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A Discussion With Russell McOrmond on Hollywoods New Intel Chip

Drew Wilson — Sat, 08 Jan 2011 07:27:19 +0000

Just shortly after new years, news surfaced on multiple websites where Intel was developing a chip that would support high definition copy protected content for streaming purposes. The news intrigued us, so we discussed some of the issues that came up with coordinator of Digital Copyright Canada and Canadian consultant Russell McOrmond.

Intel recently revealed what it calls the second generation Intel core processor. While there was many interesting things about this chip, one thing stuck out to us at Computer World:

Intel is also upgrading its Wi-Di technology, which enables users to wirelessly transmit images and video from a PC to a high-definition TV. Users will now be able to stream 1080p content, an improvement from the previous 720p resolution. Users will also be able to stream protected movies from the Intel Insider feature, Regis said.

Here's what CNet mentioned:

Access to Hollywood content is also baked into the chip--a technology called Intel Insider. "This will unlock premium high-definition content, like movies, to your PC," Kilroy said. "We've gone out and engaged with the studios. So, you'll see Warner Bros. and Fox at launch [of Sandy Bridge] and several other studios to come. They're eagerly embracing this platform as a distribution means for premium high-end content--as Internet content [offered] directly to the end user." Kilroy continued. "What Intel Insider does is deliver HD digital distribution rights to the PC. This could be enabled through multiple content storefronts through OEMs (PC makers), retailers like Best Buy. Essentially, the PC now becomes an on-ramp for HD 1080p movies," he said. And Intel has added security features to protect the content. "And we've built in security capability into this platform that will enable end-to-end hardware protection for the content. So, it will protect the premium content rights of the studios," according to Kilroy.

The idea that Hollywood is influencing hardware development is certainly interesting. With a form of digital locking built right in to the chip being discussed, we thought it would be interesting to speak to someone about this. We asked him about what this means when these chips will be able to play protected content - that maybe it doesn't mean much because really, this kind of streaming might only affect protected content in the first place. "What does "only on protected content" mean?" Asked McOrmond, "All you can do with content is encrypt it such that you need the right decryption keys to access. All of what we call "DRM" is in software (which includes firmware) which runs on hardware. It is dishonest to "sell" someone hardware without giving the owner the keys to what they own. By falsely passing off a vendor-dependent content delivery system as if it were copyright related, we then don't regulate it correctly. These schemes can not and do not protect copyright, but allow the vendors to circumvent the traditional contours of copyright, contract, competition, privacy, property and trade law. It allows those vendors to replace legal code with unaccountable software code." We also asked via e-mail about if this is all part of the Trusted Computing some have been warning us about in the past. McOrdmon said, "having cryptography in the GPU is the same theme but different than what the trusted computing folks were doing with the separate trusted platform module. It is still locked hardware/firmware within a theoretically general purpose computer where the owner is treated as the attacker." He added, "It is hardware that is positive security where owner holds keys, but in my mind morally repugnant when the owner is denied keys." When the news was first circulating, we wondered if the mentioned digital locks could spark anti-trust suits from other chip manufacturing vendors. McOrdmond was skeptical with these theories, "I wish. I have been talking to folks at the Competition Bureau about this for many years now." McOrmond then explained things from a policy standpoint, "As long as people (policy makers, lawyers, copyright holders, etc) are confused into thinking TPMs have anything at all to do with copyright, it will be very hard to regulate appropriately." "As soon as this is understood as a vendor-dependent content delivery platform, all the existing regulation including competition/anti-trust will come into play." "It will also allow copyright holders to make informed decisions about how to distribute and license their content, allowing for revenue streams they are currently giving up due to their confusion. They don't realize this is a beta-vs-vhs battle all over, and they are deliberately choosing not to offer any content legally on VHS." Certain forms of copy protection often seem like they are designed to circumvent certain copyright laws in a given country. Canada is a great example where copyright reform has been pushed several times, but never passed in governments in the past and in the current government - at least, the major pieces of copyright reform like Bill C-60 under the Liberal government, Bill C-61 under the Conservative government previously and, now, Bill C-32 under the current Conservative government. McOrmond addressed how TPMs can affect copyright laws: "If TPMs are protected in copyright, it allows a TPM vendor to replace the traditional contours of copyright (and other laws) in software. This means any aspect of copyright (what it regulates, limitations, exceptions, term, etc) have no meaning at all in the presence of a legally protected TPM. No further changes to Copyright required for a majority of scenarios -- Copyright law only applies in analog/unencrypted scenarios." We also asked McOrmond about how digital locks aren't protected by Canadian copyright laws and he commented, "Digital locks aren't protected in Canada at all at the moment. This is unfortunate as they have legitimate purposes under contract, e-commerce, privacy and other laws. I have been writing my provincial MPP in Ontario (currently also the Primier) suggesting modernization in these areas, but without the industry backing this direction it is unlikely. The legal community generally sits entirely confused about the whole question." "Bill C-32 protects Access Control TPMs (the relevant type) for non-copyright-infringing activities, and explicitly states that the new very limited fair dealings enhancements do not trump digital locks. This means that in the presence of a TPM the contours of copyright don't matter." "Time/device/format shifting with an analog VCR is legal, but with DVD and PVRs it is not." McOrdmond smiled, "Better grab those VCRs from landfill" We then also asked McOrmond to elaborate on whether the development of this chip is a move towards trusted computing or if this is a move in a completely different direction, "This is a language issue." "TPM could mean "Technical protection measure" (Bill C-32) or it could mean Trusted Platform Module." "Issues with the Trusted Platform Module are not technological, but legal." "When the owner of the device holds the keys to the TPM, then this is an instrumental tool to protect against malware and intrusions. This allows the owner to ensure that no unauthorized modifications can be made without them being detected. This is a critically important tool for the future of computing. This is especially critical in mobile." "When someone other than the owner of the device manages the keys, then the TPM circumvents the legal rights of the owner and can itself be considered a form of malware that enforces unauthorized modifications to the system." "In some cases the owners will outsource key management to an IT firm. But this must be the choice of the owner, not something imposed by the collusion of hardware manufacturers and confused politicians/lawyers." "Identical technology has opposite purposes depending on who holds the keys. "The law should protect the right of the owner to control who has keys, and should make it clearly illegal for someone other than the owner to treat the owner as an attacker. This should be protected in property law, and has nothing to do with copyright." "Confusion by parliamentarians about technology and copyright is being abused to flip the law on its head and legally protect abuses that would otherwise be legally prohibited." "The term "Trusted Computing" is like TPM -- it has different, and sometimes opposite, meanings depending on who you talk to. Everything comes down to the question of who owns what is locked, and who controls the keys." One thing that also came to mind with regards to this chip is any potential impact on, say, the Linux community. McOrmond commented, "If the owner of the computer doesn't hold the keys and can't make their own software choices, then they can't chose Linux. "But this isn't about Linux. It is about protecting the rights of computer owners to manage the keys and make their own choices. MS Windows and MacOS are legitimate choices, just not legitimate to impose." "Now lets flip back to content for the moment. Having more and more content encrypted to only work with specific brands of technology is a lesser but still critical problem. It is saying that in order to fully participate in Canadian culture you need to "chose" from a subset of technology brands." "It is like saying that in order to participate in Canadian federal politics you must be a member of the Liberal-Conservative party (the one from Confederation). You are free to make any choices you want, and you are free to not participate in politics, but it is an illegal circumvention of the Trusted Politics Measure (TPM) to participate in politics as a member of the Reform, Bloc, NDP or any other third party." It was at this point that we mentioned the story about the Playstation 3's root key being discovered and said how that, given this is just the latest protected mechanism that has been cracked, would this chip with its own "copy protection" eventually see a similar fate. McOrmond responded, " I wouldn't use the word "copy protection" as that is a vague marketing term and not a specific technology that can be discussed in a way that would have meaning. "The hardest thing for people to realise is that the Access Controls on content aren't all that relevant to copyright. The potentially anti-competitive cryptographic tie between encoded content and specific brands of technology only needs to be unlocked by one person among the 6.5+ billion people on the planet. The now unlocked content can be unlawfully shared the same as if the lock never existed. It will be from these sources that a vast majority of average (less technical) citizens will get their infringing content." "As an alleged form of "copy protection", this is pretty much useless." "The non-owner locks on our hardware/software is a different scenario. While it is true that if you put a safe and the key into the home of a safe cracker that the safe will be opened, especially if he bought the safe and is morally (if not legally) correct in believing it is his/her right to open it." McOrmond seemed to be skeptical of relating the two scenarios, "The issue is that unlike with the content scenario, each lock on hardware/software can have its own key and thus opening one doesn't open it for everyone. If you find the root key and can create a generic unlocking tool usable by average citizens then great, but that isn't always or even often going to be the case." "This means that most peoples hardware/software will still have non-owner locks on them which will limit what the owners can do. These limitations have absolutely nothing to do with copyright, and everything to do with third parties other than the owner having control over the means of production and distribution in the knowledge economy. The harmful repercussions of this are considerable on society, and relate to many other activities we have laws on the books for, but these harmful activities have little if anything to do with copyright." "What I find sad in this fight for basic digital rights is that we have to try to convince so-called Conservatives and other mainstream political parties about the value of protecting private property rights, and trying to explain to them all the social, economic and political problems that can result from this lack of protection." McOrmond, at this point, reminded me of his article on "The Two Locks of DRM" and said, "Getting people past thinking this is about so-called "copy control" and encrypted content is the most important part of the battle." "DRM = Dishonest Relationship Misinformation." "The term Digital Rights Management begs the questions: which and whose rights, and is "management" just a euphemism for circumvent?" "IE: Digital property rights circumvention? Digital contractual rights circumvention? Digital privacy rights circumvention?" As our conversation ended, he said, "My concern with all of this really has nothing to do with copyrighted content, and everything to do with the non-owner locks on our hardware/software" We would like to thank Russell McOrmond for discussing these issues at length with us. For more commentary by Russell McOrmond, you can visit his blog at Digital Copyright Canada. 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.

Report: Ubisoft Releases Patch That Removes ‘Always On’ DRM Requirement

Drew Wilson — Sat, 01 Jan 2011 23:40:59 +0000

It may have been the most draconian and ill-advised copy protection of a copyrighted product since the Sony Rootkit scandal, but now, reports are surfacing that says that Ubisoft has released a patch for the games (including Assassin's Creed 2 and Splinter Cell: Conviction) affected by the infamous "always on" DRM system. The patch will no longer require a constant internet connection, but will still require an internet connection every time the game is turned on.

Ubisoft made headlines back in August last year over a highly controversial DRM system which they ultimately backed off and used Steam for their products. The controversy began when games like Assassin's Creed 2 required a constant internet connection to play. The, at the time, new copy protection, or DRM, was hailed as a breakthrough in stopping piracy when it was released - that finally there was a copy protection that would stump video game pirates in their tracks. It all went downhill from there for Ubisoft. Just 24 hours after the game was released, the copy protection was cracked and then re-cracked to defeat the copy protection just 24 hours after the commercial release. This allowed the unauthorized downloading and playing of the video game anyway. Many were already pointing out that the constant internet connection of the game for authorized copy was really degrading the gaming experience - particularly for those with flaky internet connections. This meant that those who had the pirated version enjoyed smooth single-player action while those with authorized copies would have the game freeze on them in mid-play whenever their connection gave out. As one could imagine, fans of the game were furious over having such a highly strict copy protection while the same system wasn't stopping pirates from playing the that game. In short, why should I put up with the game constantly freezing on me because of the DRM when I can go download the pirated version on BitTorrent and basically improve the performance by defeating the copy protection instead? The issue went from bad to worse for Ubisoft. Shortly after the game was cracked, the servers responsible for the DRM went down. This caused the perfect storm for Ubisoft. Everyone with unauthorized copies were playing their games without a hitch while everyone who legally paid for the game found themselves locked out. If you paid for the game, you were punished for it. If you were pirating the game, you were rewarded handsomely in comparison. Assassin's Creed 2, as we pointed out when the story was initially making headlines, will probably go down in history as a shining example of how DRM can ruin the gaming experience. It wouldn't be too much of a stretch to assume that this is an incident Ubisoft would rather forget. Shortly after the controversy erupted, Ubisoft did back off and start using Steam for the games, but the copy protection issue remained for other versions. Now, a report has surfaced saying that Ubisoft has released a patch for the games affected by the "always on" copy protection. The patch drops the requirement for a constant internet connection and, instead, requires an internet connection for starting up the game. This means that after you boot the game properly, you can shut off your internet connection and still enjoy the game if you so choose. While some are commending Ubisoft for taking a step in the right direction, I'd say the damage has already been done for disenfranchised users who now think that Ubisoft games don't work. Maybe it shows my age a little, but I think that requiring an internet connection for playing a video game in a single player mode is excessive and ridiculous. Even with copy protection, shouldn't the only internet connection requirement be for authenticating the game? When someone buys a game and plays it in single player mode, that copy isn't going to magically become pirated on their own. The company made their money on that copy, leave the user alone I'd say. 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.

ZeroPaid Interviews Russell McOrmond 2 – Canadian Bill C-32 (Part 3 of 3)

Drew Wilson — Wed, 01 Sep 2010 08:01:05 +0000

We have been interviewing Russell McOrmond. The interview is in three parts. Parts 1 and 2 are already available. We now conclude our three part interview.

We have been interviewing Russell McOrmond in a three part interview. In part 1, we discussed the complexity of Bill C-32, copyright terms and anti-circumvention provisions. In part 2, we discussed DRM in physical devices, the closeness of Canadian policy making and American policy making, and the WIPO Internet treaties. We now come to our conclusion of our interview: ZeroPaid (ZP): There's a review of the laws being put forth every five years, but you mention in your FAQ that it's not a review held by an external body such as the copyright board. In the US, the DMCA review seems to be held by the copyright office. Is this one of those few cases where Canada should actually look at the DMCA as a model and hold reviews externally as opposed to within committee? What do you think is the ideal way to review copyright law? Russell McOrmond (RM): While US copyright modified by the DMCA is better than Canadian copyright modified by Bill C-32 in many respects, including this one, there is an easier way to deal with this issue. I believe changes to copyright must be managed in a different way. Canada has tended to create massive, divisive and unreadable omnibus bills once every decade. The process is long, and nobody is ever happy or even able to understand the result. I believe Canadian copyright law has only become worse to a vast majority of stakeholders over time because of this process. We should instead have a larger number of smaller bills. Copyright law is becoming as hard to understand as tax law. We change tax law through much smaller bills, recognizing that it would be unmanageable to make massive changes to tax law all at the same time. Copyright must receive similar respect. For instance, if WIPO treaty ratification is the major goal of C-32, then we should rip out anything that isn't part of the two 1996 WIPO treaties. We can then discuss these treaties, and our implementation of these treaties, without there being so many other things generating noise. If we have some prerequisites that need to be passed before legislation that would implement the WIPO treaties makes sense, then we should table, debate, amend and pass them first. There is no reason for Canada to feel rushed to ratify the 1996 treaties. There are various older WIPO treaties that Canada hasn't ratified, and others that the USA hasn't ratified. If we use how long the USA took to ratify Berne as a comparison, we don't need to ratify the 1996 treaties until 2104 or so... ZP: Does this bill have an impact on the open source and free software movement and GNU/GPL projects in Canada? RM: Bill C-32 style legal protection for technological measures harms nearly all software authors. Before copyright can protect our interests, including our contracts and license agreements like the GPL being enforceable, hardware owners need to be able to make their own software choices. If people can't make their own software choices, then how can they choose our software? Access Control technical measures on content limit access to content to a subset of software that have the keys, and thus is anti-competative. This is harmful to the entire technology sector, excluding those few monopolies which benefit from this anti-competative practise. Access Control technical measures on devices mean that the manufacturer, not the owner, make software choices which is even more harmful to the entire software sector. This shouldn't be seen as an issue that only harms the Free/Libre and Open Source Software (FLOSS) sector, but that harms all independent and competitive software regardless of what contractual/licensing terms are being used to protect our interests. ZP: From your perspective, has the reception of the bill been as strong as ever? Are there as many or even more people interested in this bill as seen in previous bills or has attention to legislation like this faded? RM: I think the government was surprised by the amount of participation in the 2001 consultations, but hasn't been as surprised since. The proponents and opponents of the bill haven't really changed. There are people who blindly believe that if some copyright is good, more is better, and look favourably overall at C-32. In many cases I don't think they have actually read the bill, or analysed the impact of the bill on their own interests. The same is true for some of the opponents who believe that Copyright is already unbalanced and tilted in favour of incumbent copyright holders, and oppose this bill as a whole. There are only a few of us in the middle that will do clause-by-clause analysis and commentary, and that don't blindly believe that Copyright can be simplified to claiming that "more" or "less" is better. There is a lot of arm-chair politics on all sides, with people that will be upset but not follow through with talking to policy makers. We need to somehow translate this interest and emotion into actions that can impact the policy. How many people contacted their or other members of parliament over the summer? How many meetings did they have? If someone did meet with your MP to discuss copyright, I would love to hear about it so that it can be reported on the Digital-copyright.ca site. I posted about a meeting I had with Justin Trudeau over the summer. Parliament is returning on September 20th. This period when the parties are having caucus meetings prior to returning to parliament is a good time to ensure that Copyright is added to their agenda. If you are shy to meet, then I can help. You may also be willing to help encourage your MP to meet with someone like myself if you feel I could present your case for you. Thanks, and I hope to hear from more people about meeting with MPs soon. --- We would like to thank Russell McOrmond for taking the time out of his busy schedule to talk with us. For more information, you can visit Russell McOrmonds blog at digital-copyright.ca. His blog includes an information page on Bill C-32 and FAQ on bill C-32 as well as information pages on the Conservatives Bill C-61 and the Liberals Bill C-60 for previous bills. A chronology of copyright in Canada can be found here. His blog also contains petitions including one against ACTA as well as other information pages including an information page on contacting your MP. Previous parts: Part 1, Part 2. 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.

ZeroPaid Interviews Russell McOrmond 2 – Canadian Bill C-32 (Part 2 of 3)

Drew Wilson — Tue, 31 Aug 2010 15:42:32 +0000

We are currently in the process of interviewing Russell McOrmond, a well known observer of Canadian copyright and policy consultant. You can read part 1 here.

In the previous part of our interview, we discussed the complexity of copyright, the length of copyright and anti-circumvention provisions found within Bill C-32. We continue with our interview: ZeroPaid (ZP): A lot of people focus on the digital locks of music and software, but another aspect of copy protection that gets less attention is the locking down of physical devices as well. Could you give us an example of the locking down of a physical device and how does this legislation affect that? Russell McOrmond (RM): I have been giving a "I am holding 4 things in my hand" presentation for years, including to a lawyer who wanted to understand this issue from a technical perspective. It comes down to translating what technical measures claim to do into technology that is based on science rather than science fiction. Content alone cannot make decisions. It can't decide to be copied or not, decide to be available on only 5 devices, or other such contractual terms that people like to talk about with technical measures. What you can do is use technology such as cryptography so that the content can only be accessed by persons and/or devices with the right unlocking keys. What this means is that the content is locked with an access control technical measure, and is then unlocked by a device that obeys those contracting terms. In order to enforce these terms in devices (rather than under the law), the devices are locked down such that those operating them are not able to be in control of them. This is fine when we are talking about a kiosk when the operator and the owner are different, but is a cause of great concern when these locks are being used to protect third parties against the owners of the devices. None of this is necessary. If technical measures were protected in contract law, then the balance of contract law would then apply to the use of technical measures to protect those contracting terms. Some uses would be protected, some unenforceable, and some illegal just as is the case with traditional contract law. All the legitimate interests of each of the parties to those contracts can be protected. What we have is technology vendors falsely claim to be selling "copy control" software, when they are in fact offering a system involving locking people out of their own technology to protect contracting terms. These contracting terms aren't even disclosed to the owners of that technology, or the people purchasing content. Hidden or otherwise undisclosed clauses would not be protected in contract law, and certainly should never be protected in copyright law. One example is Apple, who lock the various iPhone, iPad, iPod devices such that they, and not the owner, hold the keys. They claim that it should be illegal for the owner to change the locks on their own devices. They abuse peoples confusion about the connections between copyright, contract, property and other laws to justify this offensive business practice. I often wonder how locking the owners out of something that they own is all that different than theft, and consider the business practise of locking owners out of their property to be immoral. It is something I believe should be made illegal, not legally protected. A law closer to the language of the WIPO treaties wouldn't protect this practice. In the short term even the USA DMCA doesn't protect this practise. Bill C-32 would legally protect this practise, given circumventing access control technical measures and even providing tools to change the locks on what we own are being made illegal. ZP: Following the US copyright office saying that exceptions can be made in the anti-circumvention provisions in the US, the Canadian government said that they'll be looking at this development closely and legislate accordingly. Do you think that the exceptions introduced in the US go far enough? Also, what affect does this development have on the Canadian governments image that they respond so quickly to a change in the US legal development especially after the government just got out of having a nation-wide consultation with the Canadian public? RM: The country that introduced the concept of "access control" technical measures, falsely claiming it had something to do with copyright, was the USA. Given it appears the Conservative party simply cut-and-pasted this non-copyright related concept into Canadian law from the USA, it makes sense that they would need to follow the harm that this is causing within the USA. It demonstrates they aren't doing any of their own research or analysis. I believe the consultation was only for show. When the Conservative government tabled C-61 the opposition parties suggested that adequate consultations hadn't been done. They held a consultation and then tabled C-32. Now the opposition can't talk about a lack of consultation, and discussing how the bill disregarded the consultation brings us into discussing complex policy that doesn't fit into a sound bite. The Conservatives can claim they are just listening to advise, and trying to have the best law possible. Unfortunately they are following the advise of representatives of the USA, a country that is a Copyright laggard. While Canada was under the Berne convention (WIPO treaty #1) since its coming into force in 1887, the USA didn't ratify until 1989. Only a few years later the USA is then taking their inadequate understanding of Copyright and trying to push treaties through WIPO, namely the two 1996 treaties where the anti-circumvention legislation comes from. While the more mature countries rejected much of the USA's proposals on technical measures, including the back-door protection of "access", the Conservative government hasn't bothered to study or understand this history. The Conservative government, as well as some other MPs, believe the lies of the lobbiests who claim that it is Canada that is a copyright laggard with weak copyright law compared to the USA, when the opposite is true. ZP: There was a very noticeable push from some organizations to ratify the WIPO treaties. In your FAQ, you mention that the WIPO treaties are a mixed bag. Do you think it's possible to ratify the WIPO treaties in a favorable way in your view and is such a thing likely that you can see? RM: The two 1996 WIPO treaties do not allow reservations, meaning ratification is all or nothing. You can't include in copyright law things which you consider good, and reject the things you feel are bad. That said, it is possible to ratify the 1996 WIPO treaties in a way that is much less harmful than either the Conservatives or the Liberals have proposed so far. One obvious thing is to protect technological measures in the correct laws, such as contract, e-commerce and property law. This would avoid most of the harmful consequences due to technical measures and copyright being separate concepts. The WIPO treaties don't require that all changes be made to the Copyright act, and the USA has made use of similar flexibility when it comes to moral rights when ratifying the Berne convention. WIPO treaties are all modifications to previous treaties, with the copyright treaties being modification of the Berne convention. Canada could also work within WIPO towards new treaties which could fix many of the problems seen in the two 1996 WIPO treaties. This would mean that the harmful aspects of ratifying these two treaties would be short-lived, and fixed by ratifying more modern treaties. These two treaties are outdated, and older than current Canadian copyright law which the lobbiests falsely claim is antiquated. --- ~~We are currently in the process of posting our interview. Please stay tuned for part 3.~~ You can find part 1 here. Part 3 is now available here. 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.

ZeroPaid Interviews Russell McOrmond 2 – Canadian Bill C-32 (Part 1 of 3)

Drew Wilson — Tue, 31 Aug 2010 08:25:25 +0000

About two years ago, we interviewed a Canadian consultant to discuss various issues surrounding copyright. It was a fascinating interview and here making his return is Russell McOrmond for a second interview.

Russell McOrmond has always had interesting insights in to Canadian copyright as it impacts technology, creators, consumers and businesses. Over three months before Bill C-61 was tabled, we had the privilege to interview him in a three part series (1, 2, 3). A lot has changed since 2008 when we interviewed him. For one, Bill C-61, the then newest copyright reform bill was tabled. Afterwords, an election was called and that killed the bill, an election was called, Canada had a nation-wide consultation on copyright, and Bill C-32, Canada's most recent copyright reform bill, was tabled earlier this year. So there was plenty of things that happened between our last interview and now. How much has changed and what seems to have never changed? That is up for debate, so we have invited Russell McOrmond back for a new interview. As you might remember, McOrmond is the host of Digital-Copyright.ca, a co-coordinator of GOSLINGcommunity.org and a policy coordinator for CLUEcan.ca to name a few projects he is doing. We begin our three part series with him: ZeroPaid (ZP): Bill C-32 is considered by most as an omnibus bill and there's so much to consider in such a complex bill. I know because I've already gone through the bill and there were so many issues being touched on, I got that feeling of being completely overwhelmed with all of the complexities. I thought with my years of knowing the copyright debate in Canada, that I could just go through the bill without too much of a problem, but I was dead wrong and I couldn't even begin to claim that I know everything about the bill even after a thorough review. Generally, though, in your view, is the bill an improvement over the last bill (Bill C-61) and the Liberal party copyright bill (Bill C-60)? Russell McOrmond (RM): These bills are each omnibus bills. Rather than having a focus that can have a reasonable discussion, both the previous Liberal government and the current Conservative government have created bills that mix so many unrelated things that it is impossible to make any overall evaluations. Canadian Copyright is already strong enough to deal with nearly all legitimate interests of copyright holders. Bill C-32 doesn't modernize copyright beyond the level it obtained in 1997, but largely pushes forward controversial ideas that originated prior to 1997. I believe that current Canadian copyright is better than it will be under C-32. While I think that modernizing Copyright is a good idea, I don't believe C-32 moves towards that goal. The issue that brought me actively into the copyright debate is so-called technical protection measures. With a technical background I analyses from a practical "what can exist in the real world". This is different than policy makers and lobbiests who are trying to provide legal protection for what is essentially snake oil being marketed by a few anti-competitive companies in the technology sector. I recently did a presentation titled "Why legal protection for technical measures is controversial" (Video and slides). The types of activities which copyright regulates all assume that you already have access to content. Copyright has never concerned itself with concept of access, which was left to other areas of law. Technical measures can restrict access, but can't in the real world directly restrict the types of activities that copyright regulates. In essence, Copyright and technical measures are disjoint, but technical measures and other areas of law such as contract and e-commerce overlap. This distinction is critical for a few reasons: a) We don't want to radically change the traditional definitions of copyright to include "access" as the concept of "access" would effectively replace the rest of the Copyright Act. b) We don't want to create a back-door protection of "access" by protecting "access control" technical measures, essentially creating two different forms of copyright: one for analog works, and one for digitally encoded works. c) We have to ask why we aren't protecting technical measures in contract, e-commerce and other laws where real-world technology overlap with uses applicable to the laws. Is this a matter of policy makers not understanding technology, or not understanding the law? Is there possibly lobby groups whose goals are to dismantle the concept of Copyright and replace it with something very different that doesn't protect the interests of creators or the general public? When I hear some lobbiests, especially those paid by the recording industry, I don't hear much respect for the traditional definitions or contours of copyright. The Liberal Bill C-60 contained a translation into Canadian law of what the 1996 WIPO treaties said. They tied legal protection for technical measures to activities that were already infringing. The two Conservative bills C-61 and C-32 included both the WIPO language that the Liberals used, plus an explicit protection of "access control" technical measures they imported from the US Digital Millennium Copyright Act. On this specific issue, which happens to be the most controversial, the Liberal Bill C-60 was far more consistent with the traditional definitions of copyright and international copyright law than either of the two Conservative bills. ZP: When we were discussing the bill, you mentioned that the length of copyright is actually changing in some cases even though it is not directly mentioned in the bill. Is the length of the copyright term changing with this bill? RM: It is an over-simplification to suggest that the copyright term is the life of the author plus 50 years. There are a number of other places where the term is different for a variety of reasons. Under current copyright law, where the owner of the "initial negative or plate from which the photograph was derived" is a corporation, the term of copyright is a fixed 50 years from when the photograph was made. This is being repealed by Bill C-32, such that it will be the life of some unknown and most often unknowable person plus 50 years. Under current copyright, the term for a performers performance is 50 years from when it was performed and/or recorded. Under C-32 this is able to be extended by publishing the recording, at worst 49 years from when the recording was made giving an effective 99 year copyright term. These are both cases of recordings, in one case photography and in the other sound recordings of performances. I am a firm believer that the copyright in all recordings should be based on the date when the recording was made. Multiple recordings can be made of a real-world event, and it is impossible to differentiate which is made by which human, whether that human is working for a specific corporation, or even if a human was involved beyond installing equipment and/or pushing a button to start the recording. Knowing who this human is to determine the term of copyright that expires based on the death of this human is impractical, and should not be considered in Copyright. The changes to copyright of recordings seem to presume that all or a majority of recordings are being made by artists. These days with recording devices in the pockets of so many people, and being used casually in many places of business (and by governments for surveillance and other reasons), the number of recordings attributable to professional art is almost insignificant. It is frustrating to see Copyright changed to favour this almost insignificant minority while making life so much harder for the majority. ZP: Many consider the anti-circumvention parts of the legislation as DMCA-style, but supporters of the bill say that there are a host of exceptions and that concerns about anti-circumvention are overblown. Are the anti-circumvention provisions too broad and the exceptions too narrow? Do they protect fair dealings? RM: Bill C-32 anti-circumvention includes both WIPO style protection which was intended to respect the contours of copyright including fair dealings, and "access control" technical measures which have little to do with traditional definitions of copyright. The USA DMCA explicitly protects their flexable Fair Use regime, and makes some ties to the existing contours of their Copyright, by stating that "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title". Bill C-32 explicitly states in a few places that what limited fair dealings we have are able to be circumvented through the abuse of a technological measure. The types of excessively complex fair dealings language seen in C-32 are not necessary in the USA as it has a flexable fair use regime. Their more modern and robust fair use regime has been interpreted by their courts far more liberally and protected far more innovation and fair activities than the extremely weak fair dealings language in Canada. In other words, not only are the anti-circumvention provisions in C-32 too broad and the exceptions too narrow and unnecessarily complex, but that C-32 is far worse than the USA DMCA. I sometimes wonder if the supporters of the bill have actually read various documents such as C-32, the two 1996 WIPO treaties, existing Canadian copyright act and the USA DMCA. In some cases they are paid lobbiests whose job is to confuse and misinform, and in other cases it is people who have not done adequate research. --- ~~Part 2 of our interview is currently being posted at this time.~~ Part 2 of our interview has now been posted. 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.

A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 5)

Drew Wilson — Fri, 25 Jun 2010 00:13:31 +0000

We continue our comprehensive analysis of Bill C-32, Canada's recently tabled copyright reform legislation. The topic has become an increasingly forbidden topic to discuss, however, we are more than happy to forge ahead and discuss the issues brought forth by the legislation for the sake of understanding this rather complicated piece of legislation.

Introduction Part 5 continues on page 3 of 4 in Canada's latest copyright reform legislation. We are edging closer to the end of the legislation, but this legislation has been packed full of interesting things both positive and negative (in our opinion). We've discussed destruction of lessons 30 days after the course concludes, fair dealing rights being overridden by digital locks, damages and the differences between commercial and non-commercial infringement and ISP liability to name a few broad topics we've already covered up to this point. Before we continue, we should point out, as we have in previous sections, that this is not a legal opinion nor is this brought forth by someone who is trained in the workings of Canadian law. This analysis is merely one average Canadian citizen reading through the legislation and publicly talking about the different provisions. Section 47 - The Anti-Circumvention Section - The Definition of Copy Controls Those who work on behalf of foreign corporate interests have used the exceptions to anti-circumvention as a reason to dismiss advocates of a balanced copyright because, supposedly, they refuse to acknowledge that there are exceptions to anti-circumvention. Very well, let's go over this section too and see what we find. First off, we should note the definition because there may have been a little confusion about the particular nuance of the use of the word "effective".

“technological protection measure” means any effective technology, device or component that, in the ordinary course of its operation, (a) controls access to a work, to a perform- er’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; or (b) restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.

There was discussion over what the legislation meant by "effective". Some suggested that the technological protection measure must be impervious to circumvention in order for it to be, as the legislation puts it, "effective". Unfortunately, that doesn't appear to be what this portion of the legislation means because it explicitly talks about how it's suppose to operate in the ordinary course of operation. If it was circumvented, then the digital lock isn't operating ordinarily. Sadly, I personally would have to call the myth that only uncircumventable DRM would be "effective" debunked. Section 47 Continued - Forbidden Anti-circumvention This next part covers a huge amount of ground, so we'll begin by looking at the first part of this:

41.1 (1) No person shall (a) circumvent a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure” in section 41; (b) offer services to the public or provide services if (i) the services are offered or provided primarily for the purposes of circumventing a technological protection measure, (ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological protection measure, or (iii) the person markets those services as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market those services as being for those purposes; or

(a) is very clear, you simply cannot circumvent a digital lock. The practice is banned, period. How enforceable is this? That is very debatable and the differences of opinion can be seen on whether you circumvented the digital lock on a movie to make a back-up or if you circumvented a digital lock for commercial purposes. Personally, this appears to be just something that can be tacked on to a list of offenses when someone is busted thanks to other infractions of the law from a practical enforcement standpoint. (b) on the other hand is quite interesting because it seems to simply ban any commercial involvement of a piece of software that could be used to circumvent a digital lock when looking at (ii). Open source or freeware software might get by, but legally speaking, you can't advertise that software primarily to circumvent a digital lock in Canada. Practically speaking, if this were put in place in law, then those businesses operating in Canada will simply ship off shores which would mean less tax revenue for the Canadian government. They can still market their product to consumers via the internet, but the benefits of such businesses being in Canadian soil will be lost. The section is not done yet though:

(c) manufacture, import, distribute, offer for sale or rental or provide — including by selling or renting — any technology, device or component if (i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological protection measure, (ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a technolog- ical protection measure, or (iii) the person markets the technology, device or component as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

It sounds like (c) simply re-iterates and clarifies that one cannot create any anti-circumvention software is circumvention is its primary purpose on Canadian soil. The only difference is that this section says that you can't even "distribute" the software on top of it. This really throws some legal uncertainty at software developers because if their software is somehow able to circumvent a digital lock, are they liable? At this point in the legislation, that really isn't entirely clear and may be up for courts to decide what, as the Russians once put it, math is or isn't legal. Paragraph 2 clarifies that rights holders are entitled to remedies should a digital lock be circumvented:

(2) The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened is, subject to this Act and any regulations made under section 41.21, entitled to all remedies — by way of injunction, damages, accounts, delivery up and otherwise — that are or may be conferred by law for the infringement of copyright against the person who contravened that paragraph.

Is it statutory damages? Interestingly enough, the answer is no when one reads (3):

(3) The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened may not elect under section 38.1 to recover statutory damages from an individual who contravened that paragraph only for his or her own private purposes.

So, what the damages are exactly isn't really clear. It's a chilling concept considering what (4) says:

(4) Every owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which a technological protection measure has been or could be circumvented as a result of the contravention of paragraph (1)(b) or (c) is, subject to this Act and any regulations made under section 41.21, entitled to all remedies — by way of injunction, damages, accounts, delivery up and otherwise — that are or may be conferred by law for the infringement of copyright against the person who contravened paragraph (1)(b) or (c).

So, if one person can sue the individual who created a tool that could be used to circumvent a digital lock, then anyone could theoretically sue that individual. So really, it doesn't matter what the amount the awards can be, the fact remains that they can be sued for a seemingly unlimited number of times. The amount each doesn't seem to matter. Section 47 Continued - The First Exception 9 National Security This is the first of exceptions to anti-circumvention. If you're a consumer hoping this is good news, you'd be disappointed as it's not for you:

41.11 (1) Paragraph 41.1(1)(a) does not apply if a technological protection measure is circumvented for the purposes of an investigation related to the enforcement of any Act of Parliament or any Act of the legislature of a province, or for the purposes of activities related to the protection of national security

So, if it's a matter of national security and you are a part of an enforcement body, then you can break a digital lock. Doesn't seem like much of an exception to me. Section 47 Continued - Exception 2 - Interoperability Interestingly enough, this is the second time this exception is seen in the legislation:

41.12 (1) Paragraph 41.1(1)(a) does not apply to a person who owns a computer program or a copy of one, or has a licence to use the program or copy, and who circumvents a technological protection measure that protects that program or copy for the sole purpose of obtaining information that would allow the person to make the program and any other computer program interoperable.

So if you want to increase interoperability of a program, you have an exception. Again, doesn't appear to be much of an exception. Section 47 Continued - The Third Exception - Encryption Research This also has been seen earlier in the legislation and this section clarifies that if you are researching encryption, then you have an exception that legally allows you to break a digital lock:

41.13 (1) Paragraph 41.1(1)(a) does not apply to a person who, for the purposes of encryption research, circumvents a technological protection measure by means of decryption if

It's good news for researchers, but if you are a consumer, this exception also doesn't seem to hold any weight for their daily activities. Section 47 Continued - The Fourth Exception - Privacy This might be some good news for consumers:

41.14 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technolog- ical protection measure if (a) the work, performer’s performance fixed in a sound recording or sound recording that is protected by the technological protection measure is not accompanied by a notice indicating that its use will permit a third party to collect and communicate personal information relating to the user or, in the case where it is accompanied by such a notice, the user is not provided with the option to prevent the collection and communication of personal information without the user’s use of it being restricted; and (b) the only purpose of circumventing the technological protection measure is to verify whether it permits the collection or communication of personal information and, if it does, to prevent it.

So if there is a digital lock communicating personal information and there wasn't a proper notice that the digital lock would communicate such information, then they the digital lock can be circumvented for the purpose of finding out for sure if their privacy was compromised. While this might sound good at first, if you are like me and have purchased software legally, you would know that this doesn't ultimately mean a whole lot because, quite frequently, a notice that would say that 'x' software collects personal information, is simply buried under a paragraph of fine print on the casing. Sometimes, they don't even have that. Sometimes, a consumer might purchase a piece of software and all it says is something like, "By opening this case and breaking the seal, you agree to all the rules and regulations accompanied by the software which is located inside this sealed case." This drives a lot of people who legitimately buy software or games insane. How can you find out about the terms and conditions without agreeing to it then. Half the time, you can't even see the terms and conditions without actually, as far as that dreaded notice is concerned, agreeing to it. Sometimes, a URL is visibly printed, other times, it's not. If only consumers had some sort of laser vision to cut through the packaging. So as far as consumers are concerned, this exception is of minimal benefit. If you know computers quite a lot, this might be of some benefit, but otherwise, this exception is quite meaningless to consumers in a practical sense. Section 47 Continued - The Fifth Exception - Security This is a third exception that has been seen earlier in this bill:

41.15 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technolog- ical protection measure that is subject to that paragraph for the sole purpose of, with the consent of the owner or administrator of a computer, computer system or computer network, assessing the vulnerability of the comput- er, system or network or correcting any security flaws.

So, if you're a security expert, and as long as you have permission to do so on a given network or computer, you can break a digital lock to assess security vulnerabilities. It's good news of second-hand nature because if another badly programmed rootkit is found on a CD with a digital lock, then it's possible for a security warning to be posted without fear of breaking a copyright law. This exception is useful on a secondary nature, but typically after-the-fact in practical terms because it's usually after that CD has been out in the market that something like this is discovered. So, the exception is of benefit to security researchers, not directly of benefit to consumers. Section 47 Continued - The Sixth Exception - Disabilities It's great that those with disabilities have an exception like this:

41.16 (1) Paragraph 41.1(1)(a) does not apply to a person with a perceptual disability, another person acting at their request or a non-profit organization acting for their benefit if that person or organization circumvents a technolog- ical protection measure for the sole purpose of making a work, a performer’s performance fixed in a sound recording or a sound recording perceptible to the person with a perceptual disability.

So, if you have a disability and can't access a work normally, one can break that digital lock only to allow that person to enjoy that work. Pretty straight forward. This exception does benefit a small portion of the consumer population, but not the general consumer population. Section 47 Continued - The Seventh Exception - The Broadcaster's Exception An interesting exception:

41.17 Paragraph 41.1(1)(a) does not apply to a broadcasting undertaking that circumvents a technological protection measure for the sole purpose of making an ephemeral reproduction of a work, a performer’s performance fixed in a sound recording or a sound recording in accordance with section 30.9, unless the owner of the copyright in the work, the performer’s performance fixed in a sound recording or the sound recording that is protected by the technological protection measure makes available the necessary means to enable the making of such a reproduction in a timely manner in light of the broadcasting undertaking’s business requirements.

So if content is going to b broadcast and there's no unprotected copies available to that broadcaster, then that broadcaster is allowed to break that digital lock. Another exception that doesn't seem to really have any benefit to the consumer. Section 47 Continued - The Eighth Exception - Radio This seems to be a follow-up to broadcasters for the benefit of radio:

41.18 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technolog- ical protection measure on a radio apparatus for the sole purpose of gaining access to a telecommunications service by means of the radio apparatus.

If I'm reading this correctly, then it sounds like if a radio broadcaster gets a CD that has copy protection, then they are allowed to break that copy protection so they can air that music. Once again, no real benefit to consumers, though radio broadcasters would be happy. Conclusion There is a myth perpetuated by the foreign corporate interests who want to tighten copyright rules that consumer rights advocates won't talk about exceptions to circumvention and that the exceptions are beneficial to consumers so no one needs to worry about the anti-circumvention rules. One helps consumers of a secondary nature and one affects a small percentage of consumers. There are 8 exceptions and a grand total of 0 benefit general consumers. Myth completely debunked. We've gone through a few of the other anti-circumvention rules and it's definitely US style modeled after the DMCA. If there's a myth that none of this legislation is based off the negative aspects of the DMCA, that myth is also debunked. The third myth is that only non-circumvented digital locks fall into anti-circumvention rules in this legislation. Once again, we found that this isn't really true and only takes a small portion of a sentence and takes it out of context. Third myth debunked. The anti-circumvention section isn't completed yet, but we've covered a huge amount of ground in this. We've noted that developers could be sued practically an unlimited number of times even though it's not statutory damages. There's so many gray areas, that it could easily serve to discourage programming and development in Canada and force businesses that would otherwise be of a tax benefit to the Canadian government off shores to other countries. We are also not done page 3, but we are almost through with this page. After this, there's only one page left, so the light at the end of this tunnel is becoming visible now. Previously: A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 1) A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 2) A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 3) A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 4) See also: Bill C-32 – Canada’s latest copyright reform bill 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.

Canadian DCMA (Copyright Reform Bill) Tabled

Drew Wilson — Thu, 03 Jun 2010 02:30:42 +0000

Think it's a typo to call it the DCMA rather than the DMCA? Think again. The Digital Copyright Modernization Act has been tabled. Did it live up to the expectations or was it as originally feared? We are technically still waiting on that, but official information about the bill is currently surfacing thanks to the media lock-up on the legislation.

Michael Geist was privileged enough to be a part of the media lock-up so he could get preemptive information on the recently tabled legislation. We would be more than happy to unpack what is contained within the bill, but it's, unfortunately, not online yet for dissection. There is some noteworthy things in the bill for file-sharers though. It seems that somewhere along the line, the bill was rolled back to a notice-and-notice regime. There has been an informal notice-and-notice regime in the past in Canada unofficially adopted by ISPs. The system involves a copyright holder sending a notice of infringement to the ISP. The ISP then, in turn, send that notice to the alleged infringer in question requesting that the activity stop. Whether copyright holders like it or not, this system has actually worked in Canada. It's almost the exact opposite to what the copyright lobby (which consists of mainly foreign corporations) demanded back in 2009 when they called for a three strikes law in Canada. The law is also more loose than a notice-and-takedown which is a lot of what the US is like - the same country that allows record labels to sue teenagers for millions over downloading a dozen or so songs for free with little to no evidence. There is also a "BitTorrent provision" which notably has some resemblance to the MGM vs. Grokster case in the US. Essentially what it means is that if you provide a p2p related service, you must provide the service so that the primary purpose is not copyright infringement. It could have an interesting implication for ISOHunt because ISOHunt does say that they are little more than a search engine, but a US court argued that its primary purpose was copyright infringement because of features like "top searches" (which contain infringing material) There's another important thing in this bill that is important - statutory damages. For non-commercial cases, the damages is anywhere between $100 - $5000 (unclear from Michael Geist's post, but likely per infringement) The Potential Flashpoint of the Legislation There's a host of exceptions including format shifting and tools for remixing. That may have been fantastic news for creators looking for a larger pallet of creative tools to work from had it not come with the restriction that it has to not contain a digital lock first. Practically every provision that allows for commentary, satire, etc. can be overridden by simply placing a digital lock on the work - legally speaking of course. It renders the rights found in the exception little more than privileges. The reason this has huge implications is because every DVD ever made comes encoded with the CSS DRM. While the DRM has been broken, it still renders commentary, etc. legally impossible for any movie released on a DVD or BluRay disc.

Overall

While the report is early and short of a copy of the actual text of the bill, it sounds like it could be better. Still, it could be significantly worse. It's not likely that this will allow the mass litigation as seen in the United States. Still, we won't know for 100% sure until after we see all the provisions and exceptions laid out. further Reading: Michael Geist's report and take on the legislation. 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.

Canadian Student Group Voice Their Opinions on Copyright

Drew Wilson — Mon, 24 Aug 2009 07:23:28 +0000

Among other things, Canadian student union CASA has called for expanding fair dealings and avoiding a blanket anti-circumvention legislation. These groups are the latest additions to an ever expanding list of stake-holders calling for an expansion to fair dealings. Of course, these aren’t the only things the two organizations called for.

The way things are going, some might wonder – who doesn’t want an expansion on fair dealings? There are a small number of organizations and entities that don’t want an expansion on fair dealings. Though if one were to look at the submissions in general, those who want to stop the expansion on fair dealings have practically become like endangered species.

CASA had their own ideas on how to reform copyright.

A far better approach to clarifying fair dealing would be to simply expand the definition of users’ rights in the Copyright Act with the inclusion of the words “such as” before the current list of exceptions in sec. 29 of the Copyright Act. As several Canadian legal scholars and commentators have noted, such an approach would create a more open-ended, illustrative and flexible definition of fair dealing rights, in line with the CCH decision.

Rights holders benefitting from copyright have an obligation to provide reasonable fair dealing access to users. If anti-circumvention language is permitted, the government must include measures to ensure that access to materials for non-infringing purposes is allowed in spite of a rights holder’s use of locks, notices, or rights management.

Specifically, our system of copyright must ensure that any new permissive uses of ‘digital locks’ added to the Copyright Act do not impose barriers to access to information for people with perceptual disabilities. People with a perceptual disabilities often require adaptive technologies to conduct format to format conversion (screen reading software for example) in order to access knowledge and information; ‘digital locks’ could divest them of equal access to these materials.

This is just a sampling of the calls made by CASA, but they are very interesting ideas indeed.

Already, there have been several calls to expand fair dealings including documentarians, people from the humanities and social sciences, Canadian musicians and Canadians who work in the music business, and hundreds of Canadians from all walks of life to name a few.

One conclusion one can draw off of this is that many Canadians are frustrated with the limitations they have with legally paid for content – hardly the so-called pirate nation the foreign copyright industry would want many to believe.

Of course, there is still time to submit submissions to the Canadian copyright consultation, but time is starting to run out at this point. Canadians have been encouraged from all sides of the copyright debate to participate, so it’s an opportunity that shouldn’t be missed since such an opportunity only came up clear back in 2001; not something that happens very often. At least, so far, there have been a huge number of submissions already in the government consultation – a good sign of a healthy democracy.

[Hat tip: Michael Geist]

Update:

A Canadian Federation of Students (CFS) representative has written in to deny that they have made a submission. Michael Geist pointed to a submission saying that it was from CFS, but Noah Stewart denied this.

“Our organization has yet to send a submission in to the consultation” Stewart explained, “The link posted in the article, is to a lawyers post, and certainly not anyone linked to our organization. We were invited to participate in the first round table consultation in Vancouver, but as I have said our submission is still forthcoming.”

Although the submission is forthcoming, he offered the following PDF for those who would like to get a sense on what the submission would be like, but stressed that the CFS position is different from the CASA submission.

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.

ESA Canada – Canadian Gaming Industry Grew Without TPM Law

Drew Wilson — Fri, 21 Aug 2009 22:58:53 +0000

A recent op-ed in the ongoing copyright consultation in Canada by Danielle Parr of ESA Canada suggests that TPMs prevent piracy and somehow lead to more consumer choice.

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.

Another Day, Another Call to Expand Canada’s Fair Dealings

Drew Wilson — Wed, 19 Aug 2009 03:40:46 +0000

Barry Sookman might not like the idea of expanding Canada’s fair dealings regime, but the increasingly large chorus of calls have been to expand Canada’s fair dealings regime in one way or another. The latest call comes from the Canadian Federation for the Humanities and Social Sciences (CFHSS) which seems to coincide the growing trend in submissions by others as well.

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.