[plug] Re: Aussie DMCA is here now!

[Jeremy Malcolm]

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> Hmm. Interesting concept. What say you, Jeremy Malcom?

(Some of what follows snipped from my comments on another list. 
Also, the usual disclaimer applies.)

In answer to the specific question, you can reverse engineer software
from a pirated version of it and you will not be liable for the use
of a circumvention device such as a decompiler.  However you won't be
provided against liability for the pirating of the software that you
are working on.  The end product of your endeavours will not
*necessarily* be in breach of copyright, ie. it is not "tainted" by
your use of a pirated source medium, unless there is an independent
breach of intellectual property rights in what you create.

But addressing the more general issue, I think the Digital Agenda
Bill has more good in it than bad; eg. protecting ISPs from their
users' copyright violations (which is *way* overdue). As for the
circumvention provisions, unless you take a strict "information wants
to be free" position whereby *no* copyright should exist in software,
these provisions are difficult to argue against, because the
legitimate uses for circumvention are already
exempted from the Act, which leaves only software piracy unexempted.

In particular I don't think the free software movement has too much
to fear from the circumvention provisions, because circumvention for
purposes of engineering compatibility is permitted, and even if it
wasn't, there is already the decompilation legislation previously
passed.  In any case the vast majority of free software development
in the
use of proprietary systems or protocols involves re-engineering from
scratch rather than relying on circumvention or decompilation.

The use of software such as DeCSS won't be proscribed, for exempted
purposes.  You're free to download DeCSS for purposes of writing a
Linux DVD player that is interoperable with
the DVD standard, so long as the software you create is not in itself
in breach of intellectual property (eg. copyright or patent) rights. 
The ALP wanted to constrict this by requiring you to swear a
declaration that you needed the circumvention device for an exempted
purpose, but was voted down by the coalition and Democrats.

I obviously agree that closed systems and proprietary information is
"bad", but I don't think that the Government should *force* people to
be open if they want to be proprietary.  We can let them know what we
think, and we can boycott their products, but I don't think we should
expect the government to require them to open up their technologies.

There are definite problems with the Digital Agenda Copyright Bill,
for example the fact that if you want the protection of the
circumvention exemption provisions then *you* have to prove that you
qualify.  I never liked reversals of burdens of proof (and neither
does the High Court, for that matter).  Also, DVD region coding is a
restrictive trade practice which should be opposed, and that there
are legitimate political and economic grounds for doing so.  That is
a bit of a side-issue to the copyright debate, though.

So although /. and the lists are mouthing off about this Bill I think
unless you are totally opposed to the protection of intellectual
property (which is a politically unsupportable position) the Digital
Agenda amendments are actually not such an unreasonable compromise as
they might appear.

- -- 
Independent consulting solicitor* | _ .__ ._ _    |\/| _.| _ _ |._ _
and technology consultant.**    \_|(/_|(/_| | |\/ |  |(_||(_(_)|| | |
Personal site: http://malcolm.wattle.id.au     /   Finger for GPG key
* http://www.ilaw.com.au ** http://www.terminus.net.au jm at ilaw.com.au

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