Sun, 28 Sep 2003
Quoth the Belmont Club:
The so-called strengths of Islamic terrorism: fanatical intent; lack of a centralized leadership; absence of a final authority and cellular structure guarantee uncontrollable escalation once the nuclear threshold is crossed. Therefore the ‘rational’ American response to the initiation of terrorist WMD attack would be all out retaliation from the outset.
Fri, 26 Sep 2003
Motion Picture Association Commissions Study
Where are my manners? Hat tip: Kim Weatherall.
Hey, and a month later slashdot catches up! Advantage: Weatherall.
Presently, no economic data supporting the additional costs that are being or are likely to be incurred or that demonstrate how (and the extent to which) any costs savings generated by [squid proxies, etc] would be passed onto consumers has been made available to the review. Similarly, no economic data supporting any argument that this activity does, in fact, divert sales or otherwise adversely impact on an owner’s legitimate entitlements or markets has been made available.
There are no time or format shifting exceptions in the Australian Act. However, inclusion of these matters are issues being advocated by users’ interests and opposed by owners’ interests.
There’s some other interesting stuff in there about what’s going on in NZ.
Digital Agenda Forum in Sydney
Tim Lister of the south Sydney Greens attended the Sydney forum, and posted a summary. An excerpt:
One rebel, the chap who built the modchip that Sony got exercised about, had a good time denigrating the illogicality of the legal system, that made it illegal to modify legal hardware that he legally owned to play legal datafiles that he legally owned, but that was the high spot of the day. I talked to him afterwards, and he has a lot of support, but unfortunately nearly all of it from people with no money; and it will cost him $38,000 just to file his appeal.
Read the whole thing.
Thu, 25 Sep 2003
A number of people have already made submissions:
- Deacons (TPM measures insufficiently effective)
- Stevens (the guy being sued by Sony for modchipping Playstations)
- Green (got ripped off by product activation)
- Van Emmerik (reverse engineer)
- International Disc Duplicating Association (IDDA) (broader statutory licensing)
- Australian Consumers’ Association (ACA) (various topics)
(Links repeated here since the Phillips Fox scrollover stuff for the submissions has inconsistent upper/lower case and doesn’t work with my web browser)
The rest of us have got five days left…
One risk of solving spam (by doing cool ecash stuff, or by any other means) is that you might be attacked by people who don’t want it solved.
I underestimated both the enemy’s level of sophistication, and also the enemy’s level of brute malevolence. I always knew that spammers had no principals and no ethics, but up until recently, I had no idea that they could or would stoop this low, or that they would engage in quite this level of criminality.
Finding a provider that can cope with DoS attacks might be interesting. Avoiding DoS attacks that exploit the protocol properties might be challenging too. On the upside, perhaps serious DoS attacks are unlikely until there’s already enough money in running the service that it’s not a major issue. On the other hand:
If there are people on the net that can DDoS the likes of Yahoo and eBay out of existance (as happened in the year 2000), then little Ron Guilmette and Monkeys.Com hasn’t got a chance.
We’d need to (eventually) reach a level of reliability similar to that of the root DNS servers, rather than eBay or Yahoo. Challenging. Or just avoid being a monopoly. But where’d be the fun in that?
Mon, 22 Sep 2003
Censoring Discussion of How to do Bad Stuff
robochan writes “According to this report in the Sydney Morning Herald, Chief Operating Officer of Symantec, John Schwarz, was quoted as ‘calling for laws to make it a criminal offense to share information and tools online which could be used by malicious hackers and virus writers.’ This article takes a look at the negative affects and also a couple of recent examples of “censorship legislation” backed by the COO of Symantec, and what little effect it has had on criminals, while having a substantial affect on responsible citizens.”
Hat tip: slashdot.
Saleable Copies and Auxiliary Copies
One of the fundamental properties of digital content is that the content ceases to exist if you don’t make copies. You can’t view it (that means making a copy onto the screen from what was on disk or the network), you often can’t transfer it (that involves making a copy on someone else’s hard disk, then removing it from yours). Fundamentally, the technological measures that allow an after-market in content (second hand books, rental libraries, etc) to exist without requiring copying cease to exist.
There are good reasons for this after-market to exist. It provides strong practical limits on the ability of copyright holders to rort the market (charge too much for a book? fine a library will buy a copy, and everyone’ll borrow it to read it), and increases the value of the goods (if a book is worth $10 to someone, and costs $20, it’s more likely to be bought if that someone can then sell it second hand for $12), leading to more efficient use of resources (only one book is produced, which sells for $20 and satisfies the market, rather than producing two books that sell for $10 and can’t be resold, eg).
The lack of an effective after-market in software allows the maintenance of artificially inflated prices; eg, Microsoft Windows Me currently costs $203.50, in spite of it being three years old, and in spite of most original purchasers no longer using it in place of more recent releases. For comparison, the more advance Windows XP Home and Professional Editions cost $159.50 or $248.60 respectively. Similarly, Windows 98 is almost entirely unavailable.
In essence it seems beneficial to modify copyright law to ensure the existance of a functional after-market in digital works.
How can this be done, exactly? The key point of copyright is the exclusive right to create new, saleable copies. Once you have a saleable copy, you should be able to do essentially whatever you want with it remains in your possession, and you should be able to sell it, give it away, or loan it out.
Why should people be able to do whatever they want with a product they have? The question amounts to whether the benefit to authors of being able to sell multiple copies of their work to the same person in different formats (and thus get more money from people who value the work enough to want it in multiple formats) is worth the cost of restricting purchasers from being able to enjoy the work in formats that aren’t available from the publisher. In general, it seems like the latter costs are more severe than the former benefits: the end result is forbidding people from making compilation tapes or CDs of their favourite songs for car trips, or setting up mp3 jukeboxes to provide entertainment at parties without having to worry about regularly changing CDs. Historically, the copyright holders tend to lag significantly behind creative fans in making use of new technologies, and in general it’s likely to be far more efficient to allow people to manipulate copies they already own than to authorise and distribute new copies in the desired forms from the copyright owners all the way to the consumer.
Given this, how do we define exactly what it is we want to protect with copyright law? How do we define what sort of copies are okay; or more particularly what can you do with copies you make before you violate copyright law?
I think the answer is that you should be able to make as many copies of a work you own as you like; as long as you don’t try to treat those copies or the original work independently. That is, if you sell any of the copies or the original work; everything goes with it. Ditto if you give it away, or loan it out. The copies might grant you a number of benefits, but the key benefit they should not give you is the ability to give away the work, while keeping it.
Another aspect of this is allowing people to share derived works. Clearly, giving away an mp3 of a song to someone who doesn’t have it on CD affects the owners market for the CD. However if you’re allowed to rip songs you do own on CD to mp3; there’s no great effect on owners markets if you restrict the people to whom you give copies of your mp3 to those who’d already bought the original CD. This is essentially what mp3.com did, and which was shot down by a US court.
It difficult to come up with some wording that allows this behaviour in a generic fashion; concepts as vague as “fair use” evidently don’t work, and being precise is difficult without being overly confusing. A definition that allows pretty much everything but the above is comparatively simple: you allow the creation (and destruction) of “auxiliary copies” by owners of copies to any degree they might wish, but require them and the original copy to be treated as a single unit when dealing with transfers of the work; that is it’s either all of it, or nothing when selling, loaning or giving it away.
Generalising this principle from individuals is complicated by the fact that we don’t with corporations and associations to be able to provide their employees or members with the benefits of multiple copies of the work without having to pay for them. Microsoft have a business model that relies on selling one copy of their programs for each worker in a business, as do a majority of software providers, and upsetting that model would likely have catastrophic consequences on the structure of the software industry. For groups, then, a straightforward limitation on the above principle is required: an arbitrary number of auxiliary copies can be made, as long as any ability to access those copies simultaneously is avoided.
The final issue that is probably appropriate to address by a concept of “auxiliary copies” is that of copies for more efficient distribution; such as those made on web proxies. An exemption allowing (re)distributors of copyrighted works to make as many additional copies of the work they’re distributing, provided those copies are not accessed except as part of the technical process of distributing legal copies of the work, would seem fairly effective.
Thu, 18 Sep 2003
Eugene Volokh and Lawrence Solum Debate IP
Volokh proposes an interesting hypothetical to gain a better understanding of property rights over ideas, Solum replies and the debate continues.
dbs on what to do with orphaned code. Excerpt:
When a company is deregistered in Australia, its property at deregistration vests in ASIC: Corporations Act 2001 (Cth) s 601AD. ASIC may deal with the property as it sees fit: Corporations Act s 601AE.
I think it would be a neat idea if computer software that ASIC owns as a result of the winding-up provisions of the Corporations Act would become publicly, freely available.
Wed, 17 Sep 2003
Digital Agenda Review -- Online Forum Summary
Okay, so here’s a better summary of the forum which I’ve posted to the linux-aus mailing list. And we’re off…
Archives are at http://your.phillipsfox.com.au/digitalreview/
The format was:
There were a bunch of people from Phillips Fox and the Attorney General’s department observing; there weren’t a great number of folks in attendance.
A quote from the 2pm forum to get us started:
One thing’s not quite clear to me: are we focussed on describing problems (working out what they are, and showing that they are problems) or finding solutions to them, or both in this review? I’m finding it a little difficult to focus my responses.
We are interested in both problems (or issues) and potential solutions to those problems.
Many of the issues have been identified, and discussed. However, very few solutions have been canvassed.
– comments from Matthew Hall, partner at Phillips Fox conducting the review, in response to a question from me
In more detail:
The libraries topic didn’t get much response at all. (It doesn’t cover online stuff, just real libraries, and no one who was on at the time seemed particularly interested; Matthew Hall speculated that they’d probably already said what they wanted at the previous public fora) From that session:
It is difficult for us to know who has an interest … the forum has been publicised by us and the Department. By all means, if you know anyone that might be interested, please invite them to participate.
The big issue in our feedback so far, from publishers and authors, is that a library is allowed to create a digital copy from a hardcopy. That copy will not have any rights management information attached. Do you have any comments on this?
– comments from Matthew Hall
ISP liability (or ISP indemnities) was a bit more active. This is about working out what ISP’s have to do to ensure they aren’t liable for copyright violations that are due to the actions of their usables; and what assistance they’re expected to offer to people persuing copyright violations. The discussion seemed to be mostly in favour of producing a code of conduct for ISPs, and getting some ideas on how that shoul dbe administered.
… an indemnity may need to go further than just ISPs. If an owner is prepared to give an indemnity in respect of any damage that flows from complying with their take down request, then that may alleviate many concerns. It would be equivalent tot he undertaking they would have to give if they sought an injunction. It may also mean greater care would be taken before issuing a demand. An issue is whether this indemnity should be provided by the legislation or covered in a Code of Conduct? Thoughts?
– Matthew Hall
… I think it is also important to distinguish between an ISP’s role as ‘carrier’ of data, versus their role as a ‘host’ for data. In the former case, I think ISP’s should not be held liable for the actions of their users (IMHO); in the latter case I think ISP’s probably do have a responsibility to act when material is being hosted by them in violation of copyright.
– Raymond Smith
Page 14 of the issues paper suggests the ISPs will be caught in the middle with both take-down and put-up notices possible. The copyright holder wants the material gone and the customer wants the material there. Are ISPs in a position to recover costs?Excellent point. To consider this further, we would appreciate data on the additional costs that are likely to be incurred by this process. This can be done in a written submission.
– Matthew Hall in response to Mark Suter
Rights and technology issues is the most interesting issue in my book: it covers the more fundamental question (IMO) of which copies should “count” as far as copyright violations. There’s already an exemption for copies that aren’t “in material form” and temporary copies made as part of the technical process of accessing a work, this covers whether those exemptions and others work, and whether they’re enough. Of interest is that there’s apparently been no responses at all wrt the reverse engineering clauses (being allowed to fix Y2k bugs without the copyright owners assitance, decompilation, etc).
The review includes issues in respect of the computer software amendments made in 1999. The issues raised include the exceptions to infringement allowing reprroduction of code in certain circumstances and the incidence, treatment or effect of orphaned or abandoned code.
No comments were made about these issues at the face to face fora. Does this mean that the amendments are working effectively? Does anyone have any views?
(I think this is referring to the reverse-engineering stuff – fixing bugs for Y2k and that sort of thing)
I think the amendments are working effectively; I’m not aware of any litigation about it, and I believe most of the people interested in this area feel fairly confident in that what they’re doing is legal.
– me in response to Matthew Hall
With regards to ISPs caching files for faster access, it definitely creates greater efficiencies. End users are able to download files faster and reducing costs for the ISPs due less repeated accesses. This should not adversely affect owner’s interests if it is done transparently to the user and only stored temporarily. However, I can see that problems may arise if works are permanently saved in a locally accessible point, outside the context of the owner’s site. For example, if an entire site is downloaded so that users no longer need to access the original location.
any information that you have (or that others may have) about actual savings or other efficiencies (in a written submission) would be helpful.
– Matthew Hall in response to taufiqkh
For example, if I purchase a CD, encode the tracks as sound files (og vorbis, mp3, etc) on my computer and then listen to the music on my computer, how do we make this legal?
Why do you say that this activity should be legal? How does this activity not affect an owner’s interests? Why should the balance of competing interests favour this format shifting?
– Matthew Hall in response to Mark Suter
Some of the discussion regarding what should and should not be legal would potentially be caught by a more generalised fair use exception, based on the US approach which is not limited in application to specific purposes. It’s fair use that has allowed time-shifting copies in the US (the old Universal v Sony “betamax” case). If we had a broad fair use doctrine in Aust, it would be flexible enough that the courts could apply the provision to excuse “copies” made in many socially/economically desirable situations. But for now, the reality is that when we record a TV program to watch later, or copy a CD to tape for listening to in the car, we breach copyright. Silly really.
– Jamie Wodetzki
Do you have any further comment on what are, or should be, “socially/economically desirable situations” and any data to support any suggestion that a situation is economically desirable?
– Matthew Hall in response to Jamie Wodetzki’s remarks above The TPM session was, unsurprisingly, a bit more confrontational.
As a consumer, what has me caused great alarm in the marketplace is the introduction of Copy Control software on Retail CDs.
In my experience of using this software, where it irrevocably installs onto PCs which you play the CDs from, causing the PC to crash, when some other retail CDs are played. This is a particularly annoying issue, and I hear that this technology has not been introduced to the US market, in fear of legal repercussions from affected users.
– Kieren Reynolds (via Matthew Hall)
Do you support the inclusion of fair dealing as a permitted purpose for the supply of a circumvention device?
In addition to any comment about the extension of permitted purposes, is there any comment about any concern of owners seeking to prohibit by contract the use of circumvention devices to make a fair dealing of a work?
This goes more to the issue of the definition of a tech protection measure. Do you have any suggestions as to how that definition can be modified or clarified to take into account your concerns?
Do you have any examples to demonstrate that copy protection is failing in controlling piracy in Australia?
– Matthew Hall (in various posts)
I just wanted to say that the anti-circumvention laws are essentially very new and still yet to be fully understood. One thing is certain: there is no case for extending these provisions further without the evidence to support the need for such action. And as your issues paper rightly points out, the evidence is very thin on the ground.
– Jamie Wodetzki
And if removing the region lock on your dvd player is illegal, does this mean it’s illegal to view websites that tell you how to remove it? Is reading about circumventing copy protection (not that I consider dvd region codes to be legitimate copy protection) as illegal as actually circumventing the copy protection?
Supplying or manufacturing a circumvention device for that purpose is illegal, but the use of the deivce by an individual is not
– Matthew Hall in response to Sandra Milne
There were a few other issues raised in the general forums. I dislike quoting myself, so I’ve tried to avoid it, but I’m sure I said something worthwhile. As they say, read the whole thing. > I’m afraid I simply could not make it, but it’d be very interesting to > find out how it went, what was discussed etc?
We look forward to receiving your written submissions.
– Matthew Hall
(Oh, and yes, this does mean we’re back to cover-to-cover digital agenda coverage)
Thu, 11 Sep 2003
Integration, derivation
L’Hopital’s rule, FIGHT!
E to the x, e to the x,
E to the x, d-y-d-x,
Cosine, secant, tangent, sine,
Three-point-one-four-one-five-nine,
Label the axes y and x,
Hell with football – we want sex!
Wed, 10 Sep 2003
Decompilation, Reverse Engineering, Supporting Orphaned Code
Issue 19
19.1: Do the decompilation amendments achieve the intended balance between owners and users of software?
One of the considerations of the review is the changes to the copyright act made back when Y2k was looming. These changes concerned allowing users to demcompile programs they own for compatibility reasons, and to fix bugs in them if the copyright owners weren’t doing that. This was considered fairly important when the Y2k-bug was going to destroy civilisation, but has gone back to being something of a niche field now.
Interestingly, it seems to be so niche that the review team apparently hasn’t received any information about the results of the clause at all. Hopefully the various interested parties will be defending their turf.
The issues paper makes a couple of points about this, including:
6.3.5 There is a concern that [the qualifications on the exemptions for decompilation for compatibility and debugging abandoned and orphaned software], in effect, provides exclusive rights to all commercial and non-commercial clones, derivatives, extensions and patches in relation to the original software.
6.3.7 Also, users’ interests have suggested that it is not clear under these provisions the extent to which educators, researchers and technical journalists can decompile an application, examine the source code and publish or otherwise communicate the findings of their research and include illustrative small extracts of the code without infringing copyright.
This area is certainly interesting, because, hey, decompilation is just plain fun. And Australia happens to be one of the safest places to do it, too. On the other hand, it’s not very common or useful in some senses, because it’s just plain so hard to do; analysing code that’s meant to be read by humans is hard enough, analysing code that’s written for machines, or deliberately obfuscated is beyond even most professionals. The Samba team, who do some of the best and most useful reverse-engineering for compatibility purposes on the planet, specifically avoid doing decompilation both to avoid legal risks and to ensure they’re not distracted by any poor coding in the product they’re trying to be compatible with.
Given both the absence of harm to copyright owners, and the limited utility of the clauses, maybe this is something to consider extending, instead of just defending?
19.2: Are any further amendments required to include other exceptions or to clarify the existing exceptions to the definition of “infringement” (as referred to in this section) to better preserve the balance between owners and users of software, including the extent to which, if any, there are issues with use of or access to orphaned or abandoned code?
An interesting further amendment in this area is mentioned immediately beforehand:
6.3.8 […] Nor has any data been made available to the review that present solutions to any problems that are identified […], for example, the creation of a “code repository” where source code which is either live (and therefore possibly under escrow), abandoned or orphaned code could be stored and the administration and the licensing of source code from such a repository.
This is very similar to one of Lawrence Lessig’s pet ideas – that copyright owners should be required to submit their source code to the government, so that when the program enters the public domain they can make modifications without having to do decompilation. Lessig links it to copyright terms in two ways – one, that copyright terms should be shorter for them to have any relevance to software, which rarely continues to be useful for the entire length of its current term; and the other that software should simply not attract any copyright without source code escrow.
It would certainly be useful for dealing with abandoned or orphaned code; bug fixing with the source code is hard, but much easier than without. Managing such an archive might be tricky – authors would certainly be very leery about giving out their source code. On the other hand it might make an effective counter to one open source argument: hey, if we go away (which we won’t!) you can get the source code from the government anyway! A government policy of not using software that’s not escrowed in such a manner could go some way towards providing an incentive, without being unreasonably protectionist.
One way of handling such things might be to have a policy that after ten years, copyright will only be enforced if the copyright owner can be contacted, and is willing to continue providing the product (for a reasonable price presumably?). Having a centralised copyright database would make this easier – both for users, as they have a simple place to look for the author, and for authors, because they only have to inform one person that yes, they’re still here and still want their copyright. There may be problems with this sort of rule and the Berne Convention, however, which requires copyright to be automatic, and last for fifty years after the author’s death.
The issues paper also points out that when fixing bugs in programs abandoned by their owners, customers can’t share their fixes, and asks:
19.3: Is any clarification required in relation to the application of the existing amendments to the following particular circumstances:
- the publication of research undertaken under the exceptions; and
- the distribution of programs and error corrections created under the exceptions.
If the issues paper is correct that customers can’t collaborate on fixes for abandoned software they both happen to use (which I wouldn’t have guessed from the act itself, but they don’t seem under any doubt, and unlike me, they’re lawyers…) then that’s probably not good.
One of the difficulties in making submissions for this review is they expect arguments to be supported not by opinions or petitions but rather by solid economic arguments and data. Curse them!
Tue, 09 Sep 2003
Well, not a very complete one but hey. The online forums are basically over now, and were quite interesting. There was a bit of give and take with the review team, which was good and more than I expected, and will hopefully be quite useful. It wasn’t very well attended, which works out great for those of us that were there. :)
One interesting claim is from Jamie Wodetzki, and goes along the lines of:
Some of the discussion regarding what should and should not be legal would potentially be caught by a more generalised fair use exception, based on the US approach which is not limited in application to specific purposes. It’s fair use that has allowed time-shifting copies in the US (the old Universal v Sony “betamax” case). If we had a broad fair use doctrine in Aust, it would be flexible enough that the courts could apply the provision to excuse “copies” made in many socially/economically desirable situations. But for now, the reality is that when we record a TV program to watch later, or copy a CD to tape for listening to in the car, we breach copyright. Silly really.
Jamie appears to be a representative of SISA, which apparently stands for Supporters of Interoperable Systems In Australia, and appears to have made submissions in that capacity to past enquiries.
It would be interesting to know how accurate this is. Can people be sued in Australia for taping a show at 6pm, then watching it at 7pm? Is there any case law at all? Any good reasoning on why such a thing shouldn’t happen under existing law? This comes up because the current review aims to consider things like PVRs, which are like videos but more annoying to broadcasters since they make it much easier to skip ads (and much better for users, for many reasons, including the ease with which you can skip ads). More annoying means more likely to be sued. It may be that the poor law in this area is why we don’t have PVRs readily available in Australia.
The Australian Copyright Council, a somewhat disingenuously named private organisation that acts for copyright holders interests, has an infosheet that mentioned private taping of TV programs.
No special exception allowing copying for private use
There is no exception which allows you to tape from TV for private use -- for example, to watch a program at a more convenient time, or to watch a program again, or to give the tape to your friends to watch.
Hat tip: Indulis Bernsteins via google.
The fact that private copying is probably illegal does not, of course, discourage owners' interest groups from pleading for reimbursement for it. There are two important questions here: is such reimbursement necessary for an effective marketplace? For example, does widespread ownership of VCRs discourage authors from putting stuff up on free to air TV? Second, is there any legitimate moral basis for copyright owners to object to time-shifting of free-to-air programmes?
Temporary Copies and Technical Processes
I’m going to have a go at blogging some of the various issues the review team raise.
Issue 17
Having regard to the decisions in Warner and Sony (at first instance and on appeal), does the exemption for temporary copying in the course of a communication provide sufficient certainty?
One of the changes to the copyright act by the Digital Agenda amendments involved allowing people to make temporary copies of works as a part of the technical process of making or receiving a communication – so when you copy a webpage into memory, and then again onto your screen in order to view it, you’re not committing a copyright violation.
This is a just and necessary measure – digital content cannot be viewed without making copies pretty much by definition, and there are some instances of this being investigated in court included in the issues paper.
The principle here, I think, is the desire to separate the traditional ideas of copyright from the technical process of copying; in particular, we want to maintain a market for authors to sell works to people and companies, but not limit the means consumers then use to access those works for their own private pleasure. Some of the questions this raises are issues like time shifting broadcast television programmes by recording them to videotape then watching them later, archiving broadcast programmes and watching them again and again (by using a PVR like Tivo, or by keeping an ever growing video tape library), maintaining web proxies that make accessing popular websites more efficient for a group of users, and maintaining web archives (such as web.archive.org or the google cache) to allow users to access copyrighted works that the author is not making available (eg, because they’ve updated/removed it, or because their website isn’t working).
I believe the principle at work here is that if a work can legitimately be viewed or heard or otherwise used or enjoyed by someone, then any number of copies made in order to expedite or enhance that use should be permitted. For example, if someone is permitted to watch a programme once at 8pm, then they should be allowed to choose to watch it instead at 10pm. Similarly, if someone is allowed to use a programme on one computer, they should be able to use it on a different computer instead.
The blowback here comes in two ways. One is clearly expressing this principle, without including any loopholes that permit widespread copying and distribution and destroy the market for the work. The other is whether it might be appropriate to extend the author’s exclusive rights to include making enhanced forms of the work.
Consider talking books, eg, which are widely available, although aren’t a huge market. At present, if you want to listen to a favourite book on a long car journey you buy a second copy, this time on tape or CD. The author gets a little more money, you get the added convenience of not having to bring someone along to read the book to you. But computers can do passable renditions of language these days, and they’re only going to get better. If you have a laptop with the appropriate software and an ebook, should you be able to have your ebook read to you, or should you have to buy a separate copy of the book in order the hear it? Other examples include whether you should be able to make a copy of a song you have on CD in mp3 (or ogg) format and listen to that on the computer.
One of the difficulties I’m having in responding to the issues in the review is working up the appropriate sense of moral indignation required to present my views (or work out exactly what they are, for that matter). It’s much easier to say “No, this is wrong, this is why, and this is a better direction”, than to say “Yes, you’re on the right track, here are the next few steps and this is the destination.” But the review does seem to be on the right track, and what I’ve said above is pretty much the heart of their next issue.
Issue 18
18.1: The Review seeks your views […] about whether any proposal to allow the copying or storing of works or audio-visual files at a point closer to the point of access is or is likely to:
- create greater efficiencies or a more efficient allocation of available resources;
- significantly adversely impact on owners’ legitimate interests or markets;
- significantly reduce or remove the inventive to create works or other subject matter that is protected;
- lead to creating or reducing opportunities for rent seeking or otherwise create or offset additional social costs;
- promote widespread use of the material and increase markets.
18.2: If in your view such a proposal should be implemented, what controls on the activity might be necessary or appropriate to ensure that the appropriate balance of interests and rights is maintained, and that any copying is not open to abuse?
Creating false markets – like a market for books on CD that would not exist if existing ebooks were allowed to simply be plugged into existing laptops and existing text to speech programmes – is rent seeking. And it’s probably bad in this case, since it doesn’t provide any social benefits since the author needed to be rewarded for the initial purchase of the ebook in the first place. This is similar to the way we don’t encourage authors and publishers to limit people rereading books they’ve bought, or to limit borrowing of books or sale of books second-hand: encouraging creativity by giving authors control over the distribution of their works is good, and seems to be necessary, but we don’t want to give away more control than we have to.
That’s not to say that the market for books on tape is false at present. It certainly isn’t: the quality of text-to-speech programmes is not particularly high, and isn’t something you’d want to listen to for eight hours in a car. Similarly, while you can print out an ebook, its nowhere near as pleasant to handle – or often read – as a properly bound paperback or hardcover. The question is not whether these markets should exist, but whether the control authors have over them should be maintained or increased.
Another example of this that bears thought is the question of web proxies. When a user browses an author’s website, the user’s ISP will often cache the viewed pages in order to keep the amount of traffic over expensive links (like the undersea cables between Australia and the United States) to a minimum – the theory being that if the user requests the same page again, or another user at the same ISP requests the same page, the ISP will save money, and additional access to the website will be faster. The ISP and user benefit from this – by saving money, time and bandwidth – should the author have any say? Should the author be able to demand a small fee from the ISP? Should the author be able to demand that users access the site directly so they can, eg, track the number of people who access their site.
At present this is solved by technical standards and courtesy: authors who don’t want their pages to be cached by proxies can indicate that with an HTTP header, that ISPs will generally accept; and most authors don’t make use of that feature. (Actually, one reason for them not to make use of it is that caching of their pages will reduce access to their site, leading to a reduction in their monthly bandwidth bills – so in a majority of cases, everyone’s interest converge here, at present)
Note that this is presumptively a copyright violation – copies are certainly made, in general without any explicit permission from the author, and none of the exceptions appear to apply. Proxies work on the assumption that they can keep a copy of anything they can get from the web, and make more copies and distribute them to others however they see fit, unless explicitly told otherwise, which is quite contrary to the ordinary expectations of copyright law, at a technical level anyway.
I believe the correct solution here is to ignore the author’s interests in controlling the means by which their work is accessed, in all cases; and for the law to operate at the effective level, rather than the technical one.
A more interesting question is that of archiving broadcast content – recording songs off the radio and adding them to your CD collection, or shows off TV and watching them again and again instead of buying them on DVD. Whether there is a line between this and time-shifting, and if so where it is, is a hard choice, since making broadcast media less ephemeral is likely to have a much greater effect on the market than letting people convert their CDs to mp3s. It’s not a question I’m going to try talking about now.
I suppose I should note that I didn't actually cover Issue 17; I just used it as a jumping off point. Getting back to it: the question at the heart of Issue 17 is whether the act provides sufficient protection -- in strength and clarity -- to enable particular technical measures. I think that question is tightly wrapped up in the answer above: while it certainly appears to be quite effective, it's liable to cause problems of interpretation since it focusses on the technical means to achieve desirable ends rather than the ends themselves (and I think the decisions we're meant to be regarding have some indications of this failing, although I don't really know what I'm talking about here), and more importantly, that it's not quite strong enough to cover the entire class of desirable ends that it should be addressing.
Mon, 08 Sep 2003
So it seems the reason nothing appeared when I tried to find out information on the online forum was due to a bug in the HTML – something was lowercase in one place, and uppercase in the other. Tsk. You can click here to get to the PHP based online forums. Registration is required, it’s PHP based, it’s apparently going ahead, but there doesn’t seem to be an agenda yet (digital or otherwise - ha! I crack myself up).
Woot! The agenda is:
- 10am - Libraries, archives and educational copying
- 11am - Carriers and carriage service providers
- 2pm - Technology and rights
- 3pm - Technological protection measures, circumvention devices and services and rights management information
- 4pm - Revisit previous topics if necessary
Each item goes for up to an hour. (Kudos to Matthew Hall for an incredibly prompt reply)
Fri, 05 Sep 2003
Yup it’s all digital agenda all the time here.
So first, I’m blind. There are issues papers out, in Word and PDF format. Topics are: Rights and Technology Issues, Circumvention devices and services, technological protection measures and rights management information, Liability of carriers and carriage service providers, and Libraries, archives and educational copying.
These were put out in July apparently (although the media release – available in MS Word format – seems to be dated 1st August). They say submissions must be made by 30 September 2003. There aren’t any submissions up on the web site yet.
“The public consultation process is an extremely important part of the review process, designed to ensure that there is an open discussion of all of the issues for owners, creators and users of digital copyright material. We are also very interested in any economic data that supports any arguments that any person wants to make. In this way, we can ensure that the review and its recommendations are based on solid, empirical evidence, rather than anecdotal experiences.”
(Hey, pretty convenient that I’ve been geeking out on economics stuff, hey! If only I knew what I were talking about)
A PDF summary of the issues release is available too.
One of the big things that recent years have demonstrated is that one of the big problems with the direction of copyright is the imbalance between company rights and users’ rights. Shrink-wrap and click-wrap licenses, court decisions, and legislation have all been favouring vendors and authors, while consumers are becoming more annoyed and less attentive to their side of the copyright bargain, from napster and bittorrent to not bothering to even read licenses.
Cem Kaner has some interesting thoughts on a consumer bill of rights to address some of these issues, from a US perspective anyway. (Hat tip: mbp)
Digital Alliance Stuff About the Review
The Australian Digital Alliance is a group that seems to have a similar set of beliefs to mine, at least. They have a survey about the review that’s worth a look. It’s in RTF which is mildly annoying.
Gah. Well, apparently the review of the Digital Agenda amendments to the Australian Copyright act has already started. Yay for all the publicity. Even better:
Public fora are to be held in Melbourne on Thursday 14 August and in Sydney on Thursday 4 September. If you are interested in attending either of these public fora please email our consultant, Phillips Fox, at digital.review@phillipsfox.com indicating which forum you wish to attend. Phillips Fox will note your interest and provide time and venue details closer to the date.
Today’s the 5th of September. Great timing aj! On the upside:
Those persons unable to attend either of the Melbourne of Sydney fora can partipate in an online forum to be held on 9 September. For information about the online forum please refer to Phillips Fox’s webpage or contact Phillips Fox by email at the email address above.
Sounds like it’s being handled really well too. From the Phillips Fox page:
Issues papers for discussion at the public fora will be available shortly.
There will also be an online forum for interested parties who cannot attend the above public fora. This will be held on Tuesday, 9 September 2003. A separate registration form will be required for the online forum. Details will follow shortly.
Thu, 04 Sep 2003
Martin writes, among other things:
What it ought to confirm is that before dealing with large amounts of money or running for government you damn well should understand the detail, or consult someone who does.
Arguments about whether One Nation is unaccountable to its members or has wacky policies are beside the point.
Obviously, I don’t think this is the case. If it weren’t for the wacky membership policies and unaccountability, there wouldn’t be a problem here: the 1000 Queenslanders in the One Nation Support Group would have been members, and no fraud would have been committed.
Unfortunately the sentencing statement doesn’t go into any details on this, but the previous case that prompted the current one did. The following is from the appeal a couple of years ago to the Supreme Court of Queensland, Sharples v O’Shea and Hanson. It’s about Terry Sharples who campaigned for election under the One Nation banner. He failed to get elected, but achieved over 4% of the vote, and as such was entitled to recover $1 in expenses for each vote he received, or rather, since he was endorsed as a candidate for a party, it was entitled to that money. He had thought he had had an agreement with the party to have 75% of his expenses reimbursed, and having not recieved it after a falling out with the party leadership before the election tried to recover his costs.
[5] […] Mr Sharples believed he had joined Pauline Hanson’s One Nation. He had paid a $40 membership fee, and $250 candidate party nomination fees. He had received a membership card dated 4 June 1998 showing him as a member of the Gold Coast branch of Pauline Hanson’s One Nation.
[6] Yet those who controlled the party disputed Mr Sharples’ claim. On 17 February 1999 he received written notice of a forthcoming annual general meeting of the party, to be held in Sydney on 28 February 1999. He attended the meeting and showed his membership card, but was refused admittance. Mr Ettridge then told him, as Her Honour found, that it was “just a piece of paper with (his) name on it”, and that he had never been “a member of the party Pauline Hanson’s One Nation”.
I can’t help but note as an aside here, that the court’s rulings had those quotations punctuated exactly as above: with the commas and periods outside the quotes. W00t. Today quotations, tomorrow spaces after full stops!
Anyway, had the above and similar idiocy not occurred, there would likely have been no actionable problems with the party’s registration; although there may have been a good case for Mr Sharples to sue One Nation for breach of contract to recover his costs that way. That’s not to say there would have been no problems – the judge also mentions that the initial constitution submitted to the electoral commission was that of the federal One Nation party, and had to be changed after the fact. No doubt there was more bungling involved too, further confusing matters, and getting the party leadership more addicted to opportunistically reinterpreting ambiguities in their favour.
And none of that’s any good, it’s dishonest, double dealing, and, in spite of what I wrote earlier, letting people pay membership fees, then telling them they’re not members and have no right to enter a meeting is defrauding your supporters and members. And that deserves restitution and punishment.
It’s not fair to claim that Hanson simply misunderstood what was required – had that been the case, she could and should have fixed the problems when they were brought to her attention. But it’s also not fair to claim that this raises major doubts about the political process: One Nation was a legitimate political party, legitimately registered as such under the Federal rules. Hanson and Etteridge’s crimes were not that they received money, nor that they wanted to have autocratic control over their party: it was that they either defrauded their members when they tried to join, or (more accurately, IMO) opportunistically repudiated their memberships when it became convenient, and they violated a rule in the electoral act put in place to ensure registered political parties have a reasonable amount of support. Since One Nation did have a reasonable amount of support at the time – as evidenced by the election of eleven of its candidates – it’s hard for me, at least, to consider that a violation in principle rather than a technical violation.
For contast, a deliberately fraudulent attempt to manipulate the party registrations might include registering the “Liberal Party” and running candidates under that name, hoping to distract voters who are aiming for the “Liberal Party of Australia”. That, certainly, would confound my faith in the electoral process. Having people who agreed with One Nation’s policies running under the banner of One Nation, though, certainly doesn’t; although the converse – ie, not allowing them to run as a party – might.
Martin also says:
One Nation’s fraud brought them non-monetary benefits which they can’t repay. We can’t go back now and re-run the election with One Nation not registered.
Basically, I find such claims patently ridiculous. The votes One Nation candidates received due to One Nation’s policies are theirs by rights – claiming them a benefit doled out by a government bureacracy is nonsense. Had One Nation candidates received less votes because the electoral forms did not list their party affiliation, that would have been a wrong done to both the candidates and to potential One Nation voters.
Anyway, all that’s as may be. The focus of my previous remarks haven’t been whether Ms Hanson did anything wrong, but rather at the length of the sentence. Martin quotes me and replies:
Maybe it’s just me, but I don’t see a lot of point getting worked up when a thief pays back everything they stole. If you’re going to slap someone on the wrists, do it to the people who can and do remedy the harm they cause.
I think it’s just you.
Giving back ill-gotten gains when somebody is caught or about to be caught does not undo the crime. There are at least three reasons: Hanson had the benefit of the money in the interim, the fraud was wrong in itself regardless of whether it was profitable, and there must be a disincentive to people “trying it on”. It’s right and normal for criminals to do more than just repay the money. In passing sentence Wolfe CJ did consider their attempt to repay, among other mitigating circumstances, which is also entirely reasonable.
And certainly it is right and normal for people to do more than pay back what they stole. But we have a whole range of such punishments, from adding on interest and costs, through community service and weekend detention before we get to putting people in jail for three to five years. Perhaps “a slap on the wrist” is too weak, but compared to three years’ jail, more senible terms (like six months in jail, or a few years’ community service) certainly seem like nothing more than that.
(Blog war! Blog war!)
Tue, 02 Sep 2003
Articles on the Hanson verdict tend to fall into two camps: one says she was a bit silly, but didn’t do anything particularly bad, and three years is ridiculous; the other says she was found guilty of defrauding the state of $500,000 – what sentence would you hand out? It’s a bit difficult to work out from the reports which of these is a more accurate view; either’s quite plausible in the absence of any facts.
Mediawatch demonstrates its usual lack of faith in the public by blaming the outrage not on the result itself, but rather on the public’s ignorance. On the upside, it also has a link to the Judge’s Sentence. That includes the following comments:
I accept that Ms Hanson immediately threw her weight into and stood behind every effot to raise money from her supporters to pay back the electoral funding and that that has been done. […] The money has been paid back from those people so the tax payers are not out of pocket in that respect.
[…]
The advantage you received for yourselves has not been suggested by the learnered Crown Prosecutor to be an advantage which benefited you personally, financially. The benefit was that you continued to control the allocation, both of you, of the electoral funding and how the Party was run […].
Maybe it’s just me, but I don’t see a lot of point getting worked up when a thief pays back everything they stole. If you’re going to slap someone on the wrists, do it to the people who can and do remedy the harm they cause.
The jury, in their verdicts, has found that both of you knew that it was a list of members of the support movement, a body incorporated under the Associations Act, the Pauline Hanson Support Movement, which changed its name ultimately to Pauline Hanson’s One Nation Members Inc. […] Whether or not those electors believed they were members of the party, the jury has found that you knew they were not and accordingly the party, through its registration became entitled to the benefits to which I have referred.
It appears, then, that the only entity that was defrauded here was the government. The supporters/members of the party knew or should have known what they were getting into, and the public presumably knew what they were doing when they were voting for (or against) One Nation. Which means One Nation was at least a real, reasonably popular, political party. That’s not enough to get funding from the government, but it’s probably the most important part. All of which leaves me in the “what was the big deal?” camp.
Certainly, you can criticise One Nation for having an unaccountable executive. You can criticise Debian for the same thing, if you like: one of the key groups enshrined in the Debian constitution is the Technical Committee, which has a number of reserve powers such as the ability to override anyone’s decision, or act in place of the Project Leader; it’s also impossible to appoint or remove anyone from the Technical Committee without the ctte’s assent. Ensuring groups stay true to their founding principles is a difficult problem – but their are wrong ways of solving it, and removing accountability is probably one of them.
The personality cult and the policies of One Nation do have overtones of Nazi-ism, but personally, I’m happier that One Nation was defeated at the ballot box, rather than in the courts. And once they are, let’s make them clean up whatever mistakes they’ve made, and get them back where they belong: serving us fish and chips, not looking for a come back tour.
Mon, 01 Sep 2003
Laborite Ben thinks IT workers would benefit from collective bargaining, and thus should be forced to partake in it for their own good:
I wonder if things will get nearly as bad for IT people and if (or when) it happens, whether IT specialists will consider taking membership of a professional societies more seriously.
The biggest hurdle to this, I think, even if salaries, conditions and hiring practices get really bad, is an ideological one. If Slashdot is any indicator, your average IT worker would have to be screwed pretty hard before considering joining a union. Collective bargaining only really works if the majority of workers are being represented by the entity doing the bargaining. I could just imagine the econo-fundies screaming blue murder at the mere suggestion that the Government make membership of the ACS (ACM, etc) mandatory for IT grads.
The obvious problem with this is that clearly not everyone does benefit from collective bargaining – if they did, you wouldn’t need to use fines and jails to force it upon people, you could simply persuade them to be a part of it. The people that don’t benefit are the ones who aren’t highly skilled enough to be worth high salaries, but are desperate enough for a job that they’ll take whatever salary they can get. While the market itself is a positive sum game – informed voluntary trade requires both parties to benefit for it to happen at all, by definition – applying force to it, and restricting people’s options is at best a zero-sum game.
This is just considering potential employees, too. Potential employers are impacted by compulsory unions too: they’re prevented from hiring cheaper, but equally effective workers increasing their costs, and they’re prevented from responding to the market, ie to consumer preferences with regard to their products, by restructuring their workforce. And as the guys paying the employers who pay the employees who pay the unions, the end consumers have to put up with higher prices and less responsive industries too.
Which isn’t to say unionism is all bad. Unions can have a better sense of what reasonable rates are across an industry than an individual does, and make sure that individual can make an informed choice on whether he should take a pay cut, or offer his services to another company. Providing educational opportunities, and recommendations on what skills the market is likely to want in the future is a valuable service unions can offer too. But none of that is incompatible with a free labour market, and none of it requires the use of force by the government and police, or the mob violence of strikes and picket lines to back it up.
Personally, I joined the ACM while I was in uni, and the access to the digital library and some of the publications were quite interesting. I haven’t renewed for a while, though, because lately I don’t have much use for that level of academic discourse. I’m sure if that changes, they’ll start receiving membership fees from me again.
(The key economic principle for mutually beneficial trade is comparative advantage. It’s somewhat difficult to find good introductions to the concept on the web, disappointingly. As comparative advantage changes, what should be done locally, and what should be done overseas changes too.)