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

From: mskala _-at-_ ansuz.sooke.bc.ca
To: No DMCA in Canada <canada-dmca-opponents (at) flora.org>
Date: Tue, 14 Aug 2001 13:37:08 -0700 (PDT)

On Mon, 6 Aug 2001, Russell McOrmond wrote:
> On Sun, 5 Aug 2001 mskala@ansuz.sooke.bc.ca wrote:
> > 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

You're welcome to distribute your incomplete submission; I just wasn't
offering to do the same with mine.

>   Do you have a background in history and/or law?  The comment has been

No, my formal background is in computer science and mathematics.

> >   Constitution and there's a balancing act, we have free expression in our
> >   Constitution but *not* intellectual property.  Intellectual property law

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

I don't know of any court cases underscoring this point, and maybe a
serious Constitutional lawyer would find it laughable; it's something I
cooked up myself after reading through (and text-searching) as many of the
Canadian Constitutional documents as I could find.  (A Google search on
"canada constitution" was helpful here.)

I think it's worth attempting to make the claim even if there's no
precedent for it, although of course, a precedent would be wonderful.

> > * 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

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

I'm also able to use my own case as an example for this; I didn't apply to
any U.S. grad schools for my PhD, instead applying to four Canadian
schools which all accepted me, partly because of my concern about
U.S. intellectual property laws.

> > 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/

There's lots of stuff there, but I meant the two paragraphs that are
actually quoted in the Govt. discussion papers:

   Article 11 [WCT]

     Contracting Parties shall provide adequate legal protection and
     effective legal remedies against the circumvention of effective
     technological measures that are used by authors in connection with
     the exercise of their rights under this Treaty or the Berne
     Convention and that restrict Acts, in respect of their works, which
     are not authorized by the authors concerned or permitted by law.

   Article 18 [WPPT]

     Contracting Parties shall provide adequate legal protection and
     effective legal remedies against the circumvention of effective
     technological measures that are used by performers or producers of
     phonograms in connection with the exercise of their rights under
     this Treaty and that restrict Acts, in respect of their works,
     which are not authorized by the authors concerned or permitted by
     law.

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

I was talking simply about the statements contained in the "Consultation
Paper on Digital Copyright Issues".

> 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

No, I've already bowed out of one case sort of like that.  But I think the
scenario wouldn't be an individual having to argue the relative
merits of treaties and the Constitution.  The situation I envision
would be more like this:

   * Canada doesn't protect anti-circumvention measures (i.e. no DMCA here)
   * U.S.A. says, "You have to, it's a treaty requirement!"
   * Canada says, "But our constitution says no!"

The court case would be between the U.S. and Canadian governments,
probably in the world court in Geneva, and would only involve me to the
extent that it would involve all Canadians.

> made clear in copyright law itself such that lawsuits won't happen in the
> first place!

Note that the DMCA already includes provisions stating that it is not to
be interpreted in such a way as to conflict with legitimate research, but
that hasn't stopped it from being interpreted that way.  Clarifications
such as you describe have to be really forceful if they're going to work.

>   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.

http://ansuz.sooke.bc.ca/cpbfaq.html#whyacceptsettlement

Matthew Skala                      Don't practise a license without law.
mskala@ansuz.sooke.bc.ca
http://ansuz.sooke.bc.ca/ <-- NEW URL!

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