Category — DRM
Text of Copyright Amendment Bill 2006
In stark contrast to American and British modding decisions and copyright law, Australia is set to amend its copyright laws to make it legal for consumers to purchase/use mod chips that circumvent anti-piracy technology (TPMs and DRM) built into game consoles when used to overcome region-coding measures that restrict the use of DVDs and games titles purchased legally in other regions. Most of the Copyright Amendment Bill 2006 passed through both houses of Parliament, will become law by January 1, 2007.
Dale’s Comment: This doesn’t really change the law in Australia because, as you can see from the related posts below, Australian courts had held that such modding did not breach Australian copyright and anti-circumvention laws. As far as I can tell, these amendments merely codify the existing case-law. These amendments may be important though because it was thought that Australia’s recent free-trade agreement with the United States may have resulted in copyright reform to explicitly overrule existing mod-chip case-law.
Librarian of Congress Exempts ‘Abandonware’ DRM Circumvention for ‘Preservation” from DMCA Liability
In its recent triennial rule-making with respect to exemptions from the prohibition against circumvention of technological measures that control access to copyrighted works, the Librarian of Congress, James H. Billington, has ruled, again, that persons making non infringing uses of older abandonware video games, as described below, will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years. Specifically exempt from the prohibition are:
…video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
Dale's Comment: Firstly, despite many reports to the contrary, this is not a wholly new ruling. The 2003 triennial rule-making contained the following very similar exemption:
… video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.
Indeed, this rulemaking is more restrictive than the previous rulemaking because it now specifically limits such circumvention for preservation purposes as I discuss below.
Secondly, I have read many blog 'interpretations' of this exemption over the last few days (not linked to here for obvious reasons) and most bloggers don't seem to understand this exemption. Most are interpretting this exemption as a free-for-all right to decrypt, copy, distribute and use any abandonware on any system. My reading of this exemption is much more limited.
Clearly the circumvention exemption for "archival reproduction of published digital works by a library or archive" doesn't apply to the average gamer. However, the first portion of the exemption "for the purpose of preservation" would apply to the average gamer.
It appears the average gamer has the right to circumvent technological measures used to protect video games in obsolete formats that are already owned by the user for the purpose of preservation when the gaming console, for instance, is no longer manufactured or reasonably available in the commercial marketplace.
This DMCA exemption does not exempt other provisions of Title 17 (the U.S. Copyright law) that otherwise generally prohibit copying, distributing and otherwise infringing copyrighted works.
So, what exactly does this exemption allow you, the owner of a video game in an obsolete format, to do. It allows you to circumvent the copy-protection scheme used to protect obsolete format video games for the purpose of preserving them (backing them up and, presumably, using the backup if the original copy becomes defective). That's pretty much it. Indeed in the Librarian of Congress' commentary on the exemption he flatly says:
"…the sole basis for this exemption is preservation and archival use…"
An important point here is that Billington did NOT exempt non-obsolete formated video games from the DMCA. So, it is still illegal under the DMCA's (17 U.S.C. § 1201(a)(1)(A)) to circumvent DRM on modern video games for the purpose of backing them up – let alone for any other purpose.
This exemption expires after three years unless the rule proponent (in this chase the Internet Archive) proves their case again. Namely, that without the exemption:
current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways.
If a recent post I mentioned that some clever users found a way around Microsoft’s XBox 360 region-specific Market Place movie and video demo download restrictions. The trick was to take advantage of Microsoft’s free XBox Live Accounts. A user in one jurisdiction could create multiple silver-level (a.k.a. free) accounts by simply stating in the online sign up process that they live in a another download-frinedly jurisdiction. Paid movie downloads, trailers, game demos etc. would then be available available through the alternative silver-level account in jurisdictions that Microsoft did not intend.
After only weeks of being out in the wild, Microsoft has patched this work-around. Now only users that have credit cards with billing addresses that match the purported region can download content for that region. Happily Microsoft is not banning these extra accounts, they are simply restricting their access to region-coded content.
As a lawyer, this is understandable. As a user, this is sad. Having previously lived in the U.S.and having access to virtually anything the Internet can deliver, it is a very rude awaking to move back to a 2nd tier jurisdiction like Canada where so many Internet-based services are either not available, delayed, provided at higher price points or provided with less functionality. Microsoft’s new movie download service is a perfect example of this regrettable phenomena.
Presumably a Canadian with an American credit card and billing address could still circumvent the system for instance. Humm… as a holder of several U.S.-based credit cards, I wonder which of my U.S. buddies would allow me to use their address for credit card statement receipts?
If you follow Major Nelson’s (Larry Herb’s) day-to-day missives about what is available for download through the Xbox 360 Marketplace, you’ll note that many arcade games, game demos, trailers and other downloadable content is only available in certain regions of the world. This has lead to much consternation among Microsoft’s international customers. But the issue was brought to a head recently when, for the first time, North American XBox Owners were initially restricted from downloading a Rainbow Six: Las Vegas demo that was available for download by European users. This doesn’t happen very often to U.S. customers.
As a result, some clever users found a way around Microsoft’s XBox 360 region-specific MarketPlace download restrictions. You can read about them in the linked articles below.
Dale’s Comment: Just as Sony had legitimate legal reasons for opposing Lik-Sang’s import of PSP systems into the UK, no doubt Microsoft has legitimate legal reasons for restricting access to content on a country by country basis. For example, game publishers/developers that provide downloadable content to Microsoft probably have granted exclusive distribution/marketing and other rights to that content in the prohibited regions to others. My hope/expectation is that over time licensing and distribution deals will be structured to recognize the increasingly globalized nature of the market so as to anticipate and, indeed, facilitate global distribution/downloads without this kind of constraint.
In what would certainly be good news for purchasers of the low-end PS3 (which will not have HDMI outputs), the leading German newspaper Der Spiegel claims to have information on an unofficial agreement struck between the movie studios, Sony, Microsoft and others which will see HDCP, and the Image Constraint Token (ICT), being consigned to the scrap heap for at least four years. This move would mean that all movie content produced until 2010 at the earliest, and possibly as far as 2012, will not carry the ICT – a security feature which restricts/down-rez’s high-definition playback only to equipment with HDMI ports and HDCP encryption.
Dale’s Comment: This is a remarkable development if true. I have been participating in online forums for years where this has been a major subject of contention for early HDTV adopters. With the constant delays of HD-DVD and Blu-ray and the many competing HD standards appearing on the horizon, this may spell the demise of HD down-rezzing and the ICT. Recently, Professor Ed Felton suggested that HDCP is Eminently Crackable. All this said, since main-stream press has not yet picked this up, I question its veracity. But, its fun speculation in the meantime.Update: October 15 2006: Save for one or two titles, the first couple hundred Blu-Ray and HD-DVD releases have been released without HDCP/ICT activated.
- HDCP is Eminently Crackable Says Professor Ed Felton (April 17, 2006)
- Windows Vista Proofed against Video Piracy (August 31, 2005)
Amidst growing complaints of potentially harmful security breaches and the recent filing of a class action lawsuit, French publisher Ubisoft has officially ceased its use of Starforce copy protection.