less of fron­tiers.

Article 20
(1) Every­one has the right to freedom of peace­ful assem­bly and asso­ci­a­tion.
(2) No one may be com­pelled to belong to an asso­ci­a­tion.

Article 21
(1) Every­one has the right to take part in the gov­ern­ment of his country, directly or through freely chosen rep­re­sen­ta­tives.
(2) Every­one has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the author­ity of gov­ern­ment; this will shall be expressed in peri­odic and genuine elec­tions which shall be by uni­ver­sal and equal suf­frage and shall be held by secret vote or by equiv­a­lent free voting pro­ce­dures.

Article 27
(1) Every­one has the right freely to par­tic­i­pate in the cul­tural life of the com­mu­nity, to enjoy the arts and to share in sci­en­tific advance­ment and its ben­e­fits.
(2) Every­one has the right to the pro­tec­tion of the moral and mate­r­ial inter­ests result­ing from any sci­en­tific, lit­er­ary or artis­tic pro­duc­tion of which he is the author.

Article 28
Every­one is enti­tled to a social and inter­na­tional order in which the rights and free­doms set forth in this Dec­la­ra­tion can be fully real­ized.

Once again, I’d like to say thanks to Janet and all the won­der­ful people at Linux Aus­tralia. Obvi­ously my thanks and kudos extend beyond that to various groups, organ­i­sa­tions and indi­vid­u­als as well, even into the inter­na­tional arena. This blog entry is licensed under the Cre­ative Commons Share­Alike licence - deriv­a­tives are most welcome.