Re: [Cdn-DMCA] Discussion of "A framework for copyright reform"

From: Russell McOrmond <russell _-at-_ flora.ca>
To: No DMCA in Canada <canada-dmca-opponents (at) flora.org>
Date: Mon, 6 Aug 2001 12:42:37 -0400 (EDT)

On Sun, 5 Aug 2001 mskala@ansuz.sooke.bc.ca wrote:

> I don't want to take too much time from working on my submission, nor post
> it incomplete (because I don't want partial copies circulating)

  I hope others won't mind my "release early, release often" method I'm
using for my own.  I'm wanting to spark as many ideas as possible.  The
discussions in the forum so far have been great.

> * three historical perspectives on copyright:

  Do you have a background in history and/or law?  The comment has been
made already that we need to get people involved in this process which
have a historical and legal background.  Some of us are simply software
developers/users/etc which may have been discussing copyright/patents/etc
for a while, but do not have the proper background.

> * unlike the U.S. where copyright and free speech are both in the
>   Constitution and there's a balancing act, we have free expression in our
>   Constitution but *not* intellectual property.  Intellectual property law
>   has to be supported by Parliament's more general powers, which means
>   free expression has a lot more weight.

  This is very interesting, and something I had not realized. Is there
legal precedent that we can reference that makes this point more clear?


> * note: I attempt to use the word "privilege" wherever possible to
>   describe statutory creations like copyright, and the word "right" only
>   for things that might be called "God-given", like free expression.


  I have sometimes used the phrase "statutory intellectual monopoly" as a
replacement for the (improper) phrase "intellectual property" to try to
convey that meaning as well.

> * existence of the DMCA has triggered a brain drain away from the U.S.A.,
>   for instance Alan Cox's boycott of Usenix ALS, we don't want that to
>   happen here.

  Wow - I had not heard this:
  http://www.newsforge.com/article.pl?sid=01/07/20/1228200

> * ISPs need protection against liability;
> * Notice and take-down is NOT a good thing 
> * If you do allow take-down orders they had better not be email

  Totally agreed, and I'm glad these are being brought forward.  Again, a
worry about concentrating on the anti-circumvention-circumvention clauses
may allow us to not notice these other important issues.

> Of course the WIPO treaty language is a bad thing because it can be used
> to legitimize DMCA-type laws, but read the treaty language carefully.  

Is this the materials at:
  http://www.wipo.int/treaties/ip/copyright/


  If you have a better reference to what process Canada is involved in, it
would be helpful.

> These treaties are flexible documents, especially when you consider
> that we have freedom of expression protected in the Constitution, and
> that trumps any treaty.

  This is part of what I wanted to put into my preamble.  While it may be
true legally that the constitution trumps any treaty, do you want to be
forcibly involved in the first legal test case for this?  Where the
constitution or other laws (IE: competition law, freedom of information,
etc) can come in conflict with copyright laws, these things need to be
made clear in copyright law itself such that lawsuits won't happen in the
first place!


  Some of us are familiar with SLAPP (Strategic Lawsuits Against Public
Participation).  In these cases it is not the actual law that is the
weapon, but the threat of expensive lawsuits where it doesn't matter who
is right, but who has the most money and legal backing.  We don't want to
have programmers living under constant threat and having an effective
chilling effect against innovation!

>  The Government simply isn't allowed to agree to a treaty that would
> contradict the Constitution.

  There are those opposing neo-Classical Economic Globalization that would
agree with your legal interpretation, but disagree that this is what is
happening in reality.  There are many who believe that Chapter 11 of NAFTA
contradicts the Canadian Constitution, and this is an expensive ongoing
legal battle.

Note: I'm actively involved in opposition to a number of agreements on
trade, but like copyright/etc am not in the 'abolish' camp.  As an
example, I believe that chapter 10 of NAFTA is as important for government
accountability as Access to Information laws.  I would not want "the baby
thrown out with the bath-water" by having my strong opposition to Chapter
11 used to remove the useful chapters of NAFTA as well.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
 Free Sklyarov http://www.dibona.com/dmca/ http://www.freesklyarov.org/ 
 http://www.flora.org/dmca/ Oppose DMCA in Canada! (C) reform process....
 http://russell.flora.org/drafts/copyright-2001.html My submission...

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