nic.suzor.net

[ Reposted from EFA site ]

Cory Doctorow is reporting that Australia is part of a group of countries that are opposing a treaty that would ensure that people with a print disability have greater access to published copyright material.

The draft treaty (MS Doc; Google cache here) includes several important clauses, including:

• an exception to copyright infringement for non-profit supply of accessible versions of works to which a person with a print disability already has access in a non-accessible form;

• a statutory licence for reasonable for-profit supply;

• an exception to anti-circumvention law to allow blind persons to break technological locks that make the work inaccessible; and

• most importantly, an exception that allows importing and exporting of accessible versions of copyright works, enabling them to be distributed to blind people in other countries.

Please help us ensure that people with a print disability have access to published copyright material in an accessible form by raising awareness and contacting the Attorney-General’s Department.

This is an important proposal before WIPO, and has the support of the World Blind Union as well as many other NGOs. Whilst some of the goals of the treaty may be implemented at a national level, WIPO support means that signatories will be prompted to amend their laws much quicker. WIPO support is also likely to be required in order to introduce the import/export exception, which is likely to significantly reduce the very significant overheads that countries face in digitising books and creating accessible versions of works.

Australia forms part of Group B, which opposes the treaty, and includes the US, Canada, New Zealand, the Vatican and Norway in opposing the treaty. We have not seen an official statement by the Attorney-General’s Department on whether Australia supports the treaty or not. We can hope that Australia is able to lead the way in expressing support and lobbying other countries in Group B to support the proposed treaty. The AGD has reportedly said that it will hold public consultations on the treaty – now is the time to write and ensure that our representatives know that Australians want improved access for blind people and those with other reading disabilities.

Cory Doctorow has asked us to

reblog, tweet, and spread the word, especially to government officials and activists who work on disabled rights. We know that WIPO negotiations can be overwhelmed by citizen activists — that’s how we killed the Broadcast Treaty negotiation a few years back — and with your help, we can make history, and create a world where copyright law protects the public interest.

Accordingly, please take the time to write to the Attorney-General’s Department and express your support for greater access to published material for people with a print disability. We at EFA strongly believe that it is simply not acceptable that blind people are denied access to published material to any greater extent than sighted people. The treaty that is being proposed greatly simplifies the responsibilities of countries worldwide to remove barriers to access for blind people and proposes to introduce a new exception making it easier for accessible copies of books to be distributed to where they are needed.

I, along with my colleagues Paul Harpur and Dilan Thampapillai, have previously written about the difficulty that blind users have accessing copyright material in Australia. Paul Harpur has been diligently following up this work with further research on how Australian universities can help blind students by providing clear text copies of printed material. In the paper we published, we noted the complicated and limited nature of Australia’s statutory licence and limited exceptions in favour of people with print disabilities. We argued for the establishment either of a government funded digital repository or for the creation of an exception in Australian copyright law to allow markets to provide accessible formats of works where publishers refused to do so. EFA reiterated these sentiments in our submission to the Digital Economy Future Directions paper.

More on Twitter: #sccr18.

Thanks to Gwen Hinze and the folks at the EFF for continuing to apply pressure for reading accessibility. See further: Reading Rights Coalition and Knowledge Economy International.

[ Reposted from the EFA site. ]

ContestedFooty.com, an AFL commentary blog run by some university students in Melbourne, has received a Cease & Desist letter from the AFL. The AFL allege that the blog infringes their intellectual property rights – both the trademarks and the copyright in the AFL and team logos and names.

This appears to be another example of Australia's trademark laws being used to stifle legitimate commentary and critique. There certainly does not appear to be any source of confusion as to whether the bloggers are officially sanctioned by the AFL or the teams in question. The bloggers are not trading off the AFL's reputation, or representing some false connection with the league. Certainly the trademarks do not appear to be used as trademarks; the marks are plastered on the guernseys of the players – it's hard to show a picture of an AFL player without also showing the marks.

As for the copyright claims, these seem even weaker. We do have fair dealing for criticism and review and for the reporting of news, defences which the bloggers would seem to fit within without trouble. The bloggers say that their photos are original and that they're not reusing unlicensed photos.

If the AFL's demands are respected, this imposes a substantial chilling effect on speech. At its limits, it means that all commentary on AFL must either (a) not refer to specific teams or show pictures of players; or (b) negotiate (and pay for) a licence from the AFL – presumably also opening the possibility that the AFL will dictate the terms or even content of the commentary.

Luckily, sport plays a much bigger role in the Australian psyche than that. It is likely that the claims being made by the AFL are somewhat inflated at best. We hope that the operators of ContestedFooty.com are able to respond to the AFL and continue providing valuable critical commentary.

This cautionary tale, however, shows the importance of reasonable intellectual property laws. Nobody wants a situation where fans are unable to talk about their favourite sports, but our current laws encourage trademark owners to make these sorts of claims. Unfortunately, when made against bloggers and students, contesting these claims often becomes prohibitively expensive. I believe that both copyright and trademark law need to be simplified to provide clear space for this type of commentary, allowing bloggers and others to stand up for their rights.

Today I went into the ABC studios to do a short interview on Triple J's Hack program. You can listen to the podcast (TPB story comes in about 20 minutes into the audio).

One of the points I didn't get across, which I would have liked to, is the point that Doctorow, O'Reilly, and Pesce make: artists today should be more concerned with obscurity than piracy. Beating people with sticks for downloading is not going to help any artist get paid. It's time to adapt, to find something that works – for everyone.

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[ Reposted from my post on the EFA site. ]

A few days ago, a Swedish court found the four figures behind thepiratebay.org guilty of criminal copyright infringement and sentenced them to pay approximately $5M AUD in damages and serve a one year prison sentence. The severity of the punishment is surprising, particularly as the operators of the Pirate Bay played a fairly loose role in any copyright infringements — merely providing an index of torrents already posted and tracked elsewhere.

But whatever we may think of The Pirate Bay, this case raises another example of a very troubling period for copyright law. Pirate Bay and other public trackers are clearly responding to consumer demand, and tougher sanctions for copyright infringement are unlikely to change that. Over the past ten years, we have seen that these actions have rarely, if ever, been successful in curbing the volume of filesharing. New filesharing technologies developed after Napster, Aimster, Grokster, Kazaa, and the creators of other networks were successfully sued. This trend is likely to continue, because the underlying demand is not being addressed.

The goals of copyright are noble. We all want to ensure that professional creators have the ability to be paid for their work. But the current approach of imposing harsh punishments on users and intermediaries is not helping with that goal.

It is time for all of us to work together in creating a regime that can work. The copyright industry needs to start responding to consumer demand – on-demand, DRM-free downloads that can be used whenever and wherever, that can be shared and even remixed, at a reasonable price. Maybe then the industry will realise that fans want to be able to support creators.

Treating fans like criminals has not stemmed the tide of filesharing in the past, and is unlikely to do so in the future. Some copyright owners are starting to realise that they can give consumers what they want and still make money – like Channel Nine, who have found that iTunes podcasts of Underbelly are very profitable, for example. Other creators are beginning to cut out the intermediary in frustration of the old business models and deal directly with the fans – as Radiohead and Nine Inch Nails have famously done. Still more are finding that the popularity boost from legitimate and encouraged filesharing fare outweighs any potential loss in sales – the model that Creative Commons has helped to support. There are plenty of ways that artists can be compensated for their work, and plenty of ways that society can encourage creativity without prosecuting individuals or intermediaries for copyright infringement. These are the discussions that we need to be having to ensure that our digital economy is sustainable.

The alternative is that we keep going down this path, keep trying to stuff the genie back into the bottle, and we keep giving the copyright industry more and more powerful sanctions with which to punish copyright infringement. The next step on this road are ‘graduated response’ schemes, which would require ISPs to monitor the behaviour of their subscribers and disconnect those households who are alleged to have infringed copyright. Then there are statutory damages, which would absolve copyright owners of the responsibility to show actual harm to their bottom line in copyright trials – which, in the US, has resulted in hyper-inflated awards, like the award of USD$220,000 damages for downloading 24 songs. These are the sorts of measures that are up for discussion in the Anti-Counterfeiting Trade Agreement (ACTA), a secret new deal that could introduce new ‘enforcement measures’ into Australian law. We at EFA don’t think that this is the best way forward – either for users or creators of expressive material.

MDY v Blizzard provides one of the hard questions through which I'm framing my thesis. This case concerns how internal rules are going to be able to be enforced in virtual communities, and to what extent copyright is the appropriate vehicle for their enforcement. Virtually Blind had a lot of great coverage of this case until he stopped blogging late last year, and there was a very good amicus brief filed by Public Knowledge. Here's my quick summary of the questions this case raises.

Blizzard makes and operates the hugely popular World of Warcraft (WoW) virtual world. Blizzard has structured the game in a way that rewards long periods of repetitive behaviour, popularly dubbed 'grinding'. MDY made and sold a program, 'Glider', that automates this repetitive behaviour, allowing players to advance in the game with only minimal human interaction. Blizzard prohibits the use of bots like Glider, and routinely bans the accounts of users suspected of using such techniques. There is a suggestion in the community that people who use bots are cheaters or gold farmers – the latter suspected as being responsible for inflation in the virtual economy. On the other hand, there is a contrary suggestion that the use of bots merely lessens the boring, repetitive, and continuous labour that is required in order to enjoy the WoW endgame.

The Glider software interacted with the WoW client software by directly modifying the memory of the client computer. The WoW Terms of Service contains a broad clause that prohibits users from intercepting, emulating, or redirecting the WoW software. Blizzard contended that by using Glider, users were exceeding the scope of their licence to play the game and thus infringing copyright when the game was copied into RAM. Blizzard therefore contended that by enabling and encouraging users to use WoW in breach of the Terms of Service, MDY was liable for secondary copyyright infringement.

Blizzard threatened to sue MDY for copyright infringement if it did not cease selling the software. MDY filed suit in response, seeking (amongst other things) a declaratory judgment that the use of Glider did not infringe the copyright in WoW, and that MDY was therefore not liable in copyright for any acts of Glider users.

The US District court found that the End User Licence Agreement that granted permission to play WoW had to be read in conjunction with the Terms of Service, and that certain requirements of the ToS were to be read as limitations on the licence grant, whereas others would be mere contractual provisions. Because the limitation on emulation was part of the licence grant, users who used emulators were therefore outside the scope of the licence and infringed copyright in the game when they played it. It followed, then, that MDY was liable for inducing or encouraging their users to infringe Blizzard's copyrights.

Blizzard was also successful at trial on one of its DMCA circumvention claims. Judge Campbell found that Warden, a subroutine that checks the RAM of WoW clients, “controls access to the dynamic nonliteral elements of the WoW game environment” within the meaning of 17 USC 1201(a)(2). The District Court found that while Warden did not control access to either the computer code that made up WoW9 or the individual sound and media files that made up the environment, it controlled access to the dynamic experience of the sounds and graphics – the “real-time experience of traveling through different worlds, hearing their sounds, viewing their structures, encountering their inhabitants and monsters, and encountering other players”. This was sufficient for Warden to qualify for protection under the DMCA. Because Glider circumvented the security measures in Warden and MDY knowingly marketed Glider to do so, MDY was liable under 1201(a)(2).

The role of Glider in the WoW world certainly seemed to influence the District Court's decision. At trial, Judge Campbell began his judgment by holding that Glider has substantial damaging impact:

WoW is a carefully balanced competitive environment where players compete against each other and the game to advance through the game's various levels and acquire game assets. Glider upsets this balance by enabling some payers to advance more quickly, diminishing the game experience for other players. Glider also enables its users to acquire an inordinate number of game assets – sometimes referred to as “mining” or “farming” the game. The acquisition of these assets upsets the game's economy, diminishing the value of assets acquired by regular game users.

The MDY case is interesting because it sets up significant penalties for breach of the rules contained in the terms of service. Were damages only available in contract, Blizzard would only be able to claim reasonably small actual losses. Here, however, damages were available as copyright infringement damages, for which the copyright owner does not need to show actual loss (in the United States). Importantly, a permanent injunction is also more readily available under copyright.

Fundamentally, this precedent means that breaking the terms of service or encouraging others to break the terms of service can potentially result in severe damages and a court order to cease the infringing behaviour, without the proprietor needing to show any actual losses. Essentially, this gives certain rules of participation the force of binding law. The US District Court distinguished the rules on interception and emulation, which it held to be sufficiently related to the exclusive rights under copyright to be limitations on a licence grant, from other rules on player interaction and naming policies, which were mere contractual terms. The mechanism through which it did so, however, is not exactly clear. This leaves substantial uncertainty for future cases; if a contract can be written where the internal rules are expressed as conditions to the copyright licence grant, it may well be that these rules will be enforceable by the whole weight of copyright law.

MDY v Blizzard raises questions far beyond its facts. On one level, it is about a proprietor's ability to enforce its rules against not only its users, but those who enable and profit from cheating users. On another level, however, it raises questions about the legitimacy of using copyright law as a means of enforcing internal rules – essentially giving the internal rules the force of law without any of the accompanying requirements of due process or democratic discourse. This is a genuinely hard case – to the extent that internal rules that are important to the integrity of a virtual community are not able to be effectively policed within the community, how ought the law and the state aid in their enforcement? If the law does aid in their enforcement, what limitations should we impose on the ability of the proprietor to set the rules?

( Image from Gaming @ TP. )

Michael Geist is reporting that ”[t]he European Parliament has voted for a proposal to bring more transparency and public access to documents. The resolution includes specific language about the Anti-Counterfeiting Trade Agreement.”

Acting in accordance with Article 255(1) of the EC Treaty, the European Commission should immediately make all documents related to the ongoing international negotiations on the Anti-Counterfeiting Trade Agreement (ACTA) publicly available.

The justification for the language is:

The Anti-Counterfeiting Trade Agreement (ACTA) will contain a new international benchmark for legal frameworks on what is termed intellectual property right enforcement. The content as known to the public is clearly legislative in character. Further, the Council confirms that ACTA includes civil enforcement and criminal law measures. Since there can not be secret objectives regarding legislation in a democracy, the principles established in the ECJ Turco case must be upheld.

Geist notes that ”[t]he vote sends a strong signal on the need to open the ACTA process and heightens the pressure on the negotiating countries to remove the veil of secrecy.”

I think that the EU Parliament is spot on when it says that ”[s]ince there can not be secret objectives regarding legislation in a democracy” we ought to make these documents public.

Late last year I put this point to DFAT:

When pressed about the secretive process, Dr Nicholas Rodgers from DFAT noted that “the procedure is not an unusual one in trade negotiations, although it is more generally applied to free trade agreements and sub-multilateral groups.” I asked Dr Rodgers what the justifications could be for keeping the negotiations confidential in an intellectual property agreement, as opposed to a trade agreement. Dr Rodgers responded that Australia was not an original proponent of the process, and did not support the secretive manner in which negotiations are taking place. However, Dr Rodgers noted that in order for Australia to 'be in the tent' – to be involved in the negotiations – we had to abide by the ground rules set down for initial participation.

While DFAT have been very helpful to the Australian public by holding public consultations and briefing sessions, the overarching requirement of secrecy was seen as beyond their control – which meant that, as DFAT saw it, they either had the choice to abide by the requirement of secrecy or not 'be in the tent'. This decision by the EU Parliament, if it carries any weight, may be the first step in changing the rules of the negotiations.

Image from Trainview.

Last week I wrote that RailCorp had threatened the makers of an iPhone app that shows public transit timetables with copyright infringement. Asher Moses reported on Monday that NSW Premier Nathan Rees has "indicated he would override RailCorp's decision and force the bureaucracy to meet the mobile software developers and work out a way they can use the timetable data."

This is encouraging news from the highest levels of NSW government. We can only hope that this is a sign of things to come, and that NSW and other Australian Governments will realise the value in making material open – particularly material that has been created with public funds.

There is still, however, a problem with copyright law that allows the compilers of facts to claim copyright in the facts themselves. This sort of matter shouldn't have to go all the way to the Premier – part of the copyright balance we've generally accepted requires pure information – facts – to be free to reuse, without permission. Lets just hope that the High Court doesn't continue to create a permission based culture in the Nine v IceTV appeal; the cost to innovation is just too high.

Asher Moses is reporting today that RailCorp have threatened to sue the developer of Transit Sydney for infringing copyright in their public transport timetables. Transit Sydney is an iPhone app, sold through the store for $2.49 ('just to cover costs'). It provides a display like the one on the TV monitors in train stations that shows the next trains coming past the platform. It pulls timetable data from CityRail for display to people on the move. It's not clear whether the information is pulled dynamically or statically compiled.

RailCorp, for some reason, have threatened to sue the developer, claiming that it infringes on their copyright in their timetables. RailCorp claims that

RailCorp's primary concern is that our customers receive accurate, up-to-date timetable information.

[…]

This includes details of service interruptions, special event services, trackwork and other changes. Third-party RailCorp timetable applications may contain inaccuracies and have the potential to mislead our customers.

I've blogged before about the dangers of inaccurate public transit and geospatial data. Using copyright law to outright prevent the spread of such data, however, does not seem to be the best way to serve the public. Surely it would be more useful for RailCorp to make their (accurate) information more accessible, by providing open interfaces for developers, than to threaten innovative developers with copyright infringement suits. These developers are clearly responding to market demand in a way that the operators of the public transit networks simply have not been willing or able to. I assume that most users of these products would prefer to take the risk of some inaccuracies than to be without – indeed, those risk averse users could simply save themselves $2.50 and rely on the minimal official publications.

This is, unfortunately, an example of copyright law once again failing to achieve a balance between rewarding creators and promoting access to information. In Australia, following DMS v Telstra, the standard of originality for the subsistence of copyright is very low. In that case, a telephone directory was held to be an original literary compilation. This is exactly one of the points currently before the High Court in the Nine v IceTV appeal, where Nine are defending a finding that IceTV infringed on its copyright television schedules by providing an electronic programme guide. Lacking an Australian fair use defence, innovators are in a very difficult situation here.

This is the same argument, once again. Copyright ought to exist to stimulate innovation – it is a temporary monopoly granted to provide the incentives to create expression (at least in the sense of the economic rights). By making expression somewhat excludable, we allow for the private production of an otherwise public good.

But how does this relate to the creation of schedules? Presumably, RailCorp is already rewarded by determining what time their trains will run. They publish this information so that customers will buy train tickets. The goal is not the creation of schedules in and of themselves, but the operation of a rail network. Protecting this bare information serves no public policy goals. Allowing innovators to take this information and present it in a new way in order to respond to market domain does not hurt the operator of the network – if anything, it makes the network more useful and hence increases its value.

Copyright ought to attach to original expression. Unfortunately, Australia's low threshold for originality means that copyright increasingly protects mere facts. There's only a few ways that I can tell you that the Bondi train will be approaching in four minutes. To prevent me from repeating that information doesn't protect the integrity of the train network, it doesn't help consumers, and it certainly doesn't help innovation.

This is another example of the chilling effect of poorly thought out and implemented copyright law. Lets just hope that the High Court can fix the threshold of originality later this year in the IceTV case.