Thursday, June 19, 2008

a welcome voice of reason

You can see by the comment stream for the posting below this one (145 comments and counting) that since the introduction of the copyright reform Bill C-61, opinions have not drawn much closer together on this topic. Discussion is good and necessary, though I often despair that so much of it is so radicalized and skewed.

Thanks then to Giuseppina D'Agostino, an assistant professor at Osgoode Hall Law School for her reasoned and balanced response to C-61, published today in the Toronto Star. Read the full op-ed at the link above, and here are some highlights I'm fond of:

Canadians should welcome C-61 as an opportunity to engage in a fuller and more informed debate, something that of late has been absent.

A range of stakeholders should come to the table in good faith and spell out clear guidelines, as signalled already by a key 2004 Supreme Court decision on photocopying practices. Avoid litigation. Encourage best practice.

...We need to think beyond our iPods and sound bites. Our current copyright framework is not working. We need to fix it.

And for those who worry that any words of welcome for C-61 indicate little more than acquiescence to corporate (American) puppet masters, I have consulted with Ms. D'Agostino a number of times, and never noticed any strings attached.

16 comments:

Russell McOrmond said...

"Our current copyright framework is not working. We need to fix it."

That sounds like the call for the Copyright Inquiry we have all been calling for for years, not a suggestion that C-61 is a reasonable step forward. It is even a step backwards from what was in C-60 which focused more on the WIPO policy than the NII policy.

C-61 is primarily a Canadian port/codification of the Clinton/Gore NII policy from 1995. It is not US bashing to be honest about the origins and contents of C-61, and to suggest otherwise rejects the need for an informed debate on this complex topic.

Not surprisingly, I suggest that the paragraph of the article that set the tone (and my disagreement with the tone it sets) is:

This bill begins this job, first addressed in Bill C-60. That bill, the result of formal consultations, died on the order paper when an election was called in 2005. This bill similarly proposes to modernize copyright law and ratify the Internet treaties Canada signed nearly 12 years ago.

Bill C-60 was not the result of formal consultation. The existence of consultation in 2001/2002 doesn't mean that the bill was drafted based on those consultations.

Ratification of the 1996 WIPO treaty doesn't "modernize" copyright law, it picks a specific policy direction that was nearly universally rejected in those consultations.

EccentricCanadian said...

"Canadians should welcome C-61 as an opportunity to engage in a fuller and more informed debate, something that of late has been absent."

Absolutely

"A range of stakeholders should come to the table in good faith and spell out clear guidelines, as signalled already by a key 2004 Supreme Court decision on photocopying practices. Avoid litigation. Encourage best practice."

That's what everyone sensible wants at the moment.

"...We need to think beyond our iPods and sound bites. Our current copyright framework is not working. We need to fix it."

Huh? These are the very things which prevented this bad bill from getting passed without a peep. Without sound bites and concern for what is going on nothing would have been done.

You know for a person who decries comic books portraying evil villains and good guys, why aren't you saying the picture that Toronto Star used of a thief on the link you provided is in bad taste?

EccentricCanadian said...

I'm going to go with this sort of "reasoned and balanced response" to answering people's questions, instead of your link John. You know, the type that actually answers questions.
http://www.theglobeandmail.com/servlet/story/RTGAM.20080613.wgtcopyrightchat0613/BNStory/Technology/home/?pageRequested=all

Now I know my fears, in my previous comment in that 158 comment area, about whether it was $500 per downloaded song were wrong.

EccentricCanadian said...

Awesome it cut off my link

Jeremy deBeer answers your questions

John said...

To be honest, eccentric, I tend to read the words rather than look at the pictures, but since you point it out, yes, it seems unhelpful. I'm glad Ms. D'Agostino didn't draw it and include it there herself. Now, how do you feel about that comic book?

And thanks for the Globe link. It was interesting, and I think illustrated well Ms. D'Agostino's opening point that "creators are often lost in the mix of what is now a contest between users and owners." Not a whole lot of discussion of the content creators in all that talk of what will happen with my DVDs and TIVO, etc. Of course he did tow what can only be called the University of Ottawa party line in referencing the few artists who have focussed on fair dealing limitations over the many, many who think both fair dealing AND strong creator copyright are important.

Does he actually advance the position that unlawful P2P is justifiable because of the "frustration" some consumers may feel when some, not all, content is locked? Yikes.

Russell, I'm sorry your opinions were not reflected in either C-60 or C-61 (though rereading this bill, there certainly are a LOT of things the Fair Copyright folks were asking for in it), but it's just flat out sour grapes to suggest you didn't have a chance to have your voice heard.

Legislators disagreeing with you is very different from them not hearing you. In fact, from all the press and letter campaigns Geist generated in the last six months, is there even a chance these particular legislators heard much of anything other than those opinions -- yet the complaint remains that gov't is only listening to American corporations.

I'm fairly confident the CCC platform was read and considered in the drafting of Bill C-61, and much of it was dismissed and/or not used. Thems the breaks. Now I go back to my drawing board and suggest amendments to the bill.

John McFetridge said...

From the Globe article:

1. Let's say I have purchased a DVD from the store (Alien, for example). Under the new law, am I able to rip this DVD for viewing on my iPod Classic?

Finally I get it. Hollywood is your dealer and you just can't say no.

They want you to buy a second copy to watch some cheesy Hollywood movie on your iPod and you can't just say no. You are the 51st State, suckling at Hollywood's teat, of course they treat you like crack addicts.

At least Darryl mentioned Shakespeare. Holy crap, Alien on an iPod?

Okay, really, this isn't an issue at all. I'm far more concerned who TFC is going to get from Chicago for the rights to McBride (not thatthey have anybody we want) and a box full of my new books arrived from the US publisher today, so I've got to go, but, man, I can't believe it, Hollywood movies on iPods....

Russell McOrmond said...

"box full of my new books"

I think if it were physically possible for a book publisher to (even without the permission of the author) specify what brand of eye glasses you had to use to read that book, or had price discrimination based on eye colour, you might finally understand the issue.

These eye glasses will of course disallow you from looking at things that the glasses manufacturer doesn't want you to look at (whether legal or otherwise), and the law says that if you take the glasses off to look at lawful things you are accused of "circumventing a Technical measure" (Eye glasses would be mandatory, and not wearing them would be be considered sufficient evidence of being a lawbreaker).


The digital issues we are talking about in C-61 will be foreign to physical book authors, a medium where the restrictions proposed are physically impossible.

John McFetridge said...

Yeah, the eyeglasses thing is true. But why?

Publishers know how to sell books, no doubt about it. They do nothing to limit the size of the potential consumer base, they offer products in a variety of formats (my box contains hardcover and paperbacks) and prices. Of course, to their credit, they've been at it a long time and it's taken some working out.

Some other industries seem to be having trouble working out ways to sell their stuff - even though there are huge amounts of people who want to buy the stuff.

I'm confident capitalism will work out the marketplace, afterall everybody involved - buyers and sellers - want it to work.

Perhaps it won't work in a way that is satisfactory to you, but one that is to the vast majority of consumers - those consumers may make what you consider to be terrible choices, well that's life, I still can't believe people are paying good money to see The Hulk.

You may want to take a good hard look at why legislators are looking at your recommendations and rejecting them. I think you have some really valuable stuff to bring to this issue and it would be a shame to lose it all.

John said...

I agree -- but I'd recommend against the eyeglasses analogy. It sounds like someone has been reading Cory Doctorow where the only eyeglasses allowed are made by Paranoia Inc.

Russell McOrmond said...

Each of us have our own idea of what is failing and why.

There is this perception that we have a marketplace where there is a big "Buy now" button available for something, and that people are choosing to take rather than buy.

You see it in the analogies to "you wouldn't go into a store and steal what you want". This is an analogy to the "product" being of the identical availability and quality, with the only difference being whether they pay for it or not.


I simply don't see it. We have to compare apples-to-apples in the conversation, and in far too many cases the "take" stuff is far easier to find and of much higher quality (DRM radically lowers the value of the material) than the stuff available to buy.

I would like to believe that "capitalism" will eventually work this out, but there are non-market forces at work here. When the legal owner of something switches from thinking how to get as many people to pay for something to thinking about how to stop people from accessing without payment, fewer payments will be possible. Their fear of the non-paying audiences is driving them to reducing the quality and availability of the legitimate sources of their material.

Our experience of the last 20 years has been different and you believe that the walls around the legitimate sources came up "after" some mythical fence fell around the candy. That mythical fence did not fall instantly (it happened over time), and the walls were being built long before the vast majority of people even knew there was candy.

But maybe that history doesn't matter.

Todays reality is that there is "candy" sitting in front of people

- one pile is sitting behind a big wall, and an increasing amount of the candy is rotting and festering.

- another pile is sitting in a pile with the reminents of a fence, and is perpetually fresh.


In this situation, is it really that wrong for some people to accept the free candy -- legal or otherwise?

JohnD,

I've been using the eyeglasses analogy for years, before I became a fan of Cory. I'm also not alone, with folks like Prof. Steve Mann of University of Toronto using digital eyeglasses to demonstrate the human rights implications of allowing anyone other than the person wearing them to control those glasses.

I know that some of your folks like to personify your political opponents into a few people, but there really are hundreds of thousands of us (and growing every day) who are coming to the same conclusions about what is right and wrong on our own.

And you can obviously tell who I think is being paranoid, and who I think is being rational. There is far more provable harm by allowing technology to be under the control of third parties than there is of offering citizens a choice between paying for something and breaking the law -- when all other things are equal (IE: same availability and quality).

John McFetridge said...

Is it possible then, Russell, that there will simply be two parallel systems available?

Some people will try and sell stuff, other people will make stuff freely available? People will make their own choices.

Books are what I know, so I'll use that example. It seems to be working fine now that some people prefer to sell books - online or in stores, and others prefer to make them (or the 'text') available for free. Choose whichever ones you want.

Isn't this working for software now? I have bought some software and I use some freeware. I've made my choices and they've all been legal.

The only issue here seems to be trying to find one system for everything and we've seen that's impossible.

Or trying to retrofit stuff that was once offered for sale and will continue to be - this is why history is important.

Couldn't some people just ignore what they feel is being improperly offered and create new stuff and offer it the way they want?

The "legal or illegal" is only an issue for some stuff. If people just ignored that stuff, and had no "illegal" requirements on the new stuff they offered, wouldn't that work for them?

If putting too many restrictions on things is a bad business model, it'll fail. Or, I should say, it will only survive if competing models are outlawed, but is there much of a movement to stop people from making stuff freely available? (I acually don't know about this and it's an honest question).

I can still find plenty of freeware and free music and free books. A few things I actually like (well, not so much in the books, but some of the music is okay).

John McFetridge said...

"There is this perception that we have a marketplace where there is a big "Buy now" button available for something, and that people are choosing to take rather than buy."

There is SOME of this going on though, isn't there?

I am one of the few people who prefer 70's Rolling Stones to 60's Stones. I just had craving to hear "Emotional Rescue" (in fact, I'm going through a phase of reconsidering the whole disco era) and discovered I could buy it from Puretracks for a buck or I could download it through Limewire for free.

I chose to listen to it on Last.fm - which made some odd choices for similar music after "Emotional Rescue" finished - but got me exactly what I wanted.

I think this is a very solve-able problem if we're completely honest about what we want. Of course, we may have to make some compromises or sacrifices - so far the "pure" systems the world has shown us have all been disasters.

Russell McOrmond said...

"Is it possible then, Russell, that there will simply be two parallel systems available?"

I don't see how that is two systems, any more than someone charging $1 and someone else charging $5 is two different systems.

The 'unit' that people use to charge is different for different people with human creativity. For some people the unit is hours (that is my unit for my business), and for others the unit is number of copies (traditional royalty model), and for others is is number of people (IE: they don't count copies, or even number of documents/files, just the number of people who have access to the given repertoire. Some collective licensing models even use this unit).

I don't see these as different systems, just a range of choices for creators within the marketplace.

I think that there is a serious problem when we enact policy that creates a preference for one of these options over all others -- which is my reading of C-61.

"Isn't this working for software now?"

It was working well for software. The problem comes when vendors using the "copy" as their unit of monetizing software lobby for laws which make any other unit impossible of impractical. One example is software patents, with patents being based on tangible objects where the physical item is the logical unit. I have made proposals to the government to reduce this harm.

Another is legal protection for interfaces -- interfaces between software and humans, software and hardware, and between different software (within a computer, or over a network). Legal protection for the 2 digital locks we oppose being an extreme example of this (locks on content to mandate brands of software that can access, locks on devices to disallow the owner to make software choices). New software must be compatible to the interfaces of existing software, or it has no value to the potential user -- this is why computing interfaces should never be offered legal protection.


"If putting too many restrictions on things is a bad business model, it'll fail."

Agreed, but how do you differentiate copyright infringement from a failed business model? None of the statistics you see from the BSA/CAAST (software) or RIAA/CRIA (Recorded music) or MPAA/CMPDA (movies, television) differentiate people legally switching to alternatives, people disengaging from the market, and unlawful copyright infringement.

If bad business model choices were allowed to fail, without those individuals/companies being able to go crying to the government for protectionist policy to protect their business model against perfectly legitimate and otherwise lawful competition, then most of the current debate would be far more calm.

"There is SOME of this going on though, isn't there?"

Yes, there is some, but we have absolutely no clue how much that some is.

It is emotions, not peer reviewed science, that has suggested to many people in the debate that deliberate infringement of something with the same availability/quality available commercially is a majority.


There was a specific book author I had a conversation with back in 2002 that kept talking about how there was so much infringement on the Internet. I asked her if she knew of any example of infringement of her books. She said she never looked, for fear of finding any.

I looked as hard as I could, and found nothing other than book reviews (which were quite positive) and various methods to legally borrow (from libraries) and buy (from online bookstores) her books. I could find absolutely no example of infringement of her books.

But the fear still exists, and no amount of scientific studies seem to calm down the fear. I have to admit that I don't understand this phenomena, and feel largely helpless to deal with it.



I'm not going to say that infringement doesn't happen as it clearly does. One area of rampant infringement where people are choosing to infringe rather than pay or accept legally free alternatives (of similar and sometimes higher quality) is in software. This pisses me off beyond my ability to articulate in words. People infringing the software copyright of BSA members actually hurts Free/Libre and Open Source Software companies far more than it hurts the BSA (Look at "Competitive threat" in my submission to the Industry Committee study: Counterfeiting and Piracy of Intellectual Property).

This problem is greatly amplified in that the proposed "solution" to this infringement is far worse to the actual victims of the infringement (which is competing software authors, not the owners of the copyright) than the infringement. These "solutions" greatly harm the business methods solution to the problem. This is clearly not in the interests of software authors, only a tiny subset of corporate intermediaries.

John McFetridge said...

"The 'unit' that people use to charge is different for different people with human creativity. For some people the unit is hours (that is my unit for my business), and for others the unit is number of copies (traditional royalty model),"

Yes, this is basic economics. As I said, it was 1981 when I took economics at university, so I'm rusty, but the principles haven't changed (no matter what e-commerce profs would have you believe). Value is accrued to something by the willingness of others to aquire it.

Money is universally used as a representation of that value (don't go looking into the vast webpages of the gold-bugs, soon you'll be seeing stuff about illuminati and lizard-people). So there's a step beyond 'hours' and 'units' to get to value.

Value isn't arrived at by the offering or the 'charging' (of either hours or units) but by the aquiring. You can offer something at whatever price you want, you can 'charge' whatever you want, but if there's no buyer there's no value to anyone other than yourself. Value isn't set by the seller, but by the buyer in choosing to buy or not (if there's no choice, like medical procedures, then we need some serious regulations).

That seems to be the central confusion here. How something is aquired changes, but that it's in the aquiring that value is accrued doesn't.

In terms of artistic endeavors, there are currently two systems active, two types of public domain (and therefore two types of copyright).

There's the old-fashioned, lifetime+70 years until public domain in which a lot of art currently resides and there is a new public domain in which art is entered into immediately.

These two systems can and do easily co-exist. I have a couple of novels in the former type and many short stories in the latter. I can chose which system to enter my work, and I'd like to be able to retain that right. It's not an either/or situation (no matter what Darryl says, if he's still reading here ;)

Now, I have no idea if this can work for software or other functional creative work. That may very well be a whole seperate issue, and I suspect when you mention the difficulty in tracing the original work that it is completely different.

I would say from my personal experiences, you're right authors worry way too much about infringement. That may go hand in hand with people who spend so much time with metaphor and symbolism and grand themes, I don't know. I also have felt from my experience, that when it comes to artistic works, people over-react to the 'locks' being applied. You're right, it would be nice if there was more calm in the discussion. I still feel seperating it into more than one discussion would really help. Artists have spent a long, long time working out the subtle differences between inspiration, homage, satire and plagarism. They bump up against each other about as often as infringement is an issue and we've worked out ways to deal with it. As long as new art is being created, it'll be an issue but the whole concept shouldn't simply be tossed out.

So, I do think it would help a lot if you could get more control of this debate, Russell, because looking at something like the Globe article for example, the first mention of content is some Hollywood movie. It's very difficult when the content discussed is American to not be looked at as the 51st state.

Russell McOrmond said...

"There's the old-fashioned, lifetime+70 years until public domain in which a lot of art currently resides and there is a new public domain in which art is entered into immediately."

We live in one of those majority of countries that are using life+50 as the baseline ;-)

But I think you are making an arbitrary distinction between two narrowly different scenarios where none should exist.

You are suggesting that something is in a form of "domain of the public" if it is deliberately publicly licensed at a zero marginal price. I think it is arbitrary to do that as some sort of distinction from a "domain of the public" where no additional permission is needed, but where there is a marginal price. This is in fact the majority situation for the majority of works (by volume) where there isn't a specific unique permission contract with a given user, but a license which is offered to anyone in the public at a given price.

You are putting too much emphasis on what is essentially a narrow business model variable of whether the per-unit price is zero or non-zero.

As an example, for the vast majority of uses of his work, John Degen publicly licenses his latest book. Some of those uses are royalty free (reading the PDF online), and some of them are royalty bearing (negotiated through Access Copyright). But he has made the material available to the public without needing additional permission, and payment only in a subset of situations.

I suspect that if ever asked about an obscure use that wasn't already covered by one of the publicly available licenses, that he would just shuffle that permission question off to Access Copyright as well.


His work, and my work (publicly licensed for royalty-free usage and derivatives -- including for commercial royalty-free purposes as with other FLOSS) still exist within the life+50 copyright. My conditions for this public access relate to the public having access to software derived from my software, and for JohnD he is interested in royalty payments.

But is it really all that different? I don't think so.


"It's not an either/or situation"

It would be an eithor/or if that is what the law imposes on creators, which is the direction we are headed with C-61 (and, quite separately, the CCC/DAMIC policy platform). I'm fighting to have a full spectrum of methods of production, distribution and funding supported.

"I have no idea if this can work for software or other functional creative work"

There are ways in which software is different, but there are other ways in which it is the same as for other human creativity.

While there are some small software projects with less than ten contributors like you would have with a book, this is the extreme rare case -- having hundreds of contributors to a single piece of software is the norm.

The other is that books don't have to worry about compatible "interfaces" to each other, as the interfaces are known as "language" and that language is not allowed to be "owned".

"People over-react to the 'locks' being applied."

Guess what -- if the 'locks' worked the way you and the other John believed they did, I would be supportive of them. A free market would be allowed to decide whether people like the limitations that the author applies, and those authors who made poor choices would be allowed to fail.

Unfortunately, the 'locks' don't work the way you think they do.

I have a math and science background, study and provide computer security service, know what is and isn't possible with digital locks, and actually know the "devil in the details" about these locks. Given this, I think most people are under-reacting about these locks, not over-reacting.


I got completely lost when you suggested that I get control over some aspect of the debate. All I have control over is my participation.

It's impossible not to talk about US copyright policy in the context of C-61 as most of it is based on US policy from the NII days.

There are only a few minor issues, such as the embarrassing stupidity of the educational institution exceptions, being uniquely "made worse in Canada".

About the only good thing I have to say about C-61, and something that is different than the USA -- but was also in the Liberal C-60, is the notice-and-notice ISP liability regime.

Canada could have our own conversation about what we would like to have as Copyright law, but unfortunately the Government has taken a very different route with this specific bill.

John McFetridge said...

"We live in one of those majority of countries that are using life+50 as the baseline ;-)'

Yes, but my publisher is in New York.

"You are putting too much emphasis on what is essentially a narrow business model variable of whether the per-unit price is zero or non-zero."

I'm not emphasizing it, I'm admitting it exists and works for lots of people in lots of situations and shouldn't be tossed out too quickly.

"I'm fighting to have a full spectrum of methods of production, distribution and funding supported."

As long as one of the systems of funding is royalty-based, determined by the aquisition of the work, we're all fine.

It may not be a perfect model, but it's the best way we have discovered so far of determining ongoing value for something that remains the same. My last book is currently valued at two thousand dollars. Not because it took me two years to write, or because I placed the value of two grand on it, or because a publisher offered me two thousand dollars, but because two thousand people acquired it. It's worth two thousand dollars to me because that was my cut of the acquisition price. My publisher got more, some bookstores got some, etc.. The value of the book may increase if people continue to acquire it. My next book may be worth more or less to me depending on how many people acquire it.

Now, if there was a system in place where a value could be determined for my books regardless of how many people acquire them, sure I'd look into it. Does such a model exist now?

"Canada could have our own conversation about what we would like to have as Copyright law, but unfortunately the Government has taken a very different route with this specific bill."

I'm pretty sure we'll all agree that there aren't very many things our government has done well. There may not even be as many things in its control as we like to believe.

Now, I don't buy Hollywood movies and I use very little software, I don't own an mp3 player or a cell phone. What, specifically, should I be worried about?