Unhealthy obsession with Copyright Law

It has come to my attention that the Exposure Draft of the Copyright Amendment (Technological Protection Measures) Bill 2006 has been released by the Attorney General's Department (excuse the passive voice). This is to give effect to obligations arising under the Australia-US Free Trade Agreement.

One of the key changes is that it will make the ACT OF CIRCUMVENTION ITSELF an offence under the Act, as currently - only the sale and marketing of such circumvention devices is an infringement under the Act.

Assume for a second that a "mod-chip" for an Xbox is a circumvention device (more on that later). As the law currently stands, the person who sells and makes them is breaking the law (i.e. infringing copyright), while the customer who uses the modchip and the modded xbox is not infringing. The amendment will make the customer liable.

I say ASSUME because the Sony v Stevens case (where a dude selling and installing modchips in the PS2 was sued by Sony, because the modchip overrode region coding and allowed pirated games to run on the PS2) confirms that the "Sony System" of preventing the running of pirated games (which, is practically identical in its functionality to the Xbox system) is NOT a technological protection measure (i.e. TPM), and therefore, the modchip was NOT a circumvention device.

The reasoning being, a circumvention device overrides a TPM. That means a TPM needs to be present before suing someone for supplying circumvention devices.

This is great news for uber nerds in Australia wanting to tinker with their PS2s and Xboxs. Unfortunately, this is bad news for intellectual property lawyers, as some of them are of the opinion (and I share this opinion) that the TPM provisions of the Copyright Act were too narrowly construed by the High Court judges.

Of particular note, the judges, in attempting to discover the purpose or intent of the provision, did not look to the extrinsic material of international treaties and its obligations. It seems that the judges took a rather literal and linguistic approach to the provision.

The Exposure Draft also changes the definition of a TPM. One wonders, if the case were to be litigated in 2007, whether the High Court would have come to the same conclusion in light of an amended definition of a TPM.

I'm not just interested in this because I am an uber nerd who's dying to tinker with my Xbox.

The issue of TPMs and circumvention devices also affects users of computer program who wish to make a back-up copy of a program they have bought (i.e. they are the licensee). Section 47C allows a licensee to make a copy of a computer program for back-up purposes. The purpose can be to allow the user to store the original media (i.e. CD or DVD ROM) and use the back up instead or vice-versa.

You may be familiar with the concept of "imaging" a disc. If not, I'll briefly explain it. If you buy a computer game, it comes on a disc, or CD. Quite often, after installing the game on your hard drive, the game will require you to have the CD in the CD drive in order to allow you to play the game.

The game itself remains on the hard drive, but the requirement for the CD is merely a means to authenticate you as a genuine licensee by detecting whether you are in possession of the original disc. Now, if one was paranoid about losing the disc, you should be, because once you lose that disc, the game on your hard drive becomes unplayable. Therefore, one might, and can under section 47C, make a back-up copy.

You may decide to make a back-up copy in the form of another disc. The other option is to create a file on your computer which looks like a disc. The file is usually an ISO file, and the process of reading the original disc and turning it into an ISO file is called "imaging".

Either way, both methods require your computer and CD drive to read the contents of the original disc. Computer game companies, in an attempt to prevent unauthorised copying, have incorporated a number of "unreadable" or "bad" sectors at the beginning of the disc. This means that when trying to copy the game, the bad sectors "throw off" the computer and the CD drive, thereby preventing copying. The games are often referred to as "copy protected games".

In my opinion, these "bas sectors" fall within the CURRENT meaning of a TPM under the Act. However, since licensees in Australia (i.e. customers who have bought the game legitimately) are allowed to make a back-up copy under section 47C, can they employ a method which CIRCUMVENTS this TPM in order to make that copy?

Examples of such "circumvention devices" are programs like Alcohol 120%, CloneCD, and GameJack. These programs are SPECIFICALLY designed to enable copying of copy protected games by forcing the computer to ignore those bad sectors (or read them in a certain way) and therefore not get thrown off by it.

The law is currently not clear as to whether we are currently allowed to use imaging software which incorporates a circumvention device.

However, the Attorney General's Department is currently reviewing the "exceptions" to the TPM provisions. One of them is to specifically allow the use of circumvention devices to enable the making of a back-up copy of a computer program (e.g. games).

They are currently taking submissions and will close on 22 September 2006. Since I am an uber nerd with an unhealthy obsession with copyright law, I will prepare a submission to the Attorney General's Department. Quite exciting really, as this will be my first contribution to the legislative process! And to think that the first contribution to law-making would be in the tax field, HA!