The slides for the talk are available online.

Copyright was invented after the advent of the printing press (Johann Gutenberg in ca. 1439, Charles II of England passed the Licensing Act of 1662, British Statute of Anne (1710) suggested rights of the author). The importance here is not the dates to remind us how long we have had copyright, but to remember that copyright is a response to the invention of a technology.

In a submission to a United States congressional hearing in 1906, composer John Philip Sousa argued:

“These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

This language should sound familiar to us, as the copyright holders of the day often talk in apocalyptic language about the harm that some new technology will bring to them, their form of creativity, to society or even to our species.

Since most composers were not willing to give permission to record, many governments stepped in with a “compulsory licensing” system. Under compulsory licensing a composition could be recorded without permission, as long as a government set royalty rate was paid to composer. Canada had such a system in the past, but it is no longer needed as composers license their works. (See: Copyright: locks, levies, lawsuits or licensing? Part 2: levies for the extended version of this theme)

Jack Joseph Valenti, president of the MPAA, told a congressional panel in 1982: “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

The court response to this technology, in a case called the Sony Betamax case (Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)) clarified that time shifting is Fair Use in the United States. It is uncertain how this type of case would happen in Canada given our Fair Dealings regime is far less protective of users’ and follow-on creators’ rights, and less adaptable for the courts to offer fairness.

Current copyright law was set up for a time when capital costs meant that the only people who could infringe copyright were commercial entities. We now live in a time when this technology is so expensive that the average citizen in most countries are able to afford.

We also have the situation where many of the incumbent copyright holders are refusing to license socially beneficial uses, including non-commercial sharing via P2P or non-commercial mashups on sites such as YouTube. (See also: Where is that “buy me now” button for Copyright?)

What would a historically consistent response from the government look like?

The government would make use of compulsory licensing as well as expanding Fair Dealings towards US-style Fair Use to enable these socially beneficial uses which current copyright holders are refusing.

Canada really needs to modernize our Copyright Act to allow it to be dynamic enough to be fair as new technologies are quickly being introduced. We should adopt a living Fair Use regime, and further clarify that private time, device, and format shifting are fair, including “truly private” copying of multimedia.

There are many non-commercial but public uses which should be paid for. This is where we can adopt compulsory licensing for on-demand and P2P, as has been proposed by the Songwriters Association of Canada. We should also use compulsory licenses for mashups, user enhanced content (YouTube), etc

What has the actual Canadian government response been so far?

The Conservative Bill C-61 carved performers and makers out of the existing section 19 compulsory licensing for on-demand communication. While we should be introducing more compulsory licenses in situations where permission isn’t being granted to be historically consistent, we now have the situation where the new technology requires permission (online downloads, P2P, etc) while the old technology (radio) does not.

The Conservative Bill C-61 and the Liberal bill C-60 added legal protection for so-called “technological measures” which lock down content and devices against interests of the owners of the technology.

Bill C-61 even added clarity to clarity to Fair Dealings that technological measures and contracts trump fair dealings in many cases, which is the opposite to US DMCA which clarified that TMs do no remove Fair Use. (See also: Canadians fed US-style copyright legislation? I wish! )

In my talk I did my “There are 4 things in my hands” tool for understanding technological measures. I direct people to http://flora.ca/ppr to read a document on that topic.

I asked how we got here, and what we are doing wrong? The shortform is that while new technologies introduced new stakeholders to the copyright debate, governments in recent decades have only been consulting with the incumbent copyright holders (and a few long-time institutional users like schools and libraries). This has meant that governments have been “representing” industries, rather than citizens.

This brings us directly into the 2008 federal election, and one of the times that there are politicians from most of the major parties trying to get in touch with you.

I sent questions to all the candidates in the 3 ridings closest to the University of Waterloo. As I am writing this message today I have received replies from three campaigns.

• Kitchener - Waterloo Green Party candidate Cathy MacLellan replied on the day of the talk, and decided to attend the talk. I gave her some time to offer the Green Party position on copyright.
  
• Len Carter, president of the Kitchener Conestoga NDP Federal Riding Association offered me a fairly cryptic response on behalf of his candidate, Rod McNeils. I offered some details on why I didn’t learn much from their response in an article for p2pnet titled It’s the candidates, not the parties.
  
• Linette Keller, CEO for the Kitchener-Centre Green Party Electoral District Association, replied suggesting that candidates for a given party likely have similar views. I sent her a link to It’s the candidates, not the parties.
  

Copyright has been less visible of an issue this election than it was in the 2006 election when it was the Liberal Bill C-60 that we were thankful died on the order paper. While there are some candidates I will be writing about this week, it really is up to individual Canadians to talk to the candidates in their riding to find out which ones have some technology and/or technology law background. It would also be helpful if people who are speaking to their candidates hit reply to this article and told everyone what they have learned.

The way parliament works, there will a committee of approximately 12 people which will study this issue when a bill is tabled. The members are allocated to parties in proportion to the number of members for that party in the house of commons. We need to try to ensure that a majority of the members of the committee are fairly well informed and/or experienced with modern technology, and do not see it as a threat.

In my speech at the University of Waterloo, I said we really need to have at least one Charlie Angus type person in every party, and that this would be far better than to have a single party that dominated this area of policy. While I have been able to identify a few people in the NDP and Green Party that would (if elected) be an asset in that committee, I need everyone’s help to find similar people in the Conservatives, Liberals and Bloc.

I am aware of the views of David McGuinty, my own incumbent Liberal candidate in Ottawa South. He has been very helpful to me in trying to reach other elected MPs, but as environment critic for the Liberals this is not his speciality. It is highly unlikely he will be in the committee studying the next version of “An Act To Amend the Copyright Act”.

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Russell McOrmond is a self employed consultant, policy coordinator for CLUE: Canada’s Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING), and host for Digital Copyright Canada.

This clarified for me a couple of points I’d like to share with you. While our tendency to be conservative can protect us against unpleasant surprises, as a business IT has changed fundamentally. Software and hardware companies share customers amongst ourselves and promulgating a homogeneous model doesn’t work. Nor does a heterogeneous environment where making the components work together is difficult. It’s impossible to achieve scale and return if it’s too hard.

In order to be competitive and to increase our odds, the Canadian IT community needs to think differently. We will not be able to hire new workers if all we present to them is the same old static desktop, static applications and death by email surge. New workers expect and demand the same kind of framework they see in their private lives, where in addition to documents, there is new media, there are blogs, wikis, discussion forums and simple web based access points. A telephone should not be a completely separate and unintegrated system. These new hires understand the differences between synchronous and asynchronous interactions and expect a full set of tools to facilitate interaction.

People don’t have to be in a specific place to get work done, or even in a particular time structure. The success of the Blackberry and some of the new concerns about being always on have proved this. If we expect the future to look like a commute to an office, 9-5 on static infrastructure, followed by a commute home, we are doomed to a nasty surprise. This isn’t how emerging markets are building and it’s not how our new employees want to work.

Business Social Networking has turned into an industry buzzword, and not in a good way. Most of these end up looking like the same old proprietary infrastructure with a web front end stuck on with duct tape. We as an industry need to get outside our comfort zones on how we actually help people be productive and happy. If we don’t the hiring problem and the IT gap is only going to get worse.

The second point I want to review is the subject of gap. Don’t believe for a minute those who tell you there is no IT gap. They are engaging in fun with stats, what I call Jolly Numbers. Post secondary IT admissions are down, in some schools by a factor of 10. While we increase immigration of skilled people to fill jobs, we also need to look at the jobs that are going to need filling in the short to medium future and we need to be enabling those future role leaders today. And that means we have to make IT fun and exciting.

As a speaker recently pointed out, the sciences got a huge influx when John Kennedy made his put a man on the moon speech. We need to create that sense of excitement in IT. Adding twenty new functions to a spreadsheet that already has nine hundred that most people never use creates neither excitement or innovation.

I don’t think the sky is falling, but Canadian IT is at a crossroads. We can keep doing what we’ve been doing and get the same (at best) results we’ve always gotten, or we can choose to think differently and strive together to make Canada an innovator in IT development and practices. In my opinion, the first option isn’t one.

Until next time, peace.

Ross

If you look at any of the Securities and Exchange filings from Microsoft over recent years (5 or so) you will notice that Microsoft lists Linux and Open Source as their greatest competitive threat. One of the things that Free/Libre and Open Source Software offers is this warm-and-fuzzy community feeling about it, that by using this software and supporting it that you are somehow being more of a humanitarian — almost a form of environmental and social consciousness to your software decisions.

Already being seen by many as the “evil empire”, Microsoft can’t fight that — or can they?

Bill Gates as an individual is seen by many people as a philanthropist. I’m not one of them, as I think the foundation is comparable to the average Canadian doing a bit of volunteer work in their “retirement” (something quite common) and donating less than a hundred dollars to charity a year. When we are talking about the person who was until recently the richest person in the world, we need to look at the money they donate as a percentage of their wealth. The Forbes article that documented Bill Gates at #3 listed Warren Buffet, the third trustee in the foundation after Bill and Melinda Gates, as the #1 richest person in the world.

There are other critiques of the foundation relating to how the investment arm of the foundation makes investments that can reverse the positive effects of the philanthropy arm. This critique was first exposed by LA Times staff writers Charles Piller, Edmund Sanders and Robyn Dixon in an article last year, and there has been quite a bit of analysis since.

There is also the strong ideological beliefs that Mr. Gates has around the impacts of “Intellectual Property”. Mr. Gates as an individual, and the foundation itself have investments in the pharmaceutical industry that have had multiple effects. There is the political lobbying that these companies, as well as other supported organizations, do in order to reduce the ability of poor countries to access cheaper drugs. International treaties allow a country to make drugs at the price of generics and ignore patents in order to fulfil the needs of a domestic health crisis. These treaties further allow a country without domestic production capacity to make use of the facilities of a different country, something that India has offered to Africa and other countries. The Western patent holders do not like this, so have been lobbying against this practise.

(Note: It is harder for people to track Mr. Gates personal investments, given Cascade Investment, Gates personal investment company has been granted confidential filing status by the US Security and Exchange Commission, which allows it to only divulge those stakes that have already been made public.)

A secondary effect is something I’ve observed first hand. One of my past clients was Planned Parenthood Federation in Canada at their 1 Nicholas St. Ottawa location. I ran a Linux-based LAN server for shared Internet access, email, file storage and printing. I was also managing the computers that their website was hosted on. At one point I was told that because the federation was receiving funds from the Gates foundation that they felt honour-bound to switch from the FLOSS based servers I was managing to a Microsoft infrastructure. Once the executive director who had hired me because of my views on the social impact of software left PPFC, it was clear that I was leaving as the final decision to switch to Microsoft was made. When the issue had first come up I was told that the additional costs of the Microsoft infrastructure (software costs and additional IT administration costs over what I was charging) would likely be higher than the amount of money they were receiving from the Gates foundation.

While a slower transition than their LAN services, you can also look at the Netcraft Web Server History to see how they switched from the Linux/Apache system I was offering them at 209.195.78.66 and 216.187.106.241 to their current Windows server. Compare to the report for www.flora.ottawa.on.ca which is the URL for my older personal site previously running on the same server.

The same type of thing is happening in Africa around drugs, according to a Wall St. Journal article (republished by IP-Health list)

“At a meeting in Africa last year, Mr. Love says he was struck by fears of officials from Botswana and elsewhere that pressing for access to generic drugs could jeopardize their chances for contributions. “They thought it would alienate the Gates foundation and they thought that was a problem,” Mr. Love says.

A report issued last year by the Commission on Macroeconomics and Health, chaired by economist Jeffrey Sachs, made a strong defense of intellectual-property protection as critical to continued investment in drug research and development. The Gates foundation was a major sponsor of the commission.”

Lets be honest. Most of what I am talking about is at a level of policy and politics far beyond what most normal people are willing to investigate or spend their time understanding. They will see their own governments cozying up to Gates (See article/photo of Steven Harper and Bill Gates) and believe that Mr. Gates (and the politicians who fall over each other to be associated with him) are doing wonderful things.

The positive message from the technology media could be summarized up in the first of two episodes so far that This Week In Tech did a reconstruction of the commercial. In episode 159 you have Ryan Block saying:

“You’re talking about the man who is doing more to better the world than possibly most governments possibly combined. This is a person whose philanthropic efforts are completely off the charts”.

This was in the context of a critique of the first commercial that had Latinos looking in at the rich people, and how other participants and media were suggesting that this was insulting to an ethnic group. Leo Laporte is quoting from an LA Times story by Maria Russo saying:

“Perhaps they’re supposed to represent the consumers “around the globe” that Microsoft is trying to “reconnect” with, but the depiction seems condescending and borderline offensive.
…
The Latinos are pressed up against the glass, fascinated by the action inside, but they do not appear to know who Gates and Seinfeld are. Are they too poor to own a TV? Do they represent the yearning Latino hordes trying to get in on the American consumerist dream?”

After Ryan made his comment about Gates, it seemed agreed by the panel that this meant that the Microsoft commercial couldn’t possibly have been insulting.

The tech media is now buzzing how the Seinfeild ads are being discontinued. I will not be surprised if Mr. Seinfeild is no longer in future episodes of this series of commercials, but Bill Gates still is. You can see Mr. Gates briefly in each of the “I am a PC” commercials that have been sent out thus far, and these also include a “world voices” type of feel to them as well.

As Ryan Block said earlier in that netcast, there is no better branding of Microsoft beyond their name than Bill Gates. Microsoft will continue to play off peoples perception of Mr. Gates as a philanthropist as a way to make buying Microsoft software socially conscious, their best defence against their greatest competitive threat: FLOSS.

Think I’m right-on or off the mark? Please reply in the comments and not only tell me where I’m right or wrong, but what you would like to see me writing about.

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Russell McOrmond is a self employed consultant, policy coordinator for CLUE: Canada’s Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING), and host for Digital Copyright Canada.

Since any inclusion of legal protection for “technological measures” in the law regulates what software citizens are allowed to run on their own computer, they have an interest in this issue. Canadians who are part of the Free Software Community really need to get involved in this election to ensure that the rights of Canadian Free Software users are protected. Richard Stallman, founder and president of the FSF, requested that I write this article to give our community some ideas of what to do.

While it would be great if I could suggest what party to vote for, this area of policy is not that simple. There are shining lights that need to be highlighted, but we really need people to get involved in their local riding and find out who is best to vote for in that riding. I wrote an article yesterday with my current thinking about who those shining lights are and what I am thinking about in my own riding of Ottawa South.

You don’t need to be doing this investigating alone. There are existing groups that you can join with to help.

• Digital Copyright Canada, a site I run, has an Election 2008 section. We have a blog where we have been posting articles tagged with the riding so that you can quickly find your riding (via a list or typing in your postal code), and see what others have written. If you get in touch with any candidate or your incumbent MP, please post directly or let us know the details so we can post.
  
• Fair Copyright for Canada started as a facebook group, and has expanded to having chapters across Canada. These are fellow Canadians just like you, concerned about copyright, software, and related issues. A number of the local chapters have WIKI pages where they are posting details about ridings and candidates in their region.
  
• Online Rights Canada is jointly supported by the Canadian Internet Policy & Public Interest Clinic (CIPPIC) and the Electronic Frontier Foundation (EFF). They have a tool that allows people to send letters to their past MPs which they are talking about modifying to allow people to send letters to all the candidates in their riding. CIPPIC itself may be sending questions to the parties, as they did in the 2006 and 2004 general elections.
  

Each of the above groups have links to other groups and to people who are writing blogs about the topic. One of the sites always worth reading is law professor Michael Geist’s blog.

Quick facts

On June 20, 2005 the then Liberal Government under Prime Minister Paul Martin tabled Bill C-60: “An Act to amend the Copyright Act”. This bill provided legal protection for “technological measures” and prohibited circumvention “for the purpose of an act that is an infringement of the copyright”. It was a bit vague about what types of technologies were being regulated, and also included a special prohibition against people providing services where the provider “knows or ought to know that providing the service will result in an infringement of the copyright or moral rights”. It was uncertain whether simply providing multi-purpose software could be considered a service.

On June 12, 2008 the then Conservative Government under Prime Minister Stephen Harper tabled Bill C-61: “An Act to amend the Copyright Act” (number a coincidence). This bill provided legal protection for “technological measures” in a way that much more closely mirrors the USA’s controversial Digital Millennium Copyright Act. It clearly protects both access controls (such as those applied to copyrighted content) and use controls (such as those applied to hardware and software which accesses/manipulates content). There are many ways that Canadian copyright amended by Bill C-61 would be far worse than US copyright amended by the DMCA. The DMCA stated that their living “Fair Use” regime was not affected by the anti-circumvention legislation (IE: that fair use was still protected), but in C-61 it was made clear that technological measures were intended to trump our already excessively limited “Fair Dealings” provisions. (See: Canadians fed US-style copyright legislation? I wish!).

The New Democratic Party has named Charlie Angus, MP for Timmins–James Bay, their Digital Culture Spokesperson. This party is the 4′th largest party in the previous parliament with 30 members in the house when the election was called. This is the only party that has named a Digital Culture spokesperson. Mr. Angus is a musician who is a member of the Canadian Music Creators Coalition, and while he is not a software author he has been our greatest ally in parliament.

Prior to Mr. Angus being elected in 2004 the (analog?) culture/heritage critic for the NDP was a playwright who believed in maximizing copyright, and supported any and all ways to protect copyright (including “technological measures”, etc). The NDP should stand as a reminder that what matters most to us is not the parties and their platforms, but what individual people become members of parliament. The same transformative change that happened in the NDP to make them one of our worst opponents to being one of our greatest allies could easily happen with all the other parties who will have members in the next parliament.

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Russell McOrmond is a self employed consultant, policy coordinator for CLUE: Canada’s Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING), and host for Digital Copyright Canada.

For issues around technology law, it really comes down to the individual people who are elected. As one example, I wrote previously how a change of one key person in the NDP party switched them from a party that supported DMCA-style legislation to the strongest opponent. Their Digital Culture spokesperson Charlie Angus (Timmins - James Bay) may be a musician and not a technical person, but he really “gets it” on the benefits of modern communications technology. He also recognizes the need to speak to actual practitioners and technology policy wonks, rather than incumbent industry executives, to form policy around technology.

A second gripe — people need to get past their fears and start voting for what they want. Our current horse-and-buggy electoral system is First Past the Post which is a system that only works correctly when there are only two candidates. In a world with cell phones and computers it is well past the time to modernize our system. While the political parties tend to favor some form of party-based proportional representation, an easy first step is to transition to a ranked ballot (see: Preferential voting) and otherwise keep our voting system the same. The two parties that most oppose this modernization are the Liberals and the Conservatives, which are also the two parties most likely to claim you need to vote for them to keep some other scary person out. I believe that any candidate that is not personally a strong proponent of electoral system modernization waives their right to speak about vote splitting. People who claim that this would be too complicated have to be called on that, as they are essentially suggesting that Canadian voters are too stupid to count. There is referendum already underway in the province of British Columbia to use a mildly more complex system based on a ranked ballot called the British Columbia Single Transferable Vote.

Evaluating the options in the Ontario riding of Ottawa South

With those gripes out of the way, I will write about what I’m doing in my own riding of Ottawa South. Thus far only three candidates have been nominated. The incumbent David McGuinty (Liberal), Elie Salibi (Conservative), and Qais Ghanem (Green Party).

While I have met and like Qais, he has not demonstrated an interest in technology law. He also doesn’t seem to have a background in the economic issues that concern me the most. Like the Green Party itself I don’t consider “the environment” to be an issue separate from other issues, but a key component of every other policy. I believe in the triple bottom-line of fiscal, social and environmental and believe that while we have lowered our fiscal debt in recent years that we did so by borrowing from the environment and social bottom lines. The Greens are a centre-right party that grew in strength partly as a result of previous Progressive Conservatives joining in, in a riding whose history suggests it is full of centre-right voters. That said, I don’t believe this is one of the ridings where the Greens are a strong contender this election.

This is the same problem that the NDP have. They likely haven’t been quick to nominate a candidate as it isn’t going to be one of the possible ridings for them. There are ridings where the NDP and Green Party candidates will be much stronger, and you should take a close look at these individuals to determine their views. There is also the fact that the larger the NDP caucus, the more powerful Charlie Angus’ voice will be.

I have met and spoke with David McGuinty many times in the past, starting from before he was nominated as the candidate for the June 2004 election and as recently as yesterday. Yesterday I was walking past 1818 Bank Street (which is between my house and my bank branch), saw the McGuinty campaign signs, and wondered in. Mr McGuinty was there and after the regular social pleasantries he started to ask me what I thought of the Jim Prentice’s views on letting “the market” decide on telecommunications policy (IE: incoming SMS messages on cell phones being the latest issue, but also his previously articulated views on Network Neutrality). Mr. McGuinty tabled Bill C-555 in the previous parliament, and is hosting a petition in support of it. While the bill speaks of cell phone access fees, it also directs the CRTC “to gather information, seek input and make a report on competition, consumer-protection, and consumer-choice issues” on a range of issues including network neutrality.

After a quick chat on network neutrality and Bill C-61, he brought us into bio=patenting and I then brought up how gene patents are considered “program sequences” and that it was through the non-logic of software patents that patent law was radically extended to the significant uses of gene discoveries.

While Mr. McGuinty is not a Digital Culture Spokesperson for the Liberals like Charlie Angus (I don’t get the impression Mr. McGuinty’s private members bill had full caucus support), I have been very happy with him as my MP. Beyond technology law which he has shown a keen interest, his background before politics was as President and CEO of the National Round Table on the Environment and the Economy. You don’t get much more credible than that on understanding the interconnectedness between the environment and the economy.

I’ll be honest and say that I would love to finally get my large Green Tax Cut, given I’m one of those Canadians that has a lower carbon footprint than the national average. I strongly believe in using economic policy to provide incentives to become more efficient. While a cap-and-trade is an appropriate tool for larger corporations, we also need a tax shift to engage average Canadians and also to reward those who have made better choices. Then again, maybe this belief in having individuals both rewarded and economically accountable for their carbon footprint makes me to much of a fiscal conservative. Then again, the fact that the Conservative party has thus far opposed this fiscal conservative policy is informative about them as well.

Which brings me to the Conservatives. I would need to have a candidate denounce Bill C-61 and the “let the non-existent competitive market decide” views of Jim Prentice on telecom policy (both wired and wireless, where the government grants monopolies on rights-of-way and spectrum) before I would take a Conservative candidate very seriously. It is quite possible to have such a candidate as it is not like C-61 or what Jim Prentice says are party policy, or even all that consistent with fiscal conservative, or pro-free-market values. Like the NDP in the past it is quite possible for them to elect some forward-thinking people and turn the party around.

I am a political junkie, and I watch the elections Canada nomination database and try to contact candidates as soon as they are nominated. I’ve been writing letters to Elie Salibi since he was nominated by the Conservative riding association in February 2007. His political website indicated that “prior to entering politics, Elie spent seven years at Corel, where he served as Director of International Sales”. I don’t know if this will mean that he has a technical background, or possibly even an economics background. I do find it more than a bit frustrating that I have been writing e-Mails for over a year and a half now and have heard nothing back. I guess I’ve gotten used to politicians carrying around portable email devices like Blackberries, iPhones and others — not someone who doesn’t reply.

I decided to see if I could get in touch with Mr. Salibi this afternoon. I went to the corner of Bank and Hunt Club to see where 2446 Bank Street, Suite 301 was. It turns out that this is a mall I’m familiar with, and that suite 301 is actually a tiny P.O. box in the UPS store in that mall. So, the candidate doesn’t reply to email, is using a P.O box and not a real address, and hasn’t bother publishing any other contact information (A phone number maybe? Heck, even a fax machine to indicate to us what era they are in :-). They have election signs all over the riding which suggests they have a lot of cash, but it will take some one-on-one convincing for me to think this is a credible local candidate.

Then again, maybe I’ll get in touch with a human being before the election is over and he’ll turn out to be great. I’m obviously not going to hold my breath given what I’ve seen thus far.

If you are a Conservative party supporter (or better yet, have connections with a technology friendly candidate) and would like to “correct” anything that I’ve said, please do so in the comments. It has surprised me how poor this new Conservative party is on issues like anti-circumvention which infringe on tangible property rights and stomp on provincial jurisdiction. These are not traditional Conservative party values. Gun registration is bad, but information technology remote-control is good — amazingly inconsistent.

What you should do?

I’m hoping my little run-through my riding will encourage people to do something similar in their riding. If you do so, please let me know (please hit reply and add to the comments). If we representatives in every riding do this we would have a great picture of what is possible across Canada. I will want to link to anything people write so people can go to the Digital Copyright Canada website, find their riding, and know what other people have said.

If you want to get together with other people, there are a growing number of Fair Copyright for Canada chapters being formed. Many of these groups are getting active in the election, creating pamphlets for public education and communicating with candidates. There is a meeting of the Ottawa chapter that I will be attending tonight.

Updates:

Less than an hour after posting this I received a phone call from Elie Salibi’s campaign team. They are actually launching their campaign at their office at 2525 Bank (near Albion), close to were that post office box is. They are looking into where my emails went, and I will post updates as I receive them.

Also after I posted this some friends of mine joined a Facebook Event tomorrow evening for the launch of the NDP candidate, Hijal De Sarkar.

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Russell McOrmond is a self employed consultant, policy coordinator for CLUE: Canada’s Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING), and host for Digital Copyright Canada.

The Green Party will be taken more seriously because they have as many seats as the Reform party did prior to the 1993 election. Prior to that election their only sitting member was Deborah Grey who won in a 1989 by-election. During this election the Reform party won 52 seats.

With this in mind, people have been asking to hear more about their positions on copyright and related issues.

The Green Party has extensive policy documents which support Network Neutrality and Open source computer software. I didn’t see in my most recent look the type of digital copyright issues we might like to read about.

Copyright is an issue that comes down to the experience and judgement of individual members of parliament. While the parties may have policy and platform, this can change with the election of people with specific experience as happened with the NDP (see: Canada’s Copyright party is … the NDP?).

Dan Grice is the Green Party Candidate for Vancouver Quadra. His current job is as a Business Technology Consultant / Internet Web through his company VanAlive Communications. Given his technical background, it is great that he responded right away when I sent messages asking for comments from candidates.

I sent him the same set of questions I sent other candidates recently, with him deciding to comment more on software business models than other candidates have been able to.

Dan: I have no authority to officially answer on behalf of the party, but the following are my own answers guided by Green Party policy plus my own opinions.

Russell: Where do you stand on the benefit or threat of new media/technology?

Dan: I believe that new media and digital technology have provided a great opportunity for artists and producers to reach a greater mass and for consumers to enjoy artistic creation in new ways.

The focus of any legislation should not be on maintaining a narrow distribution model enforced by digital locks and threats of prosecution, but to put in place proper mechanisms to ensure performers and content producers are fairly compensated for use of their art works and to create licensing mechanisms which allow consumers to use them for personal purposes.

Russell: Do you believe that the tools which provide the primary means of production and distribution of knowledge should be under the control of private citizens, or some third party? If a third party, who should that party be? If citizens, would you endorse our petition?

One way to make copyright less complex and far less controversial is to have it focus on public activities, and less on activities (such as the creation of personal copies) which modern technology has made private. Private activities such as time, device and format shifting of lawfully acquired content, could be carved out of copyright though a living Fair Use regime.

Dan: As citizens, it is advantageous to promote as much freedom in how and what we can share as possible, and how we can use the information. (The Green Party believes this is essential to participatory democracy) If there are limitations (such as the blocking of known child porn web hosts), then the decision need to be done through an elected body that is responsible to citizens.

I also feel that those who distribute content without permission should be liable to the creator for compensation, but this should not be punitive except where a malicious violation occurs.

Russell: Would you support or reject the idea of carving out private activities from copyright?

Dan: I would support exempting private activities. I think there can be some confusion between public and private activities when there is file sharing or public postings of content that must be addressed.

Russell: Many people see Copyright in terms of a balance between rights articulated in the United Nations Universal Declaration of Human Rights: 17. Property (tangible), 19. Expression , 26. Education, 27. Cultural and Creators’ rights.

How well do you feel we have balanced these rights so far?

Dan: Traditionally we had done a good job, but I think that technology evolved faster than creator’s rights and as such we need to ensure that content creators are fairly compensated for use of their works in a way that does not limit technology or future usage.

Russell: Is there a specific balance that makes sense to “harmonize” internationally, or is there a right balance for each country, or for each different stage of development?

Dan: Countries have the opportunity to ensure that their own content producers are fairly compensated and that broad treaties are beneficial to ensuring that countries can allow their own content producers to have international experience.

In Canada, I would say it may be beneficial for the government to have a small levy on telecommunications usage go to support content producers and to make it easier for Canadians to get exposed to their own culture..

Russell: Domestically, do you believe that Canada has had the right balance in the past, and the right balance with recently proposed legislation?

Dan: Our legislation was balanced but unequipped to deal with digital media. Currently proposed legislation is faulty in failing to protect private usage and for relying upon a draconian limitation on tools used for content manipulation. It also does little to support artists and content producers and is far from a holistic approach.

Russell: Many different types of creativity can be covered by copyright. While some can be considered art and entertainment, some are a memory prosthesis (most common use of many types of recordings: photographs, audio, movies), and some is functional (computer software, scientific/medical knowledge, etc). Much of the discussion and policy around copyright presumes that copyright only or even primarily regulates commercially created art and entertainment.

Dan: The questions blends copyright and patent law. Both need to be updated. I don’t think Canada has been vocal and our position up until this point has had very little impact on the rest of the world.

Patent, copyright, and trademarking all need to be modernized. Government can take a role in identifying ways in which we can protect creative activities or intellectual discoveries without hindering future technology or content creation. As a MP, I would look at ways to ensure creators are compensated and that our technology and artistic communities have stable funding, as well as looking at various content licensing models and work to find a better balance between content producers and consumers.

Russell: Should Canada be providing legal protection or other encouragement for digital locks on content and/or devices?

Dan: I don’t believe digital locks should be encouraged for limiting which devices a content can be used on. At the same time, I do realize that some business models (such as software) require protection against unlicensed copying and others (such as movie rentals) use locks to offer consumers the ability to lease content for short terms.

Government has a role in defining whether locks are being used to facilitate usage or to limit it.

Russell: There are alternative methods of production and distribution, such as peer production and peer distribution, which do not rely on counting copies or collecting royalties. This reduces copyright infringement by royalty-free licensing what citizens want to do, leaving a few commercial companies as potential infringers. While these methods do not work for all creativity, there are some such such as software (Free/Libre and Open Source Software) and educational/scientific/medical knowledge (Open Access) where this is the fastest growing part of that sector.

Dan: I would support the creation of an alternative licensing arrangement where content producers are financially awarded based on different criteria. (An interesting licensing arrangement already exists for radio stations who pay a flat fee to license content.) This would allow content producers to opt-in and be compensated based on a non-transactional model.

However, we also have to be realistic on the limitations of FLOSS software and its distribution model. Very few peer-to-peer or open source business models have shown to generate enough revenue to support complicated development structures. For example, if it was not for a high license rate that Adobe charged, we would not have seen as high quality graphics tools exist. The FLOSS model is better suited for instances where a high amount of customization or servicing is required and the core software is a foundation for other tools.

Russell: Do you think Canada should be supporting and promoting alternative royalty-free methods of production and distribution where possible?

Dan: Yes. I agree that we should support and promote an alternative model. I am personally interested in using gateway access fees to be distributed based on some quantifiable viewership model.

That being said, there will always be a necessity for some sort of royalty limitations and intermediary status. I just feel that our efforts our best put into increasing base funding to artists and content producers.

Russell: What policies would you promote in order to protect the interests of the growing number of creators who are independent of traditional copyright-holding intermediaries?

Dan: I would like to see the Canadian government use existing agencies such as the CBC and others to deliver content to Canadians, with a fair compensation scheme going back to artists and a decentralized version of shows.

We must stress that it is no good to any content producer or consumer if quality content is not produced.

Russell: I have offered my own thoughts on a post-industrial era in an article titled “Key question about the shape of the knowledge economy.”

In your mind, is the relationship of knowledge in the knowledge economy like products in the industrial economy, or is knowledge in the knowledge economy like machines in the industrial economy?

Dan: It is both. Some technology serves to create other technology (such as FLOSS), where as digital content is often a finalized product meant to be enjoyed as is.

Russell: How would you differentiate your views on copyright or related policies from other candidates in the riding?

Dan: I hope they share mine. I don’t think this is a partisan issue as much as it is ensuring that a balance between fair compensation for content producers and fair usage to ensure that licensing and copyright does not impede on technological development.

I asked Dan for some quick clarifications on some answers, and he offered the following.

Dan: I’ve been involved with software development in the past and realize the need to secure ones product is real. When you have a 4 or 5 person team (or more) working in production, you need to be able to have a business model that is sustainable.

I also think the Green Parties policy regarding FLOSS is excellent, in which we would ensure that no proprietary software is required to do business with the government,

While I’ve written about how some aspects of C-61 are lifted near-identical out of the USA’s DMCA, I have not yet put them in context with the rest of their copyright act. Bill C-61, like the DMCA, is a set of changes between the previous Copyright and a new Copyright. US copyright law was more fair before their DMCA than Canadian law is now, and if Canada takes the direction articulated in C-61 we will become that much worse than US law. As bad as this would be, I would be happier to have Canada simply adopt current US law (DMCA and all) than to apply Bill C-61 to current Canadian law.

An important detail to realize with US law is that in their Copyright Act of 1976 codified what they call “Fair Use” as follows (Copyright Act of 1976, 17 U.S.C. section 107):

“TITLE 17 > CHAPTER 1 > section 107

section 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

Parody is not specifically mentioned, but it doesn’t have to be since the word “including” is used which suggests the list isn’t intended to be exhaustive. Parody that is critical of the work itself is easily considered criticism. Where there are grey areas and ongoing caselaw is satires which is using a work to poke fun at or comment on something else.

This concept of Fair Use was intended to be retained with recent changes to US copyright law, and the USA DMCA (Bill Number H.R.2281 for the 105th Congress, under Bill Clinton) includes the following statement in “Sec. 1201. Circumvention of copyright protection systems”:

“(c) OTHER RIGHTS, ETC., NOT AFFECTED- (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”

It is clear that the USA’s DMCA modified law was intended to retain this ability to be interpreted by courts in a way that is fair according to well understood criteria.

Lets contrast this with Canadian law modified by Bill C-61.

First, Canada does not have a living Fair Use regime. Our section 29 (FairDealings) has a few exceptions to copyright, but they are nowhere near as extensive as the USA’s Fair Use regime.

“Fair dealing for the purpose of research or private study does not infringe copyright.”

“Fair dealing for the purpose of criticism or review does not infringe copyright”, as long as the source is mentioned.

“Fair dealing for the purpose of news reporting does not infringe copyright”, as long as the source is mentioned.

That’s really it, and without any word like “including” it suggests this list is intended to be exhaustive.. Nothing about “comment” , “teaching (including multiple copies for classroom use),” or “scholarship”. There are a number of exceptions that apply to “Educational Institutions” under Canadian law, but given how much learning and teaching happens outside of these closed institutions it is obviously not comparable.

You might then say to me: but the Minister of Industry Jim Prentice and the Secretary to the Minister of Industry Colin Carrie have been saying (YouTube) that the “the educational exceptions”, “the format shifting exemptions” and “the time shifting exemption” are all “made in Canada” and provide important balance for “consumers”.

For those of us who have read the bill (which I’m not convinced includes Mr. Prentice or Mr. Carrie), we notice that these provisions are nowhere near as fair and balanced as US law in those same areas.

Under US law their existing Fair Use regime was used in the case of Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), also known as the “Betamax case”, to confirm that making of individual copies of complete television shows for purposes of time-shifting does not constitute copyright infringement. It is widely believed that shifting content between devices and formats would also be confirmed to be fair use under US law.

Under Bill C-61 the Conservative government clearly stated that the educational, format shifting and time shifting exemptions did not apply if one had to circumvent any type of technological measure in order to do so. This is the opposite statement to the DMCA’s “OTHER RIGHTS, ETC., NOT AFFECTED”. While under the DMCA Fair Use is intended to trump technological measures, under C-61 technological measures are intended to trump our already excessively limited fair dealings.

Definitely “made worse in Canada”.

The so-called educational exceptions are tied to educational institutions (in other words, useless to the majority of us — unlike US law), and most are widely believed by actual educators (rather than uninformed Ministries of Education) to be unnecessary under existing limited fair dealings rules.

If that doesn’t seem bad enough, Bill C-61 makes things even worse.

A contract (read: imposed and not often read or readable End User License Agreement, or EULA) for a download over the Internet can disallow device shifting. Of course, neither the words “download” or “Internet” are adequately defined in the bill to avoid confusion on words that have different meanings for different people. Is the “Internet” any network using TCP/IP (like digital cable services might, and which many LAN’s do), or any network with a publicly routeable IP address, or…what?

A contract for a video-on-demand service can disallow time shifting. The exception also doesn’t apply to streaming over the Internet, only traditional broadcasting (whatever that means, given convergence — is it digital television broadcasting or Internet streaming if the service uses a TCP/IP based network?) I can only keep the the recording as long as necessary to listen to or watch at a more convenient time (and how long is that — too vague for a law that has draconian statutory damages!) The exception specifically does not apply a “network personal video recorder service”, an option that a number of cable/etc companies wanted to offer in Canada.

I could dive into the additional exceptions and limitations to those exceptions that apply to Educational Institutions, but it doesn’t matter given unlike US Fair Use this doesn’t apply to the majority of us.

Election time!

We are about to go into an election (likely to be called on Sunday), and Bill C-61 will die on the order paper. We shouldn’t simply rejoice and think that this battle is over, but recognize the opportunity we have.

No matter who forms government it will be the case that the vast majority of elected politicians will have no clue what the digital copyright debate is about, or why it is so important to Canada’s place in the new economy. This is, of course, unless we do everything we can to be involved in the election and find out who understands the issues, and help them get into government.

I realize I’m repeating myself, but this is an issue where individual Members of Parliament matter more than political parties, as it is really that tiny subset of people who will be in any committee studying the next tabled copyright bill that will have the required influence to allow us to have copyright that is fair.

If you bump into a candidate that really believes that C-61 was fair and balanced, let us all know so we can do our best to boot them out (or simply keep them out).

Not just against C-61, but for something…

One obvious modernization to Canadian law we must be calling for is to adopt a living Fair Use regime, possibly modelled after the US law. As an improvement it could include updates from caselaw (such as the Betamax case) to make very clear that time, device and format shifting are Fair Use, without the embarrassing limitations that we saw in C-61.

While good Copyright law wouldn’t mention technological measures at all (as said elsewhere, these are provincial contract, eCommerce and property law issues), our law could be radically improved by incorporating Fair Use.

With the “three strikes you’re out” policy there is obvious dishonesty by proponents. In many countries the statutory damages if found guilty of infringement are so high that it is really “one trike you’re out”. Gaining access to an ISP will be the least of your troubles given the excessive financial implications of statutory damages.

What we are really talking about is three unfounded allegations of infringement, not cases of actual infringement. These lazy dishonest copyright holders don’t want to have to spend a moment of their time collecting evidence of infringing activity. Part of the problem seems to be that they can’t seem to hire above-board investigators.

This subset of copyright holders (major labels and studios, etc) seem to be able to be summarized as having a chicken little “sky is falling” mentality, and are not the slightest bit interested in the unintended consequences (including the harm they seem to continuously inflict on themselves) from their poorly thought out policy proposals.

The ISP filtering/blocking problem has similar issues to DRM in that it transfers too much control over critical communications infrastructure to third parties/intermediaries. We know the phone/cable companies will abuse the filtering technology for their own special interests. The Network Neutrality debate would effectively be over and won by the opponents to neutrality with mandatory filtering.

Determining copyright infringement is a question that well informed copyright lawyers can’t agree on in many circumstances, and sometimes higher judges overturn lower court judges, so obviously can’t be automated in software. The problem of stopping SPAM is far easier and far less subjective, and we should all have realized by now that there is no easy technological solution to this social problem. The only real solution is of enforcement of appropriate laws that target the actual proven perpetrators (and not innocent bystanders or technology providers).

I’ve written about the difference between DRM and “technology mandates” (Example: Broadcast Flag) in the past, and want to focus on these two again. With an appropriate understanding of these issues, it is easy to understand the positions of the narrow subset of stakeholders allowed to participate in these events.

With DRM you have a lock on content (encryption) and anti-circumvention laws which legally tie the ability to access this content to specific “authorized” devices (”access control technological measures”). The content companies and the device manufacturers then negotiate features of the devices which will be locked down and then authorized. Over time we end up with a situation where the platform to deliver content to audiences becomes more valuable than the content, putting device manufacturers in the more powerful position for negotiation. The major recording labels and motion picture studios have already observed this with apple, and their desire to create an “open” DRM platform is entirely about getting out from under a near platform monopoly.

With “technology mandates” you have the government imposing features onto device manufacturers where the device must be locked down, but the content doesn’t have to be. (See: Is it possible to have a ‘use control’ without an ‘access control’?.)

Major label/studio copyright holders

They are recognizing part of the harm of DRM and their support for this is reducing. They are strongly supportive of “technology mandates” which gives them what they believe they want (locked down hardware/software) without the platform monopolies of DRM. They seem oblivious to the harm that locked down hardware/software will have to their sector and its ability to innovate. I’ve seen some references that suggest they are promoting the idea that “authorized” labels/studios should have exceptions to use unlocked hardware, a clear anti-competitive policy proposal.

Other copyright holders (not asked)

There isn’t consistency in the message you hear from creator copyright holders. If you look in Canada you see groups like the Creators Copyright Coalition largely aligned with the majors, with some of their own members breaking out and forming groups like Appropriation Art and the Canadian Music Creators Coalition which appear to oppose digital locks of any type (on their content, or on devices).

Before this group of copyright holders can really influence the debate there needs to be modernization and renewal in the organizations that make up the CCC. Otherwise creator copyright holders will continue to be politically lumped in with the non-creator copyright holding intermediaries.

Hardware and incumbent proprietary software companies

They want the monopoly creating aspects of DRM, and believe that they (and not any competitors also represented in some of the same associations) will be the winners of this “Russian roulette” platform monopolist game.

They are opposed to “technology mandates” claiming that this reduces their ability to innovate. The reality is that DRM and “technology mandates” are similar in this respect as both reduce the ability of hardware manufacturers and software authors to innovate. If they were honest they would state that the key difference between DRM and “technology mandates” is whether they gain a platform monopoly.

Independent software companies, including FLOSS developers (not asked)

If hardware is locked down to mandate “no user modifiable parts inside”, meaning they can’t choose their own software, they can’t possibly choose our software. We are effectively forced out of this marketplace, with independent companies most often representing the greatest innovation.

There is little difference between DRM and “technology mandates” for us given our issue is the locked down hardware and any incentives to force customers to purchase locked down hardware. In the case of DRM the new exclusive “access right” granted to copyright holders in anti-circumvention legislation becomes the incentive for people to purchase locked down hardware (If you want to access this movie, you need to buy one of this subset of devices). With “technology mandates” it is the government disallowing the production or importing of unlocked devices, meaning “if you want to access any movie, you need to buy one of this subset of devices”.

Hardware owners (not asked)

In a “DRM” world someone who wants to protect their hardware property rights has the option of simply “opting out” of (legally) accessing any content that is infected with DRM. There will be very few of these people protecting their property rights as most people will be duped by the incentives ( If you want to access this movie, you need to buy one of this subset of devices). With a “technology mandate” their ability to actually express basic ownership rights are legislated away. Sounds like a government taking of property without justification or just compensation to me. Ironically if we take Bill C-61 as an indication, the alleged “Conservative” party of Canada may be the party most likely to wipe out tangible information technology property rights.

We appear to have an election coming up soon, and I hope everyone will ask their candidates their views on these important issues. Our elected representatives should be representing us, an important stakeholder not adequately consulted on these policy issues.

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Russell McOrmond is a self employed consultant, policy coordinator for CLUE: Canada’s Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING), and host for Digital Copyright Canada.

I was interviewed by Peter Nowak for CBC News last evening about the case. Even though I hadn’t read the documents from FACIL yet, guessed which loophole they were trying to close.

To understand this case you need to both understand how the government procurement process normally works, and how special circumstances for intangibles like software demand enhancements to the process to ensure fairness.

The government uses an open and accountable process for procurements where they create specifications for what they want, they file this with a procurement system (MERX in Canada) , companies then bid, and the government then uses a point system to award the contract based on best value for dollar.

When the government is procuring something tangible, this process works well. The bidders simply include the cost of the procurement process in the costs of their bids, and the government is able to get the best value for their dollar.

The procurement system recognizes that for small items that the process would create too much overhead. Federal Government Departments have authority to buy up to $5,000 directly from suppliers. Over $5,000 they must go to PWGSC, and PWGSC will always advertise on MERX any goods or services estimated at $25,000 or more.

Lets look at software closely. Once a government department makes the decision to acquire a specific piece of software, you end up with a few situations.

• If the software is licensed under a royalty-bearing license, they need to go through a procurement process in order to obtain the licenses. In this case there is only ever one supplier for the license, which is the copyright holder. The copyright holder may have many resellers authorized to resell, but ultimately it is the copyright holder that is offering the licenses.
  
• If the software is Free/Libre and Open Source Software (FLOSS), then the government department already a license (governments are pre-authorized royalty-free to use FLOSS just like everyone else) and no process is required.
  

In both of these cases, going through a procurement process is redundant as either the government must file an ACAN (Advanced Contract Award Notice) to obtain the license from the copyright holder, or they don’t need any process as they are already licenced to use the software.

It should be clear that in this case the relevant decision isn’t the one determined through the redundant procurement process, but the process the government went through to decide what software to use in the first place. It is this initial decision which determines what companies are able to provide any ongoing value-add support, given support is often tied to specific software. FLOSS support companies may be able to support any FLOSS software, but only the copyright holder of proprietary software can authorize specific companies to be able to do more extensive support which may require modifications to the existing software.

We also need to look at how to fund the process of determining what software should be used. While a proprietary vendor can include the costs of any processes in what they charge for licenses, FLOSS suppliers cannot do the same thing as they are offering their licenses royalty-free. One company could invest the resources to convince the government to go with a given FLOSS package, and then when the government goes to a competitive process for ongoing support (as they should) the contract is awarded to a competitor. This unfair process ensures is that nobody is willing to invest in educating the government about all the valid options it has available to it, and decisions are being made by the government with inadequate information.

The FACIL lawsuit is entirely about the above problem. Governments are deciding in unaccountable ways that they want to acquire specific software licenses, and then using ACANs to announce the fact that they are purchasing those licenses. We need to back this decision up a step and instead of continuing to use this procurement process loophole to instead ensure that the initial decision of what software to acquire is made in an open and transparent way.

There are other issues related to government acquisition of software that have come up. One of my customers has in the past needed to take the federal government to the CITT (Canadian International Trade Tribunal) for procurements which demanded that a media monitoring service, which happened to include software, must run Microsoft Windows.

To quote the decision (CITT File No. PR-2000-073):

“… the Library, in setting out the requirements of the RFP, relied extensively on trade names as a proxy for performance specifications, when recognized open standards exist, and introduced unallowable and/or unsupported and non-documented extra support costs for bidders offering non-Microsoft-based solutions, thereby structuring an RFP that favours one class of bidders, those offering Microsoft-based solutions, over the other bidders. In the Tribunal’s opinion, this amounts to discrimination.”

(See also: Canadian International Trade Tribunal and Free/Libre and Open Source Software)

It is unfortunate that we are forced to go to courts and tribunals to convince the government to use transparent and accountable processed to acquire software. Sometimes this is our only option to correct a situation that is not only unfair to software suppliers but also citizens that need to interact with the government and pay for the decisions governments make.

See also: Open source group sues Quebec over MS purchase by Kathleen Lau - ComputerWorld Canada

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Russell McOrmond is a self employed consultant, policy coordinator for CLUE: Canada’s Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING), and host for Digital Copyright Canada.

We’ve discussed the technical and legal underpinnings of these DRM systems:

• Device manufacturers and/or software authors use locked down hardware/software which implement “use control” technological measures
  
• Copyright holder (or someone they authorize) encodes the copyrighted content in an “access control” technological measure which makes the content only interoperable with authorized devices (i.e. devices with required decryption keys)
  

The best of these systems use cryptography as their “access control”, with the best cryptography systems being those which used well tested public algorithms. This means that whether content can be accessed or not comes down to the keys used to encrypt and decrypt the content.

Lets evaluate the Apple iTunes scheme and these “open” schemes from the perspective of the stated problem: splintering locks users into a single store and format, and is putting a stranglehold on widespread adoption of movie sales online.

In the Apple iTunes scheme, Apple controls all the keys. They encrypt the content, and they place the required decryption and re-encryption keys in the iTunes software and in the various “Apple Fairplay” compatible devices. Apple chooses what features will exist in each component of the software of their end-to-end DRM solution (iTunes store, iTunes desktop software to manage files, software in FairPlay compatible devices). A copyright holder is really only left with a “take it or leave it” option as to whether they use this delivery system. In this system a customer can know, because of the Apple FairPlay logo on the device, whether the content will work on a specific device. Content is not interoperable between vendor systems.

In a more open system, copyright holders are given more choices. The reality is that all copyright holders and all device manufacturers will never agree on a single “one true” set of features. This will mean is that there will be bilateral agreements between specific copyright holders and device manufacturers, where successful negotiations will result in the copyright holder authorizing (through appropriate keys) specific devices. In this “open” environment you will only know whether content you wish to purchase is interoperable with your devices if you find out if there was a successful negotiation (and thus key distribution) between the specific copyright holder and the specific device manufacturer.

It turns out that from an interoperability point of view, and as a tool to encourage the widespread adoption of movie sales (and lets be honest, short-term “rentals”) online, the “open” option may be worse than the vendor-controlled option. At best it would become equivalent where a specific hardware/software platform becomes “approved” by copyright holders more often than their competitors, and consumers flock to that platform to maximize the content they can access.

A separate organization can exist to allow one to “register” their devices to determine whether a device will be interoperable with the content from a specific copyright holder (i.e. whether keys have been exchanged, and the device authorized), but this registration system can’t solve the problem that a majority of combinations of copyright holders and devices will most likely not be interoperable.

You will notice that I didn’t really mention the Sony Pictures lead project or the Sun Microsystems lead project. The reason is that I don’t believe they matter. Whether the underlying software is proprietary and authored by people hired by the Sony project, or open source and developed collaboratively with Sun, the ultimate question of interoperability will be decided by encryption/decryption keys. These keys will be distributed after bilateral negotiations between copyright holders and device/software vendors. The only devices which will be “authorized” by copyright holders are those that are locked-down and tamper-proof, meaning that the software can’t be changed and the device cannot be under the control of its user/owner.

There will be considerable economic benefits to the DRM vendors to working collaboratively in Sun’s project, given peer production is often more efficient and cost effective production. That said, there is no difference as far as the customers of devices are concerned: they will specifically not be allowed to “run, copy, distribute, study, change and improve the software” embedded in these locked-down devices, and certainly will not be able to (legally) access any of the required keys.

This should answer the question for those who think that Open Source software can just obtain a license for CSS or any other DRM system. To obtain a license and obtain the right keys, software must be locked-down and tamper proof — meaning the software must no longer fit the definition of being Free/Libre or Open Source Software.

This problem has no technological solution. If a copyright holder wants to control through technology, rather than through enforced law, what people do with their copyrighted works they are stuck with restrictive locked down content delivery platforms. The current cable or satellite delivery system (clarified to only allow locked devices to be rented, and not ‘allegedly owned, but not really owned’) is an example where the delivery system is locked down, and digital tuners only have the features which the cable/satellite companies have allowed to exist. There is not an open competitive market where the consumer can choose devices which meets their specific needs, only the tiny set of locked devices offered by the cable or satellite companies for rental.

If copyright holders want their content to be interoperable with any device from any vendor, and does not want to give up control to a delivery platform provider like Apple, Microsoft, Macrovision or others, then their only option is to offer their content DRM-free.

They can make use of digital watermarks and other such identifying information as part of a Technical Information Measure (TIM) (See: Technical Protection Measures (TPMs) and Educational Use of the Internet) as TIM’s don’t reduce interoperability. These TIMs are very useful in copyright enforcement, as they can help in investigations to determine the source of infringements. They can also provide machine readable terms of use, which device manufacturers and software authors can (and most often will) voluntarily honour.

Copyright holders must abandon “access control technological measure” applied to their content which is the source of the reduced interoperability, and instead simply continuing to use them on their eCommerce websites. Copyright holders must also stop demanding the alleged “right” to authorize specific devices which have “use control technological measure” applied to them, as doing so will do them far more harm than good.