[plug] Re: Aussie DMCA is here now!

[The Thought Assassin]

On Sat, 26 Aug 2000, Jeremy Malcolm wrote:
> 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). 
Indeed.

> <...> the legitimate uses for circumvention are already
> exempted from the Act, which leaves only software piracy unexempted.
Aaaah, that is comforting. Everything I had read so far had claimed that
the bill was a carbon copy of the US DMCA, which certainly does not exempt
legitimate uses.

> 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.
Thank goodness. Imagine everyone who bought a DVD player having to sign
such a declaration.

> 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.
Is it worse than forcing them to be proprietary? Our curent system forces
companies to be proprietary by economic necessity - our "intellectual
property" laws are the equivalent of handing a company a loaded gun and
exempting them from punishment for using it, then watching to see if the
shareholders think the company should rob a bank.

> 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.
Neither do I, but to give incentives that effectively force such entities
to close things up seems even more foolish.

> 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.
Are you serious? I had blindly assumed that innocent-til-proven-guilty was
codified in our constitution - surely if they have room for a preamble,
they could have slipped in some basic human rights somewhere, no? :)

(ObHypocrisy I can see that I should listen to friendly lawyers more,
rather than assuming our legal system is sane until proven otherwise.)

> I never liked reversals of burdens of proof (and neither does the High
> Court, for that matter).
So you think there is some likelihood of it being overturned?

> unless you are totally opposed to the protection of intellectual
> property (which is a politically unsupportable position)
I hate to admit this, but as I read this statement, my immediate reaction
was "Only an intellectual property lawyer could think that." Upon
realising that you were, AFAIK, an intellectual property lawyer, I felt
kinda bad about that. :)
I am in no way insinuating that you have ulterior motives in supporting
"intelectual property" law, but I am curious as to how you see any benefit
in such legislation for those other than IP lawyers and the corproate
entities who can afford them. The fundamental assumptions on which most
"intellectual property" laws were based are now thoroughly obselescent,
and this body of law has become an albatross perpetuated only by the
vested interests that profit from abusing the anomolous effect of laws
that fail to sync with the realities of the modern world, rather than for 
the sake of any benefits endowed on the populous.

Again, I regret the implication this seems to make, which I do not for a
moment believe is true of you. (I will withold judgement on some of the
other lawyers out there. :) - I am simply interested in why you feel that
opposition to the intellectual property protection racket is politically
unsupportable.

-Greg Mildenhall