Thursday, December 20, 2007

Cutting the Shit Regarding Copyright Law

Lots of panic, little substance in copyright debate

If one were to believe certain online commentators, one would think that the new copyright law expected to be introduced (although recently postponed) by Jim Prentice is nothing short of a promise to rape nuns and devour orphans.

Yet, when one examines a good deal of the commentary, one thing becomes abundantly clear: much of this protest is based almost entirely on rhetoric, with very little substance to it.

After all, it takes a very special brand of ideologue to denounce a piece of legislation you haven't even seen yet.

Of course, certain panic stricken individuals would like to remind everyone precisely how important this matter is. "This is a very important event, an important piece of legislation," said Kempton Lam, who organized a recent protest at Prentice's Calgary office. "If it’s not set right, [we] are going to suffer the consequences for years to come.”

Seems pretty dire, doesn't it?

Given the obvious importance of the copyright issue, one would expect that those protesting this phantom would have something really, really important to say.

Guess again. In fact, it seems the objections to what is believed (although not confirmed) to be contained in the bill boil down to three As: anti-Americanism, anti-corporatism and assinine premises.

During Question Period this past week, NDP copyright critic Charlie Angus accused the Conservatives of "rolling out the red carpet to corporations.”

University of Ottawa professor and would-be copyright guru Michael Geist has accused the government of pandering to the American entertainment industry.

Geist is also among those who have insisted that the bill will closely mimic the American Digital Millenium Copyright Act (without, of course, having seen the proposed bill). "There was every sense that the government was going to produce precisely what the US has done," Geist insisted. "People recognize that [the DMCA] has caused significant harm for all sorts of groups: privacy interests, consumer groups [and] free speech."

Of course, the fact that copying someone else's copyrighted intellectual property doesn't qualify as "free speech" notwithstanding, the most ridiculous argument should, of course, be saved for last.

"Say I buy a DVD and want to rip that to a file and put that on my iPod. It’s the movie that I bought. I didn’t go out and buy the experience of putting a plastic disc in a player and then pushing a button on a remote control," argues Ian Wallace. "I bought the experience to watch that movie."

Not so. Purchasing a CD or DVD does not entail purchasing the right to copy that material at will.

At its most extreme, it may not be entirely unreasonable to agree with Terence Corcoran's assessment of the protestors. To suggest that people should be allowed to tinker away at anti-circumvention measures with impunity is, frankly, ludicrous.

Canadians don't tolerate lawlessness in the corporeal world. There's no reason why we should be expected to settle for it in cyberspace. Property rights are a fundamental foundation of the rule of law, and intellectual property is simply no different.

Perhaps the greatest irony is this: by targeting the anti-circumvention articles of any proposed copyright act as the locus of protest against Geist's phantom copyright bill, individuals such as Geist, Lam and Angus want to use hostility toward "large corporations" to try and topple the entire bill.

Now, if only big corporations were the only ones who own intellectual property.

The ironic thing about the movement to undermine copyright law in Canada, under the guise of freeing information from the shackles of big corporations, is that it will undermine the intellectual property rights of countless authors, musicians, film producers, and other assorted artists. People like Ian Wallace would like to believe they're conducting a David-and-Goliath struggle against "evil corporations". Instead, they're helping screw the little guy: thousands of hard-working producers of intellectual property who will see their ability to make a living off their work endangered simply because some jerkoff doesn't want to pay for the new Die Hard DVD, and some other jerkoff figures "by golly, he shouldn't have to, either".

Michael Geist takes his ill-concieved information revolutionary act a step too far when he actually suggests that copyright law should facilitate the distribution of copyrighted works in digital form as a business model.

Someone should tell Mr Geist that's up to the copyright holders. Copyright law needs to ensure that such transactions are carried out legally, within the guidelines imposed by law. In other words, copyright law needs to ensure that, whether directly or indirectly, copyright holders are the ones selling their intellectual property, not pirates.

As for developing digital distribution as a business model? Not the government's job.

As for the allegedly-impending shitstorm of lawsuits against consumers, Canadian Independent Record Production Association CEO Duncan McKie raises the most pertinent point: "the property holders would have to decide to sue."

And if the person on the business end of that lawsuit happens to be someone illegally copying that copyright holder's property, they can't exactly pretend that haven't reaped what they sow.

All the panic over an amended copyright law is premature at best, and outright ridiculous at worst.

It's time to give it a rest.


  1. I think you need to read the information about our Petition to protect Information Technology property rights. We were told that this proposed bill would include ratification of the WIPO Internet treaties, and based on meetings with the US ambassador would take their anti-technology approach.

    This bill did represent a fundamental attack on tangible property rights, and should be opposed by anyone from the political right who has any respect at all for property rights.

  2. As a firm believer in private property I do indeed believe I should be "allowed to tinker away at anti-circumvention measures with impunity" re any property that I legally own. Just as it is perfectly legal for my to tinker with *my* car, it should definitely be perfectly legal for me to tinker with *my* DVD player, *my* computer, *my* computer program, etc, etc, etc.

    Those that would stop me from enjoying my private property as I see fit are the true Trotskyists.

    Jim Robinson

  3. You certainly are free to tinker with your car. But, just as with the silly "ripping a DVD for a flight" argument, your premise is flawed.

    Even if you were, under the guise of tinkering, to take your car apart, copy every different component (in this case, by building an identical piece), then reassembling a car identical to yours, you'd still be breaking the law, because various components of your car are likely still covered by patent law.

    Tinkering with the anti-circumvention measures on a CD or DVD is not different. What's the ultimate goal? To allow someone to break the law by copying its contents.

    When you purchase a DVD or CD, you're paying for the physical media that allows you use of the content. You aren't entitled to copy the content at will, and wouldn't be entitled to do so, even under current copyright law. (Unless, of course, you could justify it under "fair use". But I don't honestly believe most of the people doing these things are doing it so they can restrict their copies to "fair use", and frankly, you can't prove they do, which puts us at an impasse.)

    Frankly, I'm through trying to wade through the panic-mongering nonsense a lot of the opponents to this bill have been spewing. A loy of you are out there ranting about what this bill allegedly is, but the problem is that you haven't seen it yet. No in the public has, and no one in the public actually will until its introduced in the House of Commons.

    That's one of the reasons why the work I cited for this article is actually a boon to the debate, because even as it weighed both viewpoints equally, it also revealed the extent to which people like yourselves are merely trafficking in rumours and innuendo.

  4. Patrick,

    Do you have a technical background and understand the way that DRM technology works, or are you going on marketing brochures? I am a technical consultant, and was in fact hired by Heritage Canada (one of the departments that co-drafted the bill) to give a presentation on the technical underpinnings of DRM.

    I have been involved in this area of policy since 2001 (when the then Liberal government announced plans to ratify the anti-Internet treaties), and have read nearly every interpretation of the 1996 WIPO Internet treaties that has been published. The only part of the upcoming bill that I have commented on (and critiqued) is the part that the Ministers have stated would be in the bill, so I am not basing my commentary on speculation. I have spoken with many of the bureaucrats involved in the drafting over the last 6 years.

    I am opposed to ratification of the WIPO Internet treaties because part of the intention of the drafters was to revoke the rights of technology owners to be in control of what they own. This is why it is important to understand the technical underpinnings of DRM as the debate is not about the DVD movie, but about the DVD player.

    If you wish me to post more of the science behind it, let me know. As a start, please read the article "Protecting Information Technology Property rights" in this months issue of the Open Source Business Resource.

    If you believe that the only reason someone would want to circumvent DRM is to violate copyright, you are wrong. In fact, if you want to violate copyright you wouldn't circumvent a DRM at all -- you would just download DRM-free versions from the net. All it takes is a single person out of the 6.5+billion on the planet to decode a piece of content, and then it is available to infringers as if the DRM never existed. DRM only affects the legitimate uses by lawful persons, and doesn't reduce copyright infringement.

    Those who are opponents of DRM are not proponents of copyright infringement. They are quite often software authors, security specialists, and other people who understand how the underlying technology works and the massive harm to the technology industry that legalizing these techniques cause.

  5. That is a ridiculous, specious argument.

    If someone's attempting to circumvent DRM technology, it's for a reason. It isn't too hard to figure out what the purpose of that reason is.

    I'm actually aware of how several different DRMs work, and my advice to those who don't like them is very simple:

    If you don't like it, don't buy media that carry it. If you're that worried about it, then find out before hand. (If you were to suggest that consumers have a right to know what kind of DRM technology is contained in a particular product, I would actually agree with you. DRMs that potentially violate privacy rights are another matter entirely -- they should be banned outright, but that isn't an issue with copyright law, it's an issue with privacy law.)

  6. Why would someone want to be able to circumvent DRM you ask?
    Lets start with bad DRM that damages other items. DRM like what Sony got in so much trouble for. That DRM was horribly broken, and without the right to tinker no one could ever prove it. If DRM is legally supported it becomes a nice little wrapper for a company to put anything inside. Perhaps we can trust a big company like Sony to never abuse that trust again. Perhaps that would be foolish.
    The problem is that if DRM is legally protected then you can't find out what it does. How can we ban something we aren't allowed to see?
    What value does DRM give to my product? I have to use hardware that the manufacturer picks, not me. So to take the car example you can no longer install third party headlights or tires, only "Ford Licensed" headlights or tires. That certainly sounds nice for "Ford" but not so much for me as a consumer.
    What other value does DRM provide. Copyright infringement is already illegal. So anyone that infringes is breaking the law. How does making examining DRM illegal change that. Its already illegal. Since DRM is breakable then DRM cannot stop copyright infringement. This leaves its only value as a method of forcing me, the honest legitimate customer, to use the hardware the manufacturer dictates, in the manner dictated. As someone not breaking the law I am the only one hurt by DRM. But hey maybe I'm not the normal customer so my rights don't matter. After all I only buy around 100 dvds per year.
    DRM has hurt me personally in that I play all my music on the computer and I have CDs I cannot play because of DRM. I paid for those CDs and they don't work. Tell me why that deserves protection!

  7. Take your CDs back, get a refund. Let the market take care of that.

    I've come across the typical DRM on an audio CD before, and I'm well aware of how they work. If you don't want to install the software in question, you don't have to. But given that the copying of music from CDs into MP3 format is the leading form of copyright violation, I still view this as a perfectly legitimate form of protection -- at least, at its most basic level.

    If you don't want to install their DRM software on your computer, you don't have to. No one is forcing you to.

    Now, there's actually an important reason why Sony got into so much trouble, and it doesn't have anything to do with the principle of protecting DRMs. Just because they're protected doesn't mean they would (or should) be unregulated.

    Frankly, the root kit technology that Sony was using should be illegal in principle, just as all forms of spyware and adware (particularly self-replicating programs of this nature) actually should be illegal.

    A lot of property rights activists like to talk about the sanctity of the home, and how it's defended. I would actually expand that to the sanctity of the home computer, and how that is defended. There are a lot of people who are sitting around, as we speak, trying to think of new ways to violate the privacy and security of other people's computers, and when Sony joined them, the hammer should have come down on them just as it should have come down on all these people years ago.

    As I previously stated, the DRM matter vis a vis the root kit isn't a matter for copyright law -- it's a matter for privacy law.

    I would suggest that DRM technologies be treated the same way I think spyware and adware should be treated: subject to a reverse-onus requirement before a regulatory board should allegations of that software causing harm be raised.

  8. Patrick,
    I must also disagree with your arguments about anti-circumvention laws. There are, by law, many reasons one is permitted to use copyrighted material. These are covered under fair dealing, and are user rights defined by the government. We have these rights, whether it is in the interests of the content creator or not.

    By prohibiting anti-circumvention, we give the content creators a way to remove those rights of ours. If I have any legal right to access the content in a way that the DRM/TPM doesn't allow, I must break the law to exercise that right.

    Your argument about the car is a classic strawman argument. Reverse engineering a car is completely legal, and is in fact done by every major auto manufacturer regularly. What is NOT legal is the copying. There are many reasons for reverse engineering a product (be it a car or software) that do not involve IP infringement.

    Here are a few examples of LEGAL activities that would be prohibited, at the content creator's sole discretion:
    - cutting clips from a DVD for use in my own documentary
    - reverse engineering for competitive intelligence or patent infringement investigations
    - unlocking or otherwise modifying my cell phone or other electronics
    - create a backup copy of MY Windows CD
    - encryption research of DRM systems

    It doesn't matter if some (or even many) people would circumvent the DRM for illegal purposes. We already have enough laws to prohibit those activities. Enacting anti-circumvention activities would have exactly zero benefit, and plenty of harm.

  9. Abattoir said...

    "By prohibiting anti-circumvention, we give the content creators a way to remove those rights of ours. "

    I would like to enhance your reply by quoting from our petition to parliament.

    "THAT TPMs can be applied to both content and devices, and thus the copyright holder and the owner of the device have rights that must be respected;

    THAT while copyright holders own rights on the protected work, private citizens usually own the devices used to access those works;

    THAT TPMs can be abused to harm the interest of the copyright holder and/or the device owner;"

    While the anti-competative aspect of legalizing these TPMs abused by copyright holders concern me as a supporter of free market capitalism, it is TPMs abused by device manufacturers and software authors that are at the root of most of the problems.

    The difference between the Sony Rootkit and Apple's FairPlay is that Fairplay is pre-installed while Sony's Rootkit is installed at a later time. Otherwise, both have the same function of locking the owner of the hardware out of some multi-purpose (with most purposes perfectly legal) functionality of their own hardware.

    Merry Christmas everyone. I wish for some cool technology under the tree which *you* own and control rather than someone else.

  10. "If someone's attempting to circumvent DRM technology, it's for a reason. It isn't too hard to figure out what the purpose of that reason is."

    Could their reason be to get access to Major League Baseball videos that they've paid for, but have subsequently been locked out of by MLB's change in DRM systems? (link) Because unless we can guarantee that DRM vendors will be around forever, we're effectively guaranteeing that people will eventually be arbitrarily shut out of content for which they've already paid. ("Thank you for buying a new car... WHOOPS! Your keys have just disintegrated! Could we interest you in another car?")

    We've already got music and movie industries that are convinced they're due a steady revenue stream regardless of the appeal of their output. Do we really want to create another business along similar lines and then put them in charge of access to all recorded culture?

  11. If you don't like it, don't buy it. If you aren't satisfied, get a refund.

    This isn't exactly rocket science.

    Using reverse engineering as the test model for opposition to anti-circumvention is as silly an argument as the ripping-a-DVD-for-a-flight argument.

    (I'll also remind you that I didn't raise the car argument, I merely dismantled that.)

    Reverse engineering is actually a very questionable practice that probably shouldn't even be legal. As it is, it inhabits a more or less unenforcable grey area under the law.

    If I were crusading against a copyright bill that I haven't even seen, I sure wouldn't rely on it as my underlying argument.

    There are plenty of ways to deal with potential issues under anti-circumvention that still allow copyright holders to maintain this level of protection over their work.

    I've even named a few, and so far all I've heard from you boys is "no, no, no, our way only!"

    Well, sadly for you boys, legal precedent isn't even on your side. As it so happens, in the case of a more corporeal example, we do restrict the ownership of lockpicks to professional locksmiths.

    I would even be open to a proposition that a process could be set up by which those who had concerns with DRMs could apply for permits that would allow them to explore those concerns by examining the programs in question. Then, at least, we would know who's doing this and for what purpose.

    But making no attempt to regulate an activity that can be and is used to commit criminal acts? Not tenable, whether you boys like it or not.

  12. Patrick,
    I'm afraid you are mistaken. Reverse engineering is not a 'questionable practice' - it has been, in fact, explicitly protected in law.

    Reverse engineering is responsible for the PC revolution. If the BIOS chips for the original IBM PCs had not been RE'd, we would never have had the IBM 'clones' that ultimately transformed the market for the better.

    How can any company hope to protect their patent rights if they don't have the right to tear apart their competitor's products, to see if they are infringing? Their only recourse would be discovery, which is often prohibitively expensive.

    Returning to the car as an example, exactly what law would I be breaking by buying a car, tearing it apart, and examining any interesting parts in detail? None, and that's not an oversight.

    Even the overly-restrictive DMCA has regulatory exceptions for reverse engineering for interoperability purposes. And RE is only one issue with anti-circumvention legislation.

    Ripping CDs so you can post them on the internet is already illegal (or it clearly should be). What additional benefit would this bring, exactly?

    We are talking about existing user rights, presumably enacted because it is in society's interests, becoming subject to corporate approval before we are permitted to exercise them. If that is what is truly desired, then we should drop the pretences and remove the user rights entirely. Incidentally, these user rights have extensive legal precedence.

    I have no problem with reforming the Copyright Act to clarify issues around file sharing, etc. But I am not willing to sit back and watch Hollywood usurp these long-established user rights, which exist for a reason.

  13. Just to further the discussion of 'legal precedence', I'd just like to point out that the concept of fair use/dealing itself has been long established.

    As far as I can tell, the concept was first legally established as 'fair abridgement' in England in 1740, in the case of Gyles v. Wilcox. It was later further expanded in the US into the modern 4-factor test in 1841, in the case of Folsom v. Marsh.

    So when people claim that these user rights are 'problems' for the entertainment industry, and see no problem with effectively repealing them, we should bear in mind that these rights have evolved over centuries of common law and legislation, and should not be eliminated lightly.

  14. "Ripping CDs so you can post them on the internet is already illegal (or it clearly should be)."

    This is correct. A common misconception was that that BMG lost the BMG vs Doe case because of some "loophole" in Copyright law, when in fact the federal court and federal court of appeals gave the industry a blueprint to sue. The major difference between the Canadian and US situation is that we have far stronger privacy legislation (PIPEDA).

    I guess I'm finding this conversation with Patrick interesting. Different types of property law have always come in conflict, and intangible exclusive rights often come in conflict with tangible property rights. Up to this point in our history, tangible property rights always trumped the economic interests of intangible rightsholders whenever the activity was private in nature, while the intangible right trumped when the activity was public (public distribution, communication by telecommunicatinos, etc). In fact, copyright was not interpreted until very recently to regulate private activities at all, with the private copying levy for recorded music being the first addition of a levy on these private activities (An idea dreamed up and pushed through by Liberal Sheila Copps).

    All the things involving DRM are private in nature, and thus this form of government protected private regulation is entirely new and diverges from how the law has ever worked in the past.

    I see absolutely no reason why it should be the owner of tangible property that should justify their rights rather than the intruder. I think we have another reverse-onus situation. If foreign locks should be allowed to infringe our tangible property rights to disallow us to be in control of our own hardware for lawful purposes, it should be the person advocating for the foreign lock that should have to be registered and justify to the government why these foreign locks should be be allowed.

    In the meeting I had with Bev Oda, the 2'nd most recent Heritage Minister, I made the analogy between DRM and gun control. Most conservatives believe they have the right to own guns for lawful purposes, and are even opposed to the long gun registry. DRM is like having a foreign lock on the gun, and needing to call up some animal rights group (IE: a group that least wants guns to exist in the first place) to get permission to be able to ever fire the gun.

    The phrase "buyer beware" in relation to infringements on property rights would never work anywhere else, so why is it supposed to work here?

    Reverse engineering has never been in a legal gray area before. If it becomes one because of this brand new bureaucratic control over technology, this will be the first.

    The analogy to locksmiths is amusing. We aren't talking about training tangible rightsholders to pick locks, we are talking about legally protecting their right to remove foreign locks from what they own so that they can put their own locks on, and remove some big-government bureaucratic scheme (tied selling, refusal to deal, things which are currently unlawful) being abused to try to force people into only acquiring locked-down hardware.

    There are all of this suggestion that tangible rightholders should be subservient, but not a single amount of credible evidence that these schemes actually reduce copyright infringement, or provide any form of public benefit. It is correct that this is not rocket science, given rocket science has some credible science behind it.

    Normally a conservative would be opposed to these wild big-government bureaucratic schemes that requiring government licensing for personal activities, and all the additional expensive government bureaucrats that come from such a scheme (if you think the gun registry was expensive, wait for this one!). It is especially amusing of a scheme dreamed up by the Clinton-Gore administration.

    Anyway, Merry Christmas. Been an interesting thread, but not sure if there is much more to add. There are always going to be people who hold "interesting" and indecipherable positions on various political issues.


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