Recently in digital rights management Category
It's taken me a while to get around to blogging this, because I've been sick as the proverbial dog for the past week -- which is unfortunate, because the media has been going slightly nuts over a journal article of mine which was recently published in the QUT Law and Justice Journal.
Some of the reporting of the article has been less than entirely accurate. News Limited, in their wisdom, have awarded me an honorary doctorate. ("The finding comes from an analysis of the iPhone under Australia's competition laws by Dr Clapperton and fellow QUT law expert Professor Stephen Corones"). I'm not exactly comfortable with them describing me as a 'fellow law expert' with someone as eminent as Professor Corones, either. I am but a 'umble research peon.
The Australian Personal Computer piece is better than most of the coverage, because they actually read the article instead of parroting a story which was distributed on the AAP wire.
Professor Joshua Gans in his blog seems less than impressed with our article. Which is fine, I wasn't expecting everybody to agree with it, but I think he may have missed one of the important points of our article. Professor Gans writes:
A very simplistic explanation of third-line forcing is where a company (Apple) won't sell you something that you want (an iPhone) unless you buy something else (which you may or may not want) from somebody else (who you may or may not want to deal with, like AT&T, or Telstra). So if Apple doesn't sell the iPhone, they're off the hook, right? Not necessarily. Third-line forcing usually involves two contracts -- one between the consumer and each supplier. If Telstra sell the iPhone, and it's technologically tied to Telstra's services, there's no contract with Apple, right?
Wrong. There's the EULA for the iPhone software, which is expressly a contract between Apple and the end-user ("The software ... are [sic] licensed, not sold, to you by Apple Inc.").
The TPA deals with third-line forcing in ss 47(6) [supply on condition] and (7) [refusal to supply unless condition agreed to]. The legislation talks in terms of 'supply' of goods or services. A software licence almost certainly falls within the TPA definition of 'services'.
So, if Apple:
And yes, Professor Gans correctly makes the point that Apple could try and obtain permission (technically, an exclusive dealing notification) from the ACCC. Actually obtaining that permission is not a given. I think that the ACCC might well object, which they can do if they are not satisfied that the public benefits of the third-line forcing would outweigh the public detriment, and I think that balance would be weighing against Apple.
Anyhow, I encourage people to read the article and make up their own mind.
Some of the reporting of the article has been less than entirely accurate. News Limited, in their wisdom, have awarded me an honorary doctorate. ("The finding comes from an analysis of the iPhone under Australia's competition laws by Dr Clapperton and fellow QUT law expert Professor Stephen Corones"). I'm not exactly comfortable with them describing me as a 'fellow law expert' with someone as eminent as Professor Corones, either. I am but a 'umble research peon.
The Australian Personal Computer piece is better than most of the coverage, because they actually read the article instead of parroting a story which was distributed on the AAP wire.
Professor Joshua Gans in his blog seems less than impressed with our article. Which is fine, I wasn't expecting everybody to agree with it, but I think he may have missed one of the important points of our article. Professor Gans writes:
The only serious legal issue might come in relation to Third Line Forcing which says that one company cannot sell a product that makes it a condition of sale that the consumer purchase a product from another company. However, Apple need only sell the iPhone through a carrier's retailers and it is likely to be fine. In any case, it can obtain permission from the ACCC for any arrangement it might propose.At page 362-3 of our article, we advance what is, so far as we know, a novel argument that Apple may still engage in third-line forcing regardless of whether the phone is only sold through a carrier's retailers or not.
A very simplistic explanation of third-line forcing is where a company (Apple) won't sell you something that you want (an iPhone) unless you buy something else (which you may or may not want) from somebody else (who you may or may not want to deal with, like AT&T, or Telstra). So if Apple doesn't sell the iPhone, they're off the hook, right? Not necessarily. Third-line forcing usually involves two contracts -- one between the consumer and each supplier. If Telstra sell the iPhone, and it's technologically tied to Telstra's services, there's no contract with Apple, right?
Wrong. There's the EULA for the iPhone software, which is expressly a contract between Apple and the end-user ("The software ... are [sic] licensed, not sold, to you by Apple Inc.").
The TPA deals with third-line forcing in ss 47(6) [supply on condition] and (7) [refusal to supply unless condition agreed to]. The legislation talks in terms of 'supply' of goods or services. A software licence almost certainly falls within the TPA definition of 'services'.
So, if Apple:
- Supply you with services (the licence to use the iPhone software);
- On the condition that you acquire services from somebody else (the carrier that's paying them kickbacks)
And yes, Professor Gans correctly makes the point that Apple could try and obtain permission (technically, an exclusive dealing notification) from the ACCC. Actually obtaining that permission is not a given. I think that the ACCC might well object, which they can do if they are not satisfied that the public benefits of the third-line forcing would outweigh the public detriment, and I think that balance would be weighing against Apple.
Anyhow, I encourage people to read the article and make up their own mind.
By way of Jessica Coates and the Creative Commons blog, I have discovered a beautifully produced and remarkably insightful cartoon by the folks at RedHat, to celebrate the beginning of the end of DRM. While I wouldn't make that claim myself (DRM has failed as a tool of copyright policy, but can produce mucho dinero by creating platform lock-ins), that doesn't detract from the beauty of the cartoon.
My poor little server has not the bandwidth to mirror the cartoon, but it can be downloaded here in .ogg format. The cartoon and its component pieces have been licensed under a Creative Commons licence and are available here.
My poor little server has not the bandwidth to mirror the cartoon, but it can be downloaded here in .ogg format. The cartoon and its component pieces have been licensed under a Creative Commons licence and are available here.
Slashdot have a story concerning a major outage in the "Windows Genuine Advantage" servers. This outage resulted in a large number of genuine, legitimate installations of Microsoft Windows products incorrectly identifying themselves as "non-genuine" with a subsequent lessening of functionality [see e.g. this or this] -- presumably to encourage those damn dirty software pirates to buy a copy of the real thing. Even though they already had.
Microsoft have dropped the ball on this one. Even though the problem is now fixed, and they have apologised, and provided instructions on how to rectify systems that were incorrectly stigmatised as non-genuine during this period, this demonstrates what can happen when even apparently-well intentioned DRM systems malfunction. No word on whether any compensation will be forthcoming, but Microsoft have their EULA's to hide behind, so I doubt this will happen, possibly except as a goodwill gesture and without admission of liability.
If my business had been disrupted by something such as the inadvertent activation of the MS Office "kill switch" described in this article, or I was prevented from working on an assessment item for university by it, I would be wanting Microsoft's corporate head on a platter, and some monetary compensation.
Microsoft have dropped the ball on this one. Even though the problem is now fixed, and they have apologised, and provided instructions on how to rectify systems that were incorrectly stigmatised as non-genuine during this period, this demonstrates what can happen when even apparently-well intentioned DRM systems malfunction. No word on whether any compensation will be forthcoming, but Microsoft have their EULA's to hide behind, so I doubt this will happen, possibly except as a goodwill gesture and without admission of liability.
If my business had been disrupted by something such as the inadvertent activation of the MS Office "kill switch" described in this article, or I was prevented from working on an assessment item for university by it, I would be wanting Microsoft's corporate head on a platter, and some monetary compensation.
