copyright and the eucd dr. ian brown foundation for information policy research
TRANSCRIPT
Copyright and the EUCD
Dr. Ian Brown
Foundation for Information Policy Research
Overview
Where did copyright go wrong? “Trusted” computing The technical problems with DRM Legislative “fixes” Goodbye to fair use
Origins
Statute of Anne, 1710: “for the encouragement of learned men to compose and write useful books ”
US Constitution, 1789: “To promote the progress of science and useful arts”
Droit d’auteur: “a work of creation is intimately linked with its creator. The work cannot be separated from its author, like a child from his father.”
Stationer’s Guild, 1557: no “seditious and heretical books, rhymes and treatises”
Problem #1: copyright terms
0
20
40
60
80
100
120
140
Yea
rs
1790 1831 1909 1976 1998
…EU life + 70 since 1993
The drivers behind copyright
•Mickey debuted in 1928, and copyright would have expired this year
•US Congress passed Copyright Term Extension Act in 1998 postponing until 2023
•Peter Pan has perpetual rights in UK
Problem #2: Internet hysteria
“the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.” –Jack Valenti
Mid-90s reaction of copyright industries: technical and legal
“The piracy of software is responsible for annual global revenue losses of more than $4 billion. The piracy of computer games cheats the gaming industry out of more than a billion dollars a year. And the piracy of songs has left the music industry fighting for its digital life, thanks to a pillaging that reached levels of more than a billion songs a month.” –Peter Chernin
Previous technical “solutions”
Secure Digital Music Initiative CD protection CSS
New “trusted” architectures
Intel/IBM/HP/etc in TCPA/TCG: machine state auth to 3rd parties; encrypted data only accessible in identical state; encrypted device links
Microsoft Palladium/NGSCB: “curtained” apps, secure drivers, DRM everywhere
Migrating to PDAs/mobiles/watches
Fundamental technical problems
The analogue “hole” Break Once Play
Anywhere File-sharing won’t stop
Legislative “fixes”
WIPO 1996 treaties Digital Millennium Copyright Act 1998 European Union Copyright Directive 2001 WTO TRIPS 1994 can lead to trade
sanctions
EU Copyright Directive
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society
Provides for rights over reproduction, communication to the public and distribution (Articles 2—4)
EUCD Article 6 6.1: “Member States shall provide adequate legal
protection against the circumvention of any effective technological measures”
6.2: bans “manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services”
Purpose is irrelevant Finland, France, UK 2 years prison; Portugal 3 years;
France 150,000€ fine Only Germany, Denmark and Finland have research
exemptions
EUCD Article 7
7.1: “Member States shall provide for adequate legal protection against any person knowingly performing without authority… the removal or alteration of any electronic rights-management information”
Existing problems
“I think a lot of people didn't realize that it would have this potential chilling effect on vulnerability research.” –Richard Clarke
Use to enforce accessory controls (Lexmark, Aibo, Playstation)
Rewriting the copyright bargain
Potential problems
Electronic book burning Reduced software diversity – security and
competition risks Personal and national sovereignty Privacy
Problem #3: disappearing fair use
Private copy Teaching/research Parody Disabled persons
EUCD Article 5
Long list of permissible exceptions (unlike US) 5.1 “Temporary acts of reproduction referred to
in Article 2, which are transient or incidental [and] an integral and essential part of a technological process…”
5.2: exceptions to Art. 2 5.3: exceptions to Art. 3 5.4: any of the above may apply to Art. 4
Fair use and DRM
DMCA and EUCD both ban DRM circumvention, even for fair use
EUCD requests “voluntary measures” from rightsholders
If not forthcoming, most member states allow appeal to national tribunal (except Netherlands)
Abolishing digital fair use
“On-demand services” (“members of the public may access them from a place and at a time individually chosen by them”) exempt from fair use
Could include anything accessed over Internet
Contractual access – also see UCITA
Problems for free software
Accessing a protected file may be circumvention (e.g. DeCSS) if not authorised by rightsholder (despite Software Directive)
Therefore free software could be classed as a circumvention device, with severe penalties
More problems
Growing numbers of file formats may require reboot into Windows to access (Intel hardware prevents OS virtualisation)
Including Office 2003 and later Society may need protection from TPMs
rather than the other way around
Even worse law coming
Draft EU Directive on IPR Enforcement: abolishes right to silence in IP cases; allows injunctions against ISPs; civil litigants can freeze bank accounts and search premises
See fipr.org for analysis
Final thoughts “Be very glad that your PC is insecure – it
means that after you buy it, you can break into it and install whatever software you want. What YOU want, not what Sony or Warner or AOL wants.” –John Gilmore
“"If we can find some way to [stop filesharing] without destroying their machines, we'd be interested in hearing about that. If that's the only way, then I'm all for destroying their machines.” –Senator Orrin Hatch (writer of Our Gracious Lord, Climb Inside His Loving Arms, and How His Glory Shines)