LCA2009 Reverse engineering, anti-circumvention, and other broken laws

I am about to run a presentation at 2009 in Hobart. I want to particularly talk about Section 47D of the Copyright Act 1968 (Cth). Section 47D was a great affirmation of the right to reverse engineer computer programs for interoperability. One especially important feature is that 47D, thanks to s 47H, is not excludable by contract. In the United States, we have seen numerous examples of developers inadvertently waiving their fair use and statutory rights to reverse engineer software products by 'agreeing' to the EULA.1)

The really big problem with s 47D, however, is that it only applies to computer programs. This is a really big problem for those who are interested in reverse engineering media rich applications – like computer games. Because games are not only computer programs but are also cinematograph films,2) sound recordings, artistic works, musical works, etc, then the right to reverse engineer (and to backup) completely disappears.

If we believe that we really ought to have a right to reverse engineer computer programs, including games, the wording of s 47D has to be changed to immunise copying of works and other subject matter intertwined with software programs.

The inflexibility in s 47D also raises problems for the exceptions in anti-circumvention law. The definition of both Access Control Technological Protection Measures (ACTPMs) and the broader category of Technological Protection Measures (TPMs) in s 10(1) of the Copyright Act excludes devices to the extent that they ”[restrict] the use of goods […] or services in relation to the machine or device.” Now, this carve-out is quite important, as it effectively excludes restrictions like the anti-competitive encoded garage door opener device3) from protection as TPMs. However, because these devices are built often to have more than one function, especially in gaming consoles, this carve-out will not always be effective. This means that developers interested in making products for locked-down devices will have to rely on the exceptions to anti-circumvention law itself, rather than the definitional carve-out.

Liability for actual circumvention (ACTPMs) or for making or distributing a circumvention device (all TPMs) does not apply where the device will be used to do an act that does not infringe copyright in the computer program and is
“done for the sole purpose of achieving interoperability of an independently created computer program with the original program or any other program.”4)

As you can see in that wording, the ability to rely on the exception is limited by what exactly will infringe the underlying copyright interests. So without a fix to s 47D, we generally can't feel comfortable relying on the exceptions to anti-circumvention.

This also raises an important point – manufacturers and distributors of modchips need to meet the purposive test to ensure that they fit within the exception. That is, they must be able to show that the modchip will be used for non-infringing reverse engineering purposes.

My slides are available here: 200901-lca-games.pdf