[d@DCC] Canadian companies harmed by DVD CCA? Other competition issues?

From: Russell McOrmond <russell _-at-_ flora.ca>
To: General Copyright Discussions <discuss (at) digital-copyright.ca>, CANadian OPENsource Education and Research <discuss (at) canopener.ca>
Date: Tue, 20 Apr 2004 14:17:42 -0400 (EDT)

(Please forward to interested parties)

What I am looking for
---------------------

  I am looking to find Canadian companies that are harmed by the DVD CCA.  
This includes the fact that publicly disclosed FLOSS software is unable to
license the claimed "trade secret" of DVD CSS.

  I am also looking for Canadian companies that would be willing to work
with me to push forward other competition policy promotion, specifically
where there is a conflict between patents/copyrights and competition.

  While my own focus is on FLOSS companies, please contact me even if you 
are a "software manufacturing" company that has issues in Canadian markets 
where competition policy should be helping.

More details
------------

  In order for the Competition Act to apply, certain requirements must be
met.  According to section 77 of the Act, one must show that the alleged
anti-competitive practice is likely to:
 	
 	(a) impede entry into or expansion of a firm in a market,
 	(b) impede introduction of a product into or expansion of sales of a
product in a market, or
 	(c) have any other exclusionary effect in a market.

http://laws.justice.gc.ca/en/C-34/35992.html#section-77


  It is one thing for us to believe that this is happening with
FLOSS-based "home/multimedia/etc computers" being less attractive because
the DVD player won't play many videos.  It is another thing to be able to
bring specific examples of Canadian companies that have been harmed.

  I was also asked why Open Source companies don't file complaints with
the bureau.  I wonder this as well.  While this specific complaint relates
to the DVD CCA, there are many competition policy areas where Open Source
is being excluded due to licensing issues.

  Another example would be under royalty-bearing Software Patents.  It
doesn't matter how small a royalty fee is, but the mere existence of a
royalty-bearing patent excludes FLOSS offerings.

  This is currently being discussed in the context of the FAT filesystem
used by many digital cameras and other storage devices.  This patent is 
being targeted in the USA by The Public Patent Foundation:
  http://www.eweek.com/article2/0,1759,1569534,00.asp


  In Canada the situation is a bit different.  When I did my report on
software patents <http://www.flora.ca/patent2003/> I found that there
hasn't been caselaw that has confirmed software patentability in Canada.  

  The single data point (Schlumberger Canada - 1981) confirmed what I
thought would be reasonable patent policy.  This case suggested that the
existence of software neither adds to nor subtracts from the patenability
of an invention.  This means that a manufacturing process that used
software in the automation is still patentable, but a generic computer
plus software would not be patentable.

  Like the European Patent Office which ignored the European Patent
Convention's exclusion of "programs for computers" from patentability, the
Canadian Intellectual Property Office (CIPO) seems to want to grant pure
software patents.  Whether Canadian companies have to honor US patents is
also not something I am currently certain about as there is different
opinions.

  I saw a draft of the new chapter 26 of Manual of Patent Office Practices
drafted by CIPO for the review of computer implemented inventions and
business methods.  It read as a manual of how to creatively word patent
applications to get around the unpatability of software in Canada.

  This DVD CCA case is hopefully the first of many.  My ultimate goals are
not only to confirm the legality of viewing DVD CSS encoded movies using
FLOSS software in Canada, but also to get the Competition Bureau and
Industry Canada more actively involved in competition policy advocacy work
in ongoing patents and copyright reform.

  I see "Legal protection for TPM" that is part of the WIPO copyright
treaties to be an example of policy in direct conflict with competition
policy.  One way to protect Canadian creativity and innovation will be to
recognize this conflict and for the Competition Bureau to be working with
us to ensure that we do not enact USA-DMCA style laws in Canada.

My own full submission to the Competition Bureau is at:
  http://www.flora.ca/competition2003/

Summary of policy suggestions

   1. Do analysis on Free/Libre and Open Source Software (FLOSS), 
contrasting with "software manufacturing", including not only price 
issues but also more important issues such as vendor independence, 
protection of consumer rights (including guaranteeing user serviceability, 
accountability, access to source code which mirrors governmental access to 
information laws), and other offerings of the FLOSS model

   2. Re-visit IPEG with knowledge of FLOSS public policy, removing 
promotion of interface copyright or interface patent that currently exist 
in poor examples

   3. Competition bureau should get involved in current Copyright policy 
consultations as well as helping to instigate new consultations on patent 
policy

   4. Considerations beyond price should be included in determining 
whether there are competition problems in a given market, especially when 
there are multiple methodologies offering similar products and/or services

-- 
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 "Make it legal: don't litigate, use creative licensing" campaign.
 A modern answer to P2P: http://www.flora.ca/makelegal200403.shtml
 Canadian File-sharing Legal Information Network http://www.canfli.org/

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