The digital rights management (DRM) provisions of the federal Attorney General's Department proposed copyright law changes could stifle open source innovation and increase litigation, according to a Sydney lawyer.
Open Source Law director Brendan Scott says while the open source community has made it clear that the DRM provisions are damaging to innovation and competition, as it stands, open source is "pretty much" a piracy-free environment.
"It is one in which small business is thriving [and] we didn't get there by asking for handouts from the government," Scott said. "We're there because we took our soundings and adapted to the new conditions."
Scott said the community encourages older industries to embrace the opportunities the future holds, rather than running to the government to help keep them "and the rest of us" in the past.
"Three hundred years of the old model of copyright exploitation gave us the bookstores in the CBD," he said. "Ten years of the new model of exploitation has given us orders of magnitude more content on the Internet. We should be looking to the future, not to the past."
Scott believes the DRM provisions have already created an environment of risk and that Australians are reluctant to engage in digital publishing because of it. For example, most Linux distributors are "so scared of being sued" they don't include DVD playing software.
"Digital publishing is in a parlous state in Australia because of overregulation and DRM is a large part of it," he said. "Australian publishing is destined to languish until these risks of publication are dramatically reduced - not dramatically increased."
Referring to the Kazaa file-sharing software case, Scott says the resounding success of the litigants - with an enormous legal bill for all those involved - appears to have done nothing at all to limit Internet downloads.
"There is no evidence that these provisions do anything other than increase risks for legitimate businesses and waste time and money on litigation," he said. "There has been a deluge of copyright litigation over the past decade, but the litigants keep asking for more ways to sue people, this time by way of DRM."
In contrast to what might be an expected stance of a practicing lawyer, Scott said: "The lawyers must be laughing their way to the bank!"
"The OSIA [Open Source Industry Australia] wants strong and sensible copyright laws, not laws which encourage even more wasteful and quixotic litigation," he said.
Scott also believes the DRM provisions of the Australia-US Free Trade Agreement will stop OSIA members interoperating with data vital to their ability to compete on a level playing field.
"We feel the [Legal and Constitutional Affairs Committee's] recommendations are the minimum necessary to have a workable DRM system which does not restrict innovation and competition," he said. "There is every reason to believe that DRM is primarily used for market segmentation - in essence for discriminating against Australian buyers - rather than promoting content creation. The OSIA would prefer the government to actively support content creation and distribution, rather than DRM models which are aimed at stopping it."