Friday, September 30, 2011

Copyright Reform 101 for the Cultural Sector


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With the return of the federal copyright modernization bill (Bill C-11) the sound bites and fevered rhetoric in the copyright debate have started flying again. It can all get quite confusing, and for professional creators, publishers, producers and other rightsholders the idea of joining the public debate can be very intimidating.

As I’ve documented on this blog, the opponents of copyright do not treat professional content creation with much respect. Nasty personal attacks, highly politicized accusations of corporate greed or totalitarian control, and just plain old haranguing are commonplace when an artist or cultural professional insists on strong copyright. Who wants to be seen as a jailer of culture, someone who sues and imprisons fans? And who wants to be followed around Twitter, Facebook or even one’s own personal blog by tireless free-culture fanboys intent on drowning out the voices of professional culture.

Anticipating this ramp-up of nastiness, I prepared a quick do and don’t fact sheet for anyone concerned about their copyright and thinking about the new bill. I realize there are a range of opinions on all these points, but this is my opinion. Please note that I am not an intellectual property lawyer (though I have had lunch with many of these fine folks). I’m just a writer… standing in front of a reader… asking her to respect my rights.


Do and Don't:

Do support fair dealing – The fair dealing provision in Canadian copyright law is absolutely necessary. It allows us to interact with the copyright-protected work of others freely enough to encourage the continual growth and revitalization of culture. Fair dealing allows us to research, to study, to quote, to pay homage to, and now (though I’ve always insisted on this myself) to engage in parody and/or satire without obtaining the permission of a copyright holder. These are all genuinely good things that build our collective culture.

Don’t assume that if some fair dealing is good, more fair dealing will be great – The pressure is on by so called user-rights activists to endlessly expand the fair dealing provision within the Copyright Act. More pernicious than just the adding of new categories to fair dealing (see C-11’s new “Education” category) is the free-culture movement’s desire to take logical, established category definitions and make them so vague (again, see “Education”) that just about any use will fall under them. Fair Dealing was designed as a necessarily limited provision for use. If we remove the limits, we terminally weaken copyright. I am hoping for clarifying amendments in the fair dealing section of C-11.

Do share – The Internet’s impact on the sharing of culture is indisputable. Never has it been easier for creators and cultural professionals to get their work out there and gather audience and/or readers around it. I think we should all be experimenting as boldly and fearlessly as we can with new business models for cultural distribution, but always with a firm grasp on our rights.

Don’t confuse actual sharing with forced-sharing (also known as taking) – Any three-year old knows the difference between wanting to share and being forced to share. Free-culture businesses such as Google and YouTube are making billions of dollars selling advertising on top of freely shared content. Fair enough. But when the sharing is forced (Google Books, YouTube “mash-ups” that go far beyond fair dealing) then copyright has been ignored. Don’t give in to this often intentional conflation.

Do love schools and libraries – the cultural sector has always been and should always be the strongest supporters of and partners with education and libraries. I recommend all creators and cultural professionals volunteer their time and content as much as they can in both libraries and schools.

Don’t let this love turn you into a content doormat – Sometimes love hurts. Such is the case right now when a Canadian cultural collective (Access Copyright) finds itself having to fight the misguided free-culture impulses of some of our traditional partners. This goes back to the difference between sharing and taking. The universities and colleges currently refusing to negotiate with Access Copyright want to continue to use Canadian creative content without having to pay for it. This is not about a fantastic professor you know inviting you to speak in her classroom and not having the budget to pay you; this is about extraordinarily well-financed post-secondary institutions wanting to cut collective licensing out of their expense lines altogether.

Do know the difference between an original and a copy – It sounds a bit silly, I know, but the ease with which the digital realm can make perfect copies of most creative content has confused a lot of good folks. Here’s the example I always use.

When you buy a DVD of Cool Hand Luke (one of my favorites) you are not buying the movie Cool Hand Luke. You are buying a DVD. In other words, you are buying a copy, not the original. The original of Cool Hand Luke would almost certainly be more expensive than the $12.99 you paid for the DVD copy, because the original contains all the rights purchases from all the artists who worked on the film, and all the licensing rights for the term of copyright.

The DVD does not contain those things. Instead it contains a copy of the movie for which you are purchasing necessarily limited rights. Quite often, whether you like it or not, you are not buying the right to move that copy of Cool Hand Luke from one format to another (also known as copying). This limitation can and probably will change as formats become more flexible and format-shifting less complicated, but as more rights get bundled into a copy-purchase the bundling must be done on the rightsholder’s terms.

Don’t let free culture erase the important distinction between originals and copies - As much as we all enjoy the incredible convenience of digital media, we need to let the industry that fuels it (professional content creation) negotiate their own terms of use for their product. As anyone in culture knows, rights are part of the economy of our sector. Free culture may want to disguise copying under the happier term “use,” but if the “use” assumes one of your rights, you’ve lost something important.

Do support rights management, whether you choose to use it or not – Digital Rights Management (DRM) is exactly what it sounds like, a tool to manage creator rights across digital platforms. Since digital rights management is applied to copies of works and not to the original work itself (remember that important distinction) it is essentially a No Trespassing sign keeping specific creator rights reserved for the original. The breaking of digital rights management tools should be as illegal, therefore, as intentional trespass on private property.

Don’t buy the prison and chain imagery - Those who would have you believe that DRM is a “digital lock” are either mistakenly or intentionally conflating originals and copies. The idea that DRM on an e-book could keep another writer from exercising her fair dealing rights to study, research or quote from the work in that e-book is as absurd as saying a physical book’s binding and copyright page stops her from reading or taking notes. With DRM, the copy may be managed but the work still exists for fair dealing uses. And besides, if we weaken the cultural industry’s control over their intellectual property we reduce the available business models for them, and therefore reduce actual consumer choices. There can be no Netflix without legal protection for rights management.

Do boldly go – Creators and cultural workers should experiment broadly with technology and new platforms for creative works. Read a book on an iPhone to see what that’s like, write a book on an iPhone (actually, I’ve tried that – no fun at all). Learn where workflows and formats and distribution channels are going. Why am I even telling you this? Cultural creators lead the rest of the world in this kind of thing. But as you boldly go into the digital universe, keep your rights as creators and producers. I have yet to discover a new technology that required me to give up my rights in order to use it.

Don’t let anyone tell you “you just don’t understand the technology” – This is the big free-culture talking point – digital culture is just flat out different from that old-school culture you remember, and the new technology simply requires that copyright not be so demanding. Take this to the extreme edge of free culture and you hear that copyright will break the Internet. Arguing against this line of thinking, I’ve often been labeled a “creator of the past.” Okay, so let me use some language of the past – Balderdash! There is nothing in the functioning of the Internet (or your smart phone) so mysterious and new that you have to give up your fundamental rights as a creator. The plumbers of the intertubes are some smart folks. They can figure out copyright, given the proper incentives.

Do embrace openness – Like the word sharing, the word open is getting a lot of play in free-culture circles. Open access, when respectfully designed, allows free and unrestricted access to creative content for either select groups (students of a specific university) or for the whole darn world. Openness is the impulse behind blogging, behind free public performance and wiki-knowledge tools. Unquestionably, openness makes the world a better place.

Don’t buy into enforced openness – As with forced sharing, enforced openness is a bit oxymoronic. Just the other day, Princeton University passed a new Open Access Policy that, among other things “gives the University a nonexclusive right to make available copies of scholarly articles written by its faculty.” Couched in terms of generosity and convenience, the policy forcefully removes the rights of individual creators for the “greater good” of openness. In the FAQ about the policy, Princeton happily admits it is removing a right from its faculty, but assures them it will be better for them in the long run. How…. open?

Do love your fans – This is an easy one. Anyone who’s received a flattering e-mail about their book, article, issue, movie, song or performance knows that there really is no cultural production without a receptive audience. Cherish that relationship.

Don’t let a thief call himself a fan – Fans respect the rights of the creators whose work they admire. Enough said.

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37 comments:

Sandy Crawley said...

Excellent advice John.

Crockett said...

Well thought and out and presented John. Moving forward, working boldly and pushing boundaries while protecting one's rights is a good outlook.

You must realize though that rights for one sector can be either additive or displacing of other's rights. When the federal government passes laws that it admits do contravene rights, but does it anyways, we all lose.

Neither of us is getting all we want in this legislation, and both to some degree are getting hosed.

Shall we share a pint of bitter together?

Louis said...

Thanks for the post, it's very nice to hear independent, well-reasoned opinion on copyright and why it still needs to exist.

However, I must admit confusion when it comes to your definition of "copy" and "original" on the Internet. Obviously, your definition of "copy" as a verb or noun on the internet doesn't exist from a technical standpoint of today's internet.

Why "obviously"? Technically speaking, presenting any information on a computer requires -- necessitates -- the creation of multiple copies and having multiple legal parties access the copy and redistribute it.

The system I speak of is TCP/IP, browser caching, ISP networks and proxies, and even the level of interpretation for on-screen presentation where works -- as bits -- are legitimately copied word for word into memory in multiple places.

Sure, I might not intentionally instruct the computer and its networks to make copies through a "Save as" function or Clipboard, but it will anyway.

Finally, on the subject of transformation of a "copy" as a "copy", and again speaking technically, what if I am unable to clearly see the screen and rely on Mac OS X's built in VoiceOver feature to read to me? Suddenly the copy distributed -- or "copied" -- through unlicensed access nodes on the Internet is not only being copied multiple times for screen representation in my browser, but also being interpreted again and this time into another format entirely -- audio.

The point I'm trying to make -- hopefully successfully -- is that you cannot narrowly define copy without consideration for access and use. Whether I then go on to share or re-post is completely another consideration, as is whether I'm the only one in the room as I do all this, or whether I'm feeding my copy of the content to a projector. Then again, if I open my browser to a New Window, do I now have two copies of the original? What if one was loaded from cache as it most often is?

You understand perhaps that from a technical perspective, can and should are different things, but what if we took your definition of copyright literally?

You'd be browsing the web in HTML and forced to re-type links from tags. Any other use from such a narrow definition of copy and use would be illegal against your interpretation of copyright, including the "copy" made by the ease of reference provided by a link, and the copy that your browser interprets and presents to you -- the original was obviously HTML format, not screen-formatted images, not light emitted from a display or projector, yes?

Feel free to contact me directly if you wish, on Google+ or otherwise. I'd love to chat further on the technical implications of this, particularly considering I'm in favour of linking to already licensed works at our university in regards to a digital casebook reader system and would like to chat with someone in favour of collective licensing to see the various implications that would necessitate further licensing...

Gruesome said...

The tpm provisions in the bill are idiotic, It would make very common programs downloaded and used by hundreds of thousands of Canadians every day, illegal.
Take VLC for instance, this is an extremely common video player used extensively.
It has the capability of viewing dvd's and format shifting if you so wished.
While many people may not use this feature since it is a small part of it's capabilities, under the new bill the program becomes illegal.
1. The bill will not stop a single person from downloading this file.
2. it is so widely available it would not be possible to block it.
3. The way it decrypts DVD's is invisible, many people who use it wouldn't even know that it is happening.
Let's ask John -What good is an invisible "No trespassing sign"
Because with good technology that's what tpm's become 'Invisible'

And when people choose these programs, they don't care how it works, only that it does.

Pieter Hulshoff said...

Dear John,

Very good post, and I actually agree with a lot of it. So, let's focus on what we disagree on:

First of all: Please get your terminology right. Anti-circumvention law has nothing to do with Digital Rights Management (DRM), but with Technical Protection Measures (TPM). If you're asking "What's the difference?", then perhaps by the time you understand you'll also understand why engineers claim you do not understand technology.

The same goes for use vs copies: As Louis already explained: in a digital world use implies making a copy. When you're reading an e-book, you're not reading the copy you bought; you're reading a copy of that copy made by your e-reader. When you're watching a dvd, you're not watching the copy you bought; you're watching the copy of that copy made by your dvd-player. As such, every change you make to copyright law has a direct impact on our freedom to develop technology. Not technology to infringe on your copyrights, but simply technology to make use of the copies of copyrighted works we bought. It brings us into a permission society, where technology has to ask permission from copyright holders to develop new machines. Under such a regime, we would never have had radio, tv, vcrs, etc. That's why technologists oppose you in anti-circumvention legislation: by trying (and failing) to protect your rights via technology you're violating our rights. Not our rights to infringe on your copyright, but our rights to develop new technology, and to make legal use of the copies of works that we bought.

Pieter Hulshoff said...

As for AC: I fully agree with you that copyright holders have the freedom to set their own licensing policies and the corresponding prices, but I also feel that universities have the freedom to not accept those prices, and look for (legal) alternative ways to set up their curriculum. Thousands of universities all over the world manage without an AC license, so I'm sure Canadian universities can as well.

I also agree that arguing for a full educational exception to copyright would be ridiculous, but so far I've found little evidence that such is the case. If you feel the exception needs explanation I agree, but I don't believe the general sentiment is asking for a full-blown exception here.

Gruesome said...

And please stop referring to Netflix like it actually means anything. Netflix is quite copyable and if I understand the law correctly now becomes legal under the new bill to do so.
Netflix can be copied without interfering with tpm's.
Not sure of the legality of that under the new bill
Is that format shifting? What does the new law say about capturing a stream without breaking the tpm? This would certainly break the licensing agreement but so does format shifting which will be legal

Pieter Hulshoff said...

Similar issues were raised in Cartoon Networks, Fox, CNN, Disney, NBC and others vs Cablevision, where the location of storage of a DVR was brought into question. Under the law, this is actually a complicated matter, but for an engineer it's a discussion about how long a wire between a DVR and a TV can be before it becomes copyright infringement.

Pieter Hulshoff said...

Dear John,

Since you emphasised the buying of works as a copy, I was reminded of a Techdirt article on that subject: http://torrentfreak.com/the-copyright-monopoly-is-a-limitation-of-property-rights-110320/

Note that this article doesn't say copyright is bad, nor that copyright infringement is acceptable. It just compares the buying of a chair vs that of a dvd, with its similarities and its differences from a copy and property point of view. I may not agree with all the article says, but I did find it interesting in light of the definition by you of what I buy as "a copy".

John said...

Pieter,

The article you link to is on TorrentFreak not TechDirt. I find it hard to take seriously any attempt at a logical argument from a sector dedicated to finding rationales for illegal behaviour. That said, TorrentFreak's argument about property is tragically flawed.

Everything you can do with a chair that you buy, you can also do with a DVD (including sitting on it), and the same restrictions also apply. This comes back to the deliberate conflation of original and copy.

When you buy a chair, you do not buy the intellectual property attached to that chair. If the design is trademarked, you absolutely do not have the right to make exact copies of that chair and sell it as though the design were your property.

So, TorrentFreak is wrong, as they so often are about so many things.

Louis,

I appreciate the technical difficulties you outline, but I can't see how new problems invalidate traditional concerns. In fact, your concerns illustrate just how the traditional understanding of "copying" is adapting to become "using," and we must allow the law to follow that adaptation.

While certain types of limited copying have always been allowed (fair dealing), full on copying that constitutes an entire new use has never been allowed under copyright.

I don't buy at all that it is too difficult for the tech side to make nuanced arguments differentiating incidental copying for functionality from intentional copying for re-use (this goes for Pieter's point about VCRs as well). In fact, I would welcome that level of nuance from the tech side of this debate. Instead, what we see from free culture is a disingenuous throwing up of the hands - "well, computers can't function without copying so copyright has to go."

As for linking to a digital coursepack - licensing is the key, and that new digital licensing must be use-based. The same kind of nuance must be applied in order for it to be fair. The argument currently is "well, we're really not copying the work anymore - it's just there on the intranet for our students to access. In effect, we bought one book and all the students are reading it at once."

I'm sorry, but the logic behind traditional photocopy licensing was de-facto "per-use." Not transferring that logic to the digital realm is sleight of hand, and it's pretty disheartening to see educational institutions engaging in that kind of logic-massage.

Crockett, I simply disagree that TPM/DRM restrictions contravene rights. The actual bill is far more nuance than that. I think anyone worried about that should read James Gannon's thought on TPMs here:

http://jamesgannon.ca/2011/09/30/re-post-tpms-a-comprehensive-guide-for-canadian-copyright-law/

Gruesome and Pieter - DRM and TPMs are linked. Anti-circumvention applies to both. Anti-circumvention is a blunt legal instrument designed to cover the majority of common illicit circumventions and it comes with all sorts of exceptions. If the tech world wants more exceptions, they should ask for them without expanding the reach of those exceptions into the area of reasonable market protection.

If Netflix were a movie-purchasing service, their prices would be unsustainable for the industry that feeds them. Netflix is essentialy a movie rental service. Rental does not transfer owenrship of anything, especially not intellectual property rights.

Pieter Hulshoff said...

Dear John,

My apologies for the link mixup; you're correct: it's a TorrentFreak article.

If you'd fully read the article, you'd have seen several things I can do with the chair where I can't do the analogue thing with a dvd, like take it apart, and use the parts for a new construction. As the article states; that's not necessarily a bad thing. We both believe copyright is important in this matter. The article just states that copyright cannot be defended from a property law point of view, because copyright by its definition places limitations on what I can do with the property that I bought. There's plenty of other reasons for copyright to be a good thing.

As for your argument about the tech community: it's not a matter of framing our arguments better: it's simply a technical impossibility to differentiate on many of the things the industry would like us to differentiate on.

I've already debunked Mr. Gannon's article once; I'm not going to bother again. Fact of the matter is that anti-circumvention law HAS been implemented in many countries around the world, and HAS restricted contravene rights there. It will do the same in Canada.

TPMs and DRM are fundamentally different things, and the WIPO treaty only applies to anti-circumvention of TPMs. There is no such thing as circumventing DRM; only not implementing it. No country that I know of has laws demanding DRM to be implemented.

We as a tech community don't want or need more exceptions. We just want you to stop limiting our rights by expanding your own. What part of copyright law gave the movie studies the right to prevent me from playing my legally bought dvds after moving from Europe to the US? What part of copyright law makes it illegal to write an Open Source dvd/blu-ray player?

Gruesome said...

John, I agree with you on the Netflix front. However what you are talking about is a license issue not a legal one.
If I record a movie from TV on my VCR, this is now legal under c-11. I have not bought the movie and I have most likely broken the licensing agreement.
If I record a Movie from netflix I am engaged in the exact same activity , therefor I can not have broken any laws that would apply.
Perhaps I am wrong but I'm not sure what part of the copyright law would apply.

Also here is an interesting quote
" The Bill does not prohibit hacking copy control digital locks for any purpose and there are multiple exceptions that permit circumventing access control TPMs. Moreover, Section 41.1(3) of the Bill expressly precludes an award of statutory damages against an individual who circumvents a TPM for his or her own private purposes"

So even though it may become illegal to hack TPM's, if it's for personal use it would seem to be a green light.

This would seem to reflect the the turning of the blind eye when it came to VCR's and DVR's in Canada which has never been actually legal.

Gruesome said...

Here's another quote
"There are no statutory damages (i.e. “default damages” of $100-$5000 per infringement) for circumventing a TPM for private purposes (s.41.1(3)). Those found to have circumvented a TPM for private purposes will only have to reimburse the copyright holder for the damage caused by their act of circumvention (s.41.1(4))."

Again this seems to be a green light to private infringement as no-one would ever pursue for actual damages in format shifting from Blu-Ray to say a tablet compatible format.
A court case for $30 isn't going to happen.

Still I don't like Laws that have no intention of being enforced

Gruesome said...

Also i don't see how this stands up to a Supreme court challenge.
If we take the CCH case and apply digital locks, do we get a different outcome?

I would suspect(and one never knows for certain when a case goes to trial) that a court would look at the exceptions and say that fair dealing as an integral part of
copyright law for which the purpose of the copying should determine it's fairness.
It would seem tpm's could override this.

Pieter Hulshoff said...

It could, and it would, as it has on several occasions in the US courts already. Exceptions in copyright law don't apply to anti-circumvention.

Gruesome said...

However, and I know I've quoted this a million times, but
From the Supreme Court
" The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively. “User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.”

Now while tpms have been written into law as a protection they really have nothing to do with copyright but may restrict User Rights.

I'm not sure the the court would allow the gutting of those rights in favour of TPMs.
The court may come back and say if it's Fair then it's Fair.
Balance is something the supreme court recognizes as essential to copyright.
There are a number of lawyers who have written on the likely-hood that the bill would not survive a supreme court challenge.
-I stipulate that John would identify those lawyers as Free Culturists-

John said...

Pieter,

I did fully read the article. We simply disagree, and I believe our disagreement is due to a fundamental misunderstanding on your part about the difference between the thing and the IP behind the thing. Yes, you can take apart a chair and do other things with those parts. You can also take apart a DVD and do other things with those parts. I've seen many an art installation that uses DVD disks as physical object.

What you can't do with either is assume IP rights that you have not purchased. And really, it's just that simple.

I've heard Russell McOrmond talk about what's possible and impossible in tech (science vs. science fiction). I don't buy it from him, and not from you. If your community can't figure out a way to extract necessary incidental copying from copyright law through effective explanation that includes assurances of respect for cultural intellectual property, then you are nowhere near as smart as we've all been giving you credit for being. It's pretty hard to believe a community that builds and runs things like Google Earth can't figure out how to express themselves effectively in front of legislators.

Lack of imagination is not an excuse, I'm afraid.

For TPM/DRM may I refer you to slide #4 in one of Gannon's recent presentations:

http://www.slideshare.net/JamesGannon/gannon-uoftpresentation2011

Michael Geist also uses these terms interchangably here:

http://www.michaelgeist.ca/content/view/3294/125/

The terms are linked in common understanding. The use of a TPM to manage one's rights digitally is at the heart of DVD protections, e-reader protections, etc. I have to say, I'm losing a lot of confidence in your technical knowledge if we can't agree on this point, seeing as how I'm not the tech guy here.

You "debunked" Gannon on TPMs? That's a bold claim.

Gruesome, you need to stop leaning so heavily on CCH. It is not the end of this discussion. It is one drop in a pool of jurisprudence. My concern is with principles. Put the proper principles in place, and the law has a clear path to follow. That is why I call for clarity around any exception to copyright (not simplification, btw, clarity. Not necessarily the same thing).

John said...

BTW, Barry Sookman has a very interesting post in his blog about C-11. In it, he discusses C-11 TPM restrictions in some detail, and makes a point of showing where Michael Geist consistently and (one can only conclude) intentionally gets it wrong:

He continues to suggest that “digital lock rules trump education rights”. However, since Bill C-11 does not prohibit circumventing copy control TPMs, it would be legal to hack a copy control TPM for an educational or any other purpose. Once hacked, a person would be able to make copies of the unprotected work under the new fair dealing for education exception, as long as the dealing is “fair”. However, a person could not bypass a technical control that protects a work against access the person is not entitled to in the first place.[3] The prohibition against hacking access control TPMs is not about “trumping education rights”. It is about ensuring that people who want to make copies of a work for an educational purpose obtain legal access to the work such as by purchasing or licensing a copy in order that the creator or other rights holder may be compensated.

Full post here:

http://www.barrysookman.com/2011/10/03/some-observations-on-bill-c-11-the-copyright-modernization-act/

Darryl said...

"BTW, Barry Sookman has a very interesting post in his blog about C-11. In it, he discusses C-11 TPM restrictions in some detail"


Umm, yeah. I commented on that on his site too. (Not up yet. Don't know if it ever will be) It is a pity he does not mention what happens when a copy control TPM also acts as an access control TPM (which by the way, is always). Hint, it is not Geist who is intentionally doing the misleading here.

BTW, just because Geist, Sookman, Gannon, and you can't figure out the difference between DRM and TPM, does not mean the difference isn't there. It just means that none of you can figure it out. There are a lot of non-technical people on both sides who get these terms mixed up, why should this be surprising.

Wayne Borean said...

John,

The legal types, i.e. Gannon, Geist, Sookman, Ficsor, Owens, etc. are less than accurate. For example none of them are willing to admit that Bill C-11 is not WIPO compliant, and yes, I will be writing a full explanation of why it isn't WIPO compliant on my blog.

Now this could be just a difference of opinion. Or it could be a lack of intelligence on their side. Note that the American DIgital Millennium Copyright Act also isn't WIPO compliant, and yes, I've read the WIPO Internet Treaties in full.

As another published writer, I'm not anywhere near as worried about things as you are. Which doesn't mean that you don't have reasons to be concerned. I don't know if you do or not, because I don't know your position.

My personal belief based on what I've seen and the comments I've heard from other writers is that if you are dealing with the general public you probably have nothing to worry about. If you are dealing with an organization of some sort, you may need to worry. Organizations have no morals.

Wayne

John said...

Wayne,

Thanks for your participation, as weird as it always is. I've deleted your second comment as requested.

John said...

Darryl,

I think my do's and don't's posting alludes to the free-culture propensity for picking technical nits. For the vast majority of the purposes covered under C-ll, DRM and TPMs are linked. That's because for most people technology is only as good as the uses we put it to.

BTW, have you mentioned to Geist that he doesn't understand the technology?

The law has given consumers a very generous new permission - without providing creators and rightsholders any balancing compensatory mechanism - and the tech folks complain that they can't separate copy controls from access controls.

I weep for you.

Gruesome said...

Well from my point of view if there's no statutory damages on breaking tpm's for personal use than there is no effective law on breaking tpms for non infringing purposes. As I said seems like a green light for what Canadians do everyday anyway.
I assume the tpm portion will be used for top sites and such.
And like I said if it does go to court the outcome is never certain

Wayne Borean said...

@Gruesome

The Topsites don't break the TPM. The TPM is broken by the packager, who uploads it to the Topsite.

Back when 120 megabyte hard drives were huge, I gave a generic talk on DRM/TPM implementation at a convention. I used to work for the dark side, designing that sort of stuff, and my locks were a bastard to break.

After the talk, a guy came up to me, and wanted to talk. Since the meetings were over, and I had some extra time on my hands, I agreed to head off the the bar with him.

Turned out the guy I was drinking with was involved with a top site out of Ottawa. They ran hard drives back and forth to Toronto using tractor trailer drivers, since 120 megabytes was too much to transfer over the phone line.

He was curious about DRM/TPM. I was curious about how they worked their system. So we spent several hours talking. He knew my name, I never knew his, and didn't ask.

The basics, which probably haven't changed, are:

Sourcing - someone who can get the goods, like brand new Microsoft Software.

Cracker - someone who can bust the TPM/DRM. This is usually a highly skilled programmer, like someone who might work for Microsoft or Corel.

Packager - takes the cracked program, or the cracked video, and packages it the way that the release group does their releases, and these people are as PR crazy as Apple is.

Delivery - takes the packaged goods, and uploads it to the topsites that the group uses.

And of course the Topsite, which handles the distribution. Topsites are very private, which is why it is so hard for the cops to bust them. They only get taken down if the cops can turn someone.

Since the Topsite doesn't break the TPM/DRM, any attack against the Topsite based on that will fail. Unless of course the cops lie.

@John,

Suggest you check out Dean Wesley Smith's blog:

http://www.deanwesleysmith.com

and also Kristine Katherine Rusch's blog:

http://kriswrites.com

Because it all comes down to the money, doesn't it?

Wayne

Darryl said...

" and the tech folks complain that they can't separate copy controls from access controls"

That's right John, because it is very difficult to copy something you don't have access to.

Access controls can exist without copy controls, but not generally the other way around.

But regardless of whatever fantasy world you envision where this would be the case, that is not how things currently exist in this world. Attempts by Sookman and Gannon to try to make distinctions where practically none exist is at best disingenuous. You're attempts to support them by saying that tech folk just need to be a little smarter is equally disingenuous.

Pieter Hulshoff said...

Dear John,

Actually, we're in full agreement there. It is clear that copyright is the reason that the chair and dvd have different rules for usage, and that (most of it) is actually a good thing. The article didn't dispute that either. It just showed that copyright is a limitation on property rights as defined by tradition, but there are still other important reasons for copyright to exist.

I'm glad you have so much faith in the ability of the tech community, but if someone is telling you they can fix the problem via technology they're either lying to you and/or selling you something. Microsoft can't even protect their own product from infringement, and you trust them when they tell you they can do it for your works?

TPMs cannot work, by simple definition. Encryption is meant to keep a message from me to you secret from Crocket. What the industry wants to use it for is to keep a message from me to you secret from you, even though you are supposed to be able to read it.

Doctorow explained it once in http://209.131.79.202/manifesto/download/4.DRM
Sadly, he too does not seem to differentiate between DRM and TPM, but the presentation's actually pretty good.

True, it is sad that many people, including Dr. Geist, do not properly distinguish between the terms DRM and TPM. They are however fundamentally different things. As a simple example: the dvd:
- TPM is the CSS encryption layer on the dvd. If I don't implement the TPM in a dvd player, I cannot read the disk.
- DRM is the part of the dvd-player software/hardware that prevents me from watching a region 1 dvd on a region 2 dvd player. If I don't implement the DRM on a dvd-player, the disk is actually more valuable to the customer.


As for the difference between access and copy controls: The last time I saw copy controls used was on the AMIGA game disks. Practically all TPMs these days are access controls. CSS on a dvd doesn't prevent me from copying a dvd; it prevents me from accessing its data in a readable format.

Darryl said...

Pieter, surely you remember this CD copy protection. It is a little more recent.

It is amazing to me how Sookman, John, and others can complain so vehemently about 'misinformation' spread by Geist and the 'free culture' crowd, while at the same time spreading their own very blatant version of misinformation.

John I can sort of understand, he admits to having no technical knowledge. Sookman and Gannon however being lawyers advocating for the entrenchment of technology into our legal system have no excuse not to make the effort to properly understand what F^c! they are talking about.

Crockett said...

John, you may not accept that TPM/DRM contravene rights, but if that were so what would be the purpose of exemptions? And what are exemptions but the balancing of the rights of one party over the other?

There is a dichotomy between the increasing restrictiveness of some creators, and the growing expectations of many consumers, that is only widening with the advent of the digital age.

Both, I think, are in synchronously feeding the other.

On one extreme end is the 'pirate' who thinks all should be free for him, damn the consequences. On the other is the creator who feels that any use of their work is another opportunity for profit from the endless money pit. Somewhere in the middle is the bulk of the populace who want fair return for their work and reasonable value in return for the commerce.

The legislative quagmire we currently face is a tug of war between these forces. For quite some time the legislators have had their ears tickled by well financed lobbyists for the creative industry, I say industry because such bodies do not always represent the views of the creators themselves. As such laws and regulations have tugged the flag to their side of the centre line.

Now with the rise of the digital industries such as Google and Apple the power base (which let us be honest here, any power is driven by money) has started to tug the other way. As with anything there is momentum in the favour of the incumbent so the tugging has only made the home team dig their heals in harder. I see though that as we move forward there will be a new surge as people realize they too have pull.

I see it as unfortunate that this is the way of our species, to hoard power (sometimes called 'my rights') at the expense of others. A more nuanced and cooperative approach would be preferable and beneficial to all if we could look up from our own corners once in a while.

This legislation is flawed, strangely enough both corners are adamant that they are giving up too much to the other. Possibly that is the intention, rather than trying to solve the problems, just keep the combatants nose to nose and no one will notice that nothing is really being done.

* Posted here first folks.

Pieter Hulshoff said...

Darryl,

You're correct; I do remember that one now. :) The question was even raised whether marker pens should now be made illegal as a circumvention device...

Darryl said...

Ah, yes. Well thanks to our new progressive copyright legislation we will never have to worry about people being arrested for using felt tip pens.

Selling them on the other hand...

that's another matter!

John said...

Well, you fellows could needlessly complicate a game of tic tac toe.

I have tried to discourage you from getting too worked up about the extreme edges of technology's interaction with this law, since it really seems to be designed to deal with the broad center, not the narrow margins - but you seem to really want to get worked up. Sort of like how Geist and Jesse Brown right now really want to find fault in everything James Moore has to say about his new bill.

The rest of us are getting ready to move on from this and make the best of building a thriving culture with this framework (patching it where we feel there are flaws - fighting in court where we feel someone is broadly misinterpreting). But play on, boys.

Pieter, it's funny to me how you say we are in full agreement and then you atrribute an idea to me that is exactly opposite to the one I expressed. The free culture parade of illogic never ends, it seems.

Wayne Borean said...

One of the early drafts of the Digital Millennium Copyright Act in the United States would have shut down the software industry, by making all software development tools illegal. The final version of the DMCA was changed so that it only devices which were designed primarily for circumvention were illegal.

So felt tip markers, scanners, and software development tools were legal. This also meant that tools like Videolan, the Free Software video player which can play Digital Video Discs is legal, even though it can be used to circumvent a TPM, because its primary use is not circumvention, but rather to play videos.

Wayne

Pieter Hulshoff said...

Dear John,

What part of my first paragraph would that have been then? :)

"I have tried to discourage you from getting too worked up about the extreme edges of technology's interaction with this law, since it really seems to be designed to deal with the broad center, not the narrow margins - but you seem to really want to get worked up."

And after how these exact laws have been abused in the USA, can you blame us? We warned then, as we do now, how these laws could be abused, and unfortunately time has proven us right. Don't blame us for now not believing you when you claim such laws will not be abused in Canada!

I don't know who the rest of you us you talk about are, but I noticed that more and more European political parties are taking note of these problems, and are speaking up. There may be hope yet...

Gruesome said...

"patching it where we feel there are flaws - fighting in court where we feel someone is broadly misinterpreting"
And hopefully someone will do the same in the name of consumers.

Pieter Hulshoff said...

"You "debunked" Gannon on TPMs? That's a bold claim."

Nah, not really, though I looked up my comment, and found it was related to http://jamesgannon.ca/2010/06/03/top-5-myths-about-the-new-copyright-bill-and-digital-locks/ and not to http://jamesgannon.ca/2011/09/30/re-post-tpms-a-comprehensive-guide-for-canadian-copyright-law/

So, let's get cracking on that latest article:

First a compliment on Gannon using the correct terminology for the larger part of his article: TPM i.s.o. DRM.

"There is no restriction on the act a circumventing a copy-control TPM under the definition of (B) above"

Considering that practically all TPMs are access controls, this point is moot. CSS encryption on dvds for example is an access TPM.

"It is an infringement of copyright to provide circumvention services (s.41.1(1)(b)) or provide circumvention devices (s.41.1(1)(c)) for both definitions of TPMs in (A) and (B) above.
There are eight exceptions to the circumvention prohibition and the government can enact new exceptions through regulation as needed (s.41.21)."


So, for some selected purposes you are allowed to circumvent a TPM, but since it's impossible to get the tools needed to do so, it's a useless provision.

"Libraries, archives, museum and educational institutions will pay no damages if they had reasonable grounds to believe their actions did not violate the TPM provisions (s.41.2)"

So close, and yet so far: TPMs don't have provisions. The DRM does. Note also that it's the provisions that count here; not copyright. Fair use provisions don't apply here.

"Bill C-32 contains 8 exceptions that allow circumventing a TPM for a certain purpose:"

See above: since you're not allowed the tools to do this, the exceptions are useless.

"It has also been suggested that Canada could fulfill the WIPO Internet Treaties’ requirements by only prohibiting circumvention for an infringing purpose. Besides rendering the TPM provisions almost entirely redundant, this approach is widely regarded as failing to conform with the treaty obligations by, among others, one of the key architects of the treaties themselves. Mihály Ficsor and Barry Sookman have written extensively on this subject"

True, they have, and they all talk about how it would not be conform proposals that were put forward during the negotiations. Such proposals however are of no value whatsoever. The only thing important is the eventual text that was agreed upon by all parties, not the texts some of the negotiating parties put forward during the process.

"Fair dealing is a defense to copyright infringement. It allows users to make fair copies of portions of a work for certain purposes. It does not grant any user a right to free access to that work.
Therefore, I repeat: nothing in Bill C-32 prevents users from making fair dealing copies of works they have legally obtained."


Let's apply that to a dvd I bought: I have legal access to the dvd, but the TPM on it is an access control, so I'm not allowed to circumvent it, nor am I allowed to make a tool that circumvents it, so effectively I cannot exercise any of my fair-dealings exceptions.

Wayne Borean said...

And of course TPM/DRM added inefficiency into the system. Added inefficiency requires more power to operate, meaning higher greenhouse gas emissions in places that use fossil fuels for electrical generation.

I covered this in a post a couple of years ago. I'd point you at it, but my server died, and I'm currently trying to get it back up and running.

Joy.

Wayne

John Melville said...

You seem to imply that Princton has misappropriated its professors' copyrights by passing an open access policy. I cannot promise that Princton's contract is like mine, but I presume that the university owns all the IP produced by its employees. This is a fairly standard provision. If Princton wants to release the IP created by its employees (actually pretty generous for an institution that makes its money by educating people) it is free to do so.