Australia is at risk of being legislated out of the information economy.
Laws are usually developed to benefit the broadest base of people and business possible.
The incoming DMCA has a very short list of beneficiaries and a very long list of potential losers.
Technology including computers, electronics, e-commerce, internet, games, vehicles, industrial plant and equipment all increasingly use digital information and software. These systems also affect the businesses and daily lives of all Australians. All of these aspects of the information economy are impacted by the DMCA.
The DMCA enables primary brands such as Microsoft, Disney, Time Warner, Lexmark, to lock down hardware, software and content with DRM(digital rights management) including TPM(technological protection measures).
This will mean that the default state for DRM technology is to be locked away. It will be illegal to interact with DRM hardware, software or content without prior permission from the rights holder. This of course presents a real threat to the researchers and entrepreneurial businesses for which Australia has an excellent reputation.
In 2003 the Hon. Jane Lomax-Smith, MP launched SolutionCity for South Australia, an initiative aimed at making the most of technology for South Australians. Lomax-Smith in her press release stated:
'The information economy is the vehicle that enables people in our health, education and other services to achieve their goals and to benefit individuals and communities. We must work together to make the best use of the information economy to create jobs, promote innovative research and development and foster skills for tomorrow while ensuring people do not miss out.'
This is exactly my concern. DMCA is going to impact innovation broadly and business inevitably. DMCA court cases in the US are largely about defending market share against people offering new ways of doing things, generic printer cartridges, alternative server
systems for games, ways of mixing music from different source file formats, garage door openers.
It is my concern that this law which is being imported as part of the latest USFTA has been pushed through by specific parties who stand to gain from its implementation. It is not a law or a process which has had the interests of Australian business and community at heart.
I am a member of the open source community and it is fairly easy to see that this law proposes a direct threat to open source software development. What is not immediately recognised is that it poses a threat to all participants in any digital market other than those sanctioned by the primary brand. This includes researchers and commentators on technologies, developers on system integration, inventors of new technologies which need to inter-operate with a primary brand and of course the owners and consumers of digital products. While industry alliances are common this is the first time that laws have been implemented internationally to criminalise competitors.
For example vsound is an open source digital loopback device which was maintained in Australia, the project has moved offshore as a direct result of the DMCA. The maintainer was not prepared to run the risk of litigation because, in addition to making it possible for people to remix their own music into new sounds, it is possible to use the tool to copy copyrighted music. This is all it takes, for it to be possible to use a tool for an illegal purpose. Of course this means that any tool for making information accessible, or for shifting content between formats, or even for embedding fonts in documents, can be at risk.
Developers of these tools do not have any fair use defences.
Their only defence is that their product has a substantial commercial value. Of course this excludes many useful technologies, open source software is valuable as a community asset not necessarily as a direct commercial product, although many businesses are built around them.
Technologies developed for research, for personal benefit, for amusement, for an artistic purpose, or for an accessibility purpose are not protected by a defence which values only an existing significant commercial value. This means they can be made illegal and the developer considered a felon, by proposing that the technology can be used for illegal purposes, regardless of intent.
Information and communications technologies have much to offer people both socially and economically. The internet currently makes it possible for people to share information, software and ideas freely. This is seen as a threat by the DRM lobby. Many of them have business models which depend on a central distribution mechanism to a receptive consumer audience.
Modern technologies offer the consumer the opportunity to also be a creator and distributor. There is less inherent value in the distributor role. The DRM lobby is defending against this threat by making the centrally distributed technology model the only legal model.
This will restrict the potential for the internet and digital technologies to provide new opportunities.
As Eben Moglen explains: "It is not possible for industrial organisations to do a better job of distributing music than twelve year olds can do."
http://www.archive.org/download/3_do_t1_11h_3-Moglen_a/3_do_t1_11h_3-Moglen_a_64kb.m3u
The efficacy of peer to peer sharing is seen as a negative by groups who previously used to control distribution because we had no better way to share. Peer to peer filesharing including applications such as bitstream is a method used by legitimate open source developers to share source code, for collaborative artists in both visual and sound media to share files and remix and adapt and develop new material from existing resources.
This is just one example which is apparent now before we even adopt the DMCA. It is obvious that with the pre-internet businesses defining what new technologies should be legal to develop and use that our choices will be defined by what can be effectively controlled by those interests. For Australia this means small innovative manufacturing businesses will have to ask permission to develop technologies which interface with DRM products, both hardware and software.
Adelaide's computer recycling groups would face the challenge of asking permission from the copyright holders of each of the hardware components before being allowed to refurbish computers or to create new artistic or inventive forms from recycled computerised hardware. That is the hardware and software could be out of license for the original owner, or broken, but reworking with the materials would still involve interacting with copyrighted interfaces. Working with hundreds of old computers, thousands of componentes to find configurations which will come together to make new machines for community groups and families is a challenging task already, and a worthy one from both an environmental and a social capacity building perspective. With the DMCA it means that technologies will have a half-life. They will reach a point where the limited tenancy of the purchaser has expired and the DRM protection renders it unsafe for further re-use.
It is also a real threat to corporate and governmental purchasers of hardware, software and content. It is common in Australia for important systems to rely on software and hardware systems from the suppliers who are promoting the DMCA. DRM systems make the customer
a tenant. The default state for a DRM system is to assume you do not have permission to access. It is up to the customer at any given time to prove that they are 'legal'. The system assumes guilt. With technological protection measures in place if the system wrongly assumes you are guilty, you would then become actually guilty if you tried to work around the TPM to access your legal digital material.
Currently in the US the DMCA lobby is fighting not to have an exemption to these blocks for situations where there are risks to critical systems or risk of loss of life. Each iteration of these treaty rounds and DMCA processes will make the laws more restrictive. They operate on a kind of ratchet model where there can be no relaxation from a previously agreed level of commitment but there can be further restriction.
These kinds of laws are being implemented world wide, as part of a USFTA push. This despite many examples of anti-competitive court cases and cases against researchers in the US as a result of the same laws. Thailand and South Africa are two exceptions.
If Australia took the lead in supporting an alternative more balanced copyright system which honored fair dealing and established sensible digital access rights then this country could truly market itself as a clever nation where innovative and creative information and communications technology (ICT) industry is recognised, valued and legal.
I realise that the DMCA has some momentum but already in the United States there are voices asking them to drop the DMCA as a bad law. The reason offered for sticking with it is their treaties with us. We need to recognise this deck of cards for the unworkable, unrepresentative and unjust construct that it is.
I am hoping that with commitment by industry, the universities, government and community we could provide a real opportunity for Australia in recognising that the DMCA is not a valid option, there are other international businesses who would agree, and there are other systems of managing digital rights in development in Geneva, there are many nations and business sectors for whom DMCA is plainly wrong.
The UN Forum on Internet Governance is interested in developing open and inclusive systems to encourage innovation. This is no surprise as this group represents the communities and businesses which benefit from the innovation possible with the internet. This puts them in natural opposition to the DMCA which is about restriction and control of systems. The UNIGF has the more future proof approach, interested in standards compliance, transparency, innovation and inclusion.
CPTech has developed the A2K Treaty Access to Knowledge.
This is a treaty being developed by creators and consumers to find a system of access and protection which better represents the interests of individuals, communities and businesses who see the internet and emerging technologies as an opportunity and not a threat.
http://www.cptech.org/a2k/
To conclude I am asking that policy developers take a step back from a process which
is bulldozing our local legal system.
Please consider the impact on economic development, innovation, the use of ICT to enhance government service delivery, infrastructure development, social inclusion, confidence and security issues, skills development and promotion of awareness among Australians.
As a small and notably innovative nation we do have much to lose.
If we take up the challenge to change tack, we also have much to gain.
Australia is currently the home of many world leading open source developers and projects including Samba for building heterogeneous networks. Our local proprietary businesses and manufacturers also are aiming to participate as leaders in digital and information innovation.
Take a moment and Google for DMCA.
Its probably not surprising that, in the traditional broadcast media, the overwhelming
resistance to this legal system is not represented. However, the communities of bloggers on the internet are very often academic researchers, software developers, innovators, authors, musicians, artists, lawyers. These are the people who enable us to be to creative, to advance scientifically, to develop new technologies and legislative supports for those activities.
It should be of great concern that these people are spending their energy on documenting and voicing their concern about the DMCA. It should be of absolute concern that these people are not being heard. What are they saying?
* This legislation supports poorly constructed digital packaging,
* Its proponents respond to criticism of their technology by suing academic researchers.
* The DMCA is used as a means to threaten and intimidate competitors and critics.
* DRM limits the value of digital assets for legitimate consumers and innovators and represents no effective block to piracy.
* Trade agreements are not an effective forum for developing representative and balanced legislation.
The internet currently enables people to share information freely, this provides great opportunities for us all. Some parties are aiming to establish right of way with those opportunities. People around the world who have not traditionally needed to lobby to have fair use and fair dealing rights to access information are at a disadvantage because the groups which have access to the international treaty process have been investing heavily in progressing their perspective.
As a result of this process there has been a shift in the copyright system which puts emphasis on the control side of the balance. Where previously copyright protections were a special consideration or exception to generic access rights, now we are requesting generic access rights as exemptions to copyright.
Groups which have had control of information previously, because we could not previously share it directly, are responding to our ability to share peer to peer with laws to secure their position as holders of information rights. It has been primarily distributors of information who have been adjusting these laws in their own interests. The DMCA lobby have successfully lobbied to have their perspective on digital rights implemented around the world as a prerequisite of trade negotiations with the United States.
This means that fair use and fair dealing are now required to apply to be exempted from a copyright state, where as previously copyright was seen as an exception or special case to a default set of access rights. The new DMCA Digital Millenium Copyright Act also allows, through use of TPM's the copyright holder to limit other technologies which interact with the copyrighted product.
This is effectively putting a fence around other people's copyright and freedoms rather than being a defense of the copyrighted content only. TPMs will confront legitimate users of technology as a block, but will be of no effect in deterring large scale copyright infringement.
The practice of responding to well resourced business lobby groups, and of tying issues of intellectual freedom and communication to trading treaties is fundamentally disruptive of both the process of representative decision making and is also creating legal frameworks which lock the possible uses of technology into constraints which suit pre-internet business models.
These frameworks provide subjective benefits for their proponents while hobbling both the fulsome exploration of the potential for existing technologies as well as threatening those who would develop new technologies for working with information. In particular any use of exclusive rights to restrict development and use of technologies which enable sharing and interconnectivity I feel are short sighted and counterproductive.
Both in written scope and actual use the DMCA/DRM/TPM suite of 'protections' has proven itself to be primarily a method of monopolising markets, threatening independent academic research, creating a threatening and uncertain environment for new entrants and independent innovators, and overall has dramatically reduced the essential value of digital information in comparison to pre-digital paper based alternatives.
While it is true that file sharing illegally is possible using the internet.
Legal peer to peer file sharing and collaborative development are also possible and provide great opportunities such as the development of Wikipedia, sharing of source for open source development using bitstream, incorporating mixes of music into new sounds.
While it is true that format shifting applications can be used to pull copyright material from closed formats for illegal purposes, they can also be used to rescue content from broken or out of date digital packaging, they can be used to mix sounds from different file formats into a new musical composition, they can be used to speak a written file for accessibility purposes.
While it is true that in many US Western movies chairs are largely used to knock cowboys out, they are also useful. We recognise that a chair does not need to be banned. The DMCA lobby is demanding that the world restrict development of technologies to only those products which cannot be used in an illegal fashion.. and the ones with existing large markets.
This exemption highlights the prejudiced nature of the DMCA. If a technology currently generates sufficient commercial benefit it is not considered an illegal technology.
The problem with this is that any new technology will not have a market at the time of development, any technology developed for community or even personal benefit should not be illegal because it does not make money. It highlights the illogical nature of the law and also clearly demonstrates that it was written for existing large business interests at the expense of all other participants. Banning the development of technologies will restrict lawful development and invention. Those who aim to break the law in the first place will not be taking notice.
We can be a clever country, but we have to choose not to give the right to participate away.
Access to knowledge is important.
A2K Access to knowledge
http://www.cptech.org/a2k/
Kim Weatherall provides an excellent commentary in her blog Weatherall's Law.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=809905
http://weatherall.blogspot.com/
Linux Australia are circulating a petition to restrict TPM circumvention to only relate to interacting with technology in order to breach copyright. http://www.linux.org.au/law
EFF - A comprehensive look at how the DMCA is being used already.
http://www.eff.org/IP/DMCA/
Ed Felten, Freedom to Tinker
http://www.freedom-to-tinker.com/?cat=5
An insightful blog on the DMCA by an academic who has been taken to court
for publishing a research result.
I have been collecting information on a blog.
http://www.lucychili.blogspot.com
A summary of the impacts on various interest groups. The following are some of the headings of the posts to give you an idea of what is included there:
* Commercial rights .v. Democratic process - both in process and content the DMCA
pushes a narrow block of commercial interests over local business and democratic rights.
* DMCA ignores fair dealing
You are guilty until proven a currently complying customer.
* DMCA blindfolds owners of critical systems
Blackboxed digital voting systems.
* DMCA complications for rural life.
No right to 'make do' with what you have at hand.
* DMCA privacy for publishers but none for anyone else
Spyware and rootkits with a legal entourage.(Sony and Microsoft)
* DMCA hobbles recycling and innovation
Small dollar players in a market place have much to offer our community by other yardsticks.
* DMCA - MS to disable computers running old versions.
This was threatened then put on the backburner, for now.
* DMCA micromanages home entertainment
You may now rewind but may not keep a copy of a program you record.
* DMCA not safe for creative folk
Publishers lobby for rights to whitewash over licenses chosen by authors, scientists, musicians.
* DMCA impact on books
Less accessible than paper books, you may not read aloud,
lend, give to a friend, sell second hand.
* DMCA set to make Australia a Penal Colony?
This is a strong metaphor, but I feel it is representative of the situation. The control of the legal framework is in the hands of the off shore rights holders. We are guilty as a starting position, our
innocence is bought by putting coins in the meter. If the meter is faulty we are at a loss. This situation will reduce our choices about what to buy, when to upgrade, and what we may do with our purchases. Our legal community will be disadvantaged by a system which values the license of a US company over any Australian rights and legal systems.
