When considering legislation which restricts distribution of software or devices which interact with Technological Protection Measures (TPM), these three tests measure the effect on competition, particularly for Open Source Software. The context here is an analysis of the US - Australia Free Trade Agreement, section 17.4.7 (anti-circumvention).
We provide tables indicating which laws meet each of these tests, at the time of writing:
(Most) DVDs are encrypted using the Content Scrambling System (CSS); obviously 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 license for use in Open Source software.
The (unauthorised) Open Source software which can read this is called "deCSS"; upon this at least three major Open Source DVD-playing projects thrive in Europe. Naturally, this is something desktop users expect in a modern operating system.
Similar arguments apply to playing digital music downloaded from iTunes (not yet available in Australia, but presumably will be in future), and to Open Source word processors which will need to read and write files produced by future (TPM-protected) versions of Microsoft Word.
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, performance or phonogram, or other subject matter; or
(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:
(A) are promoted, advertised, or marketed for the purpose of circumvention of any effective technological measure, or
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?
|
Region |
Legal to use? |
Legal to create/distribute? |
|
Australia (Digital Agenda) |
Yes |
Probably no |
|
DA Review Rec. 17 |
Yes |
Yes |
|
USA (DMCA) |
No |
No |
|
FTA |
No |
No |
DVDs contain "no-skip" zones; parts of the DVD which cannot be fast-forwarded or skipped by the viewer. The contract arrangements for the standard CSS license apparently bind manufacturers to respecting (as it does with region encoding, although enforcement there seems to have been porous). These 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. There are less clear cases, where the same device bypasses a pure access control as well as a technological protection measure (Sony vs. Stevens), but we pass the clearest case.
Most Open Source DVD players allow you to skip through these zones, because naturally, consumers like doing that.
The FTA defines an "effective technological measure" more broadly, in 17.4.7(b):
(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.
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?
|
Region |
Legal to access? |
Legal to create/distribute? |
|
Australia (Digital Agenda) |
Yes |
Yes |
|
DA Review Rec. 17 |
Yes |
Yes |
|
USA (DMCA) |
No |
No |
|
FTA |
No |
No |
While Linux (the Open Source operating system) has significant market share in the embedded computing and server computing spaces (ie. leading or expected to be leading within a few years), we hold less than 4% of the desktop market according to IDC (comparable to Apple), whereas Microsoft Windows holds over 90%.
The deliberately low barriers to entry inherent in Open Source licensing result in a decentralised industry of small businesses and individuals; their risk threshold for legal uncertainty is extremely low. 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 players are simply unwilling to take the risk, and avoid the competing entirely (eg. US-based Red Hat Linux does not have a home desktop edition, the minor US-based Xandros Linux which provides such a product apologises when you try to play a DVD).
Clarity is essential therefore in both the legislation, and the justification for the legislation should a court case arise.
Q: Would a reasonable person reading the legislation consider these legitimate competitive activities comprehensively excluded from violation?
|
Region |
Clearly legal to use? |
Clearly legal to create/distribute? |
|
Australia (Digital Agenda) |
Yes |
No |
|
DA Review Rec. 17 |
Yes |
Yes |
|
USA (DMCA) |
No |
No |
|
FTA |
No |
No |