Not that the arguments aren’t self-defeating or are a departure from reality, but those are among a number of arguments being made for a blanket ban on circumvention. The op-ed was posted on the Straight and does a pretty good job at listing off the myths surrounding piracy and TPMs. We felt it was necessary that there would be a response to these arguments.

“Internet piracy of video-game software in Canada has undergone explosive growth,” Parr writes, “and we detected a stunning 300 percent increase in the number of games illegally downloaded via Canadian ISPs between 2007 and 2008 (and this reflects but a fraction of the total illegal downloads in Canada detected by the industry as a whole).”

Either this point is completely untrue and made up, or the industry’s method of gathering information is severely flawed. ISPs have admitted to the CRTC that the bandwidth growth, particularly in the span of 2008 and 2009, fell by 45%. If piracy, even gaming piracy, grew by a “stunning 300 percent”, you would think that bandwidth growth would increase, not decrease. So who would you believe? The ESA who “detects” piracy, or the ISPs who can actually see the network bandwidth themselves?

“Today,” Parr continues, “it costs between $10 and $30 million to develop a top-tier video game, and few games actually sell enough to achieve profitability. In light of the substantial investment required and the high degree of risk associated with the production of entertainment software, piracy fundamentally undermines the industry’s ability to recover its investment, resulting in fewer games as well as lost revenue and employment opportunities.”

Yet, in the same breath, Parr wrote just two paragraphs earlier, “The video-game industry is the fastest-growing sector of the entertainment industry in Canada, and one of the most vibrant, fastest-growing industries in the world. [...] Canada recently overtook the United Kingdom to become the third most successful producer of video games in the world.”

Amazingly, he still takes that argument to say, “new copyright legislation must provide legal protection for TPMs, prohibit trafficking in “mod chips” and other circumvention devices and services”

In other words, the industry is growing at an amazing rate (without anti-circumvention legislation) but piracy exists, so anti-circumvention law is required. If Canada is growing to be a world leader, overtaking other countries including those that have anti-circumvention legislation, doesn’t that render the argument that there needs to be anti-circumvention legislation null? If the gaming industry has been growing spectacularly well, why is there suddenly this need for anti-circumvention legislation in the first place?

Parr also argues, “implementing legal protections for TPMs will benefit consumers by providing greater certainty in the digital marketplace, which will, in turn, spur investment in the development of new digital products, services, and distribution methods; more consumer choice; and lower prices”

Question, how often does a hardcore gamer say, “Gee, I’d love to buy this video game, but I’m not sure I want to because I am uncertain about the overall game marketplace.”? Maybe what Parr meant to say was, “implementing legal protections for TPMs will benefit stock investors by providing greater certainty in a digital marketplace”. After all, it seems much more reasonable to hear a hardcore gamer say, “Boy, I’d love to play more games.”

Furthermore, TPMs have proven in every other digital authorized marketplace to enforce monopolies and put a further squeeze on competition and consumer choice. A modded console has been known to expand the functionality of a gaming console in ways that weren’t originally part of the console – allowing developers to create applications and find new innovative ways to use a game console. Conveniently enough, that wasn’t mentioned in the op-ed. If you want a recent example on how TPMs block innovation, you could do a whole lot worse than to read up on the RealDVD case or the DVD Jukebox case.

“If a creator or company chooses to sell their work as a digital product or service, legal protection for TPMs helps ensure that this choice is respected, much in the same way that locks on the doors of a bricks-and-mortar store allow the owners to determine when and how consumers can access their product.” Parr wrote.

It’s a flawed comparison to compare owning a product to a physical store. If one were to pay for that store, why should someone else add further restrictions on what one can do with that store even though it was legally bought and paid for? If one were to use the bricks and mortar allusion, the more realistic comparison is that if you were to buy a building and you are now the legal property owner of that building. Then, the person who sold that building said, “OK, now that you own this building, you are only allowed to have the store open every 10 minutes on the hour and you can only sell merchandise to people with shaved heads or people who have been to a Rolling Stones concert and a Linkin Park concert within the span of three weeks.” This is not a reasonable demand on the sellers part. You paid for the building under the premise that you bought it outright, it should be yours. Who’s to say you are going to turn it into a store and not a gym? When you pay for content with digital locks, you rent it, you don’t buy it.

Parr comment that has earned a lot of counterarguments was this: “Failing to protect TPMs under the law effectively means that the government is dictating the business model, which is bad news for business and for consumers.”

The government is certainly not dictating any business model by not introducing blanket anti-circumvention legislation. If a company wants to implement DRM, and one company did in 2005 with rootkit and spyware technology (and they were sued for it in the end), they are free to do so in Canada. Not implementing anti-circumvention technology is not saying, “All copy protection is banned in Canada” by any stretch of the imagination. However, many do see anti-circumvention legislation as effectively dictating how the market can legally operate.

All in all, while an OK attempt to justify anti-circumvention legislation, like all other arguments that we have seen so far that are for restricting copyright, the arguments are either a departure from reality, philosophically incorrect or simply relying on myths and unverifiable information.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

The CFHSS has issued a call to action on the copyright consultation.

“Representing as it does scholars who cherish and produce copyrighted works,” the CFHSS says, “the Canadian Federation of Social Sciences and Humanities certainly supports efforts to reduce the commercial‐scale piracy. However, we call for a law that balances the economic rights of creators and/or owners with society’s right to gain access to knowledge. Access to knowledge is a crucial stage in the life cycle of new creativity and innovation. The rights of scholars, students, universities, libraries, taxpayers and consumers must be preserved in order that this cycle can continue to generate novelty, critique, meaning, and collective cultural experience. Scholars in the humanities and social sciences work primarily with human creations, human ideas and human interaction – much of which falls under copyright. Our work in turn, once fixed in print or other media and shared with the academic community and the public at large, falls under copyright. Copyright thus to a large extent determines the conditions of possibility for our research and knowledge sharing. Many legislative amendments proposed and even introduced over the past several years would severely impede the ability of scholars to carry out their work, and the ability of Canadians to share with and learn from one another: we must be wary, creative, and outspoken about the next stages of copyright reform.”

Right here, the CFHSS makes a very important and critical distinction here. Very few, if any, support commercial piracy. Taking content, burning hundreds of copies and selling it on the street is something that will not lend you very much sympathy both from the industry and file-sharers alike. That doesn’t mean Technical Protection Measures (TPMs) or digital locks, as they have seemingly become most commonly known as in Canada, should somehow trump all forms of fair dealings. Commenting, critiquing and parody are among one of the most effective means of spreading culture around – something that benefits content creators, both who are getting critiqued and by creators who are doing the critiquing. Exceptions to copyright law that allow society to respond to creative works greatly enriches society as well as the original creative works.

CFHSS also comments, “It has been said that digital technologies create a necessity for greater protection for rights‐owners in order that the economic effects of the tech sector can be maximized. In our view, it is short‐sighted and narrow‐minded to think of new rights for creators or publishers as the only way to increase activity in the cultural and cyber industries.”

There is little doubting the kind of opportunities new technology has provided. The internet has helped connect artists to their fans in ways that was unheard of before. In fact, one musician has already commented how file-sharing has become a very valuable learning tool for artists. Now, artists are able to go through different genre’s of music and learn about what is out there to enrich their own creative pallets. There are even the odd person here and there now that would go so far as to say p2p is creating content creators. On a personal note, I should know as I am one of those people.

In short, here are the core arguments CFHSS are making:

1. Make the concept of fair dealing more clear and flexible to encompass the reality of teaching, learning and research in the context of digital technology by integrating the Supreme Court’s tests for fair dealing from CCH v. LSUC (2004) into the Copyright Act.

2. Forbid the circumvention of digital locks (DRM) only if the locks are broken for infringing purposes.

3. Avoid specific exceptions, such as those in C‐61 for digital interlibrary loan and educational use of the internet: fair dealing already covers many educational uses, and specific exceptions are often entirely
unworkable.

4. Work towards format neutrality in the Act, so that various media are treated in an equivelent way.

5. Add a provision that contract law may not trump fair dealing.

6. Refrain from lengthening copyright term.

7. Make provision for more practical access to orphan works

8. Eliminate crown copyright.

Already, the DOC has called to expand fair dealings for people who make documentaries.

Currently, a lot of this seems to coincide with what many are already submitting to the copyright consultation. Michael Geists latest update shows that the submission trends are continuing.

According to updated numbers, there are now 465 submissions against anti-circumvention or in favour of limiting DRM/Digital locks, 431 submissions in favour of stronger personal use/copying and backup protections, 400 submissions against another Bill C-61, 389 submissions that favour a “notice and notice” approach and 388 submissions in favour of establish a good-faith defence that the user believed their use of a work was fair and non-infringing. On the other side of the debate, there are 2 submissions in favour of stronger penalties for copyright infringement, 2 submissions in favour of implementing WIPO, 1 submission in favour of limiting file sharing, 44 submissions against works being available in digital or other forms for free and 1 submission in favour of turning copyright into a crime. With supporters of loosening copyright laws ranging between 10 times to about 400 times the submissions that ask for restricting copyright, the chances of successfully arguing that most Canadians want to follow positions expressed by the pro-copyright restricting camp, who have argued for a three strikes law, has grown increasingly bleak.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Ever since C-60 was tabled under the Liberal government in 2007, there have been countless calls for a consultation on copyright related issues. Such a thing would not be realized even while the later Conservative C-61 copyright bill was tabled. Now, it seems that things have finally changed and Canadians will be consulted on the matters.

“Over the coming weeks,” the governments online consultation says, “the Government of Canada will be hosting a nationwide consultation on copyright modernization.”

Michael Geist notes that there will be two town hall meetings for Canadians to let their voices be heard, on in Montreal, the other in Toronto. According to the calender, there will also be 4 invitation only round tables, one of which has already happened.

Canadians who are unable to make their voices heard at the two town hall meetings have an opportunity to submit their comments online.

While average Canadians are going to finally get their voices heard, the copyright industry has been lobbying, often making copyright the most lobbied topic in the government, continually for years. Culture Minister critic Charlie Angus in 2007 commented, “during one of the first meetings I had on copyright a lobbyist informed me that the Internet was little more than a “highway of stolen goods and child pornography that goes into the bedroom of every kid in this country.” ”

He added the following:

The industry message to Parliament was that Canada had become a bandit’s bazaar where hapless artists were regularly mugged for their wares. Politicians were being called upon to act as rush in with restrictive laws to help starving artists by implementing an agenda being put forth by large corporate interests.

This spin of urgency and fear was very successful in laying down the initial political discussion about copyright. Former Heritage Minister Héléne Chalifour Scherrer provided this perspective on digital culture: “There is no doubt we must modernize the copyright act as soon as possible. The emergence of the Internet and digital technology has shaken entire sectors of our society. I am thinking in particular of the protection of the intellectual property of our creative people.”

Listening to her you’d think that the digital revolution was like a carload of gangbangers that had taken over our quaint Canadian cultural neighbourhood.

The consultation also posted a huge, seemingly exhaustive list of issues facing Canada related to copyright with select sources on each topic.

The consultation runs until September 13th and asks Canadians the following critical questions:

1.How do Canada’s copyright laws affect you? How should existing laws be modernized?

2.Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time

3.What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

4.What sorts of copyright changes do you believe would best foster competition and investment in Canada?

5. What kinds of changes would best position Canada as a leader in the global, digital economy?

Many who are involved in Canadian copyright are hailing this as an opportunity that shouldn’t be missed.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Stories about the DRM embedded in Windows Vista has been a hot button topic for some. Those wary of the new operating system say that the DRM in Windows Vista would force users to forfeit control over the operating system. Others who embraced Windows Vista say that the worries are overblown and nothing short of fear mongering and unsubstantiated. For those who were wary of the latest version of Windows have just got one very solid example of embedded DRM forcing users to forfeit control for copyright holders.

The EFF has been following reports about NBC enacting the broadcast flag. What NBC reportedly has been doing is using the broadcast flag to prevent users from recording over-the-air TV shows for later viewing.

It turns out that when a user uses Windows Vista to record certain NBC shows, they’ll get a message that states that recording of the show has been prohibited. To prove the point, someone took a screenshot of what happens when one tries to user their PVR to record the shows.

Essentially, a broadcast flag is a bit that comes at the beginning of a digital TV show (typically High Definition shows) If, say, the bit was a one, then that bit tells a PVR that this show has been flagged and the PVR stops people from recording a show. If the bit is a zero, then there is no broadcast flag put in place and the PVR is allowed to record the show.

The EFF is particularly interested in this. They commented with the following:

The ability to flag broadcast content was created by the ATSC standard which governs digital TV broadcasts in the United States. By itself the broadcast flag cannot restrict use of broadcast content. Instead, its force comes from a tech mandate law – an FCC regulation – which required manufacturers of DTV-receiving devices to detect and respond to “switched on” broadcast flags. EFF and others opposed the use of the broadcast flag and fought successfully to have the FCC regulation overturned by the courts. We did that because it handed control over your hardware to a remote authority, limited your right to your fair use of media, and would have made illegal open source products like MythTV. As a result of that victory, manufacturers are not legally required to force their devices to detect and respond to the flag.

It would now appear that Microsoft has voluntarily chosen to obey such content restrictions in Vista, despite the successful work of thousands of users to defend Microsoft’s right to innovate and our right to fair use. Justin was attempting to record the program on Windows Vista Ultimate using Silicon Dust’s HDHomeRun external tuner, which decodes the digital TV signal, and sends it over Ethernet to many types of digital TV receivers, such as MythTV or EyeTV. As Silicon Dust says on its website, their decoder merely passes on the datastream, and does not interpret data like the broadcast flag field itself, so we know that it is Windows alone that has declared that this program should not be recorded.

To be perfectly clear: Microsoft is under no legal obligation to look for and respond in any particular way when it sees the broadcast flag being sent by NBC’s digital stations. Any DTV-receiving software technology or device – like MythTV – is free to take the same stream from HDHomeRun and ignore a broadcast flag transmitted with it. In other words Microsoft did not have to build its PC to look for and refuse to record a program which has its flag turned on.

EFF notes that consumers fought the FCC so that alternatives like MythTV could exist legally in the United States. Had this not happened, then very likely, the FCC would force companies who create devices and programs to record TV shows to obey the broadcast flag. It was decided that the FCC was outside it’s jurisdiction when it tried to force companies and open source developers to build electronic devices and programs in only certain ways. After the FCC lost in court, the content industry lobbied heavily to get the broadcast flag into the government, but a coalition to counter the lobbying was successful.

So why, after all that work, does Microsoft’s software appear to honor content restriction? It’s hard to say. Was it a content licensing requirement? Microsoft didn’t have to do so if it just wanted its devices to decode and display over-the-air digital NBC broadcasts — just as you don’t need to sign a contract in order to decode and display the signals sent over the public airwaves into your living room. American consumers can choose what to do with their digital broadcast TV, just as they have been able with analog broadcast TV.

Since this all seems to be a voluntary type of control, there’s definitely good reason to use alternatives should Microsoft be going ahead with enacting certain controls over what people can do with the operating system. There’s no word yet on whether or not this was actually accidental on Microsoft’s part.

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