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US inspired copyright laws set to sweep the globe – for fun and profit

No fanfare for the common man

Analysis In the days before Christmas, 20 year old Norwegian, Jon Johansen, was found not guilty of DVD film copyright theft in his second criminal trial held in Norway. The story began five years ago when he distributed a software program to bypass DVD copy protection systems. He has been found innocent after justice has had two bites at the cherry. Another appeal to Norway’s Supreme Court was avoided. Because the victory is won.

While crusaders for free speech everywhere will treat this as a victory for the common man, and the Motion Pictures Association of America will deem it to be a backward step for civilization, inviting in the hacker and content pirate, neither position is true.

There are some simple facts here that make this case totally irrelevant to the future of digital media, merely the dying influence of outmoded copyright law. Faultline has talked before about the Berne convention, carved out in Europe over 100 years
ago and amended as recently as 1971, as the initial basis for copyright legislation globally, with no update due or being considering to take in the internet and the global piracy issue.

But another treaty is threatening to change the law and it may already be too late for Europe to re-consider. In 1961 the Berne Convention was taken up by the World Intellectual Property Organization (WIPO), in which the US holds great sway, bringing World Trade Organization pressure to bear on it. The treaties it creates now have 179 signatories, one per country or state.

The simple fact is that the Jon Johansen trial was deeply flawed because it was not illegal in Norway to tamper with copy protection systems. It was only illegal to steal DVD content for personal gain.

Within months it could suddenly become illegal, as Norway is signatory to a treaty called the WIPO Copyright Treaty (WCT), signed in 1997 and due to become law in each member state by about now.

The UK, too often the first to adopt new legislation in Europe, finally put it onto the UK statute books on October 31st 2003, based on the more recent European Copyright Directive, which takes its language from the WCT. Austria, Denmark, Germany, Greece and Italy have already ratified the EU Copyright Directive, but not Norway. Not yet, partly because it is not within the EU, so it isn’t obliged to under the same directive, but it is still a treaty signatory. And where does France, the
Netherlands and others stand on this? Are they dragging their heels as they go through the consultation process? Or are they planning a revolt. The former we believe or why would they have signed up for the WCT?

But where does the wording and the key new concepts in this document come from? Back in September 1995, the US Patent and Trademark Office issued a Report called, “Intellectual Property and the National Information Infrastructure,” written by a
Working Group on Intellectual Property Rights. It was that report that first recommended that Congress enact into law an amendment to the USA Copyright Act of 1976 that would prohibit tampering with copy protection. So the idea of it all started there, of making the tools of piracy illegal, not the act itself and this was embodied in the 1998 Digital Millenium Copyright Act.

It is indeed an act of great common sense then that Jon Johansen, also nicknamed DVD Jon, was not found guilty since the only law that he could possibly be found in breach of, was one of piracy, essentially copyright theft. But since no evidence was offered that he had either stolen the copyright or benefited from making a copy of a film, nor was there evidence presented that said he had offered films free over the internet in contradiction of existing copyright laws, then clearly he was innocent. It was simply assumed that Norway should find him guilty because what he did was made illegal in the US some time ago. Or was that the idea?

No. Quite clearly this was a PR exercise designed to make it clear to everyone that reads online news services, that although DVD Jon was innocent, it won’t stop the long arm of the American lawmaker from getting hold of anyone else that breaks US law, even if it is on their own native, non-US soil.

The Judge of the Olso court rejected the appeal, with a team of seven other judges and experts unanimous on the subject.
Until this overseas version of the Digital Millenium Copyright Act is finally law in all 179 countries, judges only have existing copyright law to go on, that and the previous judgements passed down by their own legal systems. Some nonsense remarks in the press about the DVD Jon case being a watershed in European law, and a decision that encourages copy protection
circumvention, are all uninformed rubbish. All precedent will be swept aside by the new laws, which once more will have to go in front of judges anew, and their skills will sharpen and hone it over time.

So when the court ruled that it was reasonable to make a personal copy of a DVD because a scratch could make a DVD unusable, this will run up against wording in the new WCT and the European Directive stating roughly that the freedom to make personal copies should not initially be part of the law, but that if within a reasonable period of time (for a judge to decide?) voluntary measures are not brought in, then the member states can bring these measures in. But not at the expense of bypassing copy protection, about that the new treaty is adamant.

In effect once the law had been passed, technical systems that allow a personal copy to be made, should come in from market pressure, and if they don’t, local governments can insist
However this ability to copy can’t be brought about by illegally bypassing copy protection. Here is an abbreviation of the wording on copy protection: “Technological development will allow rightholders to make use of technological measures designed to prevent or restrict acts not authorized by the rightholders of any copyright…. In order to avoid fragmented legal
approaches that could potentially hinder the functioning of the internal market, there is a need to provide for harmonized legal protection against circumvention of effective technological measures and against provision of devices and products or services to this effect.”

When Norway accepts this, even in watered down form, then what DVD Jon has done will be illegal in its own right.
And it doesn’t only apply to copyright protection, but also to Digital Rights Management reporting tools and software. Interfering with them or content descriptions will be just as illegal as bypassing copy protection. Funnily enough even the US legislators thought this was a step too far and this DRM part never made it into the DMCA. We will shortly be in the
interesting situation where a US inspired legal change, which is globally in favor of a group of mainly US organizations, is NOT upheld in US law. Disney form the US will be able to sue a UK resident for bypassing DRM code, but not a US resident.

One of the reasons that personal freedom campaigners are so angry about all of this is that there is a lot of sweet talk about new “rights” regimes brought up at the WIPO talking shop. The idea that file sharers might become part of the music and film sales effort, taking commissions for distributing content, is one example DRM specialists are especially fond of
talking about.

It’s true that in an open market which is fully protected by strong DRM, the most relaxed rights regime might lead to the biggest market share. But we are not talking about an industry that is currently best known for its fair open market practices. Books, music and film are all controlled by a small number of large organizations. And both the book and music community
have each been pursued and fined for price fixing. Film has been under fire, but not, to our knowledge yet found guilty of the same.

When music was first offered online, the record labels wanted $15.00 for a CD sold through retail and $15.00 for an online version of the same collection of songs sold direct and without the CD. They would take perhaps $4 to $6 from the first transaction and $15 from the other.

Their attitude was “let’s use the huge potential of the internet to make fantastic profits.” That’s really what triggered piracy and left the door open for file sharing networks. Perhaps they have now learned their lesson and will be ever so humble. But we ask you, does the RIAA look humble to you?

Much the same message has come from the film industry. In essence the film industry just wants everything to stay the same, partly out of fear of ending up heavily pirated and partly out of the fear of ending up with a DRM monopolist taking a large slice of its content pie.

So can these organizations be trusted (should they be trusted) to play ball once all the legal chips are stacked in their favor? Why should anybody believe that, based on past performance?

Instead it might be better if WIPO had not panicked or been one sided in the creation of its treaty. Every report we have read online says that pressure groups were largely ignored in the phrasing of the UK legal wording, put together under the auspices of the UK Patent Office.

One web site pointed out that under the new law it's illegal to manufacture multi-region DVD players and console mod-chips (multi-region DVDs are something that is mostly offered by Japanese giants such as Sony), and reckon it's now a crime to even discuss how to get around stupid restrictions placed on content (So expect legal monitoring of those technical Usenet

And if there is not a relaxed content regime at the end of this, voluntarily entered into by content owners, then that will all remain illegal and will become universally seen as oppressive. Surely a set of minimum rights packages should have also been put together by WIPO to legalize, which would put responsibilities on providers of content.

Personal use copying should have been enshrined in the WCT; replacement for scratched or defective DVDs and CDs should be offered at cost by law; a strict code of conduct should be applied to personal data acquired through DRM systems about copy and resale transactions; and multi-format issues should have become a legal responsibility of product suppliers.

Unfortunately all of this is either voluntary or down to future resolution between the major players.

Already in the UK Warner has jumped straight into litigious action by citing the new UK legislation to sue US based 321 Studios, a distributor of software that lets users make backup copies of DVDs, for copyright infringement in the UK. The new suit has been filed since the new WIPO version of the UK legislation came in, because under the old copyright laws of the UK, what 321 does was likely to be perfectly legal. Expect more suits like this, which simply replace old suits under the new Act. Judges all over the world are going to be busy interpreting these new laws for the next few years, when acleaner piece of legislation, perhaps if the US led on a revision of the DMCA, would make all of that work unnecessary.

© Copyright 2004 Faultline

Faultline is published by Rethink Research, a London-based publishing and consulting firm. This weekly newsletter is an assessment of the impact of events that have happened each week in the world of digital media. Faultline is where media meets technology. Subscription details here.

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