This article is by Marita Shelly, PhD candidate, and Margaret Jackson, Professor of Computer Law, both in the Graduate School of Business and Law at RMIT University. It was first published on The Conversation and is re-published here with permission.
analysis The ABC recently raised eyebrows when it wrote a cease-and-desist letter to Python i-View, a mobile application which allowed viewers of ABC’s popular iview to download and playback its content later on slow or non-compatible technology.
The issue of whether the Python-iView app infringes copyright, particularly it’s download feature, hinges on a number of specific sections of the Copyright Act and a concept of “vigilante interoperability”.
Firstly, some background. Launched in 2008, ABC iview is a free online service that allows users to stream but not permanently download ABC content, particularly television programs, allowing them to watch later. More recently the ABC has started to use iview to fast-track programs. Users are now able to view some content such as Dr. Who on ABC iview before the program is shown on ABC 1, ABC 2, ABC 3 and ABC 24. Currently ABC iview is not accessible on all operating systems or platforms.
Created in 2009, the Python-iView service allowed users to permanently download content available via ABC iview. The Python-iView service also assisted users by enabling content from iview to be viewed using unsupported platforms such as Android tablets and smart phones. It is the download feature of the Python-iView service, however, which would appear to raise the most issues. Under the terms of use for ABC iview service, users must not:
“download (except as part of the video streaming process), retain, store, reproduce, republish, modify, adapt, translate, prepare derivative works from, reverse engineer or disassemble ABC Content, or authorise, allow or provide the means for others to do any of these things, without obtaining the ABC’s prior written permission”.
Also under the ABC iview Terms of Use, an individual “must not and must not authorise, allow or provide the means for others to, adjust or circumvent or try to adjust or circumvent [the digital rights management security]”.
It is surprising to note that the terms of use associated with the service are not accessible via the ABC iview homepage but instead are available via the ABC television page associated with iview. Users of the service must also be aware that there are ABC TV Access Guidelines and ABC 1 Conditions of Use. A user has to hunt to find them. However, from the creator of Python-iView Jeremy Visser’s personal webpage, it appears he was aware the ABC may embed digital rights management security in the ABC iview service or ABC content.
The ABC wrote to Mr Visser on 7 August requesting him to “cease distributing or making available the Python-iView application” on his website or on any other site. The letter drew attention to two sections of the Copyright Act – s 101(1) and s 116AP.
Section 116AP of the Copyright Act does enable a copyright owner to take action against a person who offers a service to the public which they know is a circumvention service for a technological protection measure (TPM) protecting a specific copyright work.
ABC iview, as stated in its terms of use, allows for viewing of data and not for downloading. However, Mr Visser states in a presentation on his webpage that “the whole point of writing Python-iView” was to allow for downloading. His purpose does appear, therefore to circumvent the TPM which stops downloading.
There are four exceptions to the action permitted to the copyright owner under s 116AP. The first is that the person did not promote, advertise or market the service as a circumvention service. Mr Visser could not rely on this exception as he has promoted his service as a means of circumventing ABC iView protections. The second exception relates to “interoperability” of programs – where diverse systems operate together.
Mr Visser states on his webpage that the development of Python-iView is “vigilante interoperability”. However, the interoperability exception in s 116AP is fairly specific in its operation.
It can be used if the service to circumvent a TPM is to enable lawful copying of a computer program; if the copying will not infringe the copyright in the original program; and if it is done for the sole purpose of achieving interoperability of an independently created computer program with the original program. Thus the circumvention service is permitted if it allows the newly created computer program to work with the original program. But it would not appear to be permitted if the purpose of the independently created program is to permit an act that the copyright owner has said is not permitted, namely, downloading.
A letter of support for the Python-iView service suggested the ABC should take the approach of “encouraging rightholders [of content] to … allow ‘fair use’ style distribution via the internet”. Currently within the Copyright Act 1968 (Cth) there is only a very limited private or domestic use for format and time shifting.
The current Australian Law Reform Commission (ALRC) copyright review is exploring the extent and adequacy of personal fair use permitted in the Act. Mr Visser’s Python-iView, however, did go further than just assisting him alone to access ABC iview data – it appears to have assisted many others as well.
The authors do not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article. They also have no relevant affiliations. This article was originally published at The Conversation. Read the original article.
FWIW, you _can_ get to the Terms Of Use from iView itself. Go to Help, FAQ, scroll back up to the top of the page, then click “iview Terms Of Use”. Naturally!
As I’ve written previously[1] – there is no real protection mechanism to speak of. Surely (morally, if not legally) there is some requirement for an access control mechanism not to be fundamentally broken? iview’s technical measures are little harder to circumvent than a button in a web form saying “I am not going to download this file”.
(That’s not what the law actually states on the matter, a click-through web form actually seems to match the description of a Technological Protection Measure given in the law).
On the topic of “morally right” vs “legally right”, I think it’s important to point out that until 2006 it was illegal to record a TV program with a VCR. 2006. (And it’s still illegal to keep that recording after you’ve watched it once).
ABC should be working with rightsholders to make Jeremy Visser’s work legal, not try to shut it down. If nothing else, it’d be nice if they clarified their stance on similar projects (like the XBMC iview plugin, which is still a streaming-only solution).
[1] http://www.mibus.org/2012/09/23/doctor-who-sans-python-iview/
[2] http://en.wikipedia.org/wiki/Copyright_law_of_Australia#Copyright_Amendment_Act_2006
I still take the view that we are supposed to be a Democracy. If we do not like a law in our Society, we vote in Representatives who will make the law what the will of the consenting Electorate wish it to be. Not what a foreign Nation demands us to obey them to make our laws conform to their ideals. Which is exactly what we have allowed or current Representatives to do to this day.
This story shows we are at the point we have to decide on our rules or the USA’s. I feel the Copyright Owner could show if someone is profiting, but if their works are being utilised for what they were made for, with the reasonable use of a private individual (not for profit), can and should be encouraged. Otherwise, does it not defeat the purpose of the creation? There is a difference between profit and maximising profit. One is making a living, the other is unadulterated greed. If we absolve unadulterated greed in our laws, how can we dare teach our children not to be greedy without being hypocrites and also teaching our children to ignore the laws we live under.
Conundrum at it’s best. They’ve created a hash of this in Canberra and in the USA.
Unfortunately as a signatory to the AUSFTA, many US copyright laws apply here. In the US, breaking DRM is illegal in most cases. In the EU, breaking DRM is not only legal, but encouraged in most cases. Clearly both can’t be right, so who should we choose to side with? (The answer is pretty obvious to me.)
The ABC could eliminate the demand for this app virtually overnight by releasing an iview for android app/update the exisitng app or accelerate plans to move to HTML5.
The people who want to watch ABC shows on planes or on commutes where connections are flaky will just download the shows over Channel BT like they always have been.
The demand from those users can be eliminated by enabling offline viewing for iview – if the BBC can do it (with DRM that means the show won’t play after 30 days too) so can the ABC.
And the OSS nutter and flash haters come out….
I believe your labelling is rather unfair.
I support free and open source software because it is a more ethical mode of software development — both for the developer, and for the user. It is in everyone’s interest to promote the use of and support for free software.
Flash has a number of problems, not just the fact that it’s proprietary. It’s also really slow (if it runs fast on your computer, well, good for you, but for each one I will show you a dozen computers that it doesn’t run fast on), and platforms unsupported by Flash are becoming more and more mainstream (e.g. iOS doesn’t have, and likely never will have, Flash support, and Adobe announced the end of support on Android).
HTML5 leaves a lot to be desired when it comes to performance, so short term I don’t think that would gain much at the ABC, but the upsides of going that route outweigh the downsides of not going that route.
There is a native iview app for iOS, but clearly the ABC does not have the time and energy to maintain native apps for every platform out there. (If they did, then there would be an Android iview app out already.) Notwithstanding those folks wanting to watch iview on their homebrew XBMC media centre — what hope do they have of the ABC supporting them?
I’ve said this before, and I’ll say it again — silencing Python-iView won’t stop those who want to do Bad Things™ with iview (it takes a determined individual with no prior knowledge just 15 minutes with Wireshark + rtmpdump to figure out how to download from iview without any other assisting software), and merely cheeses off those that like to geek out or need a more esoteric entertainment fix.
I’m definitely going to get one of these at the end of the month
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