Posts by Clarke
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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 thinnk 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.
So cracking the product activation is actually a breach of contract law, and Microsoft are well within their rights to drag you through the courts as a result. It's just that it's a civil action rather than a criminal prosecution. And IRIC this is the state of affairs that exists today - any breach of copyright is a civil matter, not a criminal one. So the status quo remains.
And let's be really clear about this - New Zealand is a very law-abiding place, internationally speaking. The annual surveys run by people like the BSA indicate we're in the top 5 in the world for playing by the rules and not pirating software - and this is without a DMCA-style law on the books.
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Doesnt that make Microsoft or your PC manufacturer liable?
Seems a mighty big call?I think the wording in the bill demonstrates that neither the lobbyists nor the drafters are terribly clear on how this stuff actually works.
Anyway, after some further thought, here's my suggestion for how the Bill should be changed:
Principle 1: Fair Use is desirable and should be legalised. This includes format shifting and time shifting for all types of media (not just CDs), and there's no sunset clause on this. By Fair Use I mean transferring content that you have purchased or otherwise legally acquired between devices that you own or effectively control.
Principle 2: Obtaining content without paying for it or otherwise legally obtaining it for personal use - either by shoplifting or digitally - is illegal and carries criminal penalties, the same way that shoplifting does now. As is the case with other forms of petty theft, the penalties are set in the Sentencing Act 2005 and are commensurate with how much you've "obtained".
Principle 3: Copying content for commercial gain is definitely, completely and unequivocably illegal, and carries the whole $150K fine/5 years in jail penalty, along with confiscation of the equipment used to do the copying/manufacturing. People who rip off other people's creativity to make a dollar are scumbags and should be punished accordingly, IMHO.
Principle 4: TPMs have no special protection under the law. Companies are free to add them as they see fit, but consumers are free to remove them as they see fit to restore their Fair Use rights. For the avoidance of doubt, this means that Fair Use trumps TPMs. There are no penalties or otherwise associated with TPM circumvention, 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.
Just my 2c worth.
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Clarke - IIRC those offences only apply to those who manufacture and sell or commercially deal in such circumvention devices - it in no ways applies to someone who just uses it.
Now I agree the penalties are still over the top even for commercial manufacture and supply of anti-DRM software, but the scare scenario of going to prison just because you hacked a CD you purchased is wrong.The way I read the Bill, you're right on the Fair Use front but wrong on the TPM front - that is, the penalties laid down in s226 have no requirement that information on how to circumvent a TPM has to be made available for commercial gain. The wording is:
s226A(2): A person ... must not provide a service, including the publication of information, if --
(a) the service or the information is intended to enable or assist persons to circumvent a technological protection measure; and
(b) knows or has reason to believe that the service or the information will, or is likely to, be used to infringe copyright in a work that is protected by a technological protection measure." [emphasis mine]There's nothing in there that says money has to change hands for the offence to occur.
And just as a complete aside, Bill Gates thinks DRM is a waste of time:
Gates said that no one is satisfied with the current state of DRM, which “causes too much pain for legitmate buyers” while trying to distinguish between legal and illegal uses. He says no one has done it right, yet. There are “huge problems” with DRM, he says, and “we need more flexible models, such as the ability to “buy an artist out for life” (not sure what he means). He also criticized DRM schemes that try to install intelligence in each copy so that it is device specific.
His short term advice: “People should just buy a cd and rip it. You are legal then.”
The article is here.
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Clarke, I think you're OK with the shift key, because you're not defeating a TPM for commercial reasons?
Nice try, Ben, but the Bill seems to work like this:
s226: "TPM ... includes any process, treatment, mechanism, device or system that is designed in the normal course of its operation to prevent or inhibit the unauthorised exercise of any of the rights conferred by this Act." [emphasis mine]
So clearly holding down the Shift key qualifies as a process designed to inhibit the TPM.
s226A(1): "A person ... must not make, import, sell, list for hire, offer or expose for sale or hire, or advertise for sale or hire, a TPM spoiling device that applies to a technological protection measure if (the person) knows or has reason to believe that it will, or is likely to, be used to infringe copyright in a TPM work."
This appears to get you off the hook ... but wait, there's more!
"s226A(2): A person ... must not provide a service, including the publication of information, if --
(a) the service or the information is intended to enable or assist persons to circumvent a technological protection measure; and
(b) knows or has reason to believe that the service or the information will, or is likely to, be used to infringe copyright in a work that is protected by a technological protection measure." [emphasis mine]Presumably you can therefore keep the whole hold-the-shift-key-down thing to yourself, and avoid criminal conviction. But if you were to tell your girlfriend .... remember, there's no requirement that the service is a commercial one. Simply "publishing" the information by whatever form (verbal advice on the phone? E-mail to a mate having problems with his computer? Drunken conversation with work colleagues?) has the effect of invoking the penalties.
Which, I guess, emphasises the batshit-crazy nature of the Bill:
Girlfriend: "How do I get this &^%$% CD to play in my computer?!"
You: "I'm sorry my darling, I can't tell you because of the criminal penalties contained in the Copyright (New Technologies and Performers Rights) Amendment Act 2007 ..." -
So would that mean my company, which disables auto-run in group policy for security and anti-viral reasons, would be infringing (on a couple of thousand PCs); or does intent count?
Disclaimer disclaimer disclaimer - IANAL!
However .... intent is obviously the first step. But it does emphasise how appallingly badly drafted the Bill is. If you disable auto-run for anti-virus reasons, you may well be in the clear. But if you decide not to play the CD on your PC, but load it onto your Mac as you know the DRM software is Windows-only (and therefore you had the intent of bypassing the TPM) are you potentially a criminal?
And bear in mind how disproportionate the penalties are - if you get this wrong, you end up with a criminal conviction to your name. You get to spend the rest of your life explaining to Customs & Immigration people at every international airport how you were convicted for copying a CD to your iPod ....
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I think it was regretable to vote against the bill at first reading because this gives the impression that the status quo is acceptable, and it isn't. The bill deserves select committee consideration.
In this case, DPF, I think you're wrong in your assessment. Nandor was completely correct in his vote against the Bill, as by any reasonable reading it's appallingly bad legislation. Parliament has a long and illustrious history of voting down ill-conceived legislation at the first reading, and it should have killed this thing stone-dead at the earliest opportunity. It's an appalling piece of drafting.
Criminalising copyright infringement is the unreasonable use of the State's coercive power to enforce the business model of a small number of multinationals. The idea that the offence of bypassing the DRM on a CD in order to load it on my iPod deserves a criminal conviction, $150,000 fine and 5 years in jail is completely disproportionate to any harm caused.
In comparison, if I get annoyed with my neighbour, smash his windows, set fire to the tree in his front yard and let down the tires of his car, I'll be charged with intentional damage and risk 3 months in jail and a $1,000 fine. Why is this 150 times less harm than copying a CD?
Bad legislation is bad legislation. It should never have gone to select committee and wasted taxpayer time and money on trying to get it amended. And as you note, the closing date for submissions is far too early, which makes me think that the Bill is simply being railroaded.
Nandor absolutely did the right thing.
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Here's how easy it is to be a criminal under the new Bill.
Let's say you go buy an audio CD from your local retailer, and it contains the current generation of DRM software on the CD. This is generally Windows-only, and relies on the auto-run feature in Windows to load the client software. Of course, being a smart consumer, you didn't wake up this morning thinking "I wish someone would invent a way for me to do less with my music", so you sensibly hold down the Shift key while inserting the CD. This disables the auto-run functionality, and you just defeated the DRM.
Congratulations, you've now committed a criminal offence and are liable for a $150,000 fine and 5 years in jail.
And remember, a key difference between this new Bill and the US DMCA is that the offence is criminal and not civil. So instead of the spectacle of the RIAA suing grandmothers, chidren and dead people to extract a few thousand dollars, we will have the RIANZ taking private prosecutions that result in a criminal conviction and criminal record.
Gee, thanks Judith.
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Sadly, from my reading of the TRIPS agreement and the WCT and WPPT this Bill is all about sucking up to the US in the hope of making some progress towards an NZ-US FTA.
Sadly, Stephen, I think you are 100% correct in your assessment. There is clearly no value for the NZ consumer/voter in the bill, so the primary motivation must be the delusion that an FTA with the US would result in some kind of economic benefit to the country. Yet the idea that the US agri-businesses will suddenly open their doors to NZ farmers is just .... beyond naive.
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My comment was actually prompted by Ben Gracewood's agony that Judith Tizard had not refused to present the Bill based on his email.
Point taken .... and you're completely right - the select committee is the venue in which to argue the detail of the bill. Time to get together a submission, methinks.
As an aside, I have a friend who's a lobbyist here in Wellington, and he's been pushing for an NZ DMCA for about two and a half years with various MPs on behalf of RIANZ. Looks like he finally succeeded ....
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Hoping they'll pay attention to the rants on this thread is like hoping they'll legislate according to the comments on Micheal Laws' talkback show - not desirable under any circumstances.
Really, people, remember how the process works.My original comment was not intended to say that the debate should occur in a blog thread - although that would be an interesting exercise in democracy - but simply to note that there has not been a single dissenting voice heard.
If this is such a fabulous piece of legislation, where are the posts from the musicians claiming they can't live without it? Or the small record labels calling for the ability to imprison their customers?