Litmus Tests for Technological Protection Measures Legislation

This page provides details on three tests which anchor the debate on legislation which restricts distribution of software or devices which interact with "effective technological measures" (also called "Technological Protection Measures").

Background on Effective Technological Measures Legislation

In 1998, among agreement from most commercial stakeholders, the United States passed the Digital Millenium Copyright Act, or DMCA, which banned devices or software which circumvented an "access control" on a copyrighted work: "picking the digital locks" placed on content by the copyright holder. The context of this decision was the fear that the Internet would lead to massive piracy, and destroy the music and film industries. In addition, the WIPO Copyright Treaty came into existence in 1996, which requires them to also grant legal protection to these "digital locks", and the United States has been aggressively persuing bilateral Free Trade Agreements which contain (stronger) DMCA-like requirements.

In 2004, massive piracy (in the sense of commercial copying) has not come to pass but massive illegal sharing (non-commercial copying) has definitely come to pass. It is important to note that we have not seen significant impact on the sales or profits in the movie and music industries, despite the global nature of the internet, the widespread disregard for copyright monopolies, and the lack of such laws in most countries (especially Canada).

It is in this context, of countries seeking to implement their obligations, that these benchmarks are made. It was initially a brief paper on the US - Australia Free Trade Agreement section 17.4.7, but brevity was regrettably substituted for generality.

A Word On Tables

I provide tables indicating which laws meet each of these tests, at the time of writing (July 2004):

  1. the current Australian Copyright Act 1968 (Cth) as modified by the "Digital Agenda" Act in 2000, and
  2. the Australian law if the recently released Digital Agenda Review recommendations were enacted, particularly recommendation 17 which recommends the law "clearly allow any supply or use of a circumvention device or service for any use or exception allowed under the Act, including fair dealing and access", and
  3. the United States law, as embodied in the Digital Millennium Copyright Act (DMCA), and
  4. a straight-forward implementation of the law required by the Australia - US Free Trade Agreement (17.4.7 as HTML), which shares much language of the DMCA. As normal with treaties, it's not completely tied down: there could be room to mollify it in implementation.

1. Competitive Devices

Q: If two devices perform the same function, and the first is "authorized" by a copyright owner and the second isn't, is it illegal to use the second one, and is it a criminal act to create it or distribute it?

Background on Competitive Devices

DVDs are encrypted using the Content Scrambling System (CSS); you must decrypt the contents to play them. This is a Technological Protection Measure well covered by current Australian law, the DMCA and 17.4.7 of the FTA. The industry-controlled body which licenses information about CSS will not grant license for use in Open Source implementations.

An unauthorized Open Source product, called "deCSS" was created in 1999. Three Open Source video players now flourish in Europe, using deCSS in order to play DVDs under Open Source operating systems such as Linux: a feature desktop users expect in a modern operating system. Anti-circumvention laws in the United States and Australia restrict availability of this software.

Similar issues surround playing digital music. As an example, the recently announced Sony Network Walkman NW-HD1, a competitor to Apple's successful iPod portable music player, will not play songs downloaded from Apple's iTunes site. Presumably Apple were unwilling to license their technology on reasonable terms, and anti-circumvention laws in some countries prevents Sony from producing a player without authorization.

Other examples include reading encrypted PDF documents with unauthorized Open Source software, and potentially for Open Source word processors which will need to read and write files produced by future (TPM-protected) versions of Microsoft Word.

Problems With Failing This Test

Copyright law was intended to give a limited monopoly on copying works, not to grant monopoly power over all technologies which interact with that work.

Open Standards are increasingly important worldwide (the Internet is a clear example); all the arguments for Open Standards are arguments against laws which protect closed standards. In general, these are arguments about allowing competition and the free market.

Who Wants This Test to Fail And Why?

Producers of consumer devices who have significant market share, and see a potential lock in for consumers want this new power. As an example, Sony, Apple and Microsoft all want this because they see the potential for music playing devices. Sony and Microsoft are also concerned about PlayStation and XBox competitive devices, which could even play both types of games. Microsoft and Apple also enjoy the effective barriers to Linux desktop adoption in the United States.

Competitive Device Test Results

United States: The DMCA bans use and distribution of a device which circumvents a technological protection measure, with a broad definition of both circumvention and technological protection measure. In particular, the Universal v. Reimerdes case (DeCSS) established a ban on the Open Source DVD decoding program, although it could be argued that a case on a mere player (the DeCSS.EXE program on which the ruling was actually made copied the decoded DVD to the hard drive) might be able to mollify this. In practice, none of the US-based Linux distributions will play DVDs without the user downloading the decryption software from Europe.

Australia: The current copyright law does not ban use of any device, merely sale, creation and distribution. A High Court appeal is pending in the Sony v. Stevens case, in which Stevens was convicted (on the first appeal) of adding "modchips" to PlayStations which allowed customers to play the pirated PlayStation games, which he was definitively convicted of selling under normal copyright laws. The Australian Competition and Consumer Commission (ACCC) helped defend against the modchip charge, since such modchips are also required for consumers to play games bought in other countries: the ACCC considers this parallel import to be a vital consumer issue.

AU-USFTA: FTA 17.4.7(a) requires penalties for anyone who "(i) knowingly, or having reasonable grounds to know, circumvents without authority any effective technological measure that controls access to a protected work". It also requires penalties (usually criminal) for anyone who "(ii) manufactures, imports, distributes, offers to the public, provides, or otherwise traffics in devices, products, or components, or offers to the public, or provides services" which are sold to circumvent TPMs.

Jurisdiction Legal to use? Legal to create/distribute?
Australia (Digital Agenda) Yes Probably no
DA Review Rec. 17 Yes Yes

2. Control of All Access

Q: If I access a protected work in a way unintended by the copyright owner, it it illegal, and is it criminal to create or distribute something which allows you to do so?

Background on Access Controls

DVDs contain "no-skip" zones; parts of the DVD which cannot be fast-forwarded or skipped by the viewer. These initially covered the "FBI notice" about copyright, but increasingly cover advertisements. The contract arrangements for the standard CSS license apparently bind manufacturers to respecting (enforcement here seems to have been more effective than region encoding).

This is an example of an access control: restricting the way content can be viewed. Another example is "region coding", in which DVD players only play DVDs purchased in the same area of the world -- the same applies to the Sony PlayStation2 and its games. Most Open Source DVD playing software allows you to skip through "no-skip" zones, and automatically play DVDs from anywhere in the world, because naturally, consumers want to do that. It's a competitive advantage against other software.

Questions also apply to any other use which the original content author did not forsee: should the copyright holder have control over all access to their works? If an unauthorized DVD player allows you to bookmark highlights in the movie and skip straight to them, or add your own subtitles, should the copyright holder have the power to prevent them?

Problems With Failing This Test

Copyright law weakens normal property law; when I sell you an apple, you own it and so I can't tell you what to do with it. All rights are transferred to you, the owner. With copyright, I sell you a CD of my own music, but you do not get a couple of rights: the right to copy it, and the right to play it to a public audience.

Removing these rights makes a CD more like an apple. There's no cheap way to copy an apple. Of course you can grow your own apple, but then you could record your music on a CD, too. Removing the right to copy causes artificial scarcity, just like the real scarcity in normal non-copyable property, so that markets for CDs work similarly to fruit markets. Everyone else can only sell the copies they bought or authored themselves.

But the law hasn't removed the right to copy altogether: it merely extracts it from the property sold and places it in the hands of the original author. So I get to make and sell as many copies of my music CDs as I want: that monopoly reward presumably motivated me to create the music on the CD in the first place. Thus the law skews the market towards creating more new copyable things, enriching us all once that copyright expires. This same logic applies to other copyrightable things: plays, books, even software.

Legal protection for access controls removes much more from property law; now I can restrict how you use my CD after I have sold it. Instead of keeping a couple of restricted, well understood rights established by government which make copyable property work like other property, I can invent any new "rights" I want to. There is no analogy in property law: if I sell you apples and discover you intend to juice them and sell the juice in competition to me, I have no legal recourse. Ownership is fundamental to the concept of property rights; if I didn't want you to own it, I'd lease it to you instead.

This concept of ownership and property rights is core to the free market and our society: fundamental weakening of property rights should require extremely careful consideration.

Indeed, the ability to control access like this impinges on both personal freedom and innovation. We all expect to be able to stop reading a book, or skip to the end, or highlight passages, or write an alternate ending for our own private amusement. And if you innovate and create a personal book-reading device which translates from English into Japanese, you would expect to be able to sell it even if the author hates Japanese.

Who Wants This Test to Fail And Why?

Apple growers would probably like this, if they thought anyone would give it to them. In general, such new powers would be profitable for any producers; in this case, we are talking about digital works (ie. copyrightable stuff other than physical books), so it's the content producers who stand to profit. The music and movie industry, in particular, and once again, Sony and Microsoft.

Interestingly, it seems that Apple does not want the content producers to have access controls: their "Rip, Mix, Burn" campaign encourages consumers to exercise all the rights they do have under US law ("After all, it's your music"). This might be merely a tactical move to sell more iPods and computers, however, and not a fundamental opposition to the idea.

The fact that most DVD players can be "deregioned" also suggests that many Tiawanese manufacturers care more about their customers needs than the content producers' access controls.

Access Control Test Results

United States: the text of the DMCA, which covers "access controls" explicitly, and defines circumvention as (among other things) the act of decoding, so distributing an unauthorized DVD player which circumvents an access control is illegal. However, to my knowledge, this case has not been directly tested.

Australia: pure access controls are not protected under current Australian law, since a technological protection measure must "prevent or inhibit the infringement of copyright", and no-skip zones do not. However, where the same device bypasses a pure access control as well as a technological protection measure is currently held to be illegal (Sony vs. Stevens).

AU-USFTA: defines an "effective technological measure" much more broadly, in 17.4.7(b) "Effective technological measure means any technology, device or component that, in the normal course of its operation, controls access to a protected work, performance, phonogram, or other subject matter, or protects any copyright.".

Jurisdiction Legal to access? Legal to create/distribute?
Australia (Digital Agenda) Yes Yes
DA Review Rec. 17 Yes Yes

3. Clarity

Q: Would a reasonable person reading the law be sure that these legitimate competitive activities described in the first two tests are legal?

Background on Clarity

Many innovative, world-changing technologies come from small players or individuals with small resources. Often they challenge large incumbent players with large resources and an unwillingness to change or compete against the new innovation.

Consider the Open Source operating system Linux. It holds less than 4% of the desktop market according to IDC (comparable to Apple), whereas Microsoft Windows holds over 90%. In addition, the deliberately low barriers to entry inherent in Open Source licensing result in a decentralised industry of small businesses and individuals.

Problems With Failing This Test

The risk threshold for legal uncertainty is extremely low for many important sources of innovation. Hence, the effect of an unclear law is remarkably similar to a law which explicitly prohibits competition, as we have seen in the United States: small and medium-sized players are simply unwilling to take the risk, and avoid competing entirely, eg. US-based Red Hat Linux does not have a home desktop edition, and the minor US-based Xandros Linux which provides such a product apologises when you try to play a DVD, even in Australia.

Because copyright infringement is selectively enforced (you don't need to sue everyone who infringes), a company can choose its targets carefully, to establish precedents. Targets are ideally those without resources for a long court battle, and which are actively involved in other questionable activities. These precedents in turn scare off larger players. This seems to be the technique used by the movie industry in the United States (against Reimerdes who ran cracker-software site 2600) and Sony in Australia (against Mr Eddy Stevens who was selling pirated games as well as modchips).

Clarity is essential therefore in both the legislation, and the justification for the legislation should a court case arise.

Who Wants This Test to Fail And Why?

Various players want laws which fail the two previous tests. Failing that, they prefer unclear laws. This strategy is also required, because the claim used to promote these laws to governments is that they are required to "prevent piracy", not directly to "control competition". The resulting legislation will not directly contain the restrictions that its advocates might really want.

Clarity Test Results

The only clear cases here are use of a device under current Australian law (which doesn't restrict use at all), and the text of the Digital Agenda Review, which includes the words "clearly allow" for this very reason.

Jurisdiction Clearly legal to use? Clearly legal to create/distribute?
Australia (Digital Agenda) Yes No
DA Review Rec. 17 Yes Yes

Rusty Russell
Last modified: Fri Aug 13 12:52:59 EST 2004