A new law goes into effect on Sunday in Australia that is remarkably similar to
the Digital Millennium Copyright Act in the United States. It's called the
Digital Agenda Bill and it basically outlaws the supply, manufacture, and importation
of "circumvention devices" in much the same way as the DMCA.
As a direct result of this new legislation, members of 2600 Australia have decided
to remove all copies of DeCSS from their servers. What follows is a public letter
which explains their decision.
Just prior to midnight this Sunday I will be removing DeCSS and other
pieces of software that might put me personally in the position of
breaking the Australian Copyright Act (Digital Agenda Bill), 2000, which
goes into affect on Sunday.
Agenda Bill, 2000
Ref: Whole Copyright Act, 1968
As you probably well know, this law broadly and fairly effectively outlaws
the supply, manufacture, marketing, importation (but not use) of
"circumvention devices" as well as a range of other things. Check the
first link above if you'd like to refresh your memory about how extensive
the list is. All legal advice that I have received from fairly well
informed parites tends to suggest that despite the existence of
substantial non-infringing uses for DeCSS and related software in the
decryption and immediate display of encrypted content such as that
provided on commercial DVDs.
I say "fairly effectively" because it prevents "marketing" as well. It's
drawing a bit of a long bow, but it seems that linking to DeCSS in the
context of describing how to use it or other software for the purpose of
"circumventing" technical protections on things also invites bad juju.
Bad juju, legally speaking, is something that I have neither the time,
money nor resolve to take on personally. As 2600 Australia is neither a
business nor a registered organisation we cannot fight this on legal
grounds. 2600 Australia does not enjoy any form of protected speech such
as that which 2600 in the USA is mounting a defence / an appeal in
proceedings against it in the United States. Australia also does not have
any online freedom organisations such as EFF to assist in putting forward
the proposition that DeCSS and other related software is a valid, legal
thing to have. EFA, although fighting for various other causes, is simply
not well-enough resourced to join in this now-apparently-lost battle.
Instead of just removing the DeCSS and related software and forgetting
this ever happened, I will instead be publishing some statistics about how
many copies of DeCSS were distributed prior to this legislation coming
into effect. I suspect the numbers will be substantial.
If anyone wishes to criticise me or 2600 Australia for "giving up" on this
issue, I'd ask that they consider these issues:
1) A substantial number of copies are already in the hands of ordinary
users, whether or not they know how to use the software at the present
2) The software is very readily available on overseas websites. The
lack of understanding that Governments have about the Internet and how it
radically alters distribution models, business models and even enforcement
of various laws cannot be more clearly seen than with the Digital Agenda
Bill. The ease with which legislators bowed to pressure from well-funded
lobbyists from IP industries such as the music and motion picture
industries is also depressing.
3) Very few organisations stood up to be counted when faced with this law.
It wasn't an easy situation to explain to a local member more accustomed
to dealing with residents complaining about traffic lights and street
rubbish, I'll concede, but the mere threat of being branded a pirate by
a shill like Jack Valenti of the MPAA when compared to selling out in the
short term and buying a cartel-built DVD player was just too great to
bother not giving in and just buying a player. The effects of this law
will not be felt for some years to come. The Australian Competition and
Consumer Commission seems to finally be realising the problem with
artificial restrictions on competition such as region encoding. Lets
hope they stumble onto the DVD player competition situation in the course
of their region encoding investigation.
Finally, I'd warn commentators that will inevitably try and deal with this
issue again in a week or so (there was some comment today in SMH and
Australian IT) that this issue cannot be compared to the plight of
Napster. One audience downloads content at zero cost to them (even if
only to sample it) - the other buys their content from a regular store at
full price and just wants to watch what they have paid for on a player of
their choice and using whatever computer operating system they choose.