Tuesday, April 20, 2010

Re-doing the math (please show your work)


Last summer, after the copyright reform bill C-61 died on the order paper in Parliament, the federal government held a number of public town halls and roundtables to discuss ongoing copyright reform and the possibility of changes to Canada’s Copyright Act. These discussions were recorded and a robust debate that had previously been taking place mostly online spilled over into the physical world. Present at these events were Industry Minister Tony Clement and Heritage Minister James Moore – their federal ministries will be responsible for writing any new legislation.

The consultation also provided an online forum for submissions from the general public. Anyone interested in copyright reform for the digital age could submit their opinion to the government. I submitted my opinion last September. You can still read it on the consultation website.

The decision to provide an online tool was great for accessibility, and was presumably informed by the fact that the copyright debate had recently shown some impressive penetration into the Canadian psyche. Consumer advocate Michael Geist had encouraged the explosive growth of the public discussion by creating a Facebook group, Fair Copyright for Canada, claiming 83,893 members (today; although, I believe it once topped out at over 90,000 members). Geist also created a special website – Speak Out on Copyright – to encourage more submissions to the consultation. The website also provided handy answers to the government’s questions, based on Geist’s own opinions. With such an effective consumer lobby mechanism in place, the government could be excused for expecting their online consultation might attract somewhere close to 80,000 submissions on this hot topic.

In the end, the numbers were far more modest. By Michael Geist’s own count there were just over 8,300 submissions (or roughly one-tenth of the expected potential). Mr. Geist did a quick analysis of the submissions, and came to a persuasive conclusion – “the overwhelming majority reject[ed] Bill C-61 (6138 submissions against, 54 in support), while thousands called for flexible fair dealing and a link between copyright infringement and anti-circumvention rules.” In other words, the vast majority of the submissions were very closely aligned to Geist’s own “short answer” section on his Speak Out website.

Case closed, it would seem. Given the opportunity for informed Canadians to give their opinion on the specifics of copyright, we seem to agree with Michael Geist.

On the other hand, a closer analysis of the consultation results and numbers suggests a very different result.

Technology lawyer Richard C. Owens has taken a closer look, and published his findings in a publicly available paper called Noises Heard: Canada’s Recent Online Copyright Consultation Process. You can find a short intro to the paper here and the full document as a PDF can be linked to from the intro.

Owens pulls the consultation apart submission by submission, and includes analysis of uniqueness, potential bias and issues of submission verification. Most concerning for everyone involved is his finding that "70% of the total submissions were “form letters” originating from a single little-known group of modchip distributors – the Canadian Coalition for Electronic Rights (CCER) – that had its form letter extensively circulated internationally on BitTorrent related sites. As a result, it appears that many of the submissions were not even made by Canadians”.

Owens’ paper concludes:

“If the aim of the Consultation was to canvass public opinion and discern trends, it failed.”

“An online public consultation on a highly technical and complex area of law might provide some degree of useful context, but by and large it can accomplish little that will be of direct application. Much more useful is to solicit the opinions of the members of the communities that are truly informed. In Canada, that is certainly a large enough population to yield a great many useful submissions. Ministers Moore and Clement are strong ministers and they need the support of the best and most rigorous processes. In fact, Minister Clement has recently called for further consultation on Canada’s digital economy strategy. Let’s be sure that our next consultation is more fruitful.”

Owens’ rigorous analysis was published yesterday. Today, the Canadian Coalition for Electronic Rights has posted a response to Owens on their website (not entirely off-topic, the CCER website lists no less than 5 Michael Geist-related websites in their short “Resources” section). CCER accuses Owens of “hitting the panic switch” in a “tirade” designed to “discredit and silence the voice of thousands of Canadians who made submissions to the 2009 public consultations on copyright.”

Rather than “gaming” the consultation with form letters, the CCER claims they were seeking to “help those Canadian’s who wanted to have their voices heard but were reluctant to do so because they feared that alone they could not effectively articulate their ideas and desires for future of Canadian copyright.”

Michael Geist has also responded very quickly on his blog:

“Given that the copyright consultation attracted greater participation than virtually any government consultation effort in recent memory, it is hard to see how it can be deemed a failure from a participation and public opinion perspective.“

On the issue of form letters, Geist takes an interesting tack. I’m paraphrasing, but it’s something like… form letters may carry less weight, but both sides used them; and of the less-weighty submissions, the anti-C-61 ones were less-weightier.

The comments section on Geist’s blog goes even further in criticizing Owens’ article, labeling him a corporate shill, a vulture, and making reference to German fascism in the 1930s. Please note, Geist does not moderate the comments on his blog, and the opinions of those commenting on his blog should not in any way be seen as approved by Geist.

The debate, briefly made corporeal in town halls across the country, has returned to its online roots. Sigh. One thing I’m sure of in all this. I did not use a form letter to write my submission and, as an independent professional artist, I look forward to the next opportunity to discuss this issue with lawmakers.

UPDATE:

Globe & Mail coverage of the form letter story.

IP, Innovation and Culture blog
accuses CCER of subverting democracy.
Music • Technology • Policy blog analyzes the controversy in extreme detail.

IP lawyer Barry Sookman blogs about the Owens' article and related controversy.

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19 comments:

Darryl Moore said...

Yes, please show your work.

In particular please show how this is true. “70% of the total submissions were “form letters” originating from a single little-known group of modchip distributors – the Canadian Coalition for Electronic Rights (CCER) – that had its form letter extensively circulated internationally on BitTorrent related sites. As a result, it appears that many of the submissions were not even made by Canadians”.

I see many calls to arms by Doctorow on BoingBoing, asking people to write their MEP. I do not write my MEP because I do not have one, but I suspect many Europeans do. The existence of links from "international" torrent sites is insufficient on its own to disregard the letters. Show your work.


Also your claim that "With such an effective consumer lobby mechanism in place, the government could be excused for expecting their online consultation might attract somewhere close to 80,000 submissions on this hot topic."

This is a rather fantastical conclusion. It is a little like the recording industry claiming that every illegal download represents a lost sale. Did you really think that anything even approaching 100% of the members of this group would actually respond? How did you arrive at this conclusion? Please. Show your work.


It is also very interesting that you make no mention of the 'gaming' which the recording industry partook in at the Toronto Town Hall. I was there and most of the people there worked in the industry. There were many empty seats though I know of many people who could not come because the event was 'sold out'. But that is what happens when one group reserves all the seats for their friends, but only half their friends show up.

At least with the CCER, their efforts did not have the effect of preventing others from speaking up. You still got to send your submission didn't you.

John said...

Mr. Moore,

Thanks for your response.

I have the feeling that most of your questions are better directed at Mr. Owens. I believe if you read the full Owens article you will find his reasoning behind the 70% number quoted. But let me quote it here so you don't have to read the source material if you don't want to. It's from page 2 of the full article (just above the pie chart):

"The number of Submissions which were classified by the Departments as “individual” or
“non-form letter” is 2,878, or 34.82% of the total number of Submissions. In fact, the
number of Submissions that are classified “non-form letter”, but that contain all or part of
the CCER form letter, is at least 756. Fully 26.27% of the so-called “individual”
Submissions contain all or part of the CCER form letter. When we add that number to
the total form letter Submissions, we find that one form letter, from the CCER, accounts
for 5,805, or 70.23%, of all Submissions."

The 80-some thousand members of Fair Copyright for Canada are regularly referenced as an indication of public interest and political pressure on this issue. If that interest level actually exists, and if all those 80,000 or so members of FCFC are well-aligned with the CCER form letter, I can't really see any reason why each and every member of the group did not submit a form letter.

I'm a member of that group, and I took the time to write an individual submission. I didn't need or want a form letter.

I was not at the Toronto town hall, but from all reports I've read there was a balance and variety of opinions heard, including even some fellow who claimed to be a pirate. It sounds to me like no opinion was shut out. I'm not sure what industry you make reference to -- the town hall industry?

Anyway, it sounds as though you experienced some frustrations at the town hall. I would advise you to alert the appropriate federal ministries.

Darryl Moore said...

LOL. John, I have no argument with where the 70% figure came from. It was the conclusion that he drew from this that I objected too. I even went so far as to highlight the part that was controversial.

"As a result, it appears that many of the submissions were not even made by Canadians"

My comment following the quotation I would have also thought would make my point clear. Sadly you ignored, my point and instead addressed the non-controversial part of the quotation.


Regarding the "80-some thousand members of Fair Copyright for Canada". Absolutely, they are "referenced as an indication of public interest", but public interest does not equate into political advocacy. You are politically active, so I would be very surprised if you did not make a submission. Most of the people in that group however, would probably count the mere act of joining that group as the most politically motivated action they have ever undertaken in their lives. And you would expect these people to immediately go on to make a formal submission to the government? Not to worry though. This sort of disconnect between political advocates and the general public I expect is quite common. I'd even say Owens and Sookman suffer from it as well, amongst many others.


It is interesting that "from ALL reports [you've] read there was a balance and variety of opinions heard" at the Toronto Town Hall.

Considering how much chatter it created on the Internet at the time, I can only attribute this statement to wilful blindness. I'm sure I could find links links for, but it would probably be just as quick if you did a quick google of "Toronto Town Hall Copyright". Let me know if you still cannot find anything.

BTW, This is a nice site. So civilized compared to noisy hubris of all the trolls on Geist's site.

John said...

Mr. Moore,

Again, I encourage you to read the entire Owens article, and to contact Mr. Owens directly with any criticisms. While I find the article very interesting and concerning, I didn't write it.

Page 3 of the article provides some detail on Owens' concerns about non-Canadians in the consultation. I quote from it below:

"A TorrentFreak post by “Corrupt Plague” (surely someone with our best interests at heart) reads:

“I have done my part and sent a letter, now you do yours. And BTW, Am I the only non-Canadian doing this?”6

Similarly, another TorrentFreak poster stated in regards to the CCER form letter:

“Letter sent! Do the same everyone! Just use the wizard linked in the article. If
your (sic) not from Canada, just Google some address there or something :P Most bittorrent sites are hosted in Canada, so this is epic loose for everyone! “(all
sic)7

On the issue of FCFC membership, I'm not sure I understand your concerns. Are you advocating that one-click Facebook group membership should count as verifiable political polling?

I feel about the Toronto town hall as I feel about the Facebook group's participation in the online consultation. Everyone knew about the town hall at the same time. Everyone active and interested in the discussion had the same opportunity to register and attend.

If many creative professionals showed up and expressed their concern, it shows their commitment to the issue. And they certainly have as much right as anyone to be heard on this issue. If others sent representatives, that shows their commitment.

And if others didn't take the opportunity, that, unfortunately, shows their true level of commitment as well. You are to be commended for showing up and speaking your mind (if you did), but if you feel not enough others did you might want to direct your disappointment at them. The opportunity was there.

Certainly the online transcript of the event shows a mostly respectful, passionate and balanced event.

Darryl Moore said...

"Again, I encourage you to read the entire Owens article, and to contact Mr. Owens directly with any criticisms."

You quote his numbers, which have very little statistical or other basis, but call on his critics to "show their work". One would think that if you present his argument in your blog with the sub title "show your work" that would would indeed believe there to be some substance to his assertions, and even present them. No, the few quotes you mention are not enough to claim that MANY submissions are from outside of Canada.



"On the issue of FCFC membership, I'm not sure I understand your concerns. Are you advocating that one-click Facebook group membership should count as verifiable political polling?"

I never said that. I said it should count as an "indication of public interest". The two are significantly distinct.





"Everyone active and interested in the discussion had the same opportunity to register and attend....And if others didn't take the opportunity, that, unfortunately, shows their true level of commitment as well."

Nothing could possibly be further from the truth. An equal process is not the same as an equitable one. Remember that next time you see a person in a wheel chair waiting for a bus at a bus stop.

The professionals you speak of, were from what I saw WB office workers and the like who most likely had the tickets acquired in their name by a few savvy individuals who parked in front of their computers reserving every available seat until their were none left to be had. How else to explain why the meeting filled up so quickly (within the first day) but so little turn out? I know of many people who wanted to come but got to their computers just a bit too late to do so.

Unfortunately some of these professionals had time and organization, which their critics lacked, and they were able to use it to silence their opponents.

Anonymous said...

John,

Do you really think the Canadian public even cares even a little bit about what Owen is stating here? No, it's a non issue, and our government is treating it as such.

Question for you. Since when do creators actually care what the Canadian public thinks, and do you not think creators groups including yourself who is a Fair Copyright for Canada member already know what the Canadian people's views are on this subject prior to the consultation? Do you not think the government over the past 2 years already knows what the public mood on this subject is, and that maybe the consultation process was to see if a middle ground could be reached?

Get real, dude..Creator Groups are constantly being shut out and pushed aside when it comes to open and transparent processes, which is why they took to ACTA, and now that's out in the open finally, something will happen to push creator groups aside on that as well. Heavy political costs are in front of the graduated response theory in almost every country that has tried to impose it including France.

As a creator, maybe asking yourself why the past 10 years have been an utter failure, and maybe come up with some proposals that the public will actually lend support to, rather than trying to force something down the throats of a voting public, who are in control of this debate (and always have been). Do you want to get paid, or do you want to continue with these failed efforts?

This attempt to undermine the consultation process by Owen, if were more widely reported on would only serve to reduce the credibility of any argument from Creators groups. If we had a new consultation process as a result, I'm sure there wouldn't be any lobby groups allowed to participate, due to the way the very publicly acted at the Toronto Town Hall meeting. Count yourselves lucky those advocating on your behalf actually had numerous seats at the table.

If I had my choice, I'd pick up the phone and servery 30 million Canadians, which would turn out quite the consumer friendly copyright law, which still maybe done if this bill doesn't reflect the voice of the Canadian people, at which the Canadian public will decide at the voting booth.

Jason K said...

As a fellow creator John, I think one of the things that needs to be fully understood first before we can fix anything, is the problems we face.

There is a huge probability that even with a stricter copyright regime that creators will see little if any difference in overall pay.

I've studied the economics at play here, especially with online piracy for the past 2 years. Industry's own numbers suggest and support the theory of Creative Destruction. Stricter IP laws will not fix the issue of creator compensation. The past 10 years represents the failure of industry to adapt to new income, or even adapt copyright in the appropriate manner with respect to the shift in economics and the market that has occurred.

If you look at the situation from countries that have passed tougher IP reforms, creators are still suffering, and they will continue to suffer as long as the problem relating to the economics at play is not solved. Laws can do very little to solve this problem, it will be the will of the industry to adapt or not. It is not the end user nor file sharing that's the issue. It isn't investment, it is a total annihilation of a business model which cannot be brought back. Attempts to do so over the past 10 years have failed, and attempts to do so now will equally fail, because the old way of doing things cannot co-exist with this new innovative environment. It has to be adapted to it in a reasonable and realistic way.

With respect to Owen, rather than debate economic data, industry is relying on discrediting governments, and individuals and turning it into an emotional argument with creators rather than actually supplying any scientific data to back up their claims to both the public and creative talent (that we need) to bring in a logical and fair approach to this:

http://digitialmusiccopy.blogspot.com/2010/04/us-gov-accountability-office-questions.html

Jason K said...

We are basing law on assumptions of industries that are not only highly competitive with each other, but will do whatever they need to, in order to stay on top of their game. Very little concern here is going to the actual creators if you understand the business dealings in the creative markets or any business environment really.

The last time this happened, our economic system ended up in near total global economic collapse, and that was very recently. What do you think is still going on in the creative industries globally and has been for over 10 YEARS regardless of where law has been reformed or not!! It's not file sharing, that's far too simplistic and convenient.

It frustrates me as a member of the creative community to see this debate turned into industry professionals trying to one up on the public, and who won or stamped out one another in the Toronto Town hall, like this is some immature game. I was disgusted to see business professionals (expecting this from lawyers though) act in the way they did towards a public consultation in which their views were already submitted through professional and registered lobbyists. It did nothing but prove to the voting public that industry has stooped to acting out at a level I see from my 5 year old kid when he wants something. That’s not passion my friend, it’s plain ignorance of what we currently face economically.

Give your head a shake John it's not about winning or losing, if it was, the creative community has already lost and will continue to do so, regardless of law due to the incompetence of those at the top to actually understand properly how the dynamics of the economics have changed.

The only thing Government can do is make law irrelevant and unenforceable in the eyes of its people (which is a major concern), and give creators the false hope that their rights are actually being protected. It will not be law that's the answer, it will be those who can adapt and change to the marketplace as it has been over the history of economics. I’d be very careful as a creator who you align yourself with. Those that don’t fully understand what has taken place economically will soon sink and fast, regardless of reform.

John said...

Thank you both to Jason and Anonymous for your comments. Obviously, we have differing perspectives and opinions, but I don't think any of that is insurmountable in terms of finding workable solutions.

I remain very optimistic that the public discussion of copyright reform is helping to inform future legislation. I welcome all perspectives, but I admit I value a bit more those individually expressed - one-click activism does not speak of "deep" concern to me.

And, Mr. K., I also remain optimistic that new tools and new business models can only improve economic conditions for professional creators -- audience growth seems inevitable. I understand the assertion that creator and industry focus on copyright protection can have an alienating effect on the consumer, but I'm not convinced it always does. I have faith that the majority of cultural consumers, like the vast majority of cultural creators (much crossover between those two groups) understand the sometimes fuzzy lines around intellectual property and, more importantly, the basic concepts of fairness which allow us to both enjoy and protect it.

Jason K said...
This comment has been removed by the author.
Jason K said...

Sorry about the delete above. Needed to correct something, anyways here's my response.

"I understand the assertion that creator and industry focus on copyright protection can have an alienating effect on the consumer, but I'm not convinced it always does."

Alienating effect on the consumer won't matter John. It's understanding the economics at play that's going to make or break this issue. If you are assuming that Canadians will react differently than virtually everyone else in the world that has IP reforms, that's representing in itself the lack of understanding of the marketplace and effects the net has had over the global population.

http://www.youtube.com/watch?v=3OT5jQCaM8Y

There's almost a global consensus on this issue. We got ACTA out into the public. I'd be careful in taking up arms against consumers, especially here in Canada. We seem to be the more educated of the bunch on this issue, and industry is viewed in a very negative way. A lot of that has to do with the lawsuits down south.

I've been right on this. The below blog was done up prior to FCFC.

http://digitialmusiccopy.blogspot.com/2007/11/canadian-resistance.html

The Jaffer issue in Ottawa right now, doesn't give much apatite publicly for industry lobbyist. It'll be interest to see how the next few weeks will play out publicly.

Jason K said...

The global consensus I have been speaking about is very much still playing out. It won't be long until there's the political will, to actually look at the situation and economics in a more intelligent way rather than an issue of petty politics, and lobbying. There's nothing more that will outrage the public, if their voices continue not to be heard. The power over this issue resides in the very public industry is alienating, which may not be a good thing for creators groups.

A lot of creators groups, have not followed through with any understanding of current market predictability, and are not putting forth changes needed in Countries where IP reform is desirable.

On the business side the Canadian ad market in Media crashed over the past year, in large part because investors want to move forward with the digital marketplace, and the "old" media was refusing to adapt, due in large part because of IP reform. Near total devastation in the traditional media sector occurred, and the realization of this has sparked an almost immediate change towards offering broadcast services online without IP reform. There are investors out there. The bounce to new online ways of viewing media isn't being held back by IP reform.

Shouldn't the new markets be explored now? Creators are losing money, and it's set to get even worse regardless of IP reforms. Again, be careful on who you align yourself with. Not too many people will be standing in the next 5 years if the economics are not put into play with respect to policy.

Don't dismiss good guys (ie Canadian Public) who have the same goal as you and that's to basically increase your pay.

Russell McOrmond said...

Hi John and others,

Great to see the conversation ongoing. A few disjoint thoughts...


I was one of those people who felt shut out by the Town Hall process. I received a special 'invitation' without clarification of the differences between A-list round tables vs B-list town halls, which is the primary reason that I didn't attend either. Spending so much cash to go to Toronto would have been pretty dumb, given only a few of the people there were actually allowed to speak.

I watched the gaming going on via the online stream. Yes, there were a few people who were actual creators and regular citizens, but the bulk of those spoke were giving canned commentary from a special interest group (and only a few interest groups at that).


I have considerable misgivings about the process, just not in the same way that Mr. Owens or Mr. Sookman would. Mr. Sookman I know better, and is a non-technical lobbiest for the recording industry. He was clearly in their camp before they hired him, so he can be considered quite honest in what he says. He is going to highlight things which promote his viewpoint that if the recording industry is given back the control they had in the 1980's that everything would be fine. Except, everything wasn't fine, and the type of technological control we are talking about now will likely wipe out the actual creative side of the music industry (the composers and performers, with fewer able to make a living). This control is not being granted to copyright holders (creator or non-creator), but to a few monopolist technology companies.

Funny how creator groups fear Google and love Apple, even though it is Apple that is the threat and Google that is (largely, but not always) an ally to creators. I question the Google Books proposals for the same reason I question Access Copyright, and am surprised when an AC supporter (and AC itself) is angry at Google for offering a similar setup. Is this a competition issue (AC doesn't like competition), or a copyright/remuneration issue?


This is the nature of the conversation that I often see missed. People like Mr Sookman, Mr. Owens and to a much lesser degree yourself assume (and suggest to others) that people who disagree with you are doing so because they don't want creators to get paid. In fact, many of us are doing so *BECAUSE* we want creators to get paid (as well as retain artistic freedom), and believe that the things that are being asked for ("more" copyright, attacks on technology property rights, trying to turn back clock) are in fact harmful to the material and moral interests of creators.

Russell McOrmond said...

I'm not a fan of anonymous submissions. I hold my nose in forums like this one, and largely ignore the comments from people I don't know are real. In some cases I've met the people participating in the discussion.

For a government consultation I found the whole thing quite disgusting.

The problem is, what was the alternative? The government has been lazy and has never set up the infrastructure or training to set up a proper digital signature system for Canadians. The anti-security farce we saw with the online Census (software to protect government from you, done by revoking your security) suggests the Canadian government is still headed the wrong direction.


Whether I call myself Michael McKinnon, Russell McOrmond, or Frank Degen in a submission, the government has no way to know if:

a) I actually submitted with all 3
b) Which one, if any, are real.
c) Which are from Canadian citizens
...etc, etc, etc...


Oh, and don't get too high on the horse of suggesting that it was only Canadian Coalition for Electronic Rights (CCER) that suggested people send in form-letter-ish submissions. I saw the rhetoric used by Access Copyright in their call to arms, falsely claiming that the bulk of submissions were suggesting creators shouldn't get paid.

I realise that saying that CCER is associated with protecting property rights (mod-chips remove non-owner locks on technology) is intended to be derogatory. You have to remember that we do not all agree on who the thieves are in this debate. The link to mod-chips, if one really exists, is was a detail likely unknown by the vast majority of the people using their form letter. I promoted it as a "better than nothing" option for people, and I had no clue of that connection until Mr. Owen's rather biased opinion piece.

John said...

Russell,

Thanks for stopping by -- your comments are always welcome.

You cover a lot of ground there.

My concern over form letters, or form letter-ish submissions is not that they exist, but that they may go unrecognized for their relative value. To me, a one-click form letter submission with no individual, informed content is very difficult to put a value on -- no matter which side of the debate it comes from. To push a raw count of the numbers, without qualifying them, seems inaccurate at best.

Apple? Google? This may sound weird to you, but technology is a tool in my life; it is not my life. I think I may just be closer to the average consumer than you are, in that I have no interest in opening my technology and fiddling with it. I want value and convenience for price, and I'm willing to pay more for better functionality. If the DRM on a device feels overly restrictive, I won't buy it. If I'm compensated for the DRM with value added, I will buy it. My own personal disagreements with Google have to do with permissions.

I recognize and respect that you see a different path to creator control and payment. I simply don't see the need to weaken or remove traditional creator rights to follow that path. My own personal creator business model has adapted to new technology, and I feel no restriction from the copyright system. On the other hand, I do feel a real anxiety about future creative projects if traditional creator rights are weakened.

Russell McOrmond said...

I agree with you about form letters. I've always told people there is a hierarchy when it comes to political involvement. Hitting send on a form letter isn't all that different from adding ones name to a petition, and an unsigned petition/letter has (or should have) less impact than a signed one. All should have less impact than actually showing up in person.

These numbers are, however, as valid as some of the other numbers thrown out. The fact that Access Copyright and other collective societies claim to represent their members has always been a farce. People are members of collective societies because it is part of their business, not because they agree with policies. I'm a customer of Scotiabank, and that too doesn't allow them to claim to represent me in political discussions.


Our conversations have rarely, if ever, had to do with technology. Apple and Google were mentioned as participants in the copyright revision debate, just as Access Copyright, CIPPIC, you and I are.


The controversial forms of DRM are also not a technological question, but a political and legal one. The technology behind any form of digital lock doesn't behave differently depending on who has the keys, and my opposition is only to scenarios where eithor the owner isn't given the keys (DRM on devices) or where the intended audience isn't given the keys (anti-competitive locks on content).

I discussed in a blog article yesterday why I believe that consumer choice is not enough, and consider me just not buying something to be a do-nothing scenario that will greatly harm the interests of creators.


On twitter you asked, "I mean, chances are publishers won't intentionally shut an entire consumer sector out of their content".

I would like you to make use of your connections at PWAC and TWUC to answer your own question. Ask the percentage of Canadian e-books and audio books that are available DRM-free at a reasonable price to Canadians. I think you'll find actual hard numbers to confirm what I've guessed which is that it is far greater than 50%, with audio books being worse.

These are publishers that have decided to refuse my money. I'm left with PIN (Paper, Infringement, Nothing) as my options. As you must know, the statistical methods used to estimate losses do not differentiate between these options, so you would never know if (as I believe) digital locks have cost the publishing industry more than online not-for-profit infringement has.

Russell McOrmond said...

"I simply don't see the need to weaken or remove traditional creator rights to follow that path."

On this we have always agreed. None of the proposals I have made either weaken or remove traditional creator rights. You may disagree with me when it comes to Fair Use/Dealings, but even there I support these exceptions in situations where I believe it better protects the moral and/or material interests of creators.

John said...

Hey Russell,

Again, I have the feeling you might be part of a smaller segment than you imagine. One million iPads sold to date. Consumers are making their choices, and DRM doesn't seem to be a deal-breaker for them as long as they feel they are getting value added.

Kobo just launched their e-reader this week. I was looking at it today, and the price is certainly attractive for what it is.

We are seeing the market, for books at least, go through some pretty momentous changes right now. Pricing is all over the map as publishers and sellers try to figure this all out. If I understand it correctly, Kobo takes both PDF and ePub files, and I heard a Kobo sales dude today tell a customer that a "family-sharing" feature is in the works.

I think the average consumer is about to be given immense choice on format, device and pricing, with seemingly endless content, all within a strong copyright regime. It just doesn't seem like an emergency to me, at least not for the consumer.

On the other hand, removal of traditional rights -- yes, such as a fair-dealing so expanded that educational use is widely excepted -- will be a real emergency for arts and culture creators.

I also have to disagree with you regarding professional societies and representation. Having lived and worked in that world, I know first hand how much diligence and work is done to make policy in as democratic and representative a way as possible. Members are consulted and surveyed regularly, and policy statements are rigorously debated on the way to being released.

None of that diligence, as far as I can tell, happened with the CCER form letters, nor does it seem to happen at Fair Copyright for Canada. There is nothing farcical about registered association representation. People pay money to belong, and take ownership of policy. Sure, you will always be able to find members who disagree and they are encouraged to state their minds publicly, but that doesn't in any way discount the majority position.

Russell McOrmond said...

I'm curious if you are aware that you are agreeing with me in your desire to disagree with me.

The size of the marketplace for non-owner locked devices, and the number of people who later "jailbreak" their own devices, is indication of a legal problem.

If these locks were "no problem", then there would be no need for anti-circumvention laws. What we are seeing are people who either don't know about the locks when they purchase, or like myself do not consider them legitimate.

The reality is that a majority of copyright holders feel the need to lock their digital content to only be interoperable with these types of devices. Audiences can either unplug or ignore these restrictions.

You are right that I am in a minority for unplugging (IE: not accessing the content). A majority simply access anyway, and ignore the restrictions that they don't agree with. Some copyright holders claim this is a bad thing, some to the level of claiming it is a crisis.

A choice between a wide variety of DRM formats isn't a choice at all. It still means that content is tied to specific devices, and makes the content less valuable (thus less likely to be purchased) for those who will actually obey the restrictions.


You are again thinking that I'm talking about technology, when I'm actually talking about the law. Anti-circumvention (owners removing non-owner locks, audiences making content interoperable with their devices) law is the problem. Yes, I am in a minority for caring what the law says about these restrictions. But that proves, not disproves, my point.


As to whether there is a crisis, I agree there isn't one -- and that includes for copyright holders. A vast majority of infringement I hear about (friends, etc) is people accessing content that *IS NOT FOR SALE*. There can't be claimed to be any lost sale in a scenario where sale wasn't offered.

The easiest way to get paid is to make content more accessable to the large majority of people who want to pay you. Worrying about losses from infringement seems to be a distraction.


I don't consider institutional uses to be "fair uses". I consider that to be a political handout to politically powerful organisations, and would like all institutional exceptions to be removed from our copyright act. This is especially true for educational institutions, places where people should be learning about the real world and not mis-educated. I also consider institutional exceptions to be one of the larger barriers to adoption of Open Access.



"I also have to disagree with you regarding professional societies and representation."


There is a big difference between a collective society (which is a service, like a bank, which can not legitimately claim to represent its clients) and a professional society (like PWAC, TWUC) where membership is optional.

We are also aware of different experiences, as many of the writers I bump into disagree with what the professional societies are saying on their behalf. They also say they don't get asked for their opinions on these issues, or have a cross-membership forum for hammering out policy. I'm not a member so don't know first hand, but so many seem to say differently than what you are suggesting.

A form letter or petition doesn't need to have that work -- sending the form letter or signing petition is what indicates agreement, not "membership". CCER didn't go around saying that it represents X Canadians separate from letters sent.