The evolution of anti-circumvention law

Countries around the world have since 1996 updated copyright laws to prohibit the circumvention of "Technological Protection Measures", technologies that restrict the use of copyright works with the aim of reducing infringement and enforcing contractual restrictions. This article traces the legislative and treaty history that lies behind these new legal provisions, and examines their interaction with a wide range of other areas of law: from international exhaustion of rights, through competition law, anti-discrimination measures, regulation of computer security research, constitutional rights to freedom of expression and privacy, and consumer protection measures. The article finds that anti-circumvention law as promoted by US trade policy has interfered with public policy objectives in all of these areas. It picks out key themes from the free trade agreements, legislation and jurisprudence of the World Trade Organization, World Intellectual Property Organization, USA, EU member states, and South American, Asian and Australasian nations. There is now a significant movement in treaty negotiations and in legislatures to reduce the scope of anti-circumvention provisions to ensure their compatibility with other important policy objectives

The Playstation Mod Chip: A Technological Guarantee of the Digital Consumer's Liberty or Copyright Menace/Circumvention Device?

This article overviews the way in which anti-circumvention laws recently enacted in countries such as the United States, the European Union and Australia have been utilised to reinforce digital rights management. In particular, this artcile looks at the Australian case that has been replicated around the world concerning the modification of the Sony PlayStation console in order to circumvent regional access coding (RAC) on Sony PlayStation games. RAC makes it difficult to use local platforms to play burnt or copied games and games from other geographical regions. The article examines the litigation concerning this issue which is currently before the the highest court in the Australian legal jurisdiction - the High Court of Australia

Limitation of Sales Warranties as an Alternative to Intellectual Property Rights: An Empirical Analysis of IPhone Warranties’ Deterrent Impact on Consumers

Apple\u27s success with the Apple iPhone has brought with it certain problems. Its success has engendered a community that has attempted to circumvent Apple\u27s exclusive service agreement with AT&T. Unfortunately for Apple (and similarly situated manufacturers), intellectual property law allows consumers to alter their products so as to circumvent relationships that manufacturers may have with others. The patent and copyright law first sale doctrine allows consumers to manipulate a product after it is purchased. As a result, manufacturers are increasingly turning to alternatives to intellectual property to secure control over the device after the sale. One such alternative is the exclusion of warranty under Article 2 of the Uniform Commercial Code. This iBrief considers whether limitation of warranties have the deterrence effect manufacturers desire. Said differently, it considers whether manufacturers can use warranty limitations to prevent consumers from using their products in an unauthorized manner. The iBrief presents a behavioral model based on the Triandis model of planned behavior and enhances the model by accounting for likely and unlikely benefits and detriments. The model suggests that participants weigh the probability and magnitude of the detriment against the probability and magnitude of the beneficial impact when making the decision to engage in technological piracy. This model, considered with other empirical evidence, suggests that Apple\u27s warranty could be a stronger deterrent for consumers than civil liability. The iBrief concludes that manufacturers can better protect their post-sale expectation of profits by raising consumer awareness of their warranty\u27s quality and by raising awareness of the consequences for using the product in a way that is outside the terms of the consumers\u27 authorized use

Copyright Misuse: Protecting Copyright in Canada from Overreach and Abuse

Faced with a rapidly evolving technological landscape—one in which near-perfect copies of digital content can be created and disseminated with minimal cost and unprecedented ease—copyright owners have sought to exercise greater control over expressive works. In many cases, they have undertaken this task by harnessing the very same technological forces that threaten to disrupt their traditional business models: monitoring online activity and responding to potentially infringing uses with thousands of cease- and-desist letters; licensing rather than selling digital works; or locking down content with technological access and control measures. These attempts at enhanced protection merit concern because their effectiveness is, for the most part, not limited by the scope of rights granted to copyright owners under the Copyright Act. Unrestrained by copyright\u27s statutory limits (including the restriction against copyrighting works in the public domain) and internal safety- valves (such as fair dealing), content holders are now able to routinely overreach the boundaries of copyright law and abuse their limited statutory grant of rights in copyrighted works. This behaviour, which I refer to generally as “overreach and abuse,” can be classified into two broad categories. The first category includes protective measures that, although procedurally valid, cannot ultimately be substantiated in law. Labelled by commentators as “copyfraud,” these actions involve content holders increasingly laying claim to rights in expressive works that have little or no basis in copyright law. Backed by threats of litigation, these spurious claims often go uncontested due to the power imbalance existing between owner and user groups. The second category includes protective measures that are substantively legal, but entirely divorced from the statutory domain of copyright law. Contractual agreements—many of which are subject to considerable inequality of bargaining power—and an array of technological protection measures or “digital locks”—which can be further supported by anti-circumvention laws—are being employed with increasing frequency by content owners. The result is a comprehensive system of legally enforceable barriers to expressive works that often trump copyright law, the terms of which are set almost entirely by private entities. Taken together, these two categories of behaviour not only tip the balance in favour of content holders, rendering users\u27 rights such as fair dealing largely ineffectual, but also threaten to marginalize the application and therefore relevancy of copyright law as a whole. Increasingly, copyright is being displaced by a comprehensive “privately defined rights regime.” In response to this trend, courts, copyright users and legal scholars have begun to look outside the statutory confines of copyright law in the hope of identifying legal tools capable of restoring a degree of balance to the regulation and control of expressive works. One avenue currently being pursued in the United States is the doctrine of copyright misuse, an equitable defence to copyright infringement that arises when a copyright owner has “misused” his or her copyright. Where the Copyright Act is silent or unable to prevent content holders from overstepping the bounds of copyright law, the doctrine of copyright misuse provides owners with an incentive to respect the statutory limits of copyright, lest they risk losing the ability to enforce certain legal claims until the behaviour constituting misuse has been remedied. Although Canada is vulnerable to many of the same forces of overreach and abuse as the United States, no doctrine comparable to copyright misuse currently exists in Canadian law. This may simply be due to the relatively short history of copyright misuse in American jurisprudence, but is likely also attributable to a previous lack of a clearly articulated justification for the doctrine’s existence in Canada. However, the Supreme Court of Canada in a “trilogy” of copyright cases has recently filled that purposive vacuum. The notion of balance between dual objectives, the concept of users\u27 rights and an increasingly economic and instrumentalist understanding of copyright law—all principles to emerge from the trilogy—provide strong support for a “made-in-Canada” approach to copyright misuse. Although unlikely to stem the tide of overreach and abuse completely, the doctrine would serve to uphold the statutory limits of copyright, helping to ensure the Copyright Act’s continuing role as the dominant means of regulating expressive works in Canada. This paper is divided into four parts. Part I canvasses the growing phenomenon of overreach and abuse by content holders. Two broad categories of behaviour are explored, revealing the need for a judicial doctrine capable of responding to the threats posed to copyright law as a result. Part II examines the American doctrine of copyright misuse as a tool to address instances of overreach and abuse. Its recent emergence from the related doctrine of patent misuse is discussed, along with its various doctrinal approaches and potential for future growth and expansion. Part III justifies the importation of the copyright misuse doctrine into Canadian law. The recent articulation of copyright\u27s purpose by the Supreme Court of Canada is proposed as a justificatory basis for the doctrine\u27s recognition, and concerns relating to the viability of copyright misuse in Canada are also addressed. Part IV contains a brief conclusion

The Law of Unintended Consequences: The Digital Millennium Copyright Act and Interoperability

The Digital Millennium Copyright Act (DMCA) has been criticized for many reasons, including its impact on the fair use defense to copyright infringement, and its potential to chill the free exchange of scientific, technical, and educational information. Law professors and special interest groups have opposed elements of the DMCA from its inception and continue to lobby for reform. One of the more recent concerns about the DMCA involves the incorporation of copyrightable software code into tangible goods for purposes related to the functionality of those goods. Some manufacturers of such products recently have attempted to use the DMCA to prevent commercial competitors from developing and marketing interoperable replacement parts in competition with them in relevant after-markets. Despite recent judicial determinations against such manufacturers, the potential for future manufacturers to argue for the application of the DMCA in these kinds of cases remains a matter of some concern as an unintended consequence of the legislation. This Article advocates the development and implementation of a legislative carve out to the DMCA in cases involving interoperable replacement parts for tangible goods where copyrightable software code is incorporated incidentally into either the original good or the authorized replacement part or both. DMCA liability should not arise in situations where copyright infringement is not a central commercial concern of the plaintiff

Copyright Misuse: Protecting Copyright in Canada from Overreach and Abuse

Faced with a rapidly evolving technological landscape—one in which near-perfect copies of digital content can be created and disseminated with minimal cost and unprecedented ease—copyright owners have sought to exercise greater control over expressive works. In many cases, they have undertaken this task by harnessing the very same technological forces that threaten to disrupt their traditional business models: monitoring online activity and responding to potentially infringing uses with thousands of cease- and-desist letters; licensing rather than selling digital works; or locking down content with technological access and control measures. These attempts at enhanced protection merit concern because their effectiveness is, for the most part, not limited by the scope of rights granted to copyright owners under the Copyright Act. Unrestrained by copyright\u27s statutory limits (including the restriction against copyrighting works in the public domain) and internal safety- valves (such as fair dealing), content holders are now able to routinely overreach the boundaries of copyright law and abuse their limited statutory grant of rights in copyrighted works. This behaviour, which I refer to generally as “overreach and abuse,” can be classified into two broad categories. The first category includes protective measures that, although procedurally valid, cannot ultimately be substantiated in law. Labelled by commentators as “copyfraud,” these actions involve content holders increasingly laying claim to rights in expressive works that have little or no basis in copyright law. Backed by threats of litigation, these spurious claims often go uncontested due to the power imbalance existing between owner and user groups. The second category includes protective measures that are substantively legal, but entirely divorced from the statutory domain of copyright law. Contractual agreements—many of which are subject to considerable inequality of bargaining power—and an array of technological protection measures or “digital locks”—which can be further supported by anti-circumvention laws—are being employed with increasing frequency by content owners. The result is a comprehensive system of legally enforceable barriers to expressive works that often trump copyright law, the terms of which are set almost entirely by private entities. Taken together, these two categories of behaviour not only tip the balance in favour of content holders, rendering users\u27 rights such as fair dealing largely ineffectual, but also threaten to marginalize the application and therefore relevancy of copyright law as a whole. Increasingly, copyright is being displaced by a comprehensive “privately defined rights regime.” In response to this trend, courts, copyright users and legal scholars have begun to look outside the statutory confines of copyright law in the hope of identifying legal tools capable of restoring a degree of balance to the regulation and control of expressive works. One avenue currently being pursued in the United States is the doctrine of copyright misuse, an equitable defence to copyright infringement that arises when a copyright owner has “misused” his or her copyright. Where the Copyright Act is silent or unable to prevent content holders from overstepping the bounds of copyright law, the doctrine of copyright misuse provides owners with an incentive to respect the statutory limits of copyright, lest they risk losing the ability to enforce certain legal claims until the behaviour constituting misuse has been remedied. Although Canada is vulnerable to many of the same forces of overreach and abuse as the United States, no doctrine comparable to copyright misuse currently exists in Canadian law. This may simply be due to the relatively short history of copyright misuse in American jurisprudence, but is likely also attributable to a previous lack of a clearly articulated justification for the doctrine’s existence in Canada. However, the Supreme Court of Canada in a “trilogy” of copyright cases has recently filled that purposive vacuum. The notion of balance between dual objectives, the concept of users\u27 rights and an increasingly economic and instrumentalist understanding of copyright law—all principles to emerge from the trilogy—provide strong support for a “made-in-Canada” approach to copyright misuse. Although unlikely to stem the tide of overreach and abuse completely, the doctrine would serve to uphold the statutory limits of copyright, helping to ensure the Copyright Act’s continuing role as the dominant means of regulating expressive works in Canada. This paper is divided into four parts. Part I canvasses the growing phenomenon of overreach and abuse by content holders. Two broad categories of behaviour are explored, revealing the need for a judicial doctrine capable of responding to the threats posed to copyright law as a result. Part II examines the American doctrine of copyright misuse as a tool to address instances of overreach and abuse. Its recent emergence from the related doctrine of patent misuse is discussed, along with its various doctrinal approaches and potential for future growth and expansion. Part III justifies the importation of the copyright misuse doctrine into Canadian law. The recent articulation of copyright\u27s purpose by the Supreme Court of Canada is proposed as a justificatory basis for the doctrine\u27s recognition, and concerns relating to the viability of copyright misuse in Canada are also addressed. Part IV contains a brief conclusion

Private Copyright: Digital Rights Management Systems and the Consumer

Digital Rights Managements (DRM) systems impact the digital content and software marketplace on several levels. The issues include copyright law, contract law, privacy, antitrust, and consumer protection. This paper examines how DRM systems affect the consumer and what changes can be made to bring about a more sensible and transparent market in the United States