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 UK Copyright & Patent Blunder: Free Software & DVD's For All?
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| Posted by Freaky on 10 Sep 2004 - 20:31 37 comments |
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UK Copyright & Patent Blunder: Free Software & DVD's For All?
By Mark McCarron (MarkMcCarron_ITT@hotmail.com)
Introduction
When is Warez not Warez?
It may be as simple as saying, any software that entered UK Legal territory since 1999 to the present day.
Impossible?
I would ask you to keep in mind that we are referring to the Law, and like any huge entity, it is sods law that it would have an appropriately sized rear end. 
The Observation
It often astounds me that unqualified people are allowed to make decisions that can have major implications if not examined in detail by a wide range of experts. Court-room decisions have always been a source of pain for businesses throughout the world, due to the very narrow view-point that is presented before them during any case.
It appears that the world is about to learn one of its most painful lessons over the next few coming months, with a possible legal blunder in the UK invalidating all claims of ownership for any form of software since 1999. There may also be no way to undo the damaged caused, or recover the rights to software titles delivered to the UK in that time period.
The issue surrounds a little known ruling that had major implications for both, The Criminal Justice Act and The Child Protection Act, in the UK. I am referring to a case held before Judge Haworth in Cambridge Crown Court, 'R v JONATHAN BOWDEN', in 1999..
The Ruling
In terms of the Child protection act, the case was a huge sucess and its rulings made it possible to integrate existing laws with modern forms of media. The problem is that the implications of those rulings have never been examined in any wide scope. This is mostly to do with the fact of the limited IT knowledge possessed by those present in the court-case and somewhat to do with the fact of UK courts not seeking appropriate guidence. Another factor is, no one ever considered that cross-contamination of multiple legal frameworks could occur from such a 'minor' ruling. The next paragraph contains a summary of the ruling in question:
"(2) The wording in s.1 of the 1978 Act as amended was clear and unambiguous. It rendered unlawful the making of a photograph or a pseudo-photograph. The words "to make" had to be given their natural and ordinary meaning, and in the instant context that was "to cause to exist; to produce by action, to bring about". By virtue of s.7 of the 1978 Act that meaning applied to negatives, copies of photographs and data stored on computer disc. A person who either downloaded images on to disc or who printed them out was making them. To download or print the images within the jurisdiction was to create new material. The reproduction of indecent material to be found on the Internet was within the mischief aimed at by the legislation when the 1978 Act was amended by adding the words "to make"."
Extracting from this paragraph the relevant points, we are presented with the following in regards to downloading Images:
1. Unlawful to make a photograph or a pseudo-photograph (covers links, alias', even erroneous naming of files, etc).
2. "to make" used in its natural context (i.e. to create something FROM NOTHING, a NEW creation.)
3. Applies to Negatives, copies of photographs and DATA (Cannot apply to digital material otherwise!)
4. To Download or Print is to create new material.
5. The addition of the words, "to make", to The Child Protection Act allowed for prosecution.
The Problem Defined
Whilst in legal terms this ruling may appear straight-forward, a huge fuzzy cloud appears when the definition is examined in closer detail.
In technical terms, there is no difference in downloading an "image" as opposed to any other file format. Even ASCII and Binary mode are just formatting issues. This is the heart of the issue, because UK law has defined one aspect as an "act of creation" or, in legal terms, 'to make', then that definition automatically transfers to all forms of downloads.
The legal framework is dealing with IT's abstract terminology, rather that focusing on the actual physical events. By attempting to isolate a particular type of download, they failed to accept the fact, that such a thing does not really exist, it is simply a representation. As such, if downloading an 'image' is legally defined as 'to make', then UK law cannot possibly consider any other form of downloading to be otherwise.
That simply would not make sense. That would be illogical Captain.
The issue we are then left with, is that, as the end-user in the UK is legally defined as "having made" or "being the creator" then they are also the legal copyright and patent holder. These are the basic legal rights extended to any "creator".
UK citizens can execute this 'right', at will, for any software downloaded between the end of 1999 and the present day.
Possible Extensions
Whilst not 'directly' defined, any form of media transfer could be classed as an "act of creation" or "to make". The reasoning for this is simple, again, there is no difference between making local copies (of any sort, ISOs, etc) than downloading. Again, another problem derived from legal frameworks using abstract IT terminology during this ruling.
Both are manifested in your storage device in the same, identical manner, which is covered, by the above ruling. Based on the legal definitions, one act cannot be separated from another, at least, not in the manner that would produce the required legal effect.
The Implications
If this proves to be the case, which it does appear to be unfortunately (even from this basic analysis, its pretty clear.), it presents a legal loophole that must be patched immediately in UK Law. Otherwise, no new software titles can be delivered, as their true creators would, automatically, lose all claim to copyright and patent.
This could present a major problem for the UK government, in that, any new implantation must be bullet proof. This would require an extensive overhaul of a vast number of acts, not just this single ruling. In fact, very early estimates suggest that nearly 90% of UK law would need to be re-written to prevent future incidents. This could take between 5-10 years to complete, temporary solutions cannot be 'vague' descriptors as they cannot counter-act the highly specific definitions provided elsewhere. The law must be extremely clear on this matter, or it will leave the UK IT industry and market devastated. How exactly this will be handled is a subject of intense debates in private circles.
Laws cannot be introduced retrospectively, that is, I can't ban alcohol tomorrow and arrest everyone who has drunk within the last 5 years. Similarly, no law can be introduced to return the rights to those developers. The UK government would be left in a position were they would be accused of theft by it own people, also there would be too many various interests to ever get any form of public support for such a move.
Removing peoples rights to free software, movies, etc., would be paramount to political suicide, even for the suggestion. Therefore, all software copied in the UK from 1999 to present day would be free for anyone to copy, decompile, reverse engineer and even sell.
Even International law cannot help, it would be forced to recognize the new creator because UK does. International law allows countries the flexibility to define their own implementations of various laws and have those accepted as Internationally recognized base requirements/references. A bit like hooking a DLL to a running application and just like a DLL, a corrupt version can crash the entire system or generate a GIGO (Garbage In, Garbage Out) effect, as is the case with this ruling.
In terms of the Criminal Justice Act, The Child Protection Act and UK law in general, an overhaul is long overdue anyway. Pity it may happen like this, but, I suppose, its better than some major loss of life being the cause, any day of the week.
One final aspect of reversing the law is the requirement of releasing offenders from prison as to remove "to make" makes their activities legal. With the events of the last few years (and even the last few days), there would be more hope of an armed invasion of Pluto
Conclusion
I wish I sold DVD writers.
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Just to clear some question up here is a little more info:
1. Firstly, there is no such thing as a photograph. It is simply structured binary.
2. If one download type is a creation, then all are. Obviously. You cannot claim one is and the other is not. They are IDENTICAL processes.
3. I am a IT forensic specialist who has worked with both the British and Irish Police in the area of child protection.
4. Whether defined as a "making of a photograph or a pseudo-photograph" or not, we are referring to the PROCESS not the incident.
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| #3 Posted by Gav at 13 Sep 2004 - 01:21 |
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So i can download a movie and sell it over the net to another brit legally? Cool. This could be a good day after all. If i download anything it becomes my property ... This is a good thing 
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You can do the following legally:
1. Sell to ANYWHERE in the world and ANY amount of copies. UNDERCUT Microsoft, etc!!!
2. Reverse Engineer any application (including Microsoft Windows!!!!)
3. Decompile any application
4. Copy videos, movies, DVDS, mp3s. Games and ANY form of commercial software.
5. Distribute any apllication
6. Resell any application
7. Modify any application
Merry Christmas 2004, UK & Ireland!
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Bit of advice:
Start investing in the UK
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| #6 Posted by Ipsop Babbaganoosh at 24 Sep 2004 - 15:22 |
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I am very curious about the "early estimate" that says 90% of British Law would have to be rewritten and it would take 5-10 years. This is clearly an overstatement, right. It should have read 90% of British Patent/Copyright law? Where can we reference the estimate?
I'm not asking to poke holes, asking to test credibility. It's an interesting analysis and may have some credibility. Has there been an open challenge with it?
I'd like to see it work but I am skeptical with all the law-jackals waiting in the wings to tear the non-billionaires to shreds as soon as we step on their lawn.
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| #7 Posted by d.cloherty at 15 Oct 2004 - 09:23 |
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Thomas Jefferson contemplated this idea which is known now as "intellectual property". He said that a more correct discription would be, "intellectual ideas". He foresaw this future conflict of this nether world. For what it is worth he thought that the world would be a better place with the FREE exchange of ideas.
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