Digital Copyright Canada

2001 copyright reform: CMPDA reply

   This is a reply to the ongoing Canadian copyright consultation process
   by Russell McOrmond, proprietor of FLORA Community Consulting, a
   primarily Free Software, Open Source and Open standards based
   consulting company operating out of Ottawa, Ontario.
   http://www.flora.ca/

   This reply is in addition to two previous submissions which included a
   small announcement of a discussion forum on August 5, 2001 and a full
   submission on September 13, 2001.

   A fully linked version of this reply can be found online at:
   http://www.flora.ca/copyright-2001-cmpda-reply.shtml

   A fully linked version of my full submission can be found at:
   http://www.flora.ca/copyright-2001.shtml

  Reply to CMPDA

   While there were a few similar submissions from larger publishing
   companies, associations or cartels, this reply is specifically in
   regards to the Canadian Motion Pictures Distributors Association
   (CMPDA) submission.

   The members of CMPDA are Buena Vista (Disney), Metro-Goldwyn-Mayer,
   Paramount/Viacom, Sony/Columbia, Twentieth Century Fox, Universal and
   Warner Bros.

   This submission was of particular interest because
   Metro-Goldwyn-Mayer, Twentieth Century Fox and Warner Bros are also
   members of the DVD Copy Control Association <http://www.dvdcca.org> ,
   and all members of the CMPDA are also members of the U.S. based Motion
   Picture Association of America (MPAA). http://www.mpaa.org/about/ (
   Walt Disney Company; Sony Pictures Entertainment, Inc.;
   Metro-Goldwyn-Mayer Inc.; Paramount Pictures Corporation; Twentieth
   Century Fox Film Corp.; Universal Studios, Inc.; and Warner Bros. )

   I wish to draw attention to some contradictions between the CMPDA
   submission, ongoing court cases with these members in the United
   States, and initial investigations of potential violations of Canada's
   Competition Act by members of CMPDA, specifically in regards to
   actions related to the changes in Copyright legislation they are
   calling for.

  DVD-CCA case

   While I included information in my previous submission on the DVD CCA
   (Copy Control Association) under "Potential conflicts with other
   Public Policy", a point-form summary of the key points will be listed.

    1. From their FAQ, "The DVD Copy Control Association (DVD CCA) is a
       not-for-profit corporation with responsibility for licensing CSS
       (Content Scramble System) to manufacturers of DVD hardware, discs
       and related products." &LT;http://www.dvdcca.org/faq.html>

    2. Contrary to their FAQ and the name of their association, the CSS
       technology is unrelated in any way to copying of DVD's as it does
       not restrict bit-for-bit copying of DVD's. A copy of a DVD would
       be indistinguishable to a DVD player from the original. The myth
       that the DVD-CSS technology is related to the ability to copy a
       DVD is one of many myths promoted by the DVD-CCA members.
       <http://www.opendvd.org/myths.php3>

    3. The purpose of the CSS system is to allow the DVD-CCA members to
       license and thus control DVD player manufacturers. An additional
       feature of the CSS technology is to include regional encoding
       which limits the ability of DVD's purchased in one region to be
       played by a player purchased in another region.

    4. It is the interpretation of this consultant that both of these
       activities are in contravention of Canada's Competition Act. I and
       a number of other Canadians have submitted complaints to the
       Competition Bureau to this effect. I have already met with my MP
       on this matter, and will continue to further investigate other
       political options to encourage Industry Canada to open a full
       investigation of the DVD-CCA.

    5. DVD-CCA's attempted control of the DVD player market is referenced
       under 'tied selling' which is part of section 77 of the
       Competition Act

    6. Regional encoding would constitute a barrier to trade in DVD's,
       arbitrarily restricting distribution of CD's to within a region.
       Beyond existing competition law, there will likely be implications
       on future trade agreement negotiations.

    7. It is important to note that trade in CD's are not always sold
       directly from original publisher/encoder to final consumer.
       Secondary markets involving large multi-national retailers,
       specialty importers/exporters, and markets in 'used' CD's exist.

    8. Regional encoding is also under investigation in Australia.
       Ongoing investigations will be hilighted as part of the OpenDVD
       Regional Codes resource: <http://www.opendvd.org/regioncode.php3>

    9. The requirement for a CSS license in order to produce a DVD-CSS
       compatable player, and the claim that software to implement the
       license needs to be kept a trade secret
       <http://www.eff.org/IP/Video/MPAA_DVD_cases/>, effectively creates
       an insurmountable barrier to entry into the DVD player market for
       any Open Source or Free-software based player as the source code
       must be published in these cases.

   10. The claim from the CCA in their FAQ that the CCA will license CSS
       to players that operate on the Linux operating system is not
       relevant. The question is not whether a DVD-CCA licenced
       proprietary player can be marketed by a DVD-CCA member for Linux
       or any specific operating system, but whether the ability to view
       a legally purchased DVD video is tied to the purchase of a DVD-CCA
       licensed video player. In my case the specific question is whether
       the player chosen can be one licensed under a Free Software
       license.

   11. In their submission, the CMPDA claims under their support for
       Legal protection of Technological measures that no exemptions from
       anti-circumvention provisions are required with respect to works
       in the public domain. They further suggest that market forces will
       be sufficient.

   12. Both these claims must be taken in context of the US experience.
       The CMPDA members have proven they can not be trusted to protect
       free market forces in DVD movie distribution. CMPDA members have
       thus far been openly hostile towards free market forces as
       demonstrated with their attempt to gain control over an otherwise
       competitive DVD player market and to restrict Free Trade in DVD's
       other than directly from their members to final consumers.

   13. There is clearly a justification for creating an obligation on
       copyright holders to provide access to their works. As discussed
       in other submissions, the addition of technological measures
       creates a situation where physical access to a work through
       legally purchasing a copy does not guarantee the ability to use
       the work. This is an issue at the core of the anti-circumvention
       debate where organizations like CMPDA have demonstrated that they
       will attempt to abuse these new technologies and laws relating to
       these technologies to try to create for themselves new rights that
       otherwise would not be protected in copyright, and most likely
       understood as anti-competitive.

  Personal DVD investigation

   In my business I specifically promote and support computing standards
   that do not tie my customers to any specific vendor for their
   technology. I use only Free Software or Open Source software, and
   purchase hardware for which there are alternatives from other vendors
   for compatible hardware.

   When playing DVD videos on my home computer to investigate video
   viewing and LAN distribution potential for my clients, I was
   specifically looking for Free Software based players. In this case all
   the source code is publicly published and I can get involved in and
   help support this class of product for my customers. My commercial
   support of these Free Software products would effectively involve me
   becoming similar to a "reseller" in the proprietary player market.

   The VideoLAN project was investigated as it supports LAN-based
   video-distribution technologies which would be useful to my clients,
   and the LiViD project which was specifically promoted by OpenDVD.org.

   From their respective websites:

   http://www.videolan.org/
          "VideoLAN is a project of students from the École Centrale
          Paris. Its main goals are MPEG and DVD playing and broadcasting
          on the campus, but it also features a standalone multimedia
          player that can read DVDs and MPEG files. It will also
          eventually support streams from a satellite or from an MPEG2
          compression card. VideoLAN is free software, and is released
          under the GNU General Public License."

   http://www.au.linuxvideo.org/
          "The LiViD Project is a collection of video and dvd related
          sub-projects." ... "Our goals are simple - provide a unified
          development and user resource center for video and dvd related
          work for Linux."

   http://www.opendvd.org/
          "The OpenDVD.org site serves as a comprehensive resource for
          developers looking to implement DVD technology, and for users
          to take full advantage of all the benefits that DVDs have to
          offer.

          The DVD-Copy Control Association and movie studio members of
          the MPAA have filed lawsuits to stop the development of
          independent players for DVDs. They argue that decrypting the
          Content Scrambling System (CSS) encryption without a
          DVD-CCA-licensed player violates their trade secrets (DVD-CCA's
          California lawsuit) and the Digital Millennium Copyright Act
          (movie studios' New York and Connecticut lawsuits).

          The OpenDVD Group is doing whatever it can to aid the defense,
          which is led and funded by the Electronic Frontier Foundation.
          We believe the issue is fair use, not piracy. We respect the
          rights of copyright owners, but those rights do not include
          complete control over the uses of their published works.
          Copyright's protections are balanced by fair use, individuals'
          rights to make limited copies for criticism, scholarship, or
          personal use. We, and a number of prominent law professors,
          believe fair use gives us the right to watch DVDs on any
          platform of our choice."

   In order to test these technologies, I purchased two videos:

   "AntiTrust" - http://www.antitrustthemovie.com/
          Metro-Goldwyn-Mayer encoded this DVD with CSS Region 1 - U.S.A,
          U.S. territories and Canada. The irony will not be lost to
          anyone who has seen the movie of MGM being actively involved
          in, and lobbying for protection of, a technology that attempts
          to make viewing this movie using an Open Source player illegal.
          Some of us in the Open Source industry can't believe they have
          the NURV to be doing this.

   "The Mummy Returns"
          According to the CSS-Free DVDs list maintained by the VideoLAN
          project <http://www.videolan.org/freedvd.html> , this CD is not
          encoded with CSS.

   The CD's could be viewed using both DVD players. Both DVD players made
   use of unlicensed CSS decoders, which is required because of the
   conflicting requirement to keep this technology a trade secret with
   the publicly released source-code nature of Open Source and Free
   Software.

   These two players were both produced outside of the United States
   since the new controversial DMCA law has allowed the DVD-CCA cartel to
   declare a competitive DVD player to be an "anti-circumvention device".
   Considerable information on this case can be found from EFF and other
   related organizations.

   While it is currently legal for me to use these Open Source players to
   play these videos in Canada, a change in the Canadian Copyright law to
   label unlicensed CSS decoders as anti-circumvention devices will then
   tie my ability to view my already purchased copy of the movie
   "AntiTrust" with an additional purchase of a DVD player licensed by
   the DVD-CCA cartel.

   While this potentially illegal tieing already exists for commercial
   players who wish to produce players in Canada for export to the USA, a
   change to our copyright laws to make illegal "anti-circumvention
   devices" would add into the conflict with the Canadian Competition Act
   any production of competitive players within Canada, or any attempt to
   import legal devices from outside of North America into Canada.

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Digital Copyright Canada

2001 copyright reform: CMPDA reply

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