There seems to be a number of issues being jammed together here. Wasn't Tizard responsible for some very strange "copyright" law involving photography here in NZ?
Clarke - while I agree with your points there's a reason why the criminal clauses for DRM and RMI interference are there - its called TRIPS (see here for the detail: http://artemis.utdc.vuw.ac.nz:8000/pebble/2006/12/18/1166402040431.html) so although i like the sentiment in principle 4 the Government already signed that one away when it became a member of the WTO and agreed to abide by the Marakesh agreement.
John - (hello by the way - good to hear from you again) The Australian case is exactly the sort of thing possible under this new Bill - linking to infringing copies would be a violation of the "communicating to the public" right and would expose you to fines of up to $150,000 and 5 years in jail, unless you could prove that the link was to a non-infringing copy (i.e. iTunes or similar).
Defending this type of thing is never going to fly with the select committee, we're in a much stronger position claiming that media companies should not be able to control consumer choice over playback devices for legally purchased media. Its worth fighting for some strong law here because that would then position us well to fight off "broadcast flags" and other nasties being incorporated into HDTV and other standards.
We need generically stated rights because the technologies are going to keep evolving and the media companies are going to keep trying to lock it all down. After all they want to sell the same thing over and over again: LP, Tape, CD, DVD, HDTV. PSP, iPod, 3d holographic, VR whatever... much cheaper than actually creating new content worth buying.
I think Clarke's principles are an excellent starting point.
I'm unsure, but do they need modification to make sure that they cover non-entertainment content, e.g. the diagnostic information that your car's computer can emit? Already the spectre of the DMCA is looming over this in the US. Mechanics are balking at expensive 'subscriptions' required to keep up to date with diagnostic codes, but are scared to use 3rd party tools because of the circumvention aspect.
Do we need to be explicit that 'content' one legally owns includes content created/emitted by devices that one legally owns?
We need generically stated rights...
And that I would suggest is exactly what they don't want to happen, never have, never will, because the revenue is in new formats (as you stated) and expolitation of content creators (Courtney Love interestingly had quite a lucid comment on this and was, naturally, pilloried for it).
I say talk to people who have created their own original stuff, first.
The other party really interested in the law of this are the iTunes aggrogators (sp) I'm guessing. In this world your either a Creator or a Commentator, and then along come the Agents.
Clarke - while I agree with your points there's a reason why the criminal clauses for DRM and RMI interference are there - its called TRIPS
Ah yes, I had forgotten TRIPS and its WIPO bastard-child. (As an aside, it would be lovely to get somebody in MED who wasn't a complete muppet intent on trading away our rights at the drop of a hat, but that is a problem for another day ...)
So how about we amend Principle 4 as follows:
Principle 4: TPMs have special protection under the law only when they are circumvented to allow illegal commercial distribution. Companies are free to add them as they see fit, but consumers are free to remove them as they see fit to restore their personal Fair Use rights. For the avoidance of doubt, this means that personal Fair Use trumps TPMs. There are no penalties or otherwise associated with TPM circumvention for personal use, on the basis that this area should be decided by the market and there should be equal power under the law for both producers and consumers. However the same penalties that apply to copying for commercial gain equally apply for circumvention for commercial gain - 5 years in jail/$150K fine.
TPMs should in fact be regulated. A company that introduces a TPM should also bear responsibility for any damage it may do to customers' equipment or data. That is not unreasonable by a long chalk.
DPF mentions the format-shifting in the bill:
__I do not rule out that the bill which leaves select committee may be unacceptable and if so I'd oppose it being passed. But I think the status quo of no format or time shifting exemptions is an appalling one, and provides far greater risks to consumers being stung.__
The two-year "sunset clause" plus the ability to contract out of format-shifting, as contained in the text of the bill, make that particular provision just a play for the galleries.
TPMs, out here in the real world, exist purely to make interoperability and competition for service legally impossible. They have never stopped so much as a single serious digital pirate for more than a few hours.
Nothing that is sold in NZ should be allowed to have restrictions placed on it that prevent anyone using that music, video, or automobile with whatever 3rd party software or device the end user so chooses (assuming they're happy to void their warranty were applicable). It's plainly anti-capitalist to do otherwise. Do the world a favor and make TPMs illegal.
How do I listen to my music? How about it's none of your god damned business. Are politicians even aware that these inane restrictions are making the 100% free pirate versions of software and music strictly superior to the bought stuff, and have done for years now? That fixing the bugs in software or devices for yourself (such as bypassing a buggy TPM with a 3rd party patch) would be illegal with this?
Do we really need Microsoft to charge us all for the next video codec update when it becomes illegal to use 3rd party codecs? Does it really need to be illegal to play your old N64 games on your laptop PC? Do I really need to go to prison for 5 years for making a mix tape?
And while people are talking about digital stuff and libraries... why isn't there a library.org.nz site were all NZ residents can search and peruse a well indexed digital form every book, magazine, periodical, and newspaper ever written? The library system has real potential to finally fulfill their original purpose using some pretty basic modern technology.
Obviously, this law would make such a thing impossible. What an incalculably huge loss to society.
And while I'm feeling creative ...
Principle 5: Truth in advertising and promotion is required. If, by applying a TPM, the use of content is restricted by the content owner, these restrictions must be clearly stated on the packaging of material sold in NZ in a form easily understood by a typical 12-year-old. For example, if a CD contains TPMs and WMA files, it must say "won't work with an iPod"; if a DVD is encoded for other regions, it must say "won't work with NZ DVD players"; if a plasma TV doesn't have an HDMI input it must say "won't work with Sky high-definition programmes". In the event that the item protected by a TPM doesn't work in the manner expected, consumers are entitled to a full refund. The manufacturer or producer of the item is also liable for prosecution for deceptive and misleading conduct under the provisions of the Fair Trading Act.
Just a random thought here for the legal beagles to clarify: will the generic term "format shifting" cover all possible outcomes in the future?
I'm thinking about the fact that when the current law was drafted, the concept of a digital music player that did not use any physical media to play music was completely unfathomable.
There will be content technologies in the future that are currently unfathomable.
Does the law need provision for the courts (or some other body) to make provision for new technologies to be covered by 'fair use' or 'format shifting' when they wouldn't easily fit within the new law?
And Clarke: nice idea about the disclosure stuff. Kinda like current food labelling:
This product contains TPMs that comply with HDMI specfications 3.2 thru 4.5; WARNING: may not be interoperable with Component Video or Neural Implant Systems version 2.1 and earlier.
<quote> I suspect people like Microsoft would also get upset, as it would very likely mean that you could legally run a cracked copy of Windows that had the activation (etc) disabled.
Actually, I don't think it would. When you agree to a Microsoft OEM license, it explicitly says that it is licensed to the machine and not the user - there are other kinds of license that you can purchase from Microsoft that don't have this restriction. </quote>
The problem is when your machine will not run the MS software that you have licenses for. Those subscribed to Dave Farber's IP list will have seen the recent thread on Windows Media Player where a guy tried to reinstall WinXP on a Sony laptop and failed - he had a valid CD and the license key on the device, but the key wasn't compatible with the CD. Now, the new law would make it legal for him to circumvent the activation in order to run his legally acquired software on his legally acquired device, rather than purchasing an extra install CD.
I am in a similar position with one PC that I've been having hardware problems with - I've reinstalled XP so many times after replacing parts that I now have to activate it over the phone, and MS tell me that despite the license being to the case if I change too much inside that case it becomes a new computer and requires a new license. Luckily their call centre doesn't operate that way and I've been able to active XP each time so far.
I'm also concerned about how many of these new rights will evaporate in the end-user "contracts". You know, the document that you can only read after you've agreed to it and which overrides any supposed "rights" your local government has signed away to the US on your behalf. I think that those should be outlawed (you should have to sign the license before purchase, and a copy kept by the licensor to prove that you're bound by it).
Good to see that at least in New Zealand the Greens are still a serious alternative ... ;)
I think Clarke's pretty spot on if we continue with the model where a copyright holder is entitled to see a royalty (that they determine) from each and every user of their work.
However, there is an alternative which may be more sustainable. This is to have a levy on media, bandwidth, content-sharing websites etc. and combine this with a relaxation on copyright protections. This already happens with commercial broadcast and performance - a broadcaster pays a license fee and gets the right to broadcast any music covered by the scheme. The collecting society distributes the money in proportion to the (statistically determined) usage of the licensed material.
This would of course destroy Big Music if it became globally popular!