Posts Tagged 'dbd'

Is Western Digital MyBook in Breach of the TPA?

While out shopping before Christmas I chanced across some WD MyBook 1TB external hard drives (AU$600 if you are interested). I had a look at what was printed on the box, it included the following:

“WD Anywhere Access ™: A simple and secure way to access and share data, pictures, music at home, in the office, and anywhere in the world – even when your local computer is off”

and:

“With WD Anywhere Access you can: …

get files from home while at the office…

listen to music on your MyBook World Edition drive while you’re on vacation…

share pictures with your friends anywhere without uploading them to the web…”

I could not see any statement that indicated that music could not be shared as reported in the media (arguing about the mention of sharing pictures but not music would be a long bow to draw).

According to s 52 of the Australian Trade Practices Act:

A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

While this has a couple of elements, the main one we’re interested in is whether there is conduct which is misleading or deceptive. The box contains representations to the effect that the “Anywhere Access” software permits the sharing of music. News reports indicate that the Anywhere Access client substantially inhibits, if not prevents, the sharing of music.

In addition there are other prohibitions in section 53 (such as a prohibition on representing “that goods or services have … performance characteristics… uses or benefits they do not have“) which can carry pecuniary penalties in the event of breach.

Update (7 January): The TPA has very generous standing requirements.  There is no need, for example to show damage (to anyone) to bring an action under s 52.  A person concerned about potentially infringing conduct can bring an action or lodge a complaint with the ACCC.

Western Digital – Defective by Design?

There has been a news item about Western Digital Drives floating around. Apparently the drives are distributed with client access software. The software will permit a person to access the files stored on the drive remotely, but will not permit certain categories of files (mp3s etc) from being shared with the world.

This appears not to be a problem with the hard drive per se, but with the client access software which is comes with it. The report specifically notes that music files in which the author had copyright could not be shared. In other words, the folks at WD have apparently taken it upon themselves to specifically design the client access software to not do something that a purchaser might legitmately expect to do with the related hardware.

The reason it is bad is because it indicates that WD has been intimidated into specifically adopting this approach. It is not clear exactly how – whether there was a direct approach, or whether the folks at WD are just timid by nature having heard some of the things Congress and the courts have been saying about contributory copyright infringement. The real question here is whether the legislature and courts should be creating an atmosphere in which a device manufacturer is scared to produce something which has legitimate uses simply because some uses are illegitimate.

The main loser from this is the economy. The obvious immediate impact is that WD are taking more time and effort to produce a good which is less useful than if they didn’t take that effort. Moreover, WD has obviously spent time thinking about this as an issue – some lawyer has written an advice and some manager has taken it – ie more money was wasted in the design of a defective product. In the extreme case, if all manufacturers did this authors would have a restricted ability to host and distribute their own works (… tending to require them to take their copyright works to a major in order to publish, fancy that). In a sense it is worse because it is specifically targeted at people (like tech-unsavvy musicians and authors) who don’t know any better.

The irony is that their heart was obviously not in it, because they provide instructions on how to use alternative means of sharing the drive which are not subject to this artificial restriction (tch!).


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