Re: [Cdn-DMCA] Another Linux victory at Canadian International Trade Tribunal

From: Russell McOrmond <russell _-at-_ flora.ca>
To: No DMCA in Canada <canada-dmca-opponents (at) flora.org>
Date: Wed, 15 Aug 2001 21:05:13 -0400 (EDT)

On Wed, 15 Aug 2001, Wolfgang Sourdeau wrote:

> I don't think it really makes sense. Because the companies invovled
> are both proprietary software companies.

  In this case the custom software created by PLCOM isn't proprietary, but
open source.  The infrastructure onto which this is built is Open
Source/Free software (Linux, MySQL, mod_perl, etc).  As you note, this
isn't really relevant to this case but is an important tool for Open
Source/Free Software developers to use when governments try to specify
only Microsoft or other such brands.

> This issue is more related to fair trade in general than to copyright.
> This kind of issues happens in other areas than copyright.

  The argument I want to be making may not be obvious, which is why I'm
hoping to discuss it more.

  Essentially, various laws sometimes come in conflict with each other.  
What I want to strongly suggest is that Copyright never be allowed to
'trump' laws such as the Competition Act, Access to Information Act,
government procurement standards (Chapter 10 NAFTA, Chapter 5 AIT), or
other such similar laws.

  Which laws have precedence should be specified in the upgraded Copyright
Act, and the Act should not be changed to include provisions (such as the
anti-circumvention) which seems to have the sole purpose of circumvention
of these other laws (IE: anti-circumvention doesn't actually relate to the
ability to copy a work, but the ability for vendors to tie creation and
viewing tools, where the competitive markets in these tools seems to come
under the Competition Act).  By not including indications of which laws
'trump' which other laws, it sets up a chilling-effect against
intellectual innovation since innovators will not want to risk becoming
the expensive test-cases to settle conflicting laws.


  In relation to trade policy, where open standards clearly exist
(Operating Systems, Networking, file formats, etc) an unelected government
bureaucrat (note: these agreements have exceptions for specific public
policy set out by elected representatives)  should not be able to specify
their "pet brand name" in a government procurement.  The argument of "This
is the only tools which can open a proprietary but publicly distributed
file format" should never be allowed as a way to circumvent these
laws/agreements.



  For the DVD and e-Book cases I'll be focusing on the conflict with the
Competition act.  In this case the DVD CCA <http://www.dvdcca.org/>
members are a content publishing cartel that improperly ties the purchase
and viewing of a movie to the purchase of a CCA-endorsed DVD player (IE:
one that has licensed their highly proprietary and DMCA protected CSS
decoding ability).  My reading is that this is not allowed according to
section 77 under "Tied selling" of the Canadian Competition Act.

Note: their FAQ <http://www.dvdcca.org/faq.html> claims that there is a
"Linux version" of a DVD player software that has licensed their CSS
technology.  This is not sufficient to no longer consider them a cartel as
the player market is still limited to only those computing environments
that allow for the use of binary-only licensed decoders, which is not the
case for Free Software based computing environments.  The required
purchasing of a license for CSS, or a player who's manufacture has
purchased the CSS license, is itself the "tied selling".


  I have not yet read the entire competition act, but plan to in the near
future.  If anyone reading this has legal background on the competition
act, please let me know - I am wanting to research case history on this.

---
 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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