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

Yelling Fire and Hacking: Why the First Amendment Does Not Permit Distributing DVD Decryption Technology?

One of the consequences of the black-hole "no-hair" theorem in general relativity (GR) is that gravitational radiation (quasi-normal modes) from a perturbed Kerr black hole is uniquely determined by its mass and spin. Thus, the spectrum of quasi-normal mode frequencies have to be all consistent with the same value of the mass and spin. Similarly, the gravitational radiation from a coalescing binary black hole system is uniquely determined by a small number of parameters (masses and spins of the black holes and orbital parameters). Thus, consistency between different spherical harmonic modes of the radiation is a powerful test that the observed system is a binary black hole predicted by GR. We formulate such a test, develop a Bayesian implementation, demonstrate its performance on simulated data and investigate the possibility of performing such a test using previous and upcoming gravitational wave observations

Exporting DMCA Lockouts

My goal here is limited. I do not attack the anti-circumvention provisions of the DMCA as wholly misguided; the desire to prevent widespread piracy of copyrighted works is understandable. At the same time, I do not mean to suggest that the critique I offer here is the sum of the adverse consequences of that statute, including for speech and education. My argument is limited to the threat posed by the export of the DMCA anti-circumvention rules, which do not explicitly guard against the anti-competitive use of those rules.Part I briefly sketches the difficulties created domestically by a DMCA inattentive to concerns over competition. Part II describes how these legal problems are being exported to our trading partners through free trade agreements

Some Reflections on Copyright Management Systems and Laws Designed to Protect Them

Copyright management systems (CMS)—technologies that enable copyright owners to regulate reliably and charge automatically for access to digital works—are the wave of the very near future. The advent of digital networks, which make copying and distribution of digital content quick, easy, and undetectable, has provided the impetus for CMS research and development. CMS are premised on the concept of trusted systems or secure digital envelopes that protect copyrighted content and allow access and subsequent copying only to the extent authorized by the copyright owner. Software developers are testing prototype systems designed to detect, prevent, count, and levy precise charges for uses that range from downloading to excerpting to simply viewing or listening to digital works. In a few years, for example, an individual seeking online access to a collection of short fiction might be greeted with a menu of options including: Open and view short story A — $0.50, or$0.40 for students doing assigned reading (verified based on roster submitted by instructor) Open and view short story B (by a more popular author) — $0.80, or$0.70 for students Download short story A (encrypted and copy-protected) — $1.35 Download short story B —$2.25 Download entire collection — $15.00 Extract excerpt from short story A —$0.03 per 50 words Extract excerpt from short story B — $0.06 per 50 words CMS also loom large on the legislative horizon. Copyright owners have argued that technological protection alone will not deter unauthorized copying unless the law provides penalties for circumventing the technology. Although a bill to protect CMS against tampering failed to reach a vote in Congress last year, the World Intellectual Property Organization\u27s recent adoption of treaty provisions requiring protection means that Congress must revisit the question soon. Part II describes these developments. The seemingly inexorable trend toward a digital CMS regime raises two questions, which the author addresses in parts III and IV, respectively. First, broadly drawn protection for CMS has the potential to proscribe technologies that have indisputably lawful uses and also to foreclose, as a practical matter, uses of copyrighted works that copyright law expressly permits. How may protection for CMS be drafted to avoid disrupting the current copyright balance? Second, and equally fundamental, CMS may enable both pervasive monitoring of individual reading activity and comprehensive private legislation designed to augment—and possibly alter beyond recognition—the default rules that define and delimit copyright owners\u27 rights. Given the unprecedented capabilities of these technologies, is it also desirable to set limits on their reach

Universal City Studios, Inc. V. Corley: The Constitutional Underpinnings of Fair Use Remain an Open Question

At first blush, the Copyright Clause and the First Amendment of the United States Constitution appear to serve conflicting interests and to exist in irrevocable tension. On one hand, the Copyright Clause grants authors the exclusive Right to their respective Writings and Discoveries, thereby prohibiting others from utilizing certain forms of expression. On the other hand, the First Amendment prohibits Congress from abridging the freedom of speech and expression. ;Thus, by simultaneously prohibiting the use of another\u27s expression and safeguarding expression, the two provisions appear to be on a constitutional collision course

Rethinking Anticircumvention\u27s Interoperability Policy

Interoperability is widely touted for its ability to spur incremental innovation, increase competition and consumer choice, and decrease barriers to accessibility. In light of these attributes, intellectual property law generally permits follow-on innovators to create products that interoperate with existing systems, even without permission. The anticircumvention provisions of the Digital Millennium Copyright Act ( DMCA ) represent a troubling departure from this policy, resulting in patent-like rights to exclude technologies that interoperate with protected platforms. Although the DMCA contains internal safeguards to preserve interoperability, judicial misinterpretation and narrow statutory text render those safeguards largely ineffective. One approach to counteracting the DMCA\u27s restrictions on interoperability is to rely on antitrust scrutiny and the resulting mandatory disclosure of technical information. But both doctrinal and policy considerations suggest that antitrust offers a less than ideal means of lessening the DMCA\u27s impact on interoperability. Rather than relying on antitrust, this Article proposes a solution that addresses the restriction of interoperability at its source. This approach broadens the DMCA\u27s existing interoperability exemption to create an environment more hospitable to interoperable technologies. To preserve the protections the DMCA offers copyright holders, this expanded exemption would disaggregate control over interoperable software and devices from the control over access and copying that Congress intended the DMCA to enable

Rethinking Anticircumvention\u27s Interoperability Policy

Interoperability is widely touted for its ability to spur incremental innovation, increase competition and consumer choice, and decrease barriers to accessibility. In light of these attributes, intellectual property law generally permits follow-on innovators to create products that interoperate with existing systems, even without permission. The anticircumvention provisions of the Digital Millennium Copyright Act ( DMCA ) represent a troubling departure from this policy, resulting in patent-like rights to exclude technologies that interoperate with protected platforms. Although the DMCA contains internal safeguards to preserve interoperability, judicial misinterpretation and narrow statutory text render those safeguards largely ineffective. One approach to counteracting the DMCA\u27s restrictions on interoperability is to rely on antitrust scrutiny and the resulting mandatory disclosure of technical information. But both doctrinal and policy considerations suggest that antitrust offers a less than ideal means of lessening the DMCA\u27s impact on interoperability. Rather than relying on antitrust, this Article proposes a solution that addresses the restriction of interoperability at its source. This approach broadens the DMCA\u27s existing interoperability exemption to create an environment more hospitable to interoperable technologies. To preserve the protections the DMCA offers copyright holders, this expanded exemption would disaggregate control over interoperable software and devices from the control over access and copying that Congress intended the DMCA to enable