Hard News by Russell Brown

88

Copywrong

There are some things to applaud in the Copyright (New Technologies and Performers' Rights) Amendment Bill. It finally brings to the table an exception for the format-shifting of music that was proposed more than five years ago, it promises to expand and flesh out the concept of "fair dealing" with copyright material, and it tidies up a silly situation where transient copying by ISPs in the course of delivering your dataz was a breach of the Copyright Act.

And then there's the bad stuff. Specifically, "anti-circumvention" provisions that emulate America's Digital Millennium Copyright Act (DMCA) to the point of applying criminal penalties to actions that have previously been considered no business of our Copyright Act.

At a guess, the anti-circumvention provisions are there as a quid pro quo for format shifting, which has been strongly opposed (even though everyone does it) by the music industry. The strange thing is that those provisions apply in circumstances that were specifically ruled out at an earlier stage of policy development. And format shifting - which was a key feature of proposed amendments from the very beginning - is to be subject to a two-year sunset clause. Unless they are actively renewed, your rights to rip to your iPod will automatically expire.

No, it's not the kind of crazy-assed copyright law the Australians are in the process of passing, but we shouldn't ever use Australia's laws on digital media as a benchmark, because their legislators have repeatedly passed bad laws. We have been - and ought to be - a bit better than them.

Anyway, the story is neatly laid out on the MED website here.

The thread can be picked up from the 2001 MED discussion paper, Digital Technology and the Copyright Act 1994, which proposed an exception for the format-shifting of legitimately-purchased music, to end the unsatisfactory situation where conventional uses of music - say, making a tape to listen to on your car stereo - were a breach of the Copyright Act.

The led to the 2002 Position Paper, which fleshed out the ideas of the previous document. What it says about MED lawyers' view on the status of Technological Protection Measures (TPMs) is worth quoting:

106. The Ministry's preferred policy response is that section 226 retain its focus on copy control measures, and not provide legislative protection against the circumvention of TPMs which only control access. That is, for section 226 to apply, the TPM circumvented must prevent copying, and the circumvention must be for the purpose of copying or the infringement of other restricted acts of the copyright owner in the Act (including potentially a new technology-neutral right of communication).

107. In proposing this policy response, the Ministry intends, for example, that the supply and use of devices that allow the circumvention of regional zone access protection (to allow the playing of legitimately purchased DVD movies or games etc. from other zones), would not infringe the TPM provisions. If, however, a circumvention device directly facilitated the infringement of copyright, that would be a breach of section 226. The Ministry also seeks to avoid, in New Zealand, situations where a court may find that devices such as DVD players or PlayStation consoles constitute TPMs (with copy control) by virtue of the fact that a small amount of data may be temporarily stored or reproduced in the device's RAM (see also Part Two of this paper on transient copying exception). 37

It is the Ministry's view that it is not the role of the Act to protect access control technology, which is used in some cases to price discriminate and control geographical distribution of works, to the detriment of New Zealand users.

Store that last paragraph in memory, because its sentiments begun to disappear from this point. Here's the paper on the proposed amendments, from June 2003:

Prohibit the supply or manufacture of devices, means or information that circumvent technological protection measures, where circumvention could enable infringement of any of the copyright owner’s exclusive rights, and provide criminal penalties for large scale commercial dealing in circumvention devices, means or information;

And the Cabinet paper of the same year:

…agree to amend the provision relating to technological protection measures … so that the prohibition against the making, importing, hiring and selling of devices, services or information designed to circumvent "copy protection" be expanded to cover devices, services or information that circumvent technological protection measures that protect all rights provided to copyright owners, including communication, not just copying; and to facilitate the actual exercise of permitted acts where technological measures have been applied …

Two different aims in one paragraph: to bring criminal penalties to bear on the supply of devices or information designed to circumvent all TPMs, and not just those relating to copying and distribution - and to "facilitate" such circumvention where it is for the purposes of a "permitted" act.

And now, the draft bill:

“ … amend the provision relating to technological protection measures--- so that the prohibition against the making, importing, hiring, and selling of devices, services, or information designed to circumvent "copy protection" be expanded to cover devices, services, or information that circumvent technological protection measures that protect all rights provided to copyright owners (including communication, not just copying)”

And ...

“introduce an offence (carrying a sentence of a fine not exceeding $150,000 or a term of imprisonment of up to 5 years, or both) for commercial dealing in devices, services, or information designed to circumvent technological protection measures:”

So does the format-shifting provision mean the law will help us remove DRM on music files so we can play them on a different device? Or was I potentially in breach as the publisher this week of a discussion thread that contained advice on removing DRM from music files? Not clear.

The bill specifically (if vaguely) exempts one category of device that would seem to fall afoul of the intent of the new provisions: region-free DVD players.

Weighing in with significant penalties for circumvention like this raises some problems. One is that this it expands the scope of copyright law, even though, as A.J. Park pointed out, "a law which makes defeating technical protection of a copyright work illegal is not really copyright law at all. Nevertheless because it is for the benefit of copyright owners, it has been included in copyright legislation and has been referred to as 'paracopyright'."

The purpose of copyright law is not, as is often supposed, to serve the interests of copyright owners but to serve the public interest by offering enough protection to creators that they will be minded to continue to create new works. But the proposed amendments potentially place the force of the law behind business models that may be hostile to the public interest.

Apple Computer's product lock-in (iTunes Store-purchased files only play in iTunes or on iPods, and they can be difficult to move around) doesn't present a practical problem for me at the moment: I like my iPod. But what say things change? What say I'm faced with purchasing that music all over again because the format in which I purchased it is obsolete? This isn't just theoretical: it's exactly what Microsoft has just done with the Zune player, which won't play the (ahem) Plays For Sure files Microsoft was selling from MSN Music right up until the Zune's launch on November 14. If customers want to play the music they paid money for on the Zune, they'll have to pay again. Is it really the job of the statutes to protect that sort of behaviour?

There are various other reasons to doubt the wisdom of putting this stuff in copyright law, as detailed by Cory Doctorow's comments on the New Zealand bill, Ben Gracewood's blog post and the EFF's unintended consequences of the DMCA page.

Then there's the libraries' view:

… such technological measures do not distinguish between uses which are not authorised by the copyright owner but are permitted by law, on the one hand, and those uses which are not authorised by the owner and also infringing. For example, the same copy-control mechanism, which prevents a person from making infringing copies of a copyright work, may also prevent a student or a visually impaired person from making legitimate fair use/fair dealing copies.

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Anyway, quick comment on the iTunes Store: it's a bit of a mess. Buying music is easy, finding it rather less so. Try clicking the "Quick Link" marked "browse" on the home page, or any other page. WTF?

I still haven't worked out a way to browse, say all the available rock releases, as opposed to just the ones iTunes is directing my attention to. The page from the "Local Sounds" link or banner only contains one album, by Frontline. But if you scroll down the home page, you see a whole lot more in "Just Added - New Zealand".

Using eMusic as a point of comparison, iTunes seems surprisingly clunky and not as much fun. I've bought several things (that exclusive Flaming Lips EP was hard to refuse) but I don't think I'll be giving up my eMusic sub.

And where are those two million songs?

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Finally, Michael Bassett's latest "newspaper column" did not appear in an actual newspaper, only on his website. Has the Dom Post given him the boot? (Update: It appeared in The Press, as did a response from Nicky Hager.)

Like, seemingly, everyone who claims to be rebutting Nicky Hager's The Hollow Men, Bassett basically ignores the substance of the book. Bassett simply contrives to be more odious and abusive than everyone else. He basically calls the editors of the Dom Post idiots and implies that TV3 has been dishonest in its presentation of the facts. He slings off at the "hacks" so "easily beguiled" by Hager, who he compares not only to David Irving but to - get this - Stalin. He pretends his own conflict of interest - that he posed as an independent commentator on matters in which he was directly involved - doesn't exist.

Can this really be the same commentator who railed against the shooting of messengers in the Benson Pope case? For whom the "prima facie" appearance of having lied was enough? (And if you don't think National point-blank lied on a number of issues last year, you haven't actually read the book. I may differ with the author on some of his analysis, but the degree of deception is well enough demonstrated to anyone who can read English.)

Really, what a dreadful man Bassett is.

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