Letter to Scott Simms, MP, about Bill C-60

Scott Simms is the the Member of Parliament for for Bonavista—Gander—Grand Falls—Windsor in Newfoundland and Labrador, and is a member of the Heritage Committee in parliament. On November 24, 2004, he was asking the Minister of Heritage about the unauthorized music downloading situation.

Mr. Scott Simms: I have a ten-year-old son who is able to get about a hundred songs by going click-click. You talk about protecting the artists, but it's a delicate balance here. We have thousands, if not millions, of people out there breaking the law, and unseemingly. I won't say all of them are completely innocent, but there's a lot of innocence out there. How are we going to deal with this? What stage are we at right now with the industry department? We do have free downloading, so how can we protect the artist while at the same time trying to be sensible? We're seeing examples in the United States where it's approaching the ludicrous. We're arresting young children for doing something they're unaware of. Are we going in that direction? Where are we at this stage?

(Article also published on p2pnet)

I wrote him letters at that time, but did not receive a response. Today I have sent him a package of information including a number of CDs of music and software, and hope that this will get his attention.

While I have made a PDF version of the letter available, the text of the letter is as follows. I also included a copy of the article Legal protection for TPMs has no place in copyright law.

Dear Scott Simms, member for Bonavista—Gander—Grand Falls—Windsor

I wrote you letters in the past, and I hope that we will soon have a chance to meet in person.

As you are likely aware, the intent of Bill C-60 is to allow the recording industry and other similar lobby groups to more easily sue people such as your 10 (now 11?) year old son. This is the stated intent from the Heritage Minister and other members of the government that are promoting this bill, and this is the first level of what should concern you about Bill C-60.

The next level is to recognize that not only will this bill not achieve its claimed goal of reducing copyright infringements, but that there are very harmful unintended consequences.

There is considerable debate as to whether the current act is sufficient to provide these industries the tools to sue people. My analysis suggests that the current act is sufficient, but given the recording industry hasn't brought evidence to the courts yet that is sufficient to move forward with a case, we simply don't know for certain.

(My attempt to make sense out of the current law. I realize this is as "clear as mud", but that is the nature of copyright law analysis: http://www.flora.ca/documents/p2p-legal-theories.html )

This is part of the problem with this radical copyright revision: there is an assumption that everyone should obey this law, and there is moral outrage when people disobey it, but few -- including dedicated copyright lawyers -- can agree on what the current Copyright Act says. Bill C-60 is a 30 page bilingual modification of an approximately 80 page bilingual Act that not only does not simplify the situation, but where the consequences and interpretation of the bill are far less understood than the current copyright act!

While the entire bill is controversial, one of the most controversial is the addition of 34.02 which speaks of "circumvention" of so-called "technical measures" that claim to be used to protect copyright. The problem is that while technical measures can protect privacy and authenticity, it is not possible to use them directly to protect copyright. The indirect methods used have considerable harmful unintended consequences. I am including at the end of this letter an article I wrote titled " Legal protection for TPMs has no place in copyright law" which seeks to explain this issue.

To analyze the effects of anti-circumvention laws you need to break people into 3 groups: the technically sophisticated copyright infringer, the unsophisticated copyright infringer, and the non-infringer.

Technically sophisticated copyright infringer

With the use of TPMs to protect copyright, often called "Digital Rights Management" or "Digital Restrictions Management" (DRM), the content is encoded in such a way that it can only be accessed with authorized access tools. Thinking about the lock-and-key analogy, the content is in a locked box with the key being embedded within any authorized access tool. A technically sophisticated person would have no trouble extracting the key from the access tool and unlocking the content. At this point the content would be in a format the same as if DRM never existed.

This person can then make the DRM-free version of this file available to others. It is important to realize that at this stage they are already violating existing law, and the fact that they first unlocked the content first doesn't change much.

Technically unsophisticated copyright infringer

All it takes is one person out of the almost 6.5 billion people worldwide to be technically sophisticated and unlock the file into a DRM-free file format, and the content is then available in a format that any infringer can access.

The most important thing to note is that for those who wish to infringe copyright, the existence of DRM has little to no effect on them. All the existing methods to illegally share this content still exist, and the past existence of DRM doesn't change this.

The non-infringer (law abiding citizens, your constituents!)

Someone who is not going to infringe copyright is also going to obey the limits imposed by DRM. This means that if they wish to enjoy content encoded in Microsoft, Apple, Sony or other DRM file format, they will purchase access tools with the right keys from Microsoft, Apple, Sony or whatever other companies tools they need to buy to access their purchased content.

The act of tieing the purchase of one product to the purchase of another is well known in competition policy circles, and is the core of section 77 of the Canadian competition act. It is recognized that it is harmful to have the enjoyment of one product tied to the purchase of another, as this massively reduces consumer choice and harms innovation that would otherwise be sparked by competition.

We know from Beta-vs-VHS that consumers are not willing to "own" multiple access devices for the same type of media. This suggests that for each type of media there will eventually be a "winning" DRM vendor controlling the keys. This company will be in a position to be able to dictate terms to the creators who's content they will be encoding, and audiences whose access tools they will have control over.

The most well known example of what happens when a technology company attempts to control creativity was back in 1909 when what is now "Hollywood" was born out of a group of "pirates" trying to escape from the type of technology control we are now enacting in C-60.

Creators and directors migrated from the East Coast to California in the early twentieth century in part to escape controls that patents granted the inventor of filmmaking, Thomas Edison. These controls were exercised through a monopoly "trust," the Motion Pictures Patents Company, and were based on Thomas Edison's creative property—patents. Edison formed the MPPC to exercise the rights this creative property gave him, and the MPPC was serious about the control it demanded. (Lawrence Lessig, "Free Culture", P66)

(Note: I can purchase and drop off at your parliamentary office a copy of the book "Free Culture" if you are willing to accept it. I have been handing out copies of this insightful book to other members of parliament. A list of MPs who have accepted copies of the book is at:
http://www.digital-copyright.ca/taxonomy/page/or/364 )

While this is a simplified version of the argument, the important thing to realize is that the legalization of the tied selling of DRM through anti-circumvention laws will have the effect of greatly reducing consumer choice for law abiding citizens. It will also have a devastating effect on creative communities which will now have a powerful government protected intermediary who they must negotiate with in order to distribute their digital content to audiences. The DRM companies will be afforded a level of control through technology that Edison could not ever have achieved, given software allows for more fine tuning of control that patent monopolies can.

Much of the bill comes from a desire to ratify the 1996 WIPO treaties. These treaties do not represent an "international consensus", but are a recent example of what is called "policy laundering".

In 1995 the United States Patent and Trademark Office articulated a very different vision of the Internet. Up to that point the analogy was of an "information superhighway" that would be the infrastructure on which a knowledge economy could be built, much like how the existing highways were the infrastructure for the Industrial economy.

In his submission to the National Information Infrastructure, Bruce A. Lehman, then Assistant Secretary and Commissioner of Patents and Trademarks, articulated a very different vision. His vision would be of this digital network being a centrally controlled delivery mechanism for the incumbent telecommunications, broadcasting and "software manufacturing" industry associations.

http://www.uspto.gov/web/offices/com/doc/ipnii/

When this harmful policy did not get passed at home he took it to WIPO where in 1996 two treaties were signed articulating the same vision. He took this "laundered" policy back to the United States and in 1998 the highly controversial Digital Millennium Copyright Act was passed. Now in 2005/2006 we are debating Bill C-60 in Canada which is based on the same laundered policy, and we are observing the same lack of adequate debate and review that was seen in other countries having this bad policy rammed through their governments.

If Canada feels an obligation toward WIPO it should not be to ratify the 1996 WIPO treaties, but to work with the international community that is trying to reform WIPO to fulfill its mandate within the United Nations. The most visible group is the "friends of development" who are working towards a "Development Agenda" that counters the extremely harmful policy directions articulated in the 1996 treaties. It is likely that over time the 1996 treaties will be abrogated entirely.

While I could go into more details in the bill and its international policy context, I would like to end with a quick thought from the summary of my participation in OpenCity 2005 in Winnipeg. http://www.flora.ca/oc2005/ It was in the context of conversations between creators like myself and some of the people from traditional creator communities that didn't understand our views.

Question: Don't you believe that creators should be able to get paid for their work?

Free/libre Culture Answer: Yes, and that is precisely why we strongly oppose Bill C-60 and the overall public policy direction it represents.

Sincerely,

Russell McOrmond

P.S. While this may seem long, there is so much more that could be said. Let me know if this peaked your interest and if you are willing to sit down and discuss this and related issues. I agree with the overall goals that Heritage has for protecting Canadian Culture, but strongly disagree with the methods chosen which I see as opposing those goals.