In this video, law professor and intellectual property (IP) expert Kimberlee Weatherall and Linux Australia’s IP Policy Adviser, Rusty Russell, talk about the new intellectual property laws and their thoughts on the processes that have got us to this point.

To all Linux users, this video is presented in Flash 8 and has been tested successfully for use with Linux systems running the latest Flash plug-in for Linux (version 9.0). Currently, this version is not available from Adobe for those running 64-bit Linux. A full transcript is provided below.

Builder AU: What are your thoughts on the new copyright laws?

Kimberlee Weatherall: Where to begin. The legislation is horrible, it’s a mess.

  • It’s a mess
  • It’s nasty

It has a lot of the stuff that we fought against. In terms of the exception stuff, we probably couldn’t have lost worse than we did. We didn’t get fair use, we didn’t get flexibility, we just got more and more complicated legislation. In terms of the anti-circumvention law, it looks a lot like the DMCA. There’s words we could play with in a court case if it came up but it’s just nasty looking legislation.

The process was hideous. It was not transparent, it was rushed. The law was written by people who weren’t using the technology that gets affected by it. It’s really quite hard to be positive, we had small wins on some things.

Rusty Russell: The real danger in what happened is that we’ve ended up with this thing that is so complicated that nobody quite knows what the law is right now. So instead of having clear exceptions for reasonable uses that don’t involve any illegal copying, we have this grey area where we don’t know what the answer is. I mean if you purchase something and you think you should be able to use it, view it, whatever, it’s possible that you may not actually be allowed to now.

Frankly I think the courts are going to decide. So we’ll have another at least three years of waiting until some court case comes up, we find out what the legislation actually means. I think that is the most disturbing thing — you have long debates about on what we should have in the legislation [and] you end up with this. The battle’s not over.

Builder AU: Can we fight against it?

RR: Nothing is ever final. A change of direction by the government or a change of government could obviously fix some of these issues. The other thing that could happen is that experience with this could lead us to go, after some fairly nasty side effects, “perhaps this wasn’t what was intended”.

Its been really interesting to see the knotted process that we’ve gone through for this and it’s pretty clear that there’s not enough people in the relevant departments [that] really understand what technology is all about and what users and people out there, your average person on the street, would consider completely reasonable things, like VCRs and iPods, are stunned to discover that not only are they only recently legal, some uses of them that you would expect to be perfectly legitimate, like recording something for your mother-in-law, are not legal.

Builder AU: Why was public awareness of the IP changes in the FTA so low?

KW: Public awareness is generally low of IP law, most people ignore it generally.

RR: And frankly they are better for it

KW: Yeah absolutely.

During the negotiations the whole thing was very non-transparent, we didn’t see what was going on, we weren’t aware of what the text was. Once the text was out people started to get a bit worked up but only a small group, the people who are involved in this which is not most of the population.

Patents briefly hit the headlines, and quickly disappeared again.

RR: Chapter Seventeen, the IP chapter, was the largest chapter in the treaty. So it was actually the meat of the treaty, but it certainly wasn’t perceived that way by most people.

Builder AU: Is Linux Australia taking action to increase public awareness?

RR: It’s really interesting — there’s always the question of those of us who are technical should perhaps be out doing, so that more people are using Linux and using Free Software, so that if push comes to shove, and a perverse interpretation of these laws ends up really restricting what we can do, then there will be more people who go: “No, hold on! I use that. You can’t ban it! That’s crazy! I expect to play DVDs on Linux like everyone else.”

I think at this stage that’s the path that we have to take to increase acceptance, increase the number of people who are generally using this stuff. So that the public generally feel that this is an issue that does affect them.

KW: Because this is something that was missing, in a lot of the debates that we had, was that you can get the most traction in a debate about how the law should be or how the law should be changed, where people see themselves being directly affected.

So the “I would like to tape TV to watch later”, “I would like to copy to my iPod”, “I’m worried that my teenage daughter, when she records something, is going to end up being criminally charged”, those sorts of things got some purchase, got some effects and we saw little bits there change. What wasn’t making the same kind of impact, what people weren’t aware affected them personally was the anti-circumvention laws, the DMCA type stuff.

At the point three years down the track, when the court decision comes up and it is negative, maybe that will be different. Three years down the track maybe people will understand it a bit more.

Builder AU: What are the differences between Oz DMCA and US DMCA?

KW: Quick summary — we have a few more exceptions; we may or may not have language that covers less or more technologies. It really is that grey! Rusty wasn’t kidding when he said “there are grey areas”.

There are big gaping holes in the explanations of what the law is meant to cover, the language is opaque, and it is clear that the people who were writing the explanations didn’t actually understand the technology.

We may end up with law that covers less kinds of DRM and that allows more freedom or we may end up with a law that covers the same stuff. It will depend on what the courts decide.

RR: The US Courts have certainly done some watering down of some of the scarier parts of the DMCA, with regard to actions where there was actually no copyright violation, no piracy involved, where people were just trying to access their stuff. The courts have been pretty anti , in the US, that kind of interpretation that simply because you are a copyright holder, now everyone that buys something off you has to ask your permission to access it. That’s been slapped down reasonably hard in the US.

We have a similar kind of language happening in our laws, and are we going to have to go through the same process and are we going to get the same positive outcomes?

KW: We are going to have to convince the courts to take the same kind of approach.

Builder AU: Do you think the courts are supportive of fair usage?

KW: We did see quite a lot of comments, particularly in the High Court, about keeping these laws to actually doing what they say they are meant to be doing, which is protecting against mass copyright piracy. It’s of course not clear which way they will go. The full Federal Court went a different way, it depends on what Court you are in front of, it depends on what judges you get and it depends on whether you can mount a convincing argument about the interpretation.

Having the US cases which do take a restrictive view is good because the courts will look at those and with any luck reach similar sorts of conclusions. But there is no guarantees.

RR: Certainly it’s a deeply uncertain time to try to be starting a business doing something like a Free Software DVD player or something else where the copyright holder is going to go after you because they don’t like the way that you are using their stuff. You’d be hard pressed to find a lawyer who’d tell you that you are OK to go ahead. And given the size of some of the companies on the other side, I think it’s going to have a real suppressive effect.

Builder AU: Is DMCA viral? Are we going to export it to other countries?

KW: Firstly we don’t need to, the US is. The US is concluding FTAs at a rate of knots.

RR: But we are also pushing copyright extension in our FTAs. So we have copyright extension as part of our Free Trade Agreement, now we are signing a Free Trade Agreement with the United Arab Emirates and other people, and we are pushing copyright extension on them. Even though it was something that we specially opposed when the Americans pushed it onto us.

So by that analogy, you’d expect that we’d do the same thing with DRM law.