BACKED INTO A CORNER - January 2004
If you were watching the news very closely last month, you still almost certainly won’t have seen a story which could have some of the most dramatic implications ever for the software industry and its never-ending battle against piracy.
Very, very quietly, the Government passed The Copyright And Rights Regulations act (hereafter referred to as the CRRA), a series of amendments to the UK’s copyright laws designed to bring the country into line with the European Union Copyright Directive. The EUCD itself was designed to be a European equivalent to the US Digital Millennium Copyright Act, the infamously draconian bill which has already led to a series of highly controversial prosecutions such as that of Dmitry Skylarov, and recently saw SunnComm threaten to sue a student for $10 million for revealing that their latest anti-CD-copying technology could be circumvented by holding down the PC’s Shift key while loading the disc up, hence disabling Autorun and preventing the anti-copying program from auto-installing itself. (The company finally backed down on the threat after a storm of ridicule in the media.)
But we don’t have the time or the space to bring you the full and disturbing story of how the Government rushed through this deeply flawed and worrying bill, steamrollering all objections on the way, so you’ll have to do your own research on that one (we’ve attached a few helpful links). Instead, we’re going to take a look at how it affects YOU, the average PC owner on the street. (Where do you plug a PC in on the street, by the way? And aren’t you cold? It’s winter, for Heaven’s sake, at least put a nice warm jumper on over that Metallica t-shirt. For several reasons.) Because the EUCD is almost certainly going to make you a criminal.
Computer games users enjoy a special privilege under the existing copyright law. According to Section 50(A) of the 1988 Copyright, Designs and Patents Act, legal purchasers of computer games are explicitly permitted to make a backup copy of their purchase. (Interestingly, the rule specifically applies to computer games. For no adequately-explained reason, purchasers of music CDs or DVD movies are not granted the same rights to protect their investment. The only rational explanation your reporter can come up with for this odd anomaly is that the law recognises that (a) computer software is overpriced in comparison to other leisure media, and (b) the games industry is so fragile, and hostile towards backwards-compatibility, that your chances of being able to obtain a legal replacement for a duff disc after anything more than a couple of years are so remote as to require legal remedy.)
This section of the law has NOT been changed by the CRRA. You are still entitled by UK law to make a backup copy of any piece of software you buy legally. Where things start to get interesting, though, is in Section 296Z of the new law. Section 296 makes it an offence to do anything at all which is designed to circumvent any piece of copyright protection technology put in place by the manufacturers or distributors of any copyrighted work.
This is a direct copy (ironically) of the section in the US DMCA under which the prosecutions of Skylarov, Halderman and many others were made possible, and in short what it means is that if a disc has some form of anti-copy protection, it is a criminal offence to either circumvent that protection yourself, or to give anyone else any device or piece of information which will enable them to do so. In other words, if you exercise your legally-enshrined right to make a backup of your legally-purchased game, you are automatically and necessarily breaking the law, with a maximum penalty of two years imprisonment. Hmm. Bit of a mixed message being sent out there, don’t you think?
Now, lesser publications might be content to highlight this glaring contradiction in law and leave it at that, were they alert enough to have noticed it in the first place. But not your super soaraway PC Zone, viewers. Because we’ve examined the evidence and come to the only logical conclusion, and that conclusion is this: Under the new UK copyright laws, any software publisher which implements any form of copy-protection on its discs will be breaking the law. Because it’s an offence, obviously, to deprive the consumer of any right which is explicitly granted to him in law. And if you implement copy protection which there is no legal way to circumvent (which, thanks to the CRRA, there now isn’t), then you are, obviously, depriving the consumer of the opportunity to exercise his legally-enshrined right to a backup. Which is illegal. So, who wants to be the first in court?
http://www.theregister.co.uk/content/6/33322.html - story of SunnComm vs Halderman
http://www.freesklyarov.org/ - background on the case of Dmitry Skylarov
http://ukcdr.org/ - Campaign for Digital Rights
BACKUPS – WHY DO I NEED ONE ANYWAY?
The legally-enshrined right to make a backup of computer software is one the games industry is very keen to keep quiet. Until very recently, the FAQ on the website of games-industry representative body ELSPA answered the question “Am I legally entitled to make a backup of my original software?” with a strident and unequivocal “No!”. A few public-minded citizens from a games forum took it upon themselves to contact Trading Standards about this clear misrepresentation of the law, and ELSPA hastily changed their website to a rather muddier statement which nevertheless still essentially, and wrongly, asserts that you’re not allowed to backup your own games. (As support for this position, the ELSPA site relies chiefly on the precedent of a judgement given in 2002 in a case brought by Sony against a seller of PS2 modchips, who was ill-placed to stand up to the financial muscle of Sony and their lawyers. However, there are a number of serious legal issues with the judgement - detailed in a paper published by the Faculty of Law at the University of Hertfordshire – which would make the judgement unlikely to survive a further challenge in court.) The industry’s position is, in a nutshell, “If your disc goes wrong, we’ll supply you with a new one, therefore there is no need for you to make your own backup and the law does not apply.” There are, however, several extremely obvious flaws in this policy.
Firstly, if you look in the back of the manual of any game you own, you’ll either find no information on what to do with a corrupted disc at all, or an instruction to send it back with a fee to cover “handling”, which in most cases will be between £7 and £10. Which seems like a hefty charge for them having sold you shoddy merchandise. (EA backed down on this charge after a series of complaints, detailed in recent PCZs, about the state of Battlefield 1942 discs. But the policy is only a “gesture of goodwill” and only applicable under certain conditions. In almost all cases with almost all publishers, UK gamers will still be charged a hefty fee to return non-working discs.)
Secondly, of course, there’s the issue of replacements being available at all. Anyone who’s ever tried to buy a copy of an older PC game (say, more than three years) will be familiar with the near-impossibility of the task. Half the time, the publisher won’t even be in business any more.
The fact is, as ELSPA was keen to point out during last year’s FairPlay campaign for lower game prices, when you buy a computer game, you’re not buying the disc it comes on. You’re buying a licence to play the game code, and that licence lasts for your whole life. You are, therefore, entitled by law to protect that right by ensuring the safety of the code, regardless of whether the publisher can be relied on to help you out or not. And since it’s no good waiting until the disc gets corrupted and THEN making a backup, obviously you have to make the backup first.
http://www.elspa.com/consumer/faqs.asp - ELSPA’s statement on backup law
http://www.fairplay-campaign.co.uk/esler.pdf - University of Hertfordshire’s analysis of judgement in the Sony vs Owens (2002) case.