Murder and manslaughter aren't the same thing in law, but under the new US/Australia Free Trade Agreement, patching a game you own legally is as bad as pirating it. The Open Source Industry Australia (OSIA) says the Federal Government must act to protect consumer rights before the FTA comes into effect.
The Open Source Industry Australian (OSIA) and Linux Australia have created a petition to pressure the Attorney-General (AG) to preserve existing consumer rights relating to copy protection.
The new US/Australia Free Trade Agreement is under fire from the associations for strengthening patent laws to the point of deteriorating consumer rights. One impact that has been called out by the mainstream media is the potential for medicines to become exorbitantly expensive under the new laws, with limited access to generic drugs.
However, it's the “anti-circumvention” clauses in the FTA which are worrying the OSIA.
Last year, APC reported on the case of Eddy Stevens, a Sydney man who made a living mod-chipping PlayStations in his home.
The case made it to the High Court, and it was determined that Mr Stevens was not breaking Australian law by circumventing the PlayStation's protection system to allow it to play games and DVDs bought from other regions - even though this also rendered the copy protection system useless.
Sony, of course, represented the matter as being entirely about piracy prevention, but the High Court wasn't buying into that guff, pointing out that:
“it was significant that the access code for Sony products differed in various markets, so that a PlayStation game purchased in the United States could not be played on an unmodified PlayStation console purchased in Australia”.
According to the OSIA, this distinction would no longer be possible under the new anti-circumvention provisions in the FTA, pointing to this passage from the US Digital Millenium Copyright Act (DMCA):
“to 'circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner”.
As the OSIA quite rightly points out, there is no mention of intent in the passage. So, if your intent is to prevent a game from requesting the install CD every time you play it, even if you do legitimately own it, you are just as much a criminal as if your intent was to pirate the game outright.
Or, more worryingly, if you want to use an open source DVD player, you would need to break the law because you are required to use deCSS, a previously (just barely) legal open source DVD decrypter which would be outlawed under these provisions.
Apart from the lack of technological understanding demonstrated in the drafting of these laws, they also fly in the face of hundreds of years of legal reasoning. Intent is important in law, which is why murder and manslaughter aren't the same thing. And yet, in this case, the AG seems to have forgotten this entirely.
We shouldn't be surprised that a government run by a man who has turned this country into the 51st state of George W. Bush's America has taken us down this dark path. We just need to make sure they don't take us further.
Check out the full explanation of the legal issues involved.