Tuesday, November 27, 2007

copyright = oxygen

A friend of mine, copyfighter Russell McOrmond, is fond of the analogy that copyright law is like water -- too little of it and we die of thirst; too much of it and we drown. As analogies go, this one is very tidy, but I prefer to think of my copyright as oxygen. For the professional practice of a working writer, copyright is not a too much/too little proposition. It's an either/or. Provided with my oxygen, I get to keep breathing and keep writing. Deprived of it, well...

Russell's commitment to what he sees as fair copyright is profound, and I respect him even as I often disagree with the particulars of his position. I think our disagreements stem mostly from the fact that we work in very different areas and very different ways. Russell is a software developer and consultant deeply integrated into the open source ethos of that particular field. I write very traditional texts -- poems, novels, essays and articles. It is possible that we need very different things from a copyright law, and I would hope that Canada's legislators are subtle and smart enough to provide for both of us. You heard me.

Anyway, it looks like the feds are getting ready to make long-awaited and crucial changes to the Canadian Copyright Act. While the online Copyright Act says it is current to this very month, the bulk of it addresses a pre-digital reality, and for professional writers the pre- and post-digital worlds are drastically different in terms of respect and payment for work. An example:

In my day-job as Executive Director of the Professional Writers Association of Canada (PWAC), I deal with a lot of professional writers who have found their work reproduced on commercial websites or in commercial databases, without either permission from or payment to the writer. In many cases, not even the original publisher of the work is aware that the work has been appropriated for use elsewhere. Ignorant or unscrupulous re-publishers simply copy and paste entire texts from one site to another and then offer up the work as their own content. This is not quoting, or linking or referencing – all of which I support as necessary freedoms – but wholesale copying of complete texts. I am frequently astounded by the response of these absconders to any complaint or query about their business practices.

“But the article was freely available on the Internet.” Yes, for reading, not re-using.

“But the information in the article is crucial to the public interest – how dare you try to lock up this information!” No-one is trying to lock up information; we are instead asking you to respect the copyright of a text. There’s a real difference. A text is created through the work of a writer. It is original and of both commercial and moral value to the writer.

And my personal favorite… “We were providing that article for educational purposes only, and we gave the writer full credit.”

This one needs a bit of unfolding. First of all, full credit without permission or any suggestion of payment is cold comfort. For an idea of how writers see such deals, watch this YouTube video (warning: profanity):

(American writer, Harlan Ellison explains the joys of working for "credit.")

Secondly, no website with any commercial intent (one that sells advertising space, for instance, or attempts to present itself as the authority on a specific topic while aligned to a related commercial interest) provides anything for educational purposes only. This is a gigantic cop out, and one with terrifying implications for any potential new legislation. The idea that educational use of texts should be given an exception under the law is a disastrous loophole in the making.

Any exception to copyright weakens the entire concept and makes the prospect of professional creative practice very tricky indeed. Copyright ownership and control do not necessarily mean lack of access, but exceptions to ownership and control might very well mean the end of “professional” writing. Besides, exceptions are completely unnecessary. Any number of perfectly reasonable mechanisms can be used to make sure genuine educational uses of copyright protect material can be both easily and inexpensively accessed by both students and teachers, AND see to it that the copyright holders are fairly compensated for that use. As a society, we’re smart that way.

All sorts of new business models are being tested in the new digital reality, including models that provide digital access to original copyright protected material free of charge with the aim of battling obscurity (the writer’s greatest foe). You can see Canada’s own Sheila Heti doing just that over at her site, where visitors can read the entire text of her beautiful The Middle Stories. Please note, though, that it is Sheila Heti, the owner of the copyright on The Middle Stories, and not someone else who has decided to test this business model for her, for educational purposes only and with full credit, blah, blah, blah.. That’s how copyright needs to work – the owner makes the decisions and, hopefully, everyone benefits.

The prospect of new law has brought out all the usual suspects to advocate for their own positions as a bill approaches. I am one of the usual suspects. PWAC and The Writers’ Union combined on this recent letter in the Hill Times:

Letter to the Hill Times

Meanwhile, over at PWAC, we are trying to bring a little humour and consumerism to the effort by selling pro-writer, strong copyright gear, such as the bumper sticker shown above. We also offer Pay the Writer and Strong Copyright coffee mugs and t-shirts.

I wrote all the taglines for the PWAC gear, and provided it (free of charge) to PWAC. In my new business model for writing, PWAC will now continue to pay my salary. You know, hopefully.

Thanks to the excellent blog bookninja.com for tipping me off to what Sheila Heti is up to these days. And now, no doubt, Russell McOrmond will write a long comment. En garde!


Kathryn Kuitenbrouwer said...

I wrote an article for Maisonneuve some years ago and after a long near disastrous back and forth with them about copyright (they essentially wanted me to sign away anthology rights, e-rights etc. for free) we finally came up with some stipend they would pay for use of my article on-line in perpetuity. I will never write for these people again, and this is why: soon after publication they put a paywall up in front of my article, so now they get $$ whenever the thing is viewed, but I get, well, irritated. How is that for fair?

Kathryn Kuitenbrouwer

Joe said...

Can you explain why you used the already-overexposed and well-compensated Sheila Heti as an example of online publishing of printed works?

Quick question: How long ago did I do exactly the same thing? (Who else has been doing it?)

Why is she special? Because you’ve heard of her before, or because you go to her parties?

Von Allan said...

Nice post and extremely well said. 'Course, I have an urge to go steal the entire thing and post it on my own blog, but I'll refrain. :)

And I love the Harlan piece, to boot!


Russell McOrmond said...


I have offered a reply to this article on my own BLOG.

And as always, a reminder: we don't disagree on where there are problems (or that the things you identify are problems), we disagree on the effects of the proposed solutions. I happen to believe the proposals being pushed allegedly by "copyright holders" in the new copyright bill will greatly harm the interests of authors, and make the problems you observe far worse.

Anonymous said...

John you and Russell are comparing apples and oranges.

Russell is comparing the effect of copyright on society to water. Here he is right. Too many restrictions on new creative works by old creators' monopolies reduces cultural content.

You are comparing the effect of copyright on your personal wealth. Here, you are right, The more monopoly power you have over the use of your creative expression and the longer you get to keep that power, the better for your pocket book. Unfortunately the same cannot be said for future creators who try to build upon your and others' works.

See http://www.deathbycopyright.ca for many examples of how current copyright laws damper creativity let alone the new ones being proposed.

John said...

Russell has responded and, as usual, I now have to go do a reading assignment before I can respond to him.

But let me respond to Joe.

Quick answer: I have no idea how long ago you offered your work for free on the Internet. Do I need to know that to make my point?

Sheila is special because when you view her in fading light, she actually glows a little bit. I thought everyone knew that.


John said...

in response to Anonymous, above:

I have the feeling you are trying to make my positon out to be somehow selfish, but that could be an historical twitch I've developed from being called selfish in this debate many times. Let me just stress one point -- talk of "wealth" and writers is absurd under current circumstances. For me the essential starting point for any discussion of copyright is not money; it's respect.

I fail to see how the interest of a professional writer in maintaining limited control over his work robs society or future creators of anything. There are all sorts of ways for another writer to use my work for further creation, while still respecting my essential copyright. Even the more subtle Creative Commons copyright licences are still based in copyright.

Russell's objections are, as usual, well considered and impressively footnoted. My discomfort is not with his views, but with how his and similar views are misinterpreted and bastardized in all too common practice on the Internet -- and I need only point to the "information wants to be free" defense in my original posting. I'm guessing that slogan was not originally meant to help a business person swipe a newspaper article, word for word, and pass it off as original content on a commercial website.

This may be apples and oranges, but I'll stick with my oranges for now because I don't see much mention of them in Russell's footnotes. And, again, I don't think that's a bad thing. His concerns and my concerns belong to different spheres for the most part.

mmmmm, oranges

Russell McOrmond said...


"Anonymous" is right -- we are talking about apples and oranges.

More copyright has absolutely nothing to do with the issues you brought forward in your article as they are already infringing activities. Making more activities into infringements, and making these activities into infringements for a longer period of time, has no possibility of making things better for the examples you gave. The problems you identify won't go away as it is not a lack of "strong" copyright law that is at issue, but a lack of understanding of current copyright (by most human beings), and a lack of enforcement/protection of creators of their own rights (Lawsuits against infringers, not handing over their copyright to some intermediary, etc).

I believe that if you want your copyright to be respected you should be trying to work with our community to make it able to be respected by the people it actually regulates today. In the past copyright only regulated commercial/industrial activity as these were the only people who could afford the technology that allowed for the activities regulated by copyright. Clearly this is no longer the case, and copyright is expected to be understood by everyone.

Currently copyright law is so complex that even specialized copyright lawyers can't agree on interpretations (and you know how many copyright lawyers I hang out with, go to speaker series, attend lectures, and listen to debating). We should all be pushing to have "clarifying and simplifying the act" as the TOP and overriding priority for any amendments to the copyright act.

Clarification and simplification should be understood as the top priority for modernizing the copyright act to take new communications technology into account.

Unfortunately, the "Stronger Copyright" rhetoric can only suggest changes to copyright that will make things worse for creators, induce more people to infringe copyright as it becomes an even less understandable law, and authors will have an even less ability to get paid for their craft.

It isn't about greed in the case of most creators who make very little from their creativity, but lets at least stop making suggestions for changes to the law that will make the current situation even worse.

I'm curious: does the "Strong Copyright" mug have fine print on it that clarifies that this will mean younger creators will get paid less for the creativity that the existing copyright holders "allow" them to create?

John said...


I think we need to make a distinction between strong and stronger. What I do NOT want to see in any new bill is a general weakening of my existing rights under law. An educational exception would do just that, I'm quite certain. Strong for me means unweakened, not necessarily increased.

As a writer I tend to align myself a bit in your camp and a bit in the traditional publisher camp. I don't agree with everything you want, and neither do I agree with everything the publishers want -- clearly, since much of my work as well is dealing with publishing contracts that in my view demonstrate a lack of respect for both copyright and artists.

I recognize, as your blog states, that all Canadian citizens are rights holders, including the users of copyrighted materials. I just insist that user rights and writer rights are different, and that occasionally the writer trumps the user. This is not an absurd or unfair viewpoint. It is the very basis of civil society. Your right to swing your fist in the air ends at the tip of my nose, etc.

Interestingly enough, the concept of user rights has been mentioned by Supreme Court justices in such a way that, had their opinions on the subject held sway (they did not -- I'm talking about the Heather Robertson decision), would have done little more than take money from writers and give it to publishers in a patently unfair contract scenario. That, to me, is an absurdism. And let me state here that I know many publishers who are also strong advocates of writer copyright. Nothing in this debate is as black and white as "stronger is bad."

As to simplifying legal language, you may be dreaming an impossible dream there. I don't think it takes a lawyer to understand the basic concept behind copyright, which for me is if I write it, I own it. Let's start with that simple statement, and then consult the complicated language to understand the limitations and permutations. Sadly -- and I do deal with these cases almost every day -- that simple concept and the call for respect underlying it, are either not understood or studiously ignored by quite a large number of users.

You'll have to work harder than you have to convince me that ownership and access decisions I make about my own writing will take money out of the pockets of younger writers. The alphabet is in the public domain. Have at it.

Anonymous said...

My longer comment seems to still be trapped in the moderation filter (perhaps it's too hard to respond to), so I'll make this one short and sweet.

if I write it, I own it

Sure. I agree with that.

Will you then agree that "If you sell a copy to me, I own that copy" ?

Russell McOrmond said...

Lets start from the end : writing novels is the simplest of copyright situations, but is still one where most creativity builds in some way on the past. Saying the alphabet is in the public domain isn't enough, as far more needs to be in the public domain (and have other limits on works not in the public domain) even for novels. For other works, fair use that included parody and other such things are required (IE: situations where there is public benefit to the new creativity, and where the past creator isn't likely to ever offer permission).

On the other hand, there hasn't been as many lawsuits for derivative works in literature than there has been for movies, and while software and books are both literary works, the issues are extremely different (having hundreds and possibly thousands of authors collaborating on a book is the extreme exception, while having a single author write an entire useful computer program is the extreme exception).

This is part of the reason that the "same copyright" rhetoric you hear far too often (for instance, recently from photographers) is entirely nonsense given the identical wording of copyright law affects different creators entirely differently.

Never sure if my 'camp' is being identified right: I'm not part of the 'knowledge should be free/gratis' camp at all, but the camp that wants independent creators to be offered the freedom to explore all possible methods of production, distribution and funding. I'm on the side of independent creators, which means independent of incumbent intermediaries, but think of myself as a creator before I do a user of creativity.

The focus of the upcoming bill will be WIPO treaty ratification, with anti-circumvention and "making available" (and the wide differences about what that means) being the most controversial. This is an issue that essentially comes down to a media-concentration like issue. The platform monopoly created by putting locks on digital technology (hardware/software -- see the 'two locks' issue I've been taking about for years. New article coming out early next month in OSBR that I hope will summarize well) takes the tools used by creators to independently record, edit/create, and distribute works without the "permission" of the DRM manufacturers. This has a FAR greater negative impact on creators' rights, even though it is primarily people identified with the users' rights side who are fighting against it.

I am curious what in the 1996 WIPO treaties that you as an author consider to be of benefit to you. Is there anything? If there is, I've never seen it, and see the 1996 WIPO treaties as being about things that don't impact Canadian copyright (IE: we already have those clauses), or about things which harm the interests of independent creators. The only exception is the clarification of on-demand in the communication by telecommunications, but Canada could make that change without adopting the nasty anti-creator stuff in the rest of the treaty.

You appear focused on educational exceptions, which in Canada has translated to institutional exceptions. I am as opposed to institutional exceptions as you are, and see them as a hand-out to a disorganized/lazy sector that could solve its own problems if it wanted to (IE: move the majority of the most expensive material to peer production techniques, appropriately paying all the creators in the process, and leaving more money to properly pay the remaining creators -- primarily fiction). Unfortunately the battles between CMEC and Access Copyright completely ignore the interests of either students or creators of educational works. I don't see either lobby group as representing their constituents on this file. I believe that both the CMEC and Access Copyright proposals will harm the interests of the majority of creators.

The "I write it, I own it" thinking is a dangerous over-simplification that leads to many very incorrect ideas about copyright and creativity. While a lawyer will know what is meant by "own" (IE: a bundle of rights that are always subject to appropriate limitations -- yes, I'm listening to the Podcasts of the Property Law courses at University of Ottawa), most people think you mean something like tangible property. Most of the solutions to copyright issues are lost if you make that analogy to tangible property. In fact, I believe most rational conversations are thrown out the window by that analogy: Jefferson Debate: A Godwin's law for copyright discussions?. Most of the type of creativity I am involved with (peer production, etc) is simply impossible to understand with a tangible property mindset.

(As an aside: Have you read "The Wealth of Networks" by Yochai Benkler? Best book I've read, and by the professor who coined the phrase "peer production")

Lets think about your specific examples. I heard the same type of thing at the PWAC conference last year. Writers are upset that their current copyright rights are not being respected. I don't see how asking for "strong" (even if others are asking for "stronger") copyright, with fewer exceptions, is going to solve that problem.

I believe statutory licenses administered by collective societies are the best option in some circumstances -- and this is a form of "weaker" copyright (Transforming an exclusive right requiring permission to one only requiring payment). I also believe that all the activities carried out in the privacy of ones own home (time, space, device shifting, etc) should be carved out of copyright entirely (no permission or payment required in these cases -- note that the Internet is public, not private, in nature so isn't part of this conversation).

These are two broad areas where weaker copyright makes copyright easier to understand, brings more direct payment to creators in one case (Statutory license for non-commercial distribution and mash-ups of multimedia entertainment content, legalizing unauthorized P2P and user generated content with soundtracks/etc), and makes copyright match how people expect it to in the other (Most Canadians actually believe VCRs are legal in Canada ;-).

Sites like YouTube should also be handled like commercial radio, under compulsory licensing. "Strong copyright" only means that this activity causes lawsuits rather than levies, and means that creators get less money rather than more. If it were not for compulsory licensing of a composers copyright to allow recordings of music, the recording industry would ever have existed (performers were considered trained monkeys, and people using recording devices were considered pirates bringing down civilization).

So, what changes to the law do you really think would help solve the problems that writers have actually identified. Do you think making the activities criminal (IE: so police, rather than rightsholders, pursue infringers) is required or even reasonable? Do you think compulsory licenses are required? I believe compulsory licensing should only be used in cases of extreme market failure: do you believe literary works on the Internet qualify, or is it simply an education and enforcement issue?

I'm curious why PWAC doesn't focus on resources to help creators enforce their copyright, rather than being part of the choir that has been pushing for backward-facing things that will harm independent authors such as 1996 WIPO treaty ratification?

Seems that PWAC members need the equivalent of what GPL-violations.org offers software developers who are using that license.

BTW: The Robertson case was a dispute between two copyright holders. It is not at all related to the CCH case that discussed users' rights (which includes follow-on creators' rights). My problem with that case is that I agreed with the minority that were seeking a technologically-neutral decision. I believed the freelance authors should win, but not for the reasons offered in the majority.

John said...

Hey Russell,

If I sell you a copy, you own that copy. Sure. That single copy. Not the right to make other copies and distribute them (unless we've agreed on that). I'm so damn generous along these lines, you don't even need to buy a copy of my work. You can find it in any library in Canada.

As to your long comment, as many editors have told me -- too... many... words... There's so much in there we actually agree on, I think, it's hard to process the argument anymore.

Writers tend to welcome derivatives -- we like to think we sort of invented the idea (yeah, I know - fire, the wheel, etc.).

At the moment, my focus is almost entirely on fighting exceptions. I hate the idea of exceptions to the one right I have that gives me care and control of the product of my work. Abstract considerations of the the meaning of property aside, if the public, user perception of copyright is that it is of diminishing importance in a world moving toward a utopian model of sharesies, then someone needs to explain to me how I feed my twins on sharesies.

Russell McOrmond said...

P.S. I'm not 'Anonymous' -- there are more people than just the two of us actively participating in this thread.

As to 'shareitis', I don't have that affliction myself. As I was speaking with Heritage folks yesterday morning I was very quick to explain that Free/Libre Software isn't about paying less money but directing that money at creators rather than old-economy middle-men. For software I most often use the GPL as it enables my business model, and am not too much of a fan of non-reciprocal licenses.

I guess I worry that saying "strong copyright" has a meaning to policy makers and politicians that may be very different than what you are intending to say.

I'm also wondering if you can create an article possibly detailing what types of "exceptions" you are meaning. Are we talking about the institutional exceptions, or the type of thing we see in Fair Use in the USA? (Which to me would be better to phrase as limits rather than exceptions) Would you support a move to replace institutional exceptions with a robust Fair Use regime?

Geekwad said...

If copyright is oxygen, I guess I'm some kind of freaky anaerobic organism, cos I make my living releasing my work into the de facto public domain.

I guess I am naive, but I thought the point of copyright was to make as much culture available to as much of society as possible. It harnesses the profit motive to accomplish that, but profit is the means, not the end.

John said...


What is your work and what is a de facto public domain? These are questions, not challenges. I'm curious.

The public domain with which I am familiar depends on the existence of a strong copyright law. If there were no copyright, there would be no need for such a term as public domain.

To respond to Russell, yes I am talking about institutional exceptions, and I have nothing against a close examination of our fair dealing provisions (a much better word in my opinion) to make it easier and less prohibitively expensive for, say, a documentary film maker to include quote footage from other films or background imagery from the public sphere that happens to include advertising.

I confess I am not such a copyright geek -- I geek, sure, but there are limits -- that I can quote the major differences between American fair use and Canadian fair dealing. This, in fact, is why I like lawyers. I get to say -- hey, that documentary film difficulty makes me unhappy; change that -- and sympathetic lawyers figure out how to make the changes. That's a well-oiled society, in my opinion.

I object to a regime that allows anyone to circumvent fair dealing concepts like quoting and referencing and parody -- you hear of book authors not being allowed to quote from Hollywood film dialogue because of a pernicious threat of litigation from powerful studios, and that is clearly wrong. For freedom of expression concerns alone. But to me, these are problems of process, not statute. There should be penalties for inducing chill -- large penalties. Why change a law when its only failings can be solved through enforcement?

The Waterkeeper enviro-group provides a great example here -- they find instances where municipalities are not upholding existing protection laws, and they sue them for their failures. Remarkably effective.

On the other hand, I would want to tread very carefully around expansion of use provisions, to make sure the door is not opened so far that care and control of the limted monopoly of copyright becomes completely impotent. I'm not against it -- I would want to be careful with it.

Russell McOrmond said...


We are about to head into a few months of heated debate on a new copyright bill. (See the response to the proposals on CBC's Search Engine)

You are the executive director of PWAC, and PWAC is a member of the Creators' Copyright Coalition which has in the past come out in favor of Canada passing legislation which would allow Canada to ratify the highly controversial 1996 WIPO treaties.

Has the position of PWAC or the CCC changed on this concept?

If not, what in that treaty do you or colleagues believe are helpful to creators? This is an honest question, as I see very little in the treaty that is helpful to actual creators, just helpful to old-economy intermediaries in their anti-competitive battles against new creators.

John said...


Please don't ask me to speak for either PWAC or the CCC on this blog before they have spoken for themselves. Both of those organizations are nearing the point of public statement on proposed legislation, and obviously I've been working the middle of these statements, which are necessarily carefully worded to represent the balance of interests involved in a statement speaking for many, many people doing lots of different things.

Let's wait until there are actual statements before we discuss them -- but I will say that at every stage of writing statements, I have strongly advocated for wording that recognizes all creators and their right to choose business models, and reasonable provisions for user access while still ensuring that the copright holder can be fairly compensated for use.

I hear the concerns of the CBC commenters all the time -- but mostly I hear a one-sided complaint about access, based on a pretty sensational fear of the righteous little guy bullied by the big bad US corporation. Not much concern for how I can make a living as a writer. For example:

What ever happened to owning the things I buy? So if I buy something it's not actually mine? ... What about the school system, i heard they'll be the most hit with this legislation. Is it far to make it harder and more expensive for schools in Canada to gain rights to materials, simply due to complaints from revenue hungry business in the states?

If the general direction of the opposing debate is going to be anyone trying to make money from copyright is greedy, and everyone circumventing the law is a righteous rebel yearning to be free then what's the point?

I am not a revenue hungry business in the States, and yet I too would like schools to buy my written work for their official business, rather than just take it from the Internet. Every good or service used through the educational system is paid for. Why not my good or service?

To me, using that comment stream to represent the user rights complaint is a classic example of the very valid user right agenda refusing to be subtle enough to recognize the rights of creators in a copyright regime. This is NOT all about what can and can't go on your iPod.

Anonymous said...

Unfortunately, that comments stream is pretty much all we users have. The government hasn't asked for our opinion about copyright since 2001. It sounds like the PWAC may have seen the draft bill. We users haven't yet.

Personally, I'd be happy if the law just said "make as many copies as you like of works you've bought a copy of, and disable DRM, too, if you like, just don't let those copies leave your possession".

Basically, let's go back to the point where the copyright ignores regular users and we can go back to ignoring it ! Then the creators and intermediaries can go back to fighting it out amongst themselves.

John said...

Hey, you know what's fun? Talking with an anonymous person who overgeneralizes and then disappears into the mist.

While they are regular attendees at national security meetings, PWAC and the CCC have not yet been invited to see the draft legislation on copyright. But conspiracies are more fun than reality, so believe what you like.

I actually get most of my information the same way any anonymous whomever can get theirs, by reading the paper. That Michael Geist guy seems to have some sources feeding him insider stuff... and what's that, he's a user rights advocate regularly consulted by government?

All that said, I don't think anonymous and I are very far apart at all -- though I hope I exhibit a little more sympathy for users than s/he does for creators and publishers.

How's this sound, anonymous, you can make as many private copies of my work as you like, and move it from whatever medium to whatever else. You can wallpaper your house with copies of my novel if you like. But when you start charging folks admission to see the walls, or students tuition to come and learn from them, how 'bout we have a conversation about sharing the revenue that is based on my work?

Russell McOrmond said...

I wonder if John and Anonymous are having a similar debate to what I saw in the Hill Times this week. Chris Brand, someone who I've been chatting with since 2001 on Digital-copyright.ca, wrote a reply letter to the letter you co-penned. I commented on his letter on my BLOG suggesting that he was thinking as a creator who had simply identified different threats to his creativity.

Maybe 'Anonymous' is in the same boat -- a creator who has identified different threats, and has identified the majority of the changes being proposed to copyright law as a threat to Canadian creators.

I know I can agree that when money is made on creativity, and the creator should get a cut of the material rewards. This is in fact my interpretation of the relevant article in the UN Universal Declaration of Human Rights.

Where we may disagree is what should happen when no money is being made (non-commercial P2P and user generated content), or when the activity is entirely private (IE: software choice and owner control over technology, the bulk of what the new bill will be about).

Anonymous said...

I'm not deliberately over-generalising, and wasn't aware that I had disappeared. Having said that, I'm also not the only "Anonymous" here. I didn't post the "apples and oranges" comment, but the rest are all me.
(BTW, I'm only anonymous because I don't yet another username/password to have to remember).

I don't generally subscribe to conspiracy theories. I based my "sounds like" comment on your words "Both of those organizations are nearing the point of public statement on proposed legislation". I kind of worked on the assumption that it's difficult to draft a statement on legislation you haven't seen. I specifically said "sounds like" because it wasn't clear one way or the other.

Sorry if I've exhibited a lack of sympathy for creators. I'm really not unsympathetic. As it happens, I make my living from creating copyrighted works. In these debates, I tend to try to speak for my needs as a user rather than as a creator, because that's the viewpoint that doesn't seem to get a fair hearing. I do dislike a "give us stronger copyright" stance because it's just so ... selfish.

As for your final paragraph, I'm pretty supportive. I have no problem with you getting a cut of any profits I might make from copies of your works. That particular case sounds sort of like a public performance of your book.

The student thing is tricky. I honestly haven't made up my mind here. I'm inclined to agree when we're talking about private, for profit, organisations. I'm not so sure about the public school system. I can see arguments both ways.

The interesting there is that there's a very strong advertising effect. I remember that high school introduced me to authors that I otherwise wouldn't have read, and that I then went out and bought books by those authors.

That's probably enough words for one comment :-)

John said...

As I mentioned before, I, me personally, am asking for strong, unweakened copyright, not stronger or more copyright. I am asking for a restatement of the principle of copyright as crucial to the encouragement of my creativity.

I think there is room within a strong copyright regime for any number of business models to satisfy both copyright holders and users. I think the market will decide which business models (based on strong copyright) it ultimately favours, and I have the feeling the market will move away from anything that restricts access in any way. This is why I favour licensing or some other as yet undesigned system of seamless access with remuneration for the creator.

As to my perceived threats -- yes the threat of a corporate lockdown of content that makes fair dealing impotent is extremely worrisome, and is on the ground already happening for many creators (and here I include users, academics, profesisonal artists, etc.). I hate it, but I don't attribute its existence to copyright. I attribute its existence to a process flaw, which allows the moneyed few to chill legal provisions out of existence with no viable protection from the courts.

The very same thing happens with libel law. Fair comment and freedom of expression are stifled through abuses of existing libel law. That does not mean, in my opinon, that we should weaken or ditch altogether libel law (which has a very valuable role to play), but that our process should be more vigilent in weeding out the bad actors.

To me the greater threat in the current copyright debate is not the maximalists, whom I believe will be dinosaured out of existence by the marketplace, but the minimalist camp, which in my opinion does not do enough recognition of the incredibly important principle of copyright, which is -- to me, personally, on my skin -- the idea that a person's creative work has tangible value for that person as well as for society, and that the value to the creator should be respected in order to encourage more creativity.

In other words, I never hear from the maximlist camp -- We want to lock down all information and create a totalitarian state of control over human creativity.

But I do often hear from the minimalist camp -- Information wants to be free. Everything should just be in the public domain. Profiting from copyright is selfish.

To me the greatest threat to the principle behind copyright is in extreme minimalism. Extreme maximalism will not stand.

One man's opinion.

Formerly Anonymous said...

Seems to me that the fundamental difference is over the question of how strong copyright is now.

I think it gives too many rights to the creators who have already created and not enough to users and the creators of the future. My examples are parody, reviews, and (time- and format-shifting) copies that I keep to myself. "The Wind Done Gone" is a great example of how today's copyright worked to frustrate the creation of a new work. Combine that with DRM (and in particular any law that forbids breaking DRM even for non-infringing purposes, and you've got a very bad situation for users and the creators of the future.

Personally, I have heard "breaking DRM should be illegal, regardless of purpose", which is clearly advocating granting more rights to rightsholders. Can I interpret your statement about not wanting strengthened copyright as rejecting that position, at least ?

Do you really think that extreme mimimalism has a hope in hell of getting passed into law ? The evidence to date has been that the maximalists write the law (e.g. the DMCA and CTEA in the USA).

Finally, I'm having problems reconciling some of your words :

At the moment, my focus is almost entirely on fighting exceptions. I hate the idea of exceptions to the one right I have that gives me care and control of the product of my work.


How's this sound, anonymous, you can make as many private copies of my work as you like, and move it from whatever medium to whatever else.

The only way I can see that the two align is if the second is a case of an author granting permission rather than a case of a user exercising new rights under copyright law. Is that what you meant ?

P.S. thanks for the "nickname" feature !

John said...

formerly anonymous --

Some day, the world will know your name, I'm sure.

I don't see any inconsistency at all, but that's not surprising because I'm convinced 80% of this debate is semantic disagreement.

When I speak of exceptions, as Russell has clarified, I am talking about large, new, institutional exceptions like the educational exception that, yes, may very well appear in a new bill.

The uses I am happy to see you exercise with my work are, for the most part, existing provisions I love and respect, either covered by fair dealing, or easily granted by the copyright holder through licenses (such as those provided by Access Copyright or Creative Commons).

And, in my opinion, a broad educational exception would be a case of copyright minimalism brought into law. That's a very real potential outcome to this new bill. Furthermore, this minimalism would be far more destructive to copyright holders than any kind of maximalism would be to users. Minimalism attacks copyright at its core principle level, while maximalism just gives a bigger toolbox to copyright holders but does not determine the ultimate effect of using any given tool. If the holder uses the tool for evil, the market will (or should) object and punish the holder. Why does Apple feel okay with locks on their digital music products? Because the market has not significantly discouraged them from that approach. Why are they considering dropping locks? Because the market is beginning to suggest to them that fewer locks are the way to go.

Personally, I think any kind of physical or technological lock is a sad commentary on humanity. But I don't see the right to expect your lock to remain unbroken as some sort of restriction on user freedom. You don't like a technology that contains locks, express your dislike by NOT purchasing or using that technology. Otherwise, respect the lock. As I said before, I think the market will eventually dictate the abandonment of technological locks on most copyright content (but only if a society-wide respect for strong copyright exists).

I much prefer to buy my corn from a roadside money-in-the-coffee-can honour system, and so in summer I go out of my way to make sure I do buy it there, and not in a supermarhet with all those annoying locks on their doors and security cameras making assumptions about my honesty.

Yet I don't particularly think that the existence of those security cameras or locks has any real, tangible effect on the freedoms I enjoy. That's the bargain I have struck with civil society. I'll respect the hours and rules of the supermarket man when I choose to use his supermarket -- but in the summer, when roadside corn is plentiful, the supermarket will miss my business, because it feels so much better to me to be trusted by the farmer. Take that, man!

Shouldn't copyright work the same way? I put my work on the Internet with no locks on it as a kind of a coffee-can operation. My prefered coffee can is a license for re-use. But this wonderful, trust-based, humanity-inspiring system of everybody getting along in the real world is, in my opinion, completely undermined by Utopian copyright minimalism.

Formerly anonymous said...

That's what I thought.

I deliberately chose those examples because I don't believe they are covered by the existing fair dealing provision, but I feel that they should be (and I have talked to IP lawyers about this - they disagreed on the details but did agree that none of them clearly fall under fair dealing).

I don't think it's enough that :
- I'm unlikely to be caught or prosecuted for any of those activities
- the rightsholder might be willing to grant me permission (with a CC-style license, a blanket license, or when asked).

I think it's important to my rights as a user and/or as a creator to be able to do those things legally without any kind of permission. I want the list of exceptions to the rights granted to the rightsholder extended to include those rights.

I don't think the government or the rightsholder has any business saying what I can or can't do in the privacy of my living room (note that if I were to send a copy of a work over the Internet, I don't consider that to be "in the privacy of my living room").

To my mind, that's part of the whole copyright deal - I accept some reasonable restrictions on what I can do with my property in return for the benefit of getting more works created for me to enjoy. These days, though, those restrictions feel increasingly unreasonable. Remember - "reproduction" was not originally an exclusive right granted to rightsholders. It was only added because it was a good indication of "intent to distribute". That's no longer true.

I also find your faith in the free market ridding us of DRM to be somewhat optimistic, given the continued survival of DVD region encoding and the fact that there's way more DRM on both HD DVD standards than on the standards they replace (and yes, I did boycott DVDs for many years). Maybe music and books aren't quite as dominated by a few huge players as movies, which may allow market forces to get rid of DRM in those areas, but I just don't see it happening for movies.

On DRM, my view is very simple - I bought the hardware, so I should be able to do what I like to it, including disabling any DRM. In the US, I wouldn't even be allowed to talk about how to defeat a DRM system (maximalism has already hurt creators) - doesn't that bother you as an author ?

I'm not sure whether to take "some day the world will know your name" as a compliment or a threat :-)

John said...


I think you'll find few working creators interested in controlling what you do in your own home, as long as that thing you do does not involve their work "used" on the Internet or for commercial purposes without permission. It's really as simple as that. And I don't know too many writers who would not support a right of parody (some, but not too many -- it takes all kinds). I'll leave it to the copyright lawyers to decide whether a wholesale shift to US-style Fair Use is the way to go -- and so far the lawyers I've talked to are not in favour. Whichever way we go, if the provisions have the net effect of rendering null the protections then all creators will have a problem, in my opinon.

No-one reading this discussion should mistake a call for strong copyright from creators for blanket support for anything that may appear in the coming bill, and more importantly for any behaviour any other copyright holder engages in with their rights. I am arguing for a principle that I fear is too often lost in the discussion, and that I know from my daily work is already being ignored to the dteriment of writers.

I don't think the market will force the complete abandonment of DRM, but I do see that as a general trend, perhaps too optimistically. Of course, my vision of that does depend on a society-wide respect for copyright, which there clearly is not at the moment. Knowing that, and knowing the sidewalks of Spadina Avenue outside my office are often crowded with bootleg DVD sellers, I remain sympathetic to the concerns of those copyright holders who see their work commercialized without consent.

Certainly, in the case of text, I don't see how the existence of a TPM on a, say, e-book file would have any effect on your right to parody or build from the text.

Russell McOrmond said...


While you and I both have things we might agree on that would improve copyright, this isn't what the next round of copyright revision will be about. We may both strongly disagree with the CMEC proposal to have an educational institutional exception for any material on the Internet, but assuming that issue is in the bill at all, that issue will barely get noticed compared to the anti-circumvention and WIPO anti-treaties issues.

It would be better if these issues were separated into separate bills. I'd like to be speaking with you on many of our shared issues, but that won't be possible for simple priority reasons. Anti-circumvention legislation is so bad for creators (and not just software issues) that really, everything else becomes a minor detail.

For good reason, nearly all the discussion will be about the WIPO anti-Internet treaties.

The political aspect of the debate won't allow for nuances, and it will be reduced by the politicians to useless sound-bites about whether you are FOR or AGAINST the 1996 WIPO anti-Internet treaties.

My view on the treaties and this issue was recently presented on my BLOG in the article: Why am I opposed to the upcoming Copyright bill even before I have seen it?

This gets into an issue you brought up. The debate about "TPMs" isn't really about technical measures that are applied to content (eBooks in your case), but technical measures that are applied to devices (eBook creators/editors/distribution/readers).

Bits of information cannot be made uncopyable -- this is a simple scientific fact. What you can do is encrypt the information such that they are undecipherable without the right decryption keys. What a TPM applied to content can do is impose specific brands of technology that will contain the right unlocking keys. Once the content is unlocked, these specific brands of technology can then interpret your digitally encoded license agreement.

While this TPM on content is anti-competitive and thus harmful to the interests of creators, the vast majority of the controversy relates to the TPM applied to devices.

Fundamentally an owner should have the legally protected right to decide who puts locks on something that they own. They should further have the legally protected right to remove any locks a third party added without their permission. It doesn't matter to me your alleged justification for putting foreign locks on my devices, doing so is wrong.

Disallowing owners from removing these third party locks is in fact what anti-circumvention is all about.

It is important to remember that from a purely technological point of view, creativity and copyright infringement are identical. We record things, you edit things, you distribute things, we access things. There is absolutely no way to design technology to tell the difference, only design technology that disallows people from controlling their own technology.

Disallowing independent creators to create without the permission of a hardware manufacturer is far more harmful to creators than any amount of copyright infringement. This is an issue that should have every creator up at arms!

P.S. I too wish people would use their real names. Hard to have a serious conversation with "anonymous". Google is a very common service provider to have an account with (IE: it is the same authentication for gmail, Google video, Google chat/IM, blogger, etc), and is well worth having at least one account with them.

John said...

Hey Russell,

Whether it gets noticed or not is really of no interest to me -- the appearance of a broad educational exception to copyright will be extremely damaging to an industry I support. I reserve the right to decide which things I most worry about, and this strikes closer to home for me than somewhat abstract worries about my devices.

Perhaps that's naked self-interest, but I would suggest that no matter the high-minded rhetoric that gets thrown aroound, naked self-interest counts for a lot in these debates (which is another great reason to declare wo you are -- a nickname can be a name, no?).

I hear your worries about anti-circumvention, and I've stated my opinion about locks of all kinds. There is a very specific instance where we are in complete agreement, I think -- the third party lock you refer to, which alters pre-existing and pre-owned technology. Clearly, I ain't no techie, but I can tell the difference between locking up something you own, and locking up something someone else owns. I'm happy to let the lawyers fight over the specific instances where that difference needs to be interpreted in practice.

That said, buying something knowing it contains a pre-existing copy-lock is really a case of buyer beware, isn't it? I buy books in the full knowledge of what I can and can't do with them under the law, then I take responsibility for my own actions after that. Can the same principle not be applied to technology?

John said...


I've looked through your interesting posting on WIPO. I advise anyone interested in yet not familiar with the treaty to read it, and most especially to read through the treaty itself, since Russell provided the link.

When it gets to the level of clauses in treaties. I tend to start listening more carefully to lawyers -- and that appears to be a major difference between you and I. Tha's not a judgement -- there's lots of writers who would rather do the law-talking work themselves, as well. I would not, but I found your write-up on the treay interesting.

I have to say though, I am disturbed by this statement, and others like it in your posting:

If the techies were right, then this article wouldn't be a problem. Unfortunately it is lawyers who become judges and interpret the law, not technical people, which is why this article needs to be understood as being a serious problem.

The fact that any law is subject to the give and take of legal process and interpretation by a range of experts and non-experts is not, in my opinion, a serious problem; it is, rather, one of the foundations of a truly free society.

Under the TPM section (or article), you write:

The problem isn't the wording of the article...The problem is that the article has been mis-interpreted in ways which are not connected with the exercise of copyright ... Much of the confusion comes because the people passing and interpreting these articles are not technical people.

If the problem isn't in the law, but the interpretation of the law, and the law actually upholds an important principle (copyright), then why change the law? Why not just fight the nasty interpretations using ll the means at your disposal -- i.e. the EFF suing for DMCA misinterpretations.

I don't know if saying "I do not want to sign this treaty because I fear its articles will be misinterpreted" is a very convincing argument against signing.

Russell McOrmond said...

"buyer beware"

I read that like "author beware" when it comes to draconian contracts that mega-media companies impose on authors. I guess we don't need to worry about copyright revision at all, given we should all trust the floors of lawyers working for the major publishers, right?

Give them the tools to unilaterally set contracting terms fully enforced in technology, and we don't need copyright at all.

I've answered that suggestion before. The first lock (the lock on content) is anti-competative, and that issue is dealt with in our competition act. The "buyer beware" rhetoric would suggest we simply abolish competition and consumer rights policy entirely.

The lock on devices is partly a labeling issue, in that when people 'buy' things they assume that they have traditional well-understood ownership rights. If there is less than regular ownership rights, without adequately labeling, then this is dishonest and should be illegal.

HREF="http://www.digital-copyright.ca/node/3728">Another meaning for DRM: Dishonest Relationship Misinformation

(I include a smaller version of the rental/etc issue in the summary of the ICT property rights petition I give to policy makers)

With the WIPO anti-Internet treaties we are not talking about traditional copyright issues at all, so your suggestion that we should just leave this to the lawyers isn't valid. All copyright is technology law given all the activities that copyright regulates are activities which humans carry out with technology.

Any analysis of technology law requires both an adequate understanding of the law and of technology. The problem is, the 1996 WIPO treaties were largely based on science fiction rather than science. They are premised on technology being able to accomplish things which aren't possible to accomplish in technology.

Our society simply function if we leave all public policy issues to lawyers. They are specialists in the law, and they need to seek to understand and serve the interests of their clients. It is their clients in all domains of our society that should always be in control of the debate, never the lawyers themselves.

You speak of experts and non-experts. The problem is, the WIPO treaties were entirely authored by non-experts who were driven by their fear of technology. You will be hard pressed to find anyone who has any experience with computer security (And other types of real-world technical measures) that agrees with the premises behind the anti-circumvention aspects of these treaties. You will find some, but they are working for companies with a special interest to misdirect the debate (IE: a DRM company wanting to create a platform monopoly), and not people there fighting for the interests of copyright holders or society at large.

It isn't technical people interpreting treaties being critical of non-experts in technology that should disturb you, but the fact that these treaties were authored without the help of (and with opposition from) the technical community where the relevant subject matter experts are.

Formerly Anonymous said...

John, you wrote
my vision of that does depend on a society-wide respect for copyright, which there clearly is not at the moment

Why do you think that is ?

I think it's because the Copyright Act makes everyday activities of ordinary Canadians illegal, so it's clearly a "stupid law". The whole Act gets tarred with a single brush. I actually think that if there was a broad right of "fair use" in the Act, you'd see a lot more respect for copyright than you do today.

Of course, it's only conjecture, but you've already said that you don't believe that most creators care what I do in my own home anyway, so what have you got to lose ?

Oh, and on DRMs, e-books and follow-on works. Parody probably isn't the best example here, but it's certainly much easier to create a book review if you can copy-and-paste appropriate snippets from the text rather than re-typing them. Also less room for error. With music or video, re-typing isn't really an option...

On anonymity - if the "nickname" feature had been here at the start, I'd be using my real-world name. As it is, it probably makes sense for me to stick to the same nickname to make it easy for any other readers.

John said...


I don't disagree with author beware in the case of all-rights contracts. As I said in a lot of my commentary following the Robertson v. Thomson Supreme Court decision, I don't think authors can reasonably ask copyright law to protect them from bad contracts. That's what contract law is for.

I think saying buyer beware can replace consumer rights and competition policy is a serious misinterpretation of the principles I'm advocating. Similarly, I am not saying lawyers alone should design law, but rather that as experts in law the legal and legislative communities should be generally trusted to interpret law based on the design you successfully advocate. That there are disagreements over interpretation is not a flaw in the legal system, but a reflection of the diversity of interests and opinions in our society -- which is why we design Supreme Courts with more than one judge on them.

I stand by my discomfort with your WIPO argument.

Russell McOrmond said...

I possibly made the argument wrong, but I'm not yet convinced.

The issue is not how a technical person would interpret the language of the treaty, but how a lawyer would. It is based on how lawyers interpret their words, the people who are in charge of interpreting it, that I disagree with it.

My argument was aimed at technical people who read those words and understand them differently that they are intended to mean under the law.

The translation of the WIPO treaty text to the text of the USA's DMCA is more concrete. After almost a decade, there are sections that still nobody understands. If you get 3 lawyers in the room, you will get 10 incompatible answers as to what the various clauses mean.

How about something more concrete. I posted a summary of two policy concepts in my critique of Lehman's ideas, the architect of this policy.

Of what I marked as (a), (b) and (c), do you think any of them are of benefit to you as an author, or to the authors you seek to help (in your day job/etc).

I'm also wondering if it can be good public policy to pass laws where so many different people believe they mean different things. One of the purposes of law is to create certainty, but in this case the changes are only bringing additional uncertainty to an already excessively complex area of law.

I guess I also fundamentally disagree with the idea that laws should be written so that you need a lawyer to interpret them. Laws should be reasonably able to be understood the the people who are governed by them, as well as the people who pass them (politicians are generally neither lawyers nor technical people).

John said...


Your latest comment reminds me of some opinion I heard on the radio this weekend. Everyone routinely goes well over the posted 100 km/hr highway speed limit, therefore the speed limit is too low. Clearly speeding is an everyday activity for most citizens, so it's unfair to criminalize it.

I find the argumnet unconvincing, and not just because some speeding jerk cut me off this morning.

Copyright law has not acted upon existing activity to make it illegal. That is simply false logic. New activities have arisen that are requesting exemption from existing law -- a completely different scenario from what you describe, and one that requires careful consideration and negotiation to make sure the law is not neutered. What I hear you saying is change the speed limit to 140 km/hr, and you'll see fewer people speeding and more respect for the law. Having driven the autobahn, I really doubt it.

As someone who makes part of my living from literary criticism, I can assure you that in the actual practice of book reviewing, there is nothing onerous about retyping snippets of text -- in fact, it is generally accepted that re-typing, rather than cutting and pasting, enhances understanding of the text.

Besides, you seem to forget I am advocating for a world where digital text is not copy-locked yet still respected. In such a world, the lazy book reviewer could quite legally cut and paste fair dealing segments to her heart's content.

Formerly Anonymous said...

What a wonderful world if would be if the Copyright Act were as simple to understand as the speed limit ! Everybody understands the speed limit and knows what it makes legal and illegal. People may disagree about whether the number is right or not, but that's as far as it goes. With copyright, I see arguments every day about what aspect of peer-to-peer filesharing is legal, whether fan fiction is currently legal or not, and the like. Plenty of people who try to find out what's legal just give up and decide to "not worry about it" (and yes, plenty more don't even try to find out). Hence, if you make it easy to understand, and easy to comply with, you'll get increased "respect for copyright". If the speed limit weren't posted, and varied by the time of day, number of people in the car, and the day of the week the driver were born on, maybe your analogy would work.

It's actually the assumptions behind the copyright act that are no longer true that has lead to the situation we have today. "Reproduction" is no longer the good indication of "intent to distribute" that it was when it was added as an exclusive right. That's why I find it easy to advocate bringing the law up to date in this respect. Think "whoops ! When we wrote that, we assumed that you'd need to spend tens of thousands of dollars on specialised hardware in order to make a copy, which clearly isn't true any more. Better fix that..."

Yep, as I said, text is easy to re-create. Video, music, and other forms of creativity aren't. You mostly care about text, where "locking it up" is less harmful (to the creators of future) works and easier to overcome.

I didn't forget that you're advocating for a world without copy-protection. You do seem to see that there is harm in having everything locked up. What I don't understand is why you'd then encourage people to lock it up, by making it illegal to break those locks. Surely giving legal legitimacy to those locks says "they are a good thing" rather than discouraging their use.

John said...


I have to say -- the combination of your upside-down logic, and the fact that you insist on no-one knowing who you are and what is your stake in this debate has become quite tiresome. You celebrate the ease of digital technology, yet can't seem to get your head around typing your own name into a comment box.

One of my points about the speed limit is precisely that it is easy to understand -- yet everyone breaks it anyways. But that is not a good enough reason to change or abandon the law, because whether or not people want to go faster there are very good reasons they shouldn't go faster. Refusing to see the analogy is different from disproving it. And really, you sound like a teenager tired of trying to learn guitar. This is too difficult to do -- I want to throw it away.

I've said before and I'll say again -- don't minimize the law to the point of neutering it. Otherwise, what's the point of having a law at all.

Other than the fair-dealing chill I've already spoken out against, what in the current copyright law stops a musician or film-maker from building on the work of other (Russell would say older) creators in their field? I listen to songs and watch films all the time that reference, pay homage to, sample and quote from their predecessors, all of which are legal within limits. Yes, absolutely, threats of litigation make it scary and in many cases financially unviable to try and and do these things, but that is NOT the current law's fault -- that is the fault of a judicial process that has so far refused to protect these fair dealing rights in a meaningful way.

Your point about the locks simply baffles me. You say I'm encouraging people to lock things up by making it illegal to break locks? The two things have nothing actual to do with each other. I encourage everyone to share their food, but I think going into someone else's cupboard without permission should be illegal.

And yes, Russell (because I hear you clearing your throat) putting a lock on someone else's cupboard when they're not looking, or selling food that contaminates all the other food in the cupboard should also be illegal.

You know what actually discourages the locking up of things? Respect for the ownership of the things.

Formerly Anonymous said...

"upside-down logic" ? I'm just starting from a different point than you. I'm starting from "freedom of expressions is a good thing", "the free market is a good thing", "tangible property rights are a good thing" and "government-granted monopolies are a bad thing, but sometimes necessary". Hence, copyright is a necessary evil, and we should have the bare minimum necessary to achieve its objectives. Of course I understand that that's not where you're starting from.

If I had to learn to play the guitar just to go about my daily life, yes, I'd complaining about how hard it is! I don't want to be a lawyer (or professional guitar player). I shouldn't need to get a law degree to know what I can and can't do with the things I buy. It should be simple enough to get right. Hence my idea of "make whatever copies you like, but keep them to yourself".

As for speed limits, although I don't think it's a realistic analogy, this is your playground, so I'll play your game. Lots of people ignore speed limits. ok. So do we blindly increase them ? No. Equally, we don't blindly decrease them, right ? Ideally, we do some kind of study to find the optimum speed limit for each road (recognising that different speed limits are appropriate for different roads). So where are the studies on the optimum level of copyright ? Very few and far between (I think I have come across one, but I can't find it at the moment).

On the other hand, speed limits have changed as technology has advanced. We no longer have to have a person with a flag walking in front of our cars, for example, despite the fact that that system worked well when cars first appeared.

Now, this does tie in nicely to DRM. It's easy to enforce the speed limit - just fit a speed limiter to every car and prohibit tinkering with it. Why don't we do this ? Because it is an unreasonable interference with people's tangible property rights.

For the more general DRM stuff, it's tough to argue with regards to text, for several reasons. DRM on text is just so trivial to overcome (re-typing, scanning and OCR, etc) and there are enough competing players and formats that there is room for customer choice to have an effect. Unfortunately, those aren't true for movies (music falls somewhere between the two).

Yes, I think saying "tinkering with X is illegal" legitimises X, and might make people who hadn't previously considered using X now consider it. I'm trying hard to come with an example, and failing miserably. The government just doesn't often tell us what we can and can't do to the things we buy. The closest I can come up with is tampering with the odometer in your car, but there the odometer is mandatory.

Oh, and I thought I'd made my stake clear - I do create copyrighted works for a living, but I try to represent the users' point of view in copyright debates.

And now I'm going to write to my provincial minister of education to urge them not to press for an education exemption. You see, I'm really not the enemy here.

John said...


I don't see you as the enemy -- just as a strange and mysterious, anonymous poster I more and more believe is Russell McOrmond writing in disguise. If not, you two should get together. You're like long lost twins.

Please don't position me as starting from somewhere other than freedom of expression is a good thing. I do too much work on that file every day of my life to have you pretend it's somehow not on my radar. It's this kind of ridiculously inaccurate rhetoric that is turning the current user rights protest into a circus. Look! Jim Prentice was surrounded by a mob and he appeared nervous! That proves he's in the pockets of American corporations!

Freedom of expression cannot be used as the one-size-fits-all rallying cry for everything consumers want to do with their iPods.

We do use speed limiters, on commercial trucks, and it's highly illegal to tamper with them, for very good reasons that an informed society does not seem to object to. For the rest of us, we use enforcement, which is also accepted. In Ontario, if you go fifty K over the limit, they take your tangible property away from you. Do you disagree with that?

You keep saying "make whatever copies you like, but keep them to yourself," as if that's what we're talking about. No-one I read on the user side is actually asking to do just that. And I quote from Kinch blog, one of your own (maybe even you?????):

They (the Canadian Music Creators Coalition) want to go after the people making profits off of their music illegally, but they don’t want to sue fans that are simply ripping music of their CDs and putting in on their iPod or sharing it with some friends.

I'd bet, even if you actually talked to the CMCC, they'd want a clearer defintiion of what is meant by "some friends." Again, don't minimize the law into impotence.

Finally, a question for all the anonymouses out there -- without strong copyright law, how exactly would the CMCC "go after the people making profits off of their music illegally"?

Gosh, how would we even be able to define what is illegal without laws?

Russell McOrmond said...


No, it is not me in disguise. While I've been accused of trying to promote my name too much, this is the first time I've been accused of being anonymous ;-)

In fact, I haven't really been reading the comments written by 'anonymous' as I tend to only want to have conversations with people acting as Citizens. Aliases/anonymous/etc makes conversations relatively useless to me.

You also know that I think of myself as a creator first, and an audience second, and when I personally talk about "users rights" I'm talking about either follow-on creators' rights (which we both agree with -- you likely also support a parody exception) or required limits to copyright to protect the privacy or property rights of audiences (IE: Fair Dealings to allow time/space/device shifting, right to circumvent DRM for non-infringing purposes, no restrictions on devices, etc).

When I do glance at the threat it seems like Anonymous and you are talking about entirely different things. Hard to have a conversation that way.

Russell McOrmond said...

I have to bite my tongue every time you say "users rights". You complain that people start conversations with you thinking you are allied with the RIAA, MPAA and Microsoft, and yet you seem to define creators who have opinions different than you as being from a different side of the debate (Some "users rights" side you have a personal definition of).

My understanding was that the event this weekend in Calgary was largely attended by creators. The primary organizer is a software engineer and documentary film maker, most of the publicity came from Cory Doctorow (A science fiction author!), and there were visual artists, musicians, writers, and others.

Many people reading this are going to wonder why you put people like Cory Doctorow (a science fiction author) and Steven Page (famous singer/songwriter) as being on some "other" side of the copyright debate. Many of us believe that these individuals represent the interests of creators far better than the groups who go to parliament as "creator groups".

David Sarnoff said...

Freedom is the oxygen without which science cannot breathe.

John said...

David Sarnoff,

Thanks for the enigmatic aphorism.

Clearly, no copyright law can be a one-size fits all proposition. I do so hope you're not saying that I hate your freedom.

John said...


There's absolutely nothing mysterious about your perception that I am putting Cory D. and Steven P. or any other fellow creator on the other side of anything. It is because this is a complex discussion and not something that can be easily defined by answering the question which side are you on? I'm on both sides, er, all three sides. You actually know that, so making suggestions about me not understanding the sides is starting to look like something other than clumsiness.

My current blog posting is all about how I agree with Cory Doctorow on some things. I like to think I agree with him on a lot of things. I've been a fan of Page's music and his ideas on the importance of fans for a very long time. But, I do think I can still have nuanced disagreements with these folks. Cory calls himself a consumer advocate, by the way, so I think his user rights ideas on consumerism are fair game, no?

Russell McOrmond said...


We shouldn't think you hate our freedom, any more than you should think that we disrespect your copyright related creators' rights.

Much of this discussion is based on people talking about entirely different things, and only appearing to disagree with each other.

Only when we move away from these big vague philosophical statements down to actual concrete policies (exact proposals to deal with educational use of the Internet, modern communications technology, on-demand electronic publishing, etc) can we ever determine where we agree or disagree.

Russell "I am a creator's rights advocate first, and a users' rights advocate second" McOrmond

Russell McOrmond said...

If you want to have a nuanced debate, then put forward a nuanced position. Your most recent comment on Facebook against fellow novelist Charlie Angus was anything but nuanced. There was absolutely nothing he said that suggested that you "stupid artists will now go away and try to figure out whether or not we add value or relevance."

That is about as nuanced as suggesting amputation as a solution to a paper cut.

When I am talking about the rights of technology owners, I can be seen as a Consumers advocate as well as the actual owners of technology are considered "consumers" of that technology. This is how I understand Cory's commentary, not as someone trying to revoke existing copyright related rights.

While the WIPO Internet treaties confuse technology ownership issues with traditional copyright issues, I see them as separate issues. My belief in IT property rights does imply limits on adding new rights to copyright holders (IE: that copyright holders should *not* have the exclusive right to choose brands of access devices), but is otherwise entirely separate.

John said...


You have completely misread my Facebook comment, which makes me think others have as well.

The remark about stupid artists and adding value and relevance were what we users of copyright like to call references to other works, building our own creativity out of what older creators have left for us. In other words, I was quoting almost word for word from other commenters on that stream. It had nothing to do with Charlie, whom I thanked in earnest for raising the topic of the songwriters' proposal.

The point of my quotations is to once again showcase the extremism on the user rights side. I say again that neither Doctorow nor Geist goes anywhere near far enough toward tempering that extremism. In fact, in my opinion, they are using it to spread the word on this bill -- a practice I find ethically reprehensible, and in this case distinctly anti-democratic.

I completely agree with you that we need to stop making broad statements -- like for instance this is about them taking our freedom away!, the government is responding to pressure from their American masters!, etc.

How do we get down to brass tacks? We introduce legislation and then force this minority government to work with a divided Parliament to pass something that works for all Canadians.

John said...

I'm going away from this blog for awhile -- to celebrate my birthday, and take care of my kids for the weekend.

To make sure any talk I miss gets recorded, I'll remove the moderation from my comment streams. I apologize if that results in SPAM, which can happen with this service.



Russell McOrmond said...


Conversations can wait until you return. My advise to you would be to keep comments on moderation, and just do what you did which is indicate that you won't be able to approve them for a while.

Thanks, and will continue this later.

As to involving the public, I blogged about that earlier today.

Canadians have already said NO to WIPO Internet treaty ratification!

Clearly the government is ignoring the views of Canadians, so getting more people involved is necessary. The time for being nuanced is gone when the government ignores all those nuances.

We can discuss other things, but given that the only thing we knew about the bill was WIPO Internet treaty ratification, that was the only thing we could support or oppose that would make sense. Everything else (from all sides of the debate) was really premature or off-topic in the context of the upcoming bill.

Formerly Anonymous said...

Happy, birthday, John, and thanks for keeping this conversation going.

My last comment seems to again have disappeared into the moderation filter, which is a shame, but I'm still following along and learning all the time !

Anonymous said...

Russel, the public domain "depends" on copyright the same way that freethinking "depends" on superstition.

I write software. By "de facto public domain" I mean public licenses (BSD, MIT, GPL), and occasionally the actual public domain. If it is a significant work, I will use a real license, usually the BSD license. If it is trivial, I'll simply preface it with, "I disclaim all rights to the following." (I am not interested in the legality of that.)

A question for you. You said you think the essence of copyright is, "I write it, I own it." How would you argue for that right? Why should being the first person to write or fix an idea come with the authority to dictate what others can do with it?

You seem to think this ownership is just a natural right, and copyright simply codifies that right. I strongly disagree. The natural right would be to exploit all of my knowledge. Copyright doesn't grant rights to creaters, it takes them away from everyone else. This is judged to be best for society overall -- not necessarily for creators or users. Since we're taking rights away from people, we have to be as selective as we can to still achieve the desired result.

I hope you will respond to the question because I think it might illustrate some fundamental differences in our starting values.

Geekwad said...

Pardon, that was from me.

John said...


I think you illustrate an unfortunate and very common misconception about writers and their copyright.

you ask:

Why should being the first person to write or fix an idea come with the authority to dictate what others can do with it?

And I respond:

I don't know any writers who expect copyright on their ideas. Copyright applies to the expression of the idea -- the text. These are very different things. I fail to see how a limited monopoly over specific expression takes anything away from everyone else.

You see, Russell? As nuanced and specific as you want to be -- this idea that copyright locks away ideas persists.

Russell McOrmond said...


I think John Degen will find it amusing that you confused the two of us.

I too am a software author, and specifically a Free Software author. See CSIA (Canadian Software Innovation Alliance), CLUE, Bob Young and I for some of the groups I'm involved in.

That clarification made, I think it only confuses the differences between public licenses and the public domain by using the phrase "de facto public domain". As an example, the GNU General Public License (GPL) is an aggressive license, and one that is agressively enforced. While GPL-licensed software is available royalty-free, and the average person just using the software wouldn't be interested in doing anything that would violate that license, there are considerable obligations on those who make and distribute derivative works. Those legal obligations are enforced using the same laws and courts that a "proprietary" software owner would use.

One major difference is that a proprietary software owner would primarily be going after large numbers of private citizens violating their complex licenses, while publicly licensed software owners would be almost exclusively be going after a tiny number of commercial distributors (who have lawyers who could trivially understand the licenses).

Geekwad said...

Apologies to John AND Russel for getting you confused.

Russell McOrmond said...


In the mail today I received a copy of Canadian Copyright: A Citizen’s Guide by Laura Murray and Sam Trosow (Links on Laura's Fair Copyright website)

When I get a new non-fiction book I like to jump to the Index at the end to get an overview of the types of topics that will be covered.

A line jumped out at me:

"McOrmond, Russell, 112"

On page 112 is a reference to a comment I made to the CopyCamp website talking about how DRM only decreases respect for copyright.

Laura and Sam put it this way:

"In other words, if consumers face hurdles to the reasonable use of materials that they have legally acquired, they will feel no compunction about leaping these hurdles, even if it becomes illegal to do so. McOrmond argues that DRM reduces consumers' respect for copyright."

Here is a key part of the debate which we seem to disagree on (both here, and in the other thread about the commission). The more radical the proposals being made to copyright (with paracopyright, AKA anti-circumvention, DRM, being outside of and beyond copyright), the more harsh the response will be (both against that specific policy, but inevitably against the concept of Copyright itself).

Geekwad is a software developer who, like most software developers, is seeing what he legitimately does (as a software author, and a hardware owner) coming under attack. We see draconian laws against our form of creativity being proposed (IE: all current or potential interpretations of the WIPO Internet treaties that have been released thus far).

I doubt if he would have such an emotional reaction against what you are saying if these proposals against our creativity had not been floated, and seemingly supported by people like you and Chris.

This is why I believe your "copyright=oxygen" suggestion can only backfire, and simply breed more disrespect for the interests and existing rights of authors.

You reap what you sew, even if you don't realize you are sewing anything at all.

It is unfortunate, but those of us who have a respect for fair copyright will also feel the brunt of the backlash which we have been trying so hard to help avoid.

geekwad said...

Copyright can also be applied to formal expressions, where there essentially is no difference between an idea and its expression. You cannot faithfully reproduce the idea without faithfully reproducing the expression. I admit that's a really rare case for most people, but it exists. I probably run into it more since my audience isn't human.

A more mundane example might be better. Copyright protects fictional characters and settings, and those are purely ideas.

Rowling had the idea for a school of some kind called "Hogwarts". Or something. I had the idea that Middle Earth and Rowling Land are actually different parts of the same world, with ensuing hilarity. That's not Rowling's idea or Tolkien's idea, that's my idea. Except, I'm not allowed to realize that idea. Or at least, I'm not allowed to do the same things with that idea that I can with some other idea I might have.

I know copyright does not protect all the ideas contained in a work, but it does protect some of them, so I think my question can still be addressed.

Also, I'm all too aware of how far the GPL is from being like the public domain. I don't use it, I just mentioned it because it is the only license that most "normal" people would have an outside chance of recognizing. I think you'd agree that the BSD and MIT licenses are as close as you can get without disclaiming copyright.

John said...

It is unfortunate, but those of us who have a respect for fair copyright will also feel the brunt of the backlash which we have been trying so hard to help avoid.

I'm sorry, Russell, but try as you may you can't make me feel guilty for advocating for strong (again, strong not stronger) copyright for writers in the digital world. Everyone in this discussion has to accept some hard truths and stretch their understanding a bit. If this backlash you fear is unreasonable -- and some of us already feel it is -- then those lashing back will have to do some stretching as well. No one is exempt.

And gw, I believe, rather strongly, that there are all sorts of fair dealing ways you could build on the work of Tolkien and Rowling. See here:


Russell McOrmond said...

"I'm sorry, Russell, but try as you may you can't make me feel guilty for advocating for strong (again, strong not stronger) copyright for writers in the digital world."

Well, we have looped full circle again.

You state you are advocating for copyright not to be weakened. I agree, and say that the worry is about WIPO Internet treaties. You say there is no threat here, that I should stop worrying, and clarify that your preference is Canada ratify the treaty. I ask you how that can possibly help you, and talk about how it will harm all creators. You state you have problems that must be solved. I state that current copyright law solves those problems, and state that WIPO Internet treaties will make problems worse. You state you are advocating for copyright not to be weakened. (Infinite loop).

I don't think any "royal commission on copyright" can solve the fact that we can't seem to get out of this infinite loop. I don't know if I will ever understand why you support the WIPO Internet treaties even though they will offer you nothing (and doesn't relate to your suggestion you are advocating for copyright not to be weakened), but that is the state we are in.