The ADA Monthly Intellectual Property Wrap-Up
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A monthly summary of recent legislation, cases, reports and other events
relating to intellectual property and the public interest, published by the
Australian Digital Alliance.
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July 2001
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[1] About this publication
[2] The Panel and the White pages: recent Australian legal action
[3] The jailing of a programmer and the death of 'fair use': US v Sklyarov
[4] Feeling chilly? Get a weather report from the Chilling Effects
Clearinghouse
[5] How 'limited' are 'limited times'? Disappointing result in Eldred v
Ashcroft
[6] New Zealand announces digital copyright reform
[7] I can copy, right?
>[1] About this publication
This summary of recent IP (but chiefly copyright) happenings of relevance to
Australia is published every month by email and on the Australian Digital
Alliance website at http://www.digital.org.au/issue/ipwjul01.htm. If you
have any suggestions as to what should go in the next issue, please let the
Nick Smith know by email: (nsmith@nla.gov.au).
Nothing in this publication constitutes legal advice.
>[2] The Panel and the White pages: recent Australian legal action
As reported in the May issue of the Update
(http://www.digital.org.au/issue/ipwmay01.htm), the Federal Court ruled in
favour of Telstra, affirming copyright protection for its White and Yellow
pages. It had been argued that this 'database' of unprotected facts
(people's names, addresses and phone numbers) was itself not subject to
copyright protection as a compilation.
The losing party, Desktop Marketing Systems, has since been granted leave to
appeal to the Full Bench of the Federal Court. It is not known when this
case will be heard.
In other Australian court news, the second part of the decision involving
Cha nnel 10's TV program, 'the Panel', has been handed down. The case
involved a lawsuit brought by Channel 9 against Channel 10's show on the
grounds that its frquent habit of showing snippets of programs from other
networks is an infringement of copyright. In the first part of the case,
concerning the actual broadcast of the snippets, the court found that they
were not sufficiently 'substantial' to infringe copyright.
The second part of the case involved the making of video tapes of the
snippets in order to later broadcast them. Nine contended that each and
every separate visual image in a 'cinematograph film' is subject to
copyright protection. Justice Finkelstein pointed out that this would
involve a 'copyright duration of broadcasting time of less than 0.001 per
cent of the total of an average television feature film.' Ten contended the
opposite, that the duration of the work extended to the continuous 24-hour
broadcast. Finkelstein J somewhat sensibly held that the duration of a
program is the actual length of that program 'exclusive of advertisements.'
Having rejected Nine's contention that every split-second is a separate
copyright work, he reaffirmed his earlier judgement that the snippets copied
and rebroadcast by Channel 10 were 'insubstantial'.
>[3] The jailing of a programmer and the death of fair use: US v Sklyarov
FBI agents have arrested a Russian programmer for distributing software that
removes the restrictions on encrypted Adobe e-book files. His is one of the
very first criminal prosecutions under the Digital Millennium Copyright Act,
the US equivalent of our Digital Agenda Act.
Dmitry Sklyarov, a programmer for Russian software company ElcomSoft, was
visiting the United States for a convention to give a talk on the
often-flawed security of e-books, including details of how he was able to
break Adobe's encryption.
ElcomSoft argue that their product allows users to get greater
legally-permitted functionality from legitimately purchased e-books only
(eg, allowing them to be used on machines other than the one the e-book was
downloaded on or to translate the text to speech for the deaf). Adobe
contends that the software's purpose is e-book piracy.
It is also argued that company agreed not to distribute the product even
prior to Sklyarov's arrest so that Sklyarov could not possibly have been
'trafficking' in the software (which is what he has been charged with). His
arrest and subsequent detention without bail has radicalised the online
community. The ferocity of the reaction, which included street protests in
many cities in the US and elsewhere, surprised Adobe. It promptly backed and
requested Sklyarov's release (though while still endorsing the DMCA) in this
media release:
http://www.adobe.com/aboutadobe/pressroom/pressreleases/200107/20010723dcma.
html
Sklyarov remains in jail however as the decision to continue with the
prosecution rests with the US Attorney's Office. The head of the San
Francisco office which is prosecuting the case is Robert Muller, George W.
Bush's nominee for Director of the FBI. Mueller prides himself on being
'tough on e-crime' so Sklyarov is not expected to be released any time soon.
This case has enormous implications for the future of copyright. If the
prosecution succeeds, it may well signal the end of copyright as a creature
of statute, at least as far as the electronic environment is concerned; all
conditions of usage will be dictated by commercial vendors rather than
Congress or Parliament. Fair use rights will still exist on the statute
books but will have little practical value if those who seek to enforce them
are jailed as felons.
Lawrence Lessig weighed into the debate with an op-ed article in the New
York Times (at http://www.nytimes.com/2001/07/30/opinion/30LESS.html). He
commented that:
"The D.M.C.A. outlaws technologies designed to circumvent other technologies
that protect copyrighted material. It is law protecting software code
protecting copyright. The trouble, however, is that technologies that
protect copyrighted material are never as subtle as the law of copyright.
Copyright law permits fair use of copyrighted material; technologies that
protect copyrighted material need not. Copyright law protects for a limited
time; technologies have no such limit."
The decision to prosecute has also been criticised by many security
researchers who assert that the DMCA is having a chilling effect on IT
security research. In another recent DMCA case, the Recording Industry
Association of America earlier threatened Princeton researcher Professor Ed
Felten with a lawsuit if he gave a planned paper on his (invited) cracking
of the Secure Digital Music Initiative; as a result he declined to give his
paper.
As Jon Katz of slashdot.org commented:
"[Sklyarov's] arrest chills criticism of software, and of new technologies
and the powerful companies that create them. It also undermines security --
one of the very things the DMCA is supposed to protect. How can weaknesses
and flaws in security and encryption programs be discovered if they can't be
shared, discussed or explored?"
Some commentators have even suggested that, in future, US IT security
conferences will move to Canada or offshore to maintain the right of
researchers to freely discuss encryption issues.
One positive aspect of Sklyarov's arrest is that the constitutionality of
the DMCA will be challenged as well as subjecting it to greater public
scrutiny. Meanwhile Dmitry Sklyarov, a 27 year old father of two, remains in
jail far from home...
More information can be found at:
The Electronic Frontier Foundation,
http://www.eff.org/Legal/Cases/US_v_Sklyarov/ and
The Politech site,
http://www.politechbot.com/cgi-bin/politech.cgi?name=sklyarov
>[4] Feeling chilly? Get a weather report from the Chilling Effects
Clearinghouse
Feel the need to pull your cardie tight against the cool prevailing legal
wind? You're not alone. Harvard's Berkman Center for Internet & Society and
the Electronic Frontier Foundation are collaborating on a new project called
the 'Chilling Effects Clearinghouse'.
While the law itself can be constraint on freedom of expression (see the May
issue of the ADA Monthly IP update
http://www.digital.org.au/issue/ipwmay01.htm), perceptions of the law can
prove an even bigger restraint. The Chilling Effects Clearinghouse aims to
document the 'chilling effect' that 'cease and desist' letters can have.
According to the site itself:
"On the Internet, we often see more powerful actors sending vaguely worded
legal threats and cease-and-desist notices to individuals who comply because
they lack the legal resources to mount a challenge. The chilling effects of
these threats on speech and activity are easy to discuss, but harder to
quantify or to counter."
Recent examples of issues which have been the subject of 'chilling' letters
include: "the Motion Picture Association of America's letters implying that
the injunction against 2600 bars the world from linking to the DeCSS code,
Cyberpatrol emails regarding the CPhack posting as a copyright violation,
and letters claiming that reverse engineering the CueCat bar-code reader's
protocol 'conflict[s] with intellectual property rights owned by Digital
Convergence.'" Alleged trademark violations are also popular targets for
cease and desist letters; parodies of Barney the dinosaur and the Mastercard
'priceless' advertisements being two recent examples.
A central aim of the Chilling Effects Clearinghouse is to put out
information clarifying areas of the law which are subject to such letters in
order to defuse nebulous legal threats. The site asks those who have
received cease and desist letters to submit them.
The site can be found at www.chillingeffects.org .
>[5] How 'limited' are 'limited times'? Disappointing result in Eldred v
Ashcroft
An appeal decision was recently handed down in the case of Eldred v Ashcroft
(it was formerly known as Eldred v Reno, following the name of the then US
Attorney-General). Plaintiff Eric Eldred, a publisher of public domain
works, is challenging the constitutionality of the Sonny Bono Copyright Term
Extension Act (named after the no longer extant entertainer and
Congressman).
It is argued that the extension of copyright duration from life of the
author plus 50 years to life plus 70 (or 95 years for corporations) violates
the copyright clause in the US Constitution. (Bear in mind that the duration
of copyright was once 14 years with an additional 14 being available upon
re-registration). This clause allows Congress to "promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries."
Eldred, represented by cyber law guru Lawrence Lessig, argued that the
'founding fathers' were not just wasting ink when they used the phrase
'limited Times'; that there must be some constitutional constraint on the
frequent extensions to copyright duration. They also claimed that the
increasing level of copyright protection violates the First Amendment
guarantee of protection of freedom of expression.
So far the case has not been terribly successful, lately having by rejected
by the DC Appeals Court (though there was a heartening dissent from one
justice). Apparently the only option remaining is to appeal to the Supreme
Court. At least, however, this action has forced attention upon the
ever-increasing duration of copyright.
This case reveals a division within the US Court System about the
relationship between copyright and the First Amendment. While the DC Appeals
Court held that 'copyrights are categorically immune from First Amendment
scrutiny', the Eleventh Circuit Court of Appeals lifted a copyright-based
injunction in the Wind Done Gone case (see May issue
http://www.digital.org.au/issue/ipwmay01.htm for more information) calling
the copyright injunction an 'extraordinary and drastic remedy' that 'amounts
to an unlawful prior restraint in violation of the First Amendment.'"
The latest decision can be found at:
http://biotech.law.umkc.edu/cases/IP/copyright/eldred_v_reno.htm
Further discussion an open invitation to participate in working out the next
step: http://eon.law.harvard.edu/openlaw/eldredvreno/
>[6] New Zealand announces digital copyright reform
Hot on the heels of Canada's recently reported digital copyright reform,
comes a digital copyright discussion paper from New Zealand's Ministry of
Economic Development. The discussion paper, entitled Digital Technology and
the Copyright Act 1994: A Discussion Paper can be found at
http://www.med.govt.nz/buslt/int_prop/digital/index.html
The Ministers responsible for releasing the paper, Laila Harre and Paul
Swain, said that: "copyright law has traditionally aimed to balance the
interest of rights holders and users of works of copyright. The challenge we
face now is maintaining this balance while taking into account the impact of
new technologies."
The paper seeks comments from copyright owners, users and the public on such
issues as the protection of electronic reproduction and communication; the
liability of ISPs; the legal protection of technological protection measures
and electronic rights management information; the legal protection of
electronic databases; and 'whether any new exceptions or permitted uses are
required to protect the interests of the users of copyright works and the
wider public interest in the digital age.'
Submission must be received by 12 October 2001. There is also a second
discussion paper on performers' rights.
>[7] I can copy, right?
Yes, you can copy this publication. Feel free to send it to friends,
colleagues or people you've never met; print it off or put it on your
website provided that all text is included or, in the case of an excerpt,
appropriate credit is given.
-- ========================================================= Nick Smith Executive Officer :: Australian Digital Alliance Copyright Advisor :: Australian Libraries Copyright Committee PO Box E202 \\ Kingston ACT 2604 Ph: 02 6262 1273 \\ Fax: 02 6273 2545 Email: nsmith@nla.gov.au \\ Web: www.digital.org.au =========================================================
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