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[d@DCC] Is the Competition Bureau Investigating so-called "Copy Control" CDs? (not "Audio CDs" at all)

From: Russell McOrmond <russell _-at-_ flora.ca>
To: Competition Bureau <Compbureau (at) ic.gc.ca>
Cc: General Copyright Discussions <discuss -_at_- list.digital-copyright.ca>
Date: Tue, 1 Nov 2005 08:22:53 -0500 (EST)

Dear Competition Bureau,

   I would like to confirm that bureau is investigating the problems in the 
market for audio CD's.  I use the term "audio CD" loosely as many of the 
recently released CDs do not conform to the Red Book standard for audio 
CDs (Compact Disc Digital Audio system, or CDDA). 
http://en.wikipedia.org/wiki/Red_Book_%28audio_CD_standard%29


   Most consumers are not technical enough to notice the lack of the CDDA 
trademark logo on a CD, and thus are not being made aware of the fact that 
they are no longer purchasing a standard audio CD but something entirely 
different.

   Without this knowledge they are unable to be aware of the limits that 
these CDs will have compared to the standard format that the consumer 
expected to be purchasing.


   The reality is that this technology, like all other "technical measures" 
used by content distributors or DRM (Digital Rights/Restrictions 
Management), does not (and can not) stop activities that Copyright 
regulates.  In all cases these technologies are used to technologically 
impose limits negotiated in contracts.  Many public interest policy people 
call these rules "paracopyright".


   Most of these contracts are between the content industry and technology 
companies, with the terms of these contracts deliberately hidden from the 
consumers who then have the terms of these contracts imposed on them.

   It is important to remember that these hidden contract terms only affect 
law abiding citizens.  Those citizens with technical knowledge will always 
be able to extract these files and convert to a DRM-free standard file 
format.  They will then infringe copyright by sharing the standard file. 
In the case of many DRM systems it is as simple as extracting a key from 
any authorized player (technology made available to all consumers) to 
unlock the "digital lock" around the content.  It only takes one technical 
person out of the 6.5 billion people on the planet to decode the file, and 
then it is available to less technical people to share.


   Bill C-60 gives legal protection to this "paracopyright", these 
technologically encoded hidden contracts.  Since we are talking about 
contracts there is a legitimate question of whether the constitution 
allows the federal government can act in this area of provincial 
jurisdiction.

See: "Constitutional Jurisdiction over Paracopyright Laws", by Jeremy F. 
deBeer, Chapter 4 of "In the Public Interest: The Future of Canadian 
Copyright Law"  http://www.irwinlaw.com/books.cfm?pub_id=120&series_id=3

   We also need to ensure that these contracts are made transparent and 
accountable as is the case for any other contract terms, including problem 
contracts being reviewed by the federal Competition Bureau and the 
provincial and federal privacy commissioners.


See: "If Left to Their Own Devices...: How DRM and Anti-Circumvention Laws 
Can Be Used to Hack Privacy" by Ian Kerr, and "Anti-Circumvention 
Legislation and Competition Policy: Defining A Canadian Way?" by Michael 
Geist, two chapters of "In the Public Interest".


   These hidden contracts are used in anti-competitive battles between 
industry players that must be investigated.  A recent article talks about 
how Sony is using this technology in a battle they are having with Apple. 
Sony prefers the Microsoft brand and is not happy with the success of 
Apple's iPod and iTunes.  They created a new CD format that was not an 
audio CD but that some audio CD players would interpret as audio.  The 
purpose of the format was to lock people from being able to read the CDs 
with Apples software.  When people complained to Sony they are falsely 
told that this is an Apple problem, and that they should write to Apple to 
convince them to "open up" their iTunes store to other players (meaning, 
the Microsoft player).

DOWN THE RABBIT HOLE
By Barry Ritholtz - The Big Picture
http://p2pnet.net/story/6808


   While Apple has been very successful with their player and music store, 
and should be investigated, it must be remembered that Microsoft was 
recently scolded by Anti-Trust Judge Colleen Kollar-Kotelly about 
contracting terms which would prohibit portable audio player manufacturers 
capable of playing Microsoft DRM music from also playing competitors music 
(mainly Apple).

http://www.pcworld.com/resource/article/0,aid,123254,pg,1,RSS,RSS,00.asp


   Creators, their audiences, and purchasers of electronics must be 
protected from these hidden contracts and the anti-competitive battles in 
this marketplace.  A first step for the competition bureau should be to 
put these companies under investigation.  The bureau must also intervene 
in the Bill C-60 hearings to ensure that legal protection for these hidden 
contract terms are not allowed in our Copyright Act.


   If it is decided that legally encoded contracts need legal protection, 
then this change to law must happen within appropriate legislation 
(primarily provincial) in a way that allows for appropriate accountability 
and transparency.  We do not give legal protection for human readable 
contracts with "fine print" that is not readable, so we should certainly 
not be giving legal protection for digitally encoded contracts that are 
unreadable to humans at all.  We should not allow any disclosure of these 
terms by third parties to be claimed to be "infringing" of some right.


More details on this issue are in this article:

Standards? What standards?
http://www.digital-copyright.ca/node/1095

Thank you.

Russell McOrmond
Full contact information: http://www.flora.ca/#contact

-- 
  Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
  2359+ Canadians oppose Bill C-60. This bill protects antiquated Recording,
  Motion Picture and "software manufacturing" industries from modernization.
  http://KillBillC60.ca    Sign--> http://digital-copyright.ca/petition/
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