Tuesday, August 05, 2008

oh, I get it now

Way back when in ancient days -- two years or so ago -- I wondered about all the anger and nastiness that continues to define much of the copyfight. Then I started this blog, and received the continued attentions of a number of delightful souls who see it as their mission to reflexively disagree with every word I might utter here in my personal digital space.

This evening, doing some online reading written by actual journalists, I have been given some insight. From this past weekend's New York Times Magazine -- there aren't trolls under every bridge, but there sure are trolls:

The Trolls Among Us

UPDATE:

In related news, this item appears in The Onion today --

Local Idiot to Post Comment on the Internet

Be warned; there's some spicy language. (thanks bookninja)

53 comments:

Infringer said...

I read the article, thank you. I'm not sure what conclusions to draw from it though. It certainly seems to be a subculture the writer was looking at. There are subcultures in many corners of society. Some good, some bad.

I never read your site two years but I certainly have been for a number of months now. Frankly I've seen very few people who criticize your posts without a valid and reasonable point to be made. That is why you allow comments isn't it? Your ability to accept those points on the other hand has been somewhat lacking.

I am quite sure you would put me in that reflexive disagreement box. Maybe I'm the only one you'd put there. Well, me and a few anonymous cowards anyway.

While it is true I tend to comment on the things you write that I disagree with, it is out of a true desire to bring a broader perspective to what you write. It is too bad though, that you see legitimate critisism and different reasonable perspectives as personal attacks.

Craig Burnett said...

Hi John,

I agree with you that there is a lot of emotionally charged anti-C-61 rhetoric banging about on the Internet. It is for that very reason that I follow your blog. I had to search very hard to find someone who is (at least partly) in support of the bill and who isn't (as far as I can tell) directly connected to Industry Canada, Barry Sookman, the Business Software Alliance, etc. As such, I sincerely value your opinion for its rarity alone. The anti-C-61 side of things has become such a group-think echo chamber that I start to question my own position. Without someone arguing the opposing viewpoint there is no good way to test my conclusions, reasonable as they may seem to me.

I made the assumption that you allow comments because you welcome debate. I was then disappointed to see that you don't address the points made in the comments section. You are absolutely right that this is your personal digital space and nobody can tell you what to write or how to think and you are under no obligation to address any dissent. I tried emailing you privately to see if maybe you want to hash some ideas out that way. No response but I can appreciate that you are probably a very busy person and probably get a lot of email as well.

I would love to have a reasoned, respectful debate with you sometime just to see if my position is as strong as I think it is. I'm the sort of person who will readily admit when I'm wrong and would love to be shown where the weaknesses are in my thinking.

Keep writing and thanks again,

-C

John McFetridge said...

Hey Craig,

Both JohnD and I have tried to deal with pretty much everything that comes up on these comments. Sometimes it gets a little, let's say, less than completely respectful, but we do tend to go over the same ground again and again.

About the last ten posts have had some lively discussion and (maybe buried too deep) in many of the posts lots of good points get made.

Perhaps you could post a comment here about what it is in C-61 you are questioning. So far, almost all the opposition has been to the "locks" on content that the financers and creators of the content would like to put there.

Almost every example given of content is American, so I guess they should probably have some say in how their product is treated. I've never once heard anyone say, for example, Atom Egoyan has received millions of dollars in taxpayer money, his DVD's should have no locks at all in Canada.

I've made fun of some articles that give as examples of the "limitations" on our "rights" as not being able to play the movie Alien on our iPods if we bought a version for our DVD players. It's a little tough - with the current state of the world - to resist the temptation to sarcasm.

There have been some rather silly and self-serving arguments about what is or is not "theft," and franlkly they're hard to take seriously from anyone but a teenager.

Now, as for me, I'm off to Ferris Provincial Park today with my kids for a little camping, but I'll be back next week and we can continue this if you'd like.

Russell McOrmond said...

John D,

*smile*

So, blogging is OK, but commenting on blogging is not.

Should I just provide a link to my blog rather than hitting reply? Naw, you complain about that as well :-)

I find it interesting that you would suggest that anyone who disagrees with you is a 'troll'. If anything, I might suggest that your insinuation can itself be considered trolling.


When trying to discuss the substance of Bill C-61, I hear very little from the proponents that suggest they have read the actual bill (rather than the government spin) and can articulate sections that they believe will actually help them.

So, ignoring technical measures (where the controversy is on the measures applied to devices and software, not on content as John McFetridge suggests) for a moment...

I wrote an article: Unauthorized music filesharing is already infringing in Canada, clarified under C-61.

The main change in Bill C-61 is to create an exception to section 19 (compulsory licensing for performers and sound recording makers) for on-demand communications by telecommunications (P2P, websites, etc). While I believe this is a bad idea (”makers” still willing to harm themselves by walking backwards), it is not like Bill C-61 changed the legality of $free and unauthorized P2P filesharing.

Given music and P2P are even more often discussed as being what the bill is about than digital locks on devices, what about those aspects of the bill are of actual benefit to copyright holders?

Composers are interested in collective licensing these on-demand uses just as they already do for radio. Their greatest barrier to doing so will be getting the agreement of the labels which are most often the "makers". Carving on-demand communications out of the section 19 compulsory licensing makes this licensing far less likely to be possible. The "makers" refusing to license socially beneficial uses is a textbook example of when compulsory licenses are appropriate, and yet Bill C-61 is heading in the opposite direction.

This sounds to me like this aspect of Bill C-61 is harmful to the interests of music composers.

If composers state they are opposed to C-61 because it is harmful to their interests, will you claim they are trolls too? All I have done in this thread is clarify why I'm opposed to C-61 as it greatly harms my interests as a software author.


I invite either John to quote us back a part of Bill C-61 that actually helps them. I know that John D prefers to talk about "respect" which he (incorrectly IMHO) believes that this will will encourage, but if we want to talk about the bill we should actually talk about some of the words contained in the bill.

And if you don't want to do it here, I invite you to add comments to the articles I have written on this subject. I'm surprised John had no comments about my series on "Copyright: locks, levies, lawsuits or licensing" (Part 1 links to other 3 parts)

Russell McOrmond said...

John McFetridge,

I blogged about a recent conversation I had (hosted at Heritage Canada, Copyright Policy Branch, so it was all official and all) with a top Canadian copyright lawyer (who I won't mention out of respect for their privacy) about "technological measures". I include links to the handouts I made for the day, which may be useful for you to look at to better understand the controversy around technical measures.

The key point is this: the locks on content isn't the core of the issue, the locks on devices and software is.

If you have questions, please just hit reply on that BLOG and I can offer any clarification required.

It is hard to have a reasonable discussion about "technical measures" without a minimum understanding the technology involved, and the science behind what is and is not possible.

John said...

A couple of you guys need to talk to Oprah about why you assumed I was making covert reference to you when I linked to an article about trolls.

It's a fascinating article is all, and it gave me some insight into a baffling sense of entitlement I've been wondering about for awhile now.

BTW, one of you guys doesn't need to talk to Oprah. I was absolutely making reference to you. And The Onion adds to the hilarity.

Russell, I know you were joking a bit, but it is an interesting question about blogging and commenting. I don't know the answer, but my personal leaning is that my leaving the comments section of my blog open and unmoderated is an action that makes an implicit request for respectful behaviour.

Here, I don't define respect as meaning you have to agree with me, or you can't try to make fun of me, but I do expect a certain amount of intellectual work to be done before someone clicks the button to publish their comment. I also don't like whining.

I'm happy to treat commenters as they deserve when they fail in this implied agreement, though more and more that will probably take the form of me just ignoring them.

Russell McOrmond said...

JohnD,

Not everyone is an author, professional or otherwise. Having open comments means that you get to read some great stuff, and you also get to read some stuff that you can't possibly decipher.

For instance, I would love to open a dialog with a commenter using the handle "digitalshaman", but I have no idea what he was trying to say.

I guess it just comes with the territory, and should be encouraged rather than discouraged. Writing is just such an important skill. The more people participate by writing, the better their writing will become.

As much as you may find my writing hard to follow now *smile*, it is a vast improvement of the shy person from 20 or even 10 years ago.

BTW: Who is Oprah? *smile*

John said...

Now, Craig (and Russell),

Here's something I need both of you to give me some space on. I am the ED of a professional association that does its business in a meticulously democratic fashion. I cannot represent the positions of PWAC on this blog, or anywhere, until I am directed to do so by my Board after they have done their own due diligence in securing the opinion of the membership. On an issue as complex (to creators, who are also users) as copyright reform, and with specific legislation to study and a host of other opinions to consider, this is a time-consuming and exhausting process.

I do not enjoy the same apparent freedoms as Michael Geist or (correct me if I'm wrong) Russell who do not necessarily have to wait for permission to open their mouths in their official capacities.

That is one of the reasons (not the only one) that I do not dig deeply into the Bill on this blog, and instead mostly comment on the public discussion itself. Two other reasons are:

I am taking my time with my personal response to the Bill because I take time with things I consider very important. You should see me woodworking -- two weeks to make a birdhouse?

I think the tenor of the public discussion is a very important issue in this reform process. I am deeply saddened by some of the tactics I've witnessed, and I hope by the time all this is over Canada learns something from the excesses of certain advocates.

I sincerely hope for an open and democratic committee discussion and amendment process during which both of you get to present you views (if you so wish), and I hope that whatever Bill gets passed it will be step one in a larger reform. As I've stated many times before, I prefer careful incremental change to reckless revolutionary change.

Here's one of those analogies you all love so much:

I love my coffee, and I enjoy my fellow citizens. Almost every day, I go to one of several Tim Horton's locations near my office to get a coffee and chat pleasantly with the counter staff. My daily interactions over many years have convinced me that Tim Horton's hires some really nice people, and has worked hard to produce a pretty high quality consumer experience for me. Because I lean left, I'm willing to enter into discussions of unionization and fair trade, etc., within the context of careful, incremental change -- but these discussions have so far not stopped me from saying good morning to the counter folks and enjoying the coffee.

So, when I read the story about a Tim Horton's employee being fired for giving a free TimBit to a child, how did I respond?

I assumed:

a) I wasn't getting the full story -- I mean, Tim-workers have thrown a couple extra bits into my own TimBit box when they catch sight of my incredibly cute children (who now act even cuter whenever we get near a Horton outlet).

b) The manager in question over-reacted in the extreme, and/or took an available excuse to get rid of problem employee (not condoning the act, just potentially explaining it)

c) Horton corporate did not move fast enough on correcting this internal issue to keep an embarrassing story from the press.

I believe I shook my head and gave the company the benefit of the doubt that they would fix the situation, which they apparently did.

I did NOT characterize Tim Horton's as an evil American corporation and call for a nationwide boycott of the franchises, and/or ask for some sort of change to the labour laws.

It's about perspective, I think. Maintaining it -- or more importantly, putting in the necessary work to maintain it. To me, much of the copyfight is based on lost perspective.

I am digging into the Bill, and I will put out my own personal statement on it, and it will not contain blanket support. That may be the most you get out of me on it for awhile.

On the other hand, if you want to talk about whether or not Geist should have cited the source for the BCCLA paper, go ahead. I've made my personal opinion clear, I hope.

Craig Burnett said...

Thanks for the response, John. I didn't realize that you aren't at liberty to discuss your opinions publicly. That explains why most of the discourse is attacking tone. Thanks for clarifying that.

The rest of this comment is off topic (trolls) but when you do disclose your position on the issue, the discussion I would love to see on this blog or any other is to do with the actual efficacy of digital locks, the [lack of] protection they afford to creators and the resulting side-effect of vendor lock-in.

Much of the debate seems to centre on how much copyright is too much/little or which exemptions should be added/removed but I think it misses the crux entirely.
I'm all for curbing piracy and remunerating creators for their work but I strongly oppose C-61 because it completely fails to do so. There is no digital locking scheme in existence (nor is there likely ever to be) that even slows piracy down. The reason is that the unscrambling key must necessarily be included on supported playing devices. This is about as secure as tucking your wallet into your shoe at the beach. Ten years' worth of statistics in the US and EU bear this out conclusively and show piracy to be on the rise monotonically in all sectors. These same statistics get quoted by those arguing for legislation to "get tough on piracy" and "protect artists" but C-61 only seems to do this. It relies on TPMs to do the heavy lifting so it is therefore doomed to failure. The last (I think?) secret DRM key was broken before the devices even made it to market. Once the devices are on the market, the key can't be changed without a costly recall. Meanwhile, the pirates are merrily unwrapping and distributing copyrighted material, drinking grog and singing sea chanties.

So why would the lobbyists pushing for this bill want blanket legal protection for digital locks despite their complete lack of efficacy? Here I have to descend into speculation.

1) They are ignorant of the data, have been duped by the door-to-door DRM salesman and actually believe in their hearts that it will protect their assets. or

2) They are hoping to game the hardware market.

At the risk of a slippery slope fallacy, suppose for a minute that a Canadian electronics startup develops a sexy new "ipod killer" with better features and a sleeker form factor which they can manufacture cheaply. Think Apple-Steve-Jobs is worried? He is also the single largest shareholder in Walt Disney inc. Disney owns literally thousands of copyrighted titles and gets to decide with which TPMs those titles are distributed and therefore which devices can legally unscramble and play those titles. There are no rules governing the accreditation of new devices and it is entirely up to the discretion of the copyright holders (as it should be). Unfortunately, in this case, it means that Disney-Steve-Jobs can hobble new devices from competing with Apple-Steve-Jobs' iPod at least to some degree. Which device would you buy? The less restricted one, I would presume. Or at least, he can delay the accreditation of the new device long enough to copy all of the new features and blunt its competitive edge. Another company in a position to do this is Sony which also has a lot of titles, made its name on the electronics market where it continues to enjoy prominence and is not above dodgy, invasive business practices.

Look into it and you will find that most of the major players are in positions like this. For Canadian electronics entrepreneurs this means steep competition barriers. For [law-abiding] Canadian consumers this means higher prices for less choice at FutureShop and worst of all, artists once again get the shaft when none of the promised protection is afforded them.

Even if this worst case scenario didn't happen (y'know. Mr. Wizard gives corporations a heart) I still don't see the benefit of this legislation. I would be absolutely thrilled if someone could convincingly make that case. That said, I don't know what the correct answer is, only that C-61 fails at what it purports to do while having disastrously negative "side-effects" with which I don't want my kids getting stuck.

I would be happy to let C-61 go to committee and be revised if at the end of the process it either had nothing to do with digital locks or the exemptions were broad enough to guarantee fair use rights and fair competition but that would fundamentally be a different bill!

Thanks again for writing!

Russell McOrmond said...

John D,

When I am speaking for CLUE or anyone else, I state that. I do get permission to speak in my official capacity, from a board of directors who internally vets what I'm presenting outside. I'm the policy coordinator, and even have an executive director that I report to (where you are the executive director, and don't likely talk to yourself... :-)


Otherwise, I am representing myself (or whomever I'm saying I'm representing), and am free (and encouraged) to do so. I'm not William Patry who felt he had to close his blog because people wouldn't allow him to speak as himself.

I don't think you can arrive at a democratic consensus within PWAC without opening dialogue on the issues and seeing what people think, and then build consensus from that. That includes bringing in subject matter experts to help members understand the implications of the policy, not just asking members who haven't spent the time learning and thinking what their first impressions are. Otherwise you just become an echo chamber that can't possibly come out with something that can help professional writers.

It might be because I'm part of the Free/Libre and Open Source Software (FLOSS) community which has a motto of "release early, release often". The idea is to toss out ideas, get feedback, and send out improvements as soon as possible. I use the same technique for my own writing, and expect to get things wrong, be corrected, and then improve what I'm presenting.

Your analogy works well. I've been watching what I consider a backward thinking about modern technology and its implications on artists rights since the early 1990's. I saw it with the National Information Infrastructure Task Force, then with the USA's DMCA (I wasn't all that aware of WIPO at the time). All it took was a single message in the summer of 2001 saying they might be bringing the same backward thinking to Canada, and I dove into this policy debate. I didn't have to be given a bill to read (I have now read C-60 and C-61) as I knew that our politicians weren't aware enough about what was going on to be immune to that backward thinking. I had also become aware that most of the people in the debate (bureaucrats, lawyers, non-software creators, etc) didn't have the technical background required to adequately understand the implications of the policy they were debating.


I agree that much of the copyright debate is about a loss of perspective, but we disagree about who is the victim of this problem.

There is fear-mongering, the sky-is-falling, the terrorists are coming, oh-my-god rhetoric about the alleged negative impact to "creators" (largely the incumbent cultural industries) of citizens having control over the tools to allow them to fully participate in culture. Radical reforms involving locking down those tools to put them under centralized control are being proposed to solve a problem that doesn't really exist.

Somehow it is those more reasonable people who think putting foreign locks on our communications technology is a bad idea who are claimed to be radical, or having lost perspective.


Given the bulk of the text of C-61 is about "technological measures", how are you going to avoid talking about them in submissions?

I can also point to major portions of the bill (anything that says "technological measures" for instance) that has a massive impact on the software sector that I am part of and try to represent. Can you point to the same type of thing for professional writers?

John said...

Sigh.

Craig, there's really no reason to jump to the conclusion that I can't or won't discuss my personal opinions publicly. We are having this discussion on my blog, after all. I explained why I take time with certain things, and I hope I put my official capacity in some perspective (there's that word again). I think if more people in this discussion took a bit more time to formulate their thinking before sounding off, the tone would be dramatically different.

I entered this debate initially to address tone and rhetoric that seemed and still seems to me to be all out of proportion with the topic being discussed. Accusations of licensing collectives being protection rackets, etc. It sounded ridiculous back then, and sounds even more so now.

I'm willing to grant you your fears for the future around digital locks. Fear is a natural response to the unknown, but I'm not sure we make very good legislation based on fear. We make legislation, all kinds of it and however flawed it may be, as a response to real, current demands of our society. I think a gigantic flaw of the FCFC position (represented by the information on the home page) is that it completely ignores the needs of traditional, professional creators as they enter the digital world with their work. Yes, fair dealing access issues are highlighted, but it actively ignores the full spectrum of traditional creator issues. There's more than one way to attack.

I'll be addressing TPMs, but I may be taking things back to some basic principles as I do.

Russell McOrmond said...

John D said...

"Fear is a natural response to the unknown, but I'm not sure we make very good legislation based on fear."

and

"ignores the needs of traditional, professional creators as they enter the digital world with their work"


If we instead said that the position endorsed by the BC Civil Liberties Association (A facebook group doesn't have a 'position', just a topic of discussion) ignores the fears of traditional, professional creators as they enter the digital world with their work, then we will have gotten somewhere.

Where you see fear in us, I see experience and knowledge. Where you say needs of traditional creators, I see fear of the unknown.

It is interesting that we can summarize our different perspectives so easily.

John said...

Russell,

Your ability to re-summarize perspectives is legendary at this point.

For the record, I did not place the credit line "Written by Fair Copyright for Canada: Vancouver Chapter" on the position paper. Apparently Fair Copyright for Canada: Vancouver Chapter did that, somehow, despite not being able to formulate a position.

I agree with you that FCFC should be a forum for discussion and not a directed lobby. That is, unfortunately, not the case.

And you can flip my words all you want -- such a maneuver doesn't change the fact that Craig's last comment involves fearful speculation about what might happen, maybe, someday, while my approach to copyright reform has always been based on what is happening to me, personally, today.

Russell McOrmond said...

"my approach to copyright reform has always been based on what is happening to me, personally, today."

I have had other authors say the same thing to me over the years. They tell me they are worried about infringement of their works. When I ask for specific examples, they aren't able to do so. The best I get relates to uncomfortable relationships with educational institutions and the "Well, they pay for computers don't they" which has nothing to do with copyright infringement. Other times I'm told about bad relationships with publishers (more from journalists than book authors), which is also not a copyright infringement issue. Both fall under business development and customer relations, not copyright infringement. None of these problems will ever be reasonably solved by making yet more complex changes to the copyright act, and if anything many of the proposed changes will make the problem worse.

What I saw from Craig was a discussion of the implications of technological measures based on an understanding of the underlying technology. I don't see the "fearful speculation about what might happen", even if I partly understand how people who are not technologists might misinterpret his knowledge that way. I get the distinct impression that unlike many people in this debate, Craig would gain no additional technical knowledge from my "I am holding 4 things in my hand" presentation on understanding technical measures.


As to how Craig McMulen and Chris Brand decided to sign that position piece, I may be even less comfortable with it than you are. The non-structure associated with that name is one of the reasons that I don't fly the "Fair Copyright for Canada" banner, even as people in the Ottawa meetings want to have everyone use this common brand. I'm an individual, a self-employed business person, host of digital-copyright.ca, policy coordinator for cluecan.ca, and co-coordinator of GOSLINGcommunity.org. I may have joined a facebook group and show up to meetings in Ottawa with people who feel comfortable using the "Fair Copyright for Canada" banner, but do not feel comfortable going beyond that.

Craig Burnett said...

Russell,

"I don't see the 'fearful speculation about what might happen'"

With all due respect, John is right. My comment did contain a heaping helping of fearful speculation.

First, I made what I think is a valid, factual point which is that digital locks have been proven not to provide any protection for creators.

Then, I indulged in some fearful speculation about possible motives behind it, even qualified that with phrases like "speculation", "slippery slope", "worst case scenario".. and that's the part John chose to focus on in his response.

However, he also said, "I'll be addressing TPMs, but I may be taking things back to some basic principles as I do" which I take to mean that he will address my actual point later.

..which is cool. Take your time reading and understanding the bill and forming an opinion on it. I see it as fundamentally flawed because it relies on a fundamentally flawed mechanism.

I eagerly await his take on this.

Russell McOrmond said...

Craig Burnett,

This entire debate is riddled with things that are far more speculative than you posted.

You asked why people support legal protection for DRM, and listed the two obvious ones: lack of understanding of the technology, or a desire to centrally control technology.

I have given a presentation on technical measures many times over the years (Most recently a few weeks ago), and what you listed first is very common.

You may have called it speculation, but I haven't when I've been saying the same thing over the past decade.

On the other hand, there are many people on the "more copyright is better" side of the debate that say that anyone who disagrees with them just wants something for nothing -- they claim it is all about unauthorized accessing of copyrighted works for free. This is pure speculation, and isn't confirmed by any statistics. Even the statistics on the alleged "amount" of infringement tend to be seriously flawed, and incapable of differentiating alternative methods of production, distribution and funding from infringement.

Your "slippery slope fallacy" is simply a discussion of what is already happening today. We can already observe in the game console market and the cell phone market the gaming of the hardware you listed as speculation.

As a commercial support person for Free/Libre and Open Source Software I have to contend with potential customers telling me that the government is telling them that they need to run proprietary software platforms and applications, and thus can't be a customer of mine.

While I normally focus on the feds, I'll bring up a municipal example. The Ottawa Public Library has a section called "digital media and web tools" off their front page, which says they have Audio Books.

I'm a big fan of Audio Books, and am currently listening to Audio Books from eMusic (Current book my wife and I are listening to is The Bin Ladens, and the previous book being The Audacity of Hope).

But I can't borrow anything from the OPL because it only works on Microsoft Windows and requires you potentially infect your computer with unverifiable third party software. As a security consultant I have to recommend people against using this system to "borrow" Audio Books, even though I am a big fan of Audio Books.

Note: If I was an infringer I would just borrow an audio book using a spare box running Windows (likely already infringing ;-), burn the audio to CD as the software allows, and then rip the DRM-free audio from the CD. There are also other ways of circumventing this system without wasting blank CDs (Google for the amusingly titled "FairUse4WM"). These systems only ever impact non-infringers.


It is not speculation to suggest that by putting a legal wrapper around this malware that there will be more of it. This is in fact the intention of the change in law from the proponents who understand the technology, which is to "enable" business models which are of questionable legitimacy (infringe upon tangible property rights, circumvent privacy and competition law, etc)


What I see is that the alleged harm used to justify legal protection for TMs is based on flawed statistics and speculation, while those opposed are based on technical knowledge and real-world examples of harm that is intended to get worse.


That said, thanks for playing "good cop" to my "bad cop" by being willing to call your experience a form of speculation, while I continue to not soften what I am already observing.

John said...

So, we have Craig saying piracy is increasing "monotonically" -- side note: I don't mind being sent to the dictionary, but even after my visit I have no idea what you mean by this; something more than just "a whole lot" yes? -- and Russell saying there are no reliable statistics to show ill effects of piracy.

I guess these two things could both be true, but does that seem likely to anyone else?

So, let's get back to some basic principles then -- you both seem to think that piracy is a bad thing, and you both insist that digital locks are ineffectual as a weapon against it because the technology fails. Other than encryption, there is no unbreakable lock. How am I doing?

Well, all locks are ineffectual, aren't they? One new year's eve my parents' door was kicked in while they were at a party somewhere else (note to everyone -- new year's is burglary night) and all my mother's jewellery was stolen, including my grandfather's medals from WWII (bastards).

So, we all agree that the stealing part was bad, but the law insists that the lock-breaking part was just as bad, if not worse. The law doesn't say, oh well those door locks won't stop a boot, so there's no point in making it illegal to break them.

Now, before Russell's head flies off, I recognize that digital locks can stop legitimate and legal uses of things as well. Nevertheless, the starting principle, in our society, under law is "don't kick down people's doors." There are exceptions to this. Police kick down doors. Rescuers kick down doors.

I see absolutely nothing wrong with this or any copyright bill starting from the basic principle that we don't break locks, and then discussing exceptions to that rule. Where we will more than likely disagree is on how many exceptions should there be.

My leanings say be careful of exceptions because they weaken the whole principle (and therefore a pretty important part of the fabric of civil society, thank you very much). Your leanings say be careful of locks because they could be (have been, are being) used nefariously.

Where we really disagree, I suspect, is in who should bear the brunt of society finding out how this stuff will shake out. I say radically discarding the existing rights of "incumbents" is extreme and irresponsible.

Infringer said...

I've quite enjoyed reading the posts up until now. It is an interesting little debate.

Regarding John's last post. He says:

"I see absolutely nothing wrong with this or any copyright bill starting from the basic principle that we don't break locks, and then discussing exceptions to that rule."

Note with your real world example one of the other exceptions would be breaking a lock that someone else placed on your property.

If you both can agree on a simple exception that said you are not libel for breaking locks placed on your hardware/software/media that were not placed there by yourself, then perhaps you could find some common ground. Of course a bill that says this achieves practically nothing as breaking the locks in any other context generally results in the violation of some other law anyway.

John McFetridge said...

Yes, some good posts here. Good reading.

"Note with your real world example one of the other exceptions would be breaking a lock that someone else placed on your property."

Well, if today is the starting point for me (I own very little technology, I have no mp3 player or home theatre, I don't even have cable TV, etc., but I'm looking into audiobooks. Like Russell, I like them and my publisher will be putting out my books in that form), then the locks are already in place before I decide to make something "my" property.

I may do like Russell and choose not to buy - or even borrow from the library - stuff in that format because of those restrictions. Or I may not. But it's really up to me, isn't it?

Russell McOrmond said...

"How am I doing?"

Not well, as the ineffectual nature of this misuse of digital locks is a side issue for me, and only mentioned to proponents who think they "need" them at any cost to anyone else. It is the allegedly unintended consequences that are the real reason why I'm opposed to them.


"I see absolutely nothing wrong with this or any copyright bill starting from the basic principle that we don't break locks, and then discussing exceptions to that rule."

Except that, this isn't what the "technical measures" debate is about. This is that common misconception about how digital locks work which is the whole reason I do the "I have 4 things in my hand" presentation.

The debate is really about an important set of additional principles relating to these locks which have been entirely ignored, and which must exist with any discussion of locks.

b) You should not be legally allowed to apply a lock to something you don't own, and the owner should always be legally protected to remove foreign locks from what they own.

c) You should not be allowed to apply a lock to something you do own for the purpose of circumventing other legislation (including competition and copyright law).

"My leanings say be careful of exceptions because they weaken the whole principle (and therefore a pretty important part of the fabric of civil society, thank you very much)."

When did disallowing an owner from removing foreign locks from what they own, or allowing people to use locks to hide unlawful activity become a "pretty important part of the fabric of civil society"? I never read that memo.

"I say radically discarding the existing rights of "incumbents" is extreme and irresponsible. "

I say radically disregarding the existing rights of property owners and many other rights of society in order to offer the "requests" (not rights) of incumbents is irresponsible.

Infringer said...

"then the locks are already in place before I decide to make something "my" property."

That is not relevant. Anything you buy will have lots of attributes already in place. Perhaps it is already blue. Does that fact demand you should not be allowed to paint it red?

The key criteria must be who owns the property. If you want to buy something that some manufacture has placed usage limits on, that should be fine too, but the manufacturer should require you to sign an agreement stating exactly what uses are or are not permitted. They should not be using the government as a proxy for imposing such a contract on other.

Existing contract law offers all the tools necessary for these media companies that want to supply defective merchandise. Therefore there is no justification for violating my private property rights though any kind of TPM legislation.

Russell McOrmond said...

"Of course a bill that says this achieves practically nothing as breaking the locks in any other context generally results in the violation of some other law anyway."

I've often said that this problem could be solved if we left any discussion of locks (digital or otherwise) to the remedies aspect of laws (with copyright being only one law where locks are relevant). For some future copyright that differentiated between inadvertent and deliberate infringement, traditional infringing activities which included bypassing a lock could not be claimed to be inadvertent, and would not be eligible for any otherwise lesser penalties.

Russell McOrmond said...

"I may do like Russell and choose not to buy - or even borrow from the library - stuff in that format because of those restrictions. Or I may not. But it's really up to me, isn't it? "

We have many laws in place that go beyond the outdated "buyer beware" rhetoric. See section 77 of Canada's competition act, as well as a few sections of Canada's privacy act for examples. We discuss this in our Petition to protect Information Technology property rights.

The "buyer beware" rhetoric can be used to justify ignoring pretty much all forms of anti-social behaviour, including the break-and-enter which JohnD spoke about (Well, you should have bought better locks -- why should the police help you after a break in which you chose to allow?)

Infringer said...

"I've often said that this problem could be solved if we left any discussion of locks (digital or otherwise) to the remedies aspect of laws"

OK, but if these lock laws are truly redundant because we are only going to prosecute for breaking them when another law is also broken, then best not to have the lock law at all and simply ensure that the penalties of the other law are appropriate. No?

Russell McOrmond said...

Darryl "Infringer" Moore,

I agree with you that it would be 'best' to not mention locks at all in copyright law, but believe that leaving it as part of remedies is a compromise for those who insist that locks must be mentioned in every law (or maybe just their favourite law -- I'm waiting for energy price and climate change stuff to be inserted into Canada's copyright law).

John said...

Russell,

If you don't accept my starting principle, that's fine, but there's little point in continuing the discussion then. Do your "four things in my hand" presentation for the Parliamentary committee.

I note in the Bill a mechanism in place to address necessary exceptions to the legal protection for TPMs. If you want more exceptions and you feel they are morally and ethically necessary, which you seem to do, the Bill gives you a button to push.

So, back to basic principles, this bill says "in Canada we don't kick down doors," but we also don't like to unduly restrict competition and/or reasonable or "fair" uses, so we will also build in a mechanism that can be applied to the legal integrity of locks should these unfair situations arise.

I point you to Section 41.2 (page 38 in my copy).

And that, officially, is as law-geek as I get on a summer Friday.

Infringer said...

"I point you to Section 41.2 (page 38 in my copy)."

Right, so the big media companies get a law to protect their preferred business methods, at the expense of my private property rights (despite the fact that that they already have the tools they need through contract law, so there really is no justification) and the rest of us get a promise that at some point in the future the government of the day might consider the effect of these laws on my rights, and maybe they will create a few exemptions so the public doesn't scream to loud. If they're in a good mood that day.

Frankly this is the legal equivalent of the digital locks themselves. "We're going to treat you all as if you're infringers (guilty) first. If you can prove to us you are not, then maybe we'll let you have access to the content (allow you an exemption)

It is completely bass ackwards.

John said...

I think I see a way into, though perhaps not out of, the confusion. When I say I go back to basic principles, that's what I mean.

The principle I'm discussing is "we don't break locks." I've allowed lots of room to discuss exceptions, but for me the principle stands. Therefore, McF's buyer beware musings are perfectly appropriate to my discussion. There's a lock on this thing. If you want an unlocked thing, don't buy the locked thing.

Russell's buyer beware example, which is pretty odd I have to say, is a corruption of the very concept of my basic principle. It's not the adequacy of the lock that is in question, it is the act of breaking it.

In the US, when you buy a handgun you do so under an implied social contract that you will not use that gun to murder someone (while some deadly uses of the gun are actually permitted as legal exceptions).

Why are US citizens forced to buy their precious guns under this contract?

Not because the gun laws are particularly effective, or gun manufacturers have put a lot of thought into the fantastic new non-murdering handgun; but because murder is illegal. A basic principle.

No?

I don't discount the possibility, but so far at least the US has not said, look there's just way too many gun murders, so we might as well just decriminalize murder.

And for the record, I'm no fan of US gun laws. I use this example partly because of Russell's creepy "cold dead hands" tagline, but mainly because I'm a big fan of the basic principle "we shouldn't murder."

John McFetridge said...

"In the US, when you buy a handgun you do so under an implied social contract..."

In many ways, this is the crux of the whole thing - there are no longer any implied social contracts, everything needs to be laid out in law.

Darryl wants me to sign a contract when I buy a CD saying what I will and will not do with it. This because a lot of people are clever enough to realize they can make it available to a limitless number of strangers and even justify this to themselves as not wrong in any way - any implied social contract between the buyer and creator of that CD is long gone.

Though Russell says this happens so rarely there's no need at all.

So, it's going to be tough to get this done.

Infringer said...

"Darryl wants me to sign a contract when I buy a CD saying what I will and will not do with it. This because a lot of people are clever enough to realize they can make it available to a limitless number of strangers and even justify this to themselves as not wrong in any way - any implied social contract between the buyer and creator of that CD is long gone."

Not true. I only want you to have to sign a contract for limitation that the manufacturer want to puts on it that go beyond copyright law.

John McFetridge said...

"Not true. I only want you to have to sign a contract for limitation that the manufacturer want to puts on it that go beyond copyright law."

Oh, well then...

I forget, do we agree that file sharing and downloading of copyrighted material is a problem?

Because it seems to me you've been pretty unhappy with the manufacturers' rights under current copyright (never mind proposed changes to those rights). But if you agree that those rights should be respected, and there should be consequences if they're not, well then, we could have saved a lot of time on these discussions.

Infringer said...

"I forget, do we agree that file sharing and downloading of copyrighted material is a problem?"

Sure, in exactly the same way that the British government use to see pirate radio as a problem; that the tv networks used to see cable television as a problem; that the movie studio's saw the VCR as a problem; that the music composers saw prerecorded music as a problem, and finally, in turn, how the record labels use to see radio as a problem.

Now ask me what the solution is and I expect that you and I will have highly divergent answers.

Yes, you are correct. I am unhappy with "the manufacturers' rights under current copyright" In the last 200 years copyright has expanded from a term of 28 years to life +50, +70 +90, and the definition of derived work has become ever more broad. In the context of some works (such as software) these limits are laughable in there short shrift of the public domain.

However I think that is a separate debate. Given whatever rights of reproduction and distributions the copyright holders have, they should not be able to step beyond those bounds and essentially make their own copyright laws simply by sticking a digital lock on it.

Term and breadth of copyright is a separate issue from TPM. Only TPM is the focus of section 41.2 of Bill C-61, which John and I were commenting on.

Craig Burnett said...

quoth John, "So, we have Craig saying piracy is increasing "monotonically" -- side note: I don't mind being sent to the dictionary, but even after my visit I have no idea what you mean by this; something more than just "a whole lot" yes? -- and Russell saying there are no reliable statistics to show ill effects of piracy."

When one speaks about a data set changing monotonically, it means that the graph is always moving in one direction (up OR down, not both) with possible flat patches. In other words, there hasn't been a period of time since the passing of the DMCA where we have seen a noticeable drop in illegal downloading as one might expect if the law were enforcible. I wasn't drawing any conclusions about the ammount of change, just the direction. This is based on the same statistics the RIAA, IFPI, BSA, MPAA, YO-MAAMAA, etc are using to justify legal protection for locks. I agree with Russell that these studies are spurious (particularly with respect to the implications for retail revenue) and am merely pointing out that they make the opposite case than purported. I'm having trouble finding it now, but I read one blogger who noted that when previously locked music gets re-released in the clear (not for free but no DRM on it), there is no corresponding increase in downloading that one might expect if the locks were an impediment to piracy in any way. I'll grant that there are likely many other factors not being considered there. I'll also admit that I didn't scrutinize their source data at the time. It's just food for thought. Salt to taste.

I'm just going to gnitpick a little here and clarify a technical point. John later said, "Other than encryption, there is no unbreakable lock. How am I doing?".

Digital locks are encryption. The proprietor encrypts the book/movie/song/whatever prior to shipping such that you need a numerical key to decrypt it. In order for the end user to then view the media they purchased, they have to have that key (hidden somewhere on whatever device they use to view the media). Since the key is literally in their hands, unscrupulous people can then unwrap the locked media and redistribute it if they want. That's not right and it's not legal but it is easy.

Getting back to your house analogy, it's like leaving the key in the lock. No protection.

End picking of gnits.

Now, the basic principle you are discussing is "we don't break locks" and you use a house analogy to illustrate it. The problem with analogical arguments is that they are only models of the real problem and must necessarily involve some distortion or over-simplification. If I walked up to your house, kicked the door in and could somehow prove that I didn't enter or take anything, the crime I should be charged with is "willful destruction of property" and I should have to pay restitution. If you left the door open and I wandered in, had a look around and left without taking anything, the crime I should be charged with is "unlawful entry". One can combine those and add various levels of theft offenses as appropriate depending on what was actually done.

Getting back to digital locks, if I pay for a DRM-wrapped copy of your book, take the lock off of it and do nothing further, by your house analogy that should be equivalent to "willful destruction of property" since you argue that breaking a digital lock is the same as breaking a physical one. I argue that it isn't because I'm not mutilating your property and there is no loss of livelihood to you by that action alone. I'm altering my purchased copy of the book for my own purposes. Perhaps I do so against your wishes but this might even be necessary if the TPM chosen isn't supported by my chosen operating system, for example. Yes, that fair use case could one day be covered by exceptions built into the law and yes, I can check the compatibility of locked media and choose not to buy it but that's not the point. I think you should revise your basic principle from "we don't break locks" to "we don't steal" because it's the theft (or rather lack of creator-remuneration for unauthorized copies) you (and I) really have a problem with. Copying copyrighted works is already illegal in Canada and has been since the advent of the printing press, as far as I'm aware. I acknowledge that piracy is a big problem but I see no evidence to indicate that legal protection for digital locks is an effective remedy and I think the burden of proof lies on proponents of TPMs.

I would be interested to see some.

Craig Burnett said...

Incidentally John:

"I don't discount the possibility, but so far at least the US has not said, look there's just way too many gun murders, so we might as well just decriminalize murder."

I'm not sure to what you are referring. Did someone advocate legalization of copyright infringement? A bit of a straw man, isn't it?

Russell McOrmond said...

JohnD said: So, back to basic principles, this bill says "in Canada we don't kick down doors,"

This is not what the bill says. That may be what people without a technology background think it says, and it may even be what people without a technology background who were involved in authoring it intended to say, but that is not what it actually says.

I need to call it a weekend at this point. Always interesting to chat.

It would be helpful for you to look at the "I have 4 things in my hand" handouts/etc as it would help you greatly in understanding C-61 to have a basic literacy in what "technological measures" actually are. It is not enough to wait until committee to do that presentation, given those without the required technical background will be asking for things at committee that are harmful to their own interests.

John McFetridge said...

Okay, Russell, I read all the posts you linked to (and a few more) and you make a lot of sense. I see the difference between locks on content and other locks, and, like most people, I don't WANT locks on any of it. I don't even want to have to lock my bike, but at least I understand I put that lock there myself.

I wish I had been involved in this issue when people first made the claim that acquiring things that were offered for sale without paying wasn't theft. How that attitude has persisted for so long among otherwise smart people does baffle me.

Maybe you're right, maybe very few people actually do that. Maybe Craig is right and the number of people doing it is going up all the time. Maybe Darryl is right and every teenager in the world does it. Maybe it doesn't have any effect on the actual sales numbers (those peope never would have bought the stuff anyway). All I know is that I've met far more people who do it than don't and they all know it's wrong and do it anyway.

And it still seems to be at the root of many of the problems here - whether it happens in great numbers or not, that's the fear creators have. Simple. People fear that an attitude shift has happened and that a whole generation looks at content as without value. Surely many educated, smart people have made this claim. I don't know if they have been deliberately sidetracking this discussion or not, tieing it up in semantics about "distribution" and "downloading," "copying," "value" and "theft," claiming not to understand what seems so clear. It doesn't matter if something cost a hundred bucks to produce or a hundreth of a cent - value accrues in the acquiring - buyers set the value (not sellers) by agreeing to buy or not buy or offering a lower price (way back when I bought my house we actually offered less than the asking price and our offer was accepted). This really is day one economics class stuff.

So, book writers fear that as soon as their work is put in digital format it will be given away - as that guy said, you can no more make a file uncopyable than you can make water not wet. I believe he's right.

In truth, this won't be an issue for very many writers. Most of us can't give away our books if we try. But we dream. Books are quite a different animal from music, but artists tend to be artists and have a lot of the same experiences when it comes to the marketplace (we get ripped off from every side and we fear it).

And really, I don't mind at all if someone wants to make a copy of my book and give it to his/her friend. They could as easily make the trip to the library. I don't want any restrictions on any e-books or audiobooks of mine. It's this giving it to a limitless number of strangers I don't like. It's very different than giving it to your friend. I guess people are desperate to feel like they have lots of friends.

Also, the idea that all this acquiring of my work will make me more famous and therefore more valuable only works if you value fame the way Paris Hilton does - not all of us do. If I wanted to write articles and essays and make money from public appearances then fame would make a difference, I guess, but I don't want to be a shill.

But you're right, this is a mess of so many issues that shouldn't be mixed together. What would help a lot of, I think, is if there were some clear guidelines about the acquiring of content (shared, downloaded, bought, however it's acquired) and people stopped with this nonsense that it's not theft and doesn't devalue the original.

John said...

Craig,

All very interesting. I'm on my way out soon to have a garden party, which is strangely more attractive to me right now than an ongoing debate about C-61. Martinis by the koi pond.

Anyway, when I leave my house, I will lock the door. Whether I leave my key in the lock or not, I'm pretty sure no-one has the right to turn it for the purpose of stopping the lock from doing what it is designed to do, which is keep my door closed to intruders. Perhaps an easier analogy would be that TPMs are doors --- closed doors with please don't trespass signs on them.

In other words, I reject your interpretation of my analogy. Furthermore, I find it funny that the standard copyfighter tactic is to ignore the basic principle when it is convenient to do so, and instead disagree with elements of the analogy.

So, a couple of things to keep the rest of you going while I'm sipping olive-laced iced vodka:

The gun law analogy was actually meant to suggest logic toward a law against lock breaking, not a law against infringing -- so if we've missed that point, we may have missed most of the others.

Two things about your own analogy involving stripping my book of DRM for your own purposes -- first, I disagree that you will have done nothing essentially wrong, if indeed we all start from the understanding that such stripping is illegal. You will, in fact, have broken the law, knowingly. There is no entitlement within civil society to break a law you disagree with, certainly not without accepting the consequences. Ask Martin Luther King and Henry David Thoreau. They have some thoughts on this subject. I generally find references to civil rights movements of the past to be kind of tiresome in this debate, but if people insist on seeing hacking as civil disobedience, then actual civil disobedience should be understood.

McF might point out, as do I, that ongoing uncivil disobedience with entitlement -- it's okay because the record companies have been ripping us off for years -- is the very reason we are now having this discussion.

That's my own nitpicking, but since it speaks to my basic principle argument, I allow myself the pleasure.

For me personally, as an author, I don't care if you strip the DRM from my work (my work contains no DRM that I'm aware of, by the way) and then do nothing else to it, but I'm glad the law has considered the possibility of someone doing more after breaking locks, because I believe that is the right principle to start from.

I don't mean to offend anyone's chosen geekiness, but I really couldn't care less about the details of encryption, and I'm pretty sure most traditional creators are the same. My understanding, from reading Cory Doctorow, is that there is some unbreakable encryption out there. My understanding from other readings is that no DRM will ever be unbreakable. I hope I've explained that I really don't care about the breakability of any of this -- just the principle that the breaking, except in some agreed upon instances, is bad.

All the questioning of RIAA stats smells painfully political to me. My sense is that piracy hurts a pirated industry in its bank account. I know that the pirated writing I deal with in my work for PWAC has an economic effect on PWAC members, because it is used yet not paid for. Would the pirates buy the writing if they couldn't pirate it? -- who knows, but they'd be at least forced to make that decision, creating a market with income potential. Argue about numbers and amounts all you want, the act in itself is harmful, and illegal, so wrong.

I agree with you Craig that we don't really know if protecting TPMs will have a measurable effect on infringing, but now we're back to my gun law analogy. It's the principle of the thing. We start watering down our core principles, and we are in trouble.

Now, my challenge for you and Russell. The fear, as I understand it, around TPMs in this bill is that, as worded, C-61 allows the presence of a lock to take away all the standard important exceptions. So, my software minions, invent a TPM that doesn't do that. Invent a lock that will protect digital works from infringement (not by its ultimate effectiveness, but by its mere presence combined with a law that says 'don't break it') but that will open or disappear as non-infringing behaviours interact with the work.

Sound complicated? Sound impossible? So does getting to Mars, but we're trying. Instead of watering down principles because a smart-lock seems impossible, try to keep the principle intact by diving into the work on smart locks.

Russell loves sending everyone away to do their homework. Here's a paper out of the University of Cincinatti discussing, I think, just such a smart lock system.

And here's a paper out of Columbia Law that also might be of interest. This is from the abstract:

The US experience to date indicates that legal protection for technological measures has helped foster new business models that make works available to the public at a variety of price points and enjoyment options, without engendering the "digital lockup" and other copyright owner abuses that many had feared. This is not to say that the US legislation and its judicial interpretation represent the most preferable means to making the internet a hospitable place for authors while continuing to enable lawful user conduct. But brooding forecasts and legitimate continuing concerns notwithstanding, the overall equilibrium so far appears to be a reasonable one.

So, martinis then.

Russell McOrmond said...

John M,

I'm in Montreal on my OLPC XO, so you will be spared my regular links to other sites.

I'm one of those people who think copyright infringement is not theft. If you google for "Jefferson Debate" you will find my article digital-copyright.ca/Jefferson_Debate

I believe that thinking that copyright infringement is "theft" is what devalues the creativity, and closes doors to ways to actually receive better rewards for that creativity.

I believe that if you see this as a theft issue, you will close your mind to actual solutions to any problems.

Problem: how to maximize the rewards to creators from their creativity.

Pretty much every solution I've seen that has started entirely from the perspective of stopping infringement has also reduced authorized uses as well. As a solution to 'maximize rewards", this fails the test as it reduces rewards.

If attitudes have shifted, we need to ask questions about why. If you think this is all about people wanting something for nothing, and believe that a "tough on crime" approach is your only option, I believe you have already lost. As I said above, every "solution" that starts from an enforcement mindset will reduce revenues.

I think people are looking at the "tough on crime" approach from some intermediaries and rejecting it as outrageous. JohnD has refused to look into how "technological measures" work, and has posted another article suggesting the BCCLA endorsement was incorrect likely based on his incorrect understanding of "technological measures". People who do understand how TMs work will have a hard time respecting the interesting of "Copyright holders" as a group (as if this was one group) when this group has demonstrated (through indifference, as I read all too often here, or malice, as I hear from some corporations) no respect for the rights of others.


To use your theft analogy to infringement of other rights, if you steal from me, it is very hard for me to feel sorry for you if someone steals from you.

JohnD wants to claim that his opponents fired the first shot, but I know that doesn't apply to me -- and I'm someone he has full access to to determine motivations. I only got involved in the copyright debate when it became clear that a group of copyright holders were trying to wipe out important human rights I feel are important, and are critical for my business.

Of course, understanding why my problem is correct requires some basic understanding of how "technological measures" work.

Chat later...

John McFetridge said...

"Of course, understanding why my problem is correct requires some basic understanding of how "technological measures" work."

Yeah, a few weeks ago we agreed that writing software is completely different from writing novels. There is no "non-technical" software application as there is for an old-fashioned paper book, so software writing hasn't had to make this change. It's different, we agree on that. (I think, unless you don't agree that novels are different?)

What I'm working with is a generations old tradition of having control over what I create. It's true, I don't see maintaining control over something I have created as any limitation on anyone else's rights or creativity - they are completely free to create their own, as I have.

We can debate the length of time that should pass before artwork falls into the public domain, but I don't think many people really want that to be immediately upon creation (sometimes I even create stuff and then I don't make it available to anyone, for a bunch of reasons - certainly I'm not limiting anyone's rights by maintaining that kind of control - every artist does it. I'm sure the world has been denied more art than actually exists this way). I read the Jefferson stuff and we can talk about it here, but for the moment I'd like to use the existing length of time till something becomes public domain as our guide for discussion.

"I believe that if you see this as a theft issue, you will close your mind to actual solutions to any problems."

I'm not closing my mind to any possible "solutions" but I do want to make clear what the problem is so that we can work towards a real solution.

The problem isn't about being paid, it's about being paid by the consumer of the material. I know there are other models to pay artists, but I think individual consumers should have the final say as to which specific artwork they support (this is the biggest problem with government grants and any patron system - consumers have absolutely no say about which art gets financed. The result of this can be easily seen in Canadian movies). Half of this is my right as a creator of the work, but equally as important is the right of the consumer.

It's this relationship that has the potential to be lost and any "solution" to this problem has to take that relationship into account.

I can really only speak about publishing (and really there only about novels, I don't know much about non-fiction), but I would like to point out that for me and for most novelists, a publisher isn't simply a printer and a shipping company that can be replaced by new technology. Publishers do a lot more than that and both novelists and consumers of novels benefit.

I write crime novels so I know "tough on crime" doesn't work - or, I should say, only works if a huge amount of individual rights and freedoms are lost and we don't want that.

So, how do we maintain the relationship between the creators and the consumers (with the publisher value-add) without having someone else make the material available to a limitless number of strangers without asking anyone involved if they're okay with that?

Because, you know, that also takes away consumers' individual rights to decide which artwork they want to support.

Russell McOrmond said...

JohnD,

Your analogy about TMs being like a lock which you have the key to is incorrect. What we are discussing is locks applied to devices by other than its owner, and where the owner does not get keys.

If when you returned from your trip you found that one of your neighbours changed the locks on your home and didn't allow you in without their permission and scrutiny, you would be quite upset. If these house thieves were proposing locks that made it illegal for you to remove these third party locks from your own property, you would be as upset as we are.


As bright as you think we are, we cannot change the laws of physics. I'm not a fiction writer, and am not going to write a Harry Potter book of TMs which can magically do things which the laws of physics don't allow. This is what you are talking about when discussing TMs that don't have the problems we discuss.

There are TMs that don't have these problems, but they don't and can't do what those calling for these laws think they want. And if you want me to do the "I have 4 things in my hand" presentation for you to help you understand the differences, I will do so.

By the way, we can write a paper that claims anything is true -- doesn't make it true. Yes, there are "new" business models, but if we looked at these models closely I would say that they are eithor not based on the controvercial TM's (back to the fact that some are good and some are bad), or that they were based on theft.


Charging you an entrance fee to enter your own home may seem like a lucrative business model, except when you look at the legitimacy (and hopefully illegality) of doing so.

Russell McOrmond said...

John M,

I hate the word 'copyright'. The synonym to the word 'copy' is 'manuscript', and while making mechanical copies is one of the activities it restricts, it is not about copying.

In the past books were produced, distributed, and read. You had no control over who was reading them, and they were available through these scary things called libraries which allowed people to read them for free.

When we make these books digital, every time you "read", "loan" or do anything else involves making digital copies.

The control we are talking about adding to digital copies (through controlling devices -- for basic reasons relating to science there is no way to exert this control through content alone) is a level of control that is FAR BEYOND what existed in the past. With digital we are not talking about having less control than in the past, but about special interests believing that they should now have more control.

And back to the psychology --- the tighter the control is exerted, the more citizens will rebel against it.

BTW: When I say learn "technical measures" I'm not talking about learning how to author software. I'm talking about learning the scientific/technical basis of what amounts to more than a third of C-61. Without a sound understanding of how these technologies work (and JohnD doesn't have such an understanding yet as his examples show), it is hard to have a reasonable discussion about Bill C-61.



Having audiences directly pay for access to something (monopoly rents) is an extremely narrow business model. Most of the money is elsewhere. Narrowing to only this business model is akin to giving up most creativity, something I'm certainly not willing to accept.

Google, for instance, is in the same business as television and radio. They are selling ears and eyeballs to advertisers. When creators finally decide they want to be paid for YouTube/etc (rather than the silliness of trying to stop it) and get their collectives talking with Google, it will be quite indirect -- just like radio -- where there are a number of intermediaries between the people paying (advertisers, not audiences) and the creators (who get cheques sent from collectives, not a "customer").


I see nothing wrong with this, and for many types of creators there is *FAR* more money in this than charging audiences directly.


Books are different than multimedia entertainment, but most creativity is different (Software is "special" in the same way that photography is "special", and neither should be removed from general copyright and given their own regime). One thing that can be said is that focusing only on monopoly rents (charging individual audiences for access), and treating everything else as "theft" will close the door to some of the most lucrative deals for you. And as your revenue takes a nosedive you can't legitimately blame "infringement" for what was your own bad business decision.

Off to the "breakfast" that is part of the B&B and then off to Old Montreal to check things out..

John McFetridge said...

You know, someone as dug-in as you asking other people to be more open-minded is pretty funny at this point, but I guess you don't see it.

Anyway, as I actually care about where all this is going for everyone involved, I'm going to keep at it.

I've been involved in both the movie business and the publishing industry in this country and they have completely different business models. I now see how there may be some lessons.

The movie business isn't affected by individual purchase of tickets or DVD or TV ratings at all in this country. It's entirely funded in a top-down way by direct government grants, labour tax incentives (another form of grant) and government 'loans' that are never repaid.

The publishing industry also receives a variety of grants, of course, (directly to writers and to publishers) but which books are purchased by individuals (and libraries) is a still a huge factor in the business.

Taking away the consumers' ability to influence the production is an infringement on consumers' rights, I think. It doesn't make more/better product available to more people (I'm guessing you see very few Canadian movies, either in the theatre or on DVD or on TV - if you do, you are in a very, very tiny minority, even though over $120 million dollars are spent every year producing Canadian movies).

So, freely distributed product online may very well have the same effect. If all people do is download a file, their involvement in the transaction is unimportant - they become as pointless as the box office for Canadian movies.

Maybe it "frees" artists from the constraints of the marketplace, but it also frees artists from the consumers. This may have more effect than it does in functional writing, like software.

So, Darryl reading his newspapers online and his .pdf's of Little Brother (for which there is still a traditional publisher as well) has really removed himself from the transaction - except for ads. And please, let's not say a world run by advertising would be better.

(books are still one of the few products available without advertising and most consumers of books are pleased about that. The ad world would like to change that, of course, and making books freely available on ad-supported web-sites is certainly a way to do it. Consumers would lose one of the last places they can access art without ads, another consumer "right" gone.)

I guess you see my publisher(s) as a "collective" that I receive cheques from, but I also receive detailed royalty statements telling me exactly how many books were purchased in what locations - libraries, bookstores, online, etc.. If that information becomes unimportant then we'll start to see more and more cultural industries looking like the Canadian movie business.

One of my publishers is American and doesn't receive any grants, so how many people purchase the books is very important in their choice of what to publish (this is good and bad, of course, but there is some good). Even Canadian publishers respond very well to the market, that's why there are always Canadian books on Canadian bestseller lists, but Canadian movies never make it near the top box office spots in Canada.

Now, I know what you're going to say (I think). Maybe it'll all work out great, it'll free artists and make so much more art freely available to more people. The artists will simply create the work and make it available through these new distribution methods in which publishers aren't needed.

Maybe it will mean government granting agencies will have even more say over what art gets produced and I don't see that as a good thing for individual consumers.

So, I think for consumers to still have an important place in all this, there needs to be some control over the material - for consumers and creators. There is a difference between a consumer who is willing to part with a few bucks to support something and someone who isn't. Those consumers deserve some respect in this, too.

Perhaps it's "pocketbook democracy," but the Montgomery bus boycott had more effect than most other protests. People do a huge amount of talking with their wallets - it would be a shame to lose that voice (or hand it all over to advertisers of other products).

I hope you have a good time in Old Montreal. I grew up in Montreal and worked in Old Montreal for years. I bet you're enjoying some great food....

Infringer said...

"Taking away the consumers' ability to influence the production is an infringement on consumers' rights, I think. It doesn't make more/better product available to more people"

We're getting a little off the copyright debate here. By the way I think Russell is doing a great job. I agree with pretty much everything he is saying. Any contribution I'd make would just be to nod my head when he talks.

I think the premise in the above argument is wrong. Personally I watch very little television. What little I do watch is what I download from bit torrent sites (ya, I know theft and all that) The vast majority of which is stuff produced by the BBC. The Brits create a tonne of good shows, all with public money.

I think that sort of defeats the argument that taking choice away from consumers, results in poor quality products. The popularity of BBC shows around the world proves otherwise.


"So, Darryl reading his newspapers online and his .pdf's of Little Brother (for which there is still a traditional publisher as well) has really removed himself from the transaction"

This is wrong too. I've downloaded and read a few books now. The ones I like, a few times, I have turned around and bought hard copies to give to friends and family. I think that makes me and integral part of the transaction. Had I not downloaded and read them myself, I very likely would not have bought them either.


"Maybe it will mean government granting agencies will have even more say over what art gets produced and I don't see that as a good thing for individual consumers."

While it is difficult to prevent people from downloading via BitTorrent, it is easy to track what is being downloaded and how much it is being downloaded. That would in turn make it easy for a subsidy system to be tied directly to the popularity of the author. This would mean that even those who do not in turn buy hard copies, would still be contributing to the author. Sort of like the same reason I vote Green every election. Every $1.75 helps you know!

John McFetridge said...

"By the way I think Russell is doing a great job. I agree with pretty much everything he is saying. Any contribution I'd make would just be to nod my head when he talks."

Yeah, we're used to that this in these discussions... ;)

It's amazing there's any issue at all with you guys being so obviously right about everything ALL the time ;)

"While it is difficult to prevent people from downloading via BitTorrent, it is easy to track what is being downloaded and how much it is being downloaded."

A good example of this is the TV show FIREFLY - if everyone who downloaded it from BitTorrent had each paid a buck, the show would be back in production. I guess none of them liked it enough to want to see new episodes.

But you're right, this kind of data could be used in some kind of "subsidy system to be tied directly to the popularity of the author." That will be a lot easier than asking people to not give the stuff away to strangers, won't it?

I wonder, will governments be responsible for these subsidies alone, getting the money through taxes, or will companies that profit from the inernet have to kick in? Would that be, oh I don't know, some kind of levy?

The BBC, of course, is going through some big changes, and many of those British shows people like are not actually produced by the BBC with public money. So, it's possible public money works - it usually needs to be in conjunction with other investment - and individual consumer investment might not be a good thing to lose.

Of course, I'm open-minded enough to say it might be okay to lose that.

Having dealt with both government granting agencies in Canada and for-profit US publishers, though, I'd hate for this to become an either/or situation. I would doubt that would be benefit consumers, and as I am one, I worry about that.

"I've downloaded and read a few books now. The ones I like, a few times, I have turned around and bought hard copies to give to friends and family."

Well then, let's hope the new technology doesn't send the hard copy the way of the buggy whip.

"We're getting a little off the copyright debate here."

Well, as Russell points out, a lot of stuff is being dragged into copyright law that probably shouldn't be.

I know we disagree about how we got in this mess and my feeling that peoples' acquiring things offered for sale without paying is at the root of a lot of it isn't accepted by everyone, but that's what I'm talking about here.

I do want to make sure that as a consumer I have some say - even if it's the Green Party's $1.75 you mentioned.

I don't know exactly how that will be worked out, but I don't want to leave it in the hands of governments or advertising companies. I'd like it to be as much between myself and the creator of what I acquire as possible, but for that to work there will have to be some way to assure us both that the transaction isn't circumvented by everyone else.

So, we're back to pirating, except I think there are some consumer rights that pirating also damages.

John said...

I'm out of the ring for the next couple days -- deep into a first draft, trying to get to the finish line. Please continue to wrestle amongst yourselves while I'm gone.

There will be a quiz on those two essays I linked to when I return.

Russell McOrmond said...

"You know, someone as dug-in as you asking other people to be more open-minded is pretty funny at this point, but I guess you don't see it."

I see and am proud of the ways that I'm dug-in.

a) I recognize that when it comes to the question of who should control communications tools, that "Communication is King". Issues about content are and must be considered separate and secondary, if at all. If this issue were removed from the debate, the conversations would be much calmer.

b) I do not subscribe to the "Rob Peter to Pay Paul" philosophy, and I do not believe that decimating areas of creativity to prop up specific business models is reasonable.

Otherwise, lots of things are up for debate. I have my experience and you have yours, and we can share that.

"What I'm working with is a generations old tradition of having control over what I create."

"Manuscript"right is a small set of activities which require the permission of (or payment to in the case of compulsory licenses) the copyright holder to do. The type of control you seem to be talking about never existed in the past, so can't be claimed to be generations old.

What the bulk of C-61 is about is extending that narrow set of permissions to including an exclusive right of non-interoperability where the copyright holder gets to decide what brands of technology can access the content.

Built on top of this, and assumed to be protected by new "copyright law", is a brand new right being granted to device manufacturers to apply foreign locks which lock out the owner of the hardware. This will lock out not only 'audiences' of encoded content, but creators who would otherwise be able to use these devices for their own creativity.

This is what the "technological measures" debate is about. The idea that it is about enabling legitimate new business models (as opposed to ones based on theft) or stopping copyright infringement is spin, not reality.


"A good example of this is the TV show FIREFLY - if everyone who downloaded it from BitTorrent had each paid a buck, the show would be back in production."

I agree, and it would have been great if the copyright holders would have been willing to accept this payment. You seem to believe that people were taking something for free when a payment option existed, but that payment option didn't exist. Most of the infringement I am aware of are in cases where comparable legal options simply don't exist.


JohnD,

As to the summary of the papers you linked.

a) The first paper sidestepped the entire debate, talking about "local authorization" and "remote authorization", without addressing the fundamental question of what technology is doing this authorization, and who owns this technology. The DRM debate is not about the specific rules that are encoded in software by a DRM manufacturer, which are then run on our hardware, but whether foreign locks and software should be mandated to be running on our hardware in the first place.

Back to your house -- would you worry what specific rules your neighbour was using to allow you into your own home, or would you be upset at the fact that someone other than you placed a lock on your home and are requiring *any* permission (for any reason) for you to enter?

b) The second paper is even more offensive in many ways. It starts by talking about whether copyright includes a digital access right, repeating the highly controversial suggestion that accessing involves copying into RAM and thus requires permission. The sentence "Thus, access controls underpin the reproduction, communication and distribution rights" is on page 7, which could alone be considered the conclusions of the paper. Thus the expansion of this exclusive "access right" in the DMCA is claimed to be non-controversial, and copyright holders having the ability to impose specific brands of access technology is claimed to also be non-controversial.

The statement that, "The US experience to date indicates that legal protection for technological measures has helped foster new business models that make works available to the public at a variety of price points and enjoyment options, without engendering the "digital lockup" and other copyright owner abuses that many had feared" is just that, a statement. Nothing in the paper lends credibility to that unreferenced statement. Like the first paper, the key controversy around technological measures is simply not discussed (locks on devices), and the entire paper presumes that technological measures worked as advertised in the brochures, ignoring the technological reality of how they actually work.

By the way, I know that these summaries will fail your test as they use technical knowledge and not marketing brochures as the basis of the analysis. I still invite you to look at the handouts from my recent presentation so you would have that same technical knowledge, and can spot these flaws in these papers yourself. I am willing to spend the time to discuss this on a voice call if you wish, using the handouts to move the conversation forward.

John McFetridge said...

"I agree, and it would have been great if the copyright holders would have been willing to accept this payment. You seem to believe that people were taking something for free when a payment option existed, but that payment option didn't exist."

You're right, that particular option wasn't available at that time. I suspect soon that option for this kind of thing will be available right away. The question is, will the BitTorrent option also be available and which will people choose?

(I still think it's too bad that the people who created and financed the show didn't get a few more months leeway to get on board an online payment option and someone else stepped in so quickly to circumvent this, and so many people were only willing to acquire the show in that particular way, but then I liked the show and would have liked to have seen more episodes - the movie doesn't even count for me because there was just no real reason to kill Wash - but I digress).

Maybe you're right that when both are available at the same time enough will choose the payment option over the free option. We'll see, I guess.

And you're right, I don't want a whole new set of rights granted to device manufacturers under the guise of "copyright."

I just wish people would stop being in such a rush (the BitTorrent stuff that hasn't even had a chance to become available online, or the creators of it are a little slow off the mark) and giving up so much ammo to cloud the issue.

I suspect there are very few examples like Firefly, far fewer than the manufacturers claim, but still, enough for them to make a lot of noise about.

My fear is that there will be a "solution" to this that doesn't please either one of us because in many areas we want the same things.

Russell McOrmond said...

"I suspect soon that option for this kind of thing will be available right away."

I'm looking forward to it, but I'm sceptical. One of the things in the way are laws such as anti-circumvention legislation which confuses copyright holders into believing that there is a technological solution to a social problem. I believe that we will only really be able to deal with these problems once the decision makers realize that there is not, and can never be, a technical "fix".

"The question is, will the BitTorrent option also be available and which will people choose?"

I think what you are asking is whether people will pay for things which the copyright holder has asked to be paid for. BitTorrent is not itself an issue, and it has many intended and lawful purposes.

I think we will have to wait to know for sure, assuming we are ever given that option. You appear to believe that if it is physically possible to take something for nothing, that everyone will. I am of the belief that while there will always be some people who don't pay, the majority will and that with something with a marginal cost to the producer of zero that all you need is a majority.

It seems silly to me to give up a majority of a market and making it harder for them to access and pay (IE: what DRM does) in order to stop a tiny part of the market from infringing. That clearly doesn't work towards a goal of better compensating copyright holders.

"few more months leeway"

That suggests that a payment method for a comparable method of access was in the works. I see no evidence of this. And if you are talking about a DRM system, then this doesn't count as many people legitimately will not access DRM infected content and thus encoding the content this way is like throwing money out of your own pocket.

"I just wish people would stop being in such a rush"

I think that applies far more to those wanting to make radical changes to the law, than those who can't make sense out of the current law and practises of copyright holders.

To John D,

I decided to make my comment to you into an article: Ongoing legal study of “technological measures” done without understanding technology?

Feel free to comment there on the science, or if there is some relevant detail of those papers that I missed. I didn't read them as closely as I have C-60 and C-61.

John McFetridge said...

"I'm looking forward to it, but I'm sceptical."

Oh, we're starting to seee it now. Lots of shows are available online - some not even available on broadcast. It's coming. Lots of shows are available to watch (I don't know about saving them, I have no real interest in that) for a buck - it's how I saw the final few episodes of Friday Night Lights (very under rated show btw).

"I think what you are asking is whether people will pay for things which the copyright holder has asked to be paid for. BitTorrent is not itself an issue, and it has many intended and lawful purposes.

I think we will have to wait to know for sure, assuming we are ever given that option. You appear to believe that if it is physically possible to take something for nothing, that everyone will."

No, not everyone. Once again, we just have to find that sweet spot. I think if content is offered for a fair price in an easily accessible way, most people will pay for it. Or at least as many as would have paid for it otherwise. I think we're already starting to see this.

In fact, this is what I'm afriad of losing. To much of the rhetoric in all this is, I think, pushing us away from this solution instead of towards it.

"I think that applies far more to those wanting to make radical changes to the law, than those who can't make sense out of the current law and practises of copyright holders."

This kind of rhetoric. It makes a competition out of it, it divides far more than it needs to. Does it matter who's in "more" of a rush if everyone's in one? It's the 'you steal from me, I'll steal from you,' kind of talk that gets us nowhere.

This stuff is complicated, but for all of us here who aren't shareholders in the manufacturers, we have the same goals. I think. Everyone says they think creators have some rights. I think.

But I'm never really sure.

Russell McOrmond said...

"Lots of shows are available to watch"

Can you give me some examples?

While the indies are increasingly making their music available on DRM-free systems like eMusic, and there are now audio books there as well, I don't see the same thing happening for television and movies.

Maybe you are aware of sites that I'm not. Every time I'm pointed at a site that alleges to make television and movies available, it is eithor free stuff (IE: http://www.startreknewvoyages.com/ ), fairly obviously infringing, or infected with DRM. Do you have some examples of legal for-pay content that is DRM-free?

I have a Neuros OSD here that I would love to be downloading content for.


"It's the 'you steal from me, I'll steal from you,' kind of talk that gets us nowhere."

Not sure who in this discussion said that. We have enough different views in the threads on John's site without always bringing in (unnamed, unreferenced) people who aren't here.

John McFetridge said...

"Can you give me some examples?"

Well, I don't download, I just watch, usually live sports like TFC on MLSnet.com (I don't have cable TV, there's so little I'm interested in, it's much cheaper to pay the few bucks for this - and we finally won on the road!) so I don't know if there's DRM or not. I have no interest in keeping copies (maybe that'll change as we start to win more, who can say?).

So much of this issue hinges on the "owner's" rights - where I agree with you, by the way - that I think we'll see increasing talk of "access" rather than "ownership" of content. The ability to to view/listen/read anytime you want, but not to own your own copy on your own device.

The largest part of the market won't see any real difference between access and ownership and the fringes of any market are usually not well served. It's too bad, I agree, but it will "solve" the problem for most people.

Although your Neuros looks cool.

Russell McOrmond said...

"usually live sports like TFC on MLSnet.com"

I didn't see any live feeds, but went to the podcasts http://web.mlsnet.com/sights/podcasts.jsp , which pointed me to some .m4v files (H.264 video, AAC audio) which is about as standard as you can get for online video. It would play on my Neuros without any problem. MPEG-4/AAC is the native format that the Neuros creates.

Don't know if they do as well for their live streaming, but the podcasts look promising. They may be bright and realize that having $free DRM-free stuff, and then infecting their for-pay stuff would be counter-productive.



"I think we'll see increasing talk of 'access' rather than 'ownership' of content"

I'm not actually concerned about access vs. ownership of content, but access vs. ownership of devices. It is the hardware/software platform and standards around them that I am concerned about.

I think there are a wide variety of options for content that are quite legitimate, with ownership of a medium being an options we should strive for. I also recognize that enforcement of the options needs to be handled in the law (copyright, contracts and courts) and not in technology which neithor the copyright holder nor the device manufacturer own.

I would also hate to see us move away from device ownership. While only allowing rental of Blu-ray/DVD players, TV/Cable/Satellite tuners/PVRs, game consoles and cell phones would solve the underlying legal/moral/etc problems of "DRM", it would still have harmful economic effects from the lack of competition/etc.

digitalshaman said...

digitalshaman here ... respectfully, why not simply post a response ... lack of understanding is no excuse & I am quite willing to startthe discussion by pointing to the foundation of security - Kerckhoff's Law ... try my OpenID contact - more than willing to clear up any misconception about the topic - in fact, I welcome it ... not hiding in plain view ...