Bits Debate: Is Copy Protection Needed or Futile? My answer: Neither!

This week, Saul Hansell of Bits will host a debate about copyright issues and technology between Rick Cotton, the general counsel of NBC Universal, and Tim Wu, a professor at Columbia Law School.

I would like to offer my own thoughts in response to one of the themes Rick Cotton posted:

4. Another feature of this debate that should change is technologists disingenuously trashing technology. Too often, the same people who enthusiastically and unreservedly sing the praises of the infinite and wondrous capabilities of digital technology in virtually every other respect pretend that technology has nothing to offer and no ability to reduce the massive trafficking in wholesale infringements of entire works (certainly in the area of video, film, TV, games and software). It is categorically and demonstratively untrue and unworthy of tech champions.

The issue here is not whether technology can be used, but whether technology is the right option, and whether the unintended consequences are worse than the original problem.

To understand this issue, I always point people to Lawrence Lessig's Code and other laws of cyberspace. I am one of those people who understand that new technology *can* be regulated, and am not one of those who believe it is futile. It is because I recognize that regulation is possible that I am involved in the debate, trying to ensure that the form of regulation allowed/promoted is justified and the least harmful.

When software is used to regulate people, we need to ask who is in control of that regulation. When we are regulating social activities, as is the case for anything in the Copyright debate, then that regulation must be treated with the same level of accountability, transparency, and democratic debate as the traditional government authored laws in that area.

Using technology to regulate social behavior can be extremely dangerous, and should be used minimally if at all. In the case of so-called "copy control" or "DRM", we are talking about revoking the rights of one property owner (tangible real-property rights in communications devices) for the sake of protecting specific business models of an intangible property owner (a subset of copyright holders, and I believe small subset who might theoretically benefit). We as a society must ask whether this tradeoff is justified, and whether copyright holders should instead be pursuing different business models if their existing ones are failing in the face of advances in technology.

In what I believe is the vast majority of cases, existing copyright law is sufficient to meet the needs of existing business models, so no radical changes to either the law or technology are justified. For instance, book authors are nervous about the Internet and claim (without much supporting evidence) that their works are often infringed online. They have not exercised their existing Copyright related rights, which already fully meet their needs in Canada. I see no justification for allowing (and legally protecting) radical changes to technology to stop an antisocial behavior, when copyright holders seem unwilling to make use of the existing legal tools.

We need to go to first principles of copyright itself, and ensure that any policy choices that we make are consistent with the purpose of copyright. In the US tradition it is all about promoting progress in science and the arts, with granting personal control over communications technology to private citizens being a better tool towards that goal than the protection of established business models.

In the European tradition it is more about protecting the material and moral interests of authors, which brings us into discussions about what it means to protect moral and material rights. For me material rights is all about ensuring that whenever money is made on creativity, it should be the author that either receives a cut (government set in the case of compulsory/extended or collective licensing) or be able to decide (by granting permission) what businesses they will work with. I never believed it should be interpreted in a way to stop activities where there is no money being made, and where the activity does not reduce the value of the creativity in the marketplace. This suggests to me that private activities should not be regulated, while public activities should. This also suggests that allowing Copyright to be used to justify the unaccountable regulation of private activities (through "DRM") is entirely inappropriate.

Canadian Copyright law is a combination of European/French as well as Anglo/American traditions, so we need to look at all these issues.

While this is my analysis when it comes to DRM (Locks on content to reduce interoperability, locks on devices to treat owner as untrustworthy), similar analysis can be made on the question of ISP filtering. Can such filtering be abused and cause more harm than the problem used to justify it? In North America we already have the "Net Neutrality" debate which is happening because the ISPs we have here are primarily those entities which least want the Internet to compete with their legacy services: the phone companies, and the cable companies. Their interest in filtering the Internet is understood to be anti-competitive in nature. They are all too happy to have government regulators give them a pass to no longer be common carriers, allowing Copyright to be the justification for this unaccountable regulation by the private sector carrier of a major means of communications.

There are uses of technology that I believe would be beneficial. Many of them come in the form of metadata, to ensure that along with any digital content legitimately sold comes enough information for the recipient to automatically determine what they are already authorized to do, as well as determine the authenticity of the work (to detect unlawful sources).

Copyright law is excessively complex and often misunderstood (including by dedicated copyright lawyers). Many of the old-economy contracts layered on top are even worse. We need to simplify the laws and contracts for end user licensing, and make them simple enough to be encoded in metadata. The devices reading this metadata would be under the owners control, meaning that it is possible for them to infringe copyright if they chose to do so, but we would be moving away from the current state of affairs where people are inadvertently infringing copyright because they don't (and can't reasonably be expected to) understand what they can and can't do. In this situation technology is not being used to regulate private social activities, but being used to inform and educate -- one of those things that information and communications technology does well.

The metadata of publicly available material should be scrutinized by government regulators, with an appropriate remedy for being dishonest in those terms (charge of "abuse of copyright"). It should not require that a private citizen take the copyright holder to court to have clarified that specific terms are overreaching. We already have similar investigatory and prosecution powers in relation to to existing laws. The Competition Bureau is responsible for the administration and enforcement of the Competition Act, the Consumer Packaging and Labelling Act (non-food products), the Textile Labelling Act and the Precious Metals Marking Act.

I also believe that part of that metadata should be a registration number for the specific copyrighted work which can be used as an index into a publicly available database. That database, preferably hosted by national governments, should document such things as the current copyright holder (to track assignments, deaths, etc), as well as its copyright status (is it in the public domain)? This would move us away from the antiquated concept of not having formalities for copyright, but that concept is from the 1800's and the Berne convention when we did not have the technology available to us to make this registration and renewal reasonable. It is simply hypocritical of some copyright holders to hold tight to the idea of not requiring formalities, and then to suggest that any use of modern technology must be to their personal benefit and never the benefit of society as a whole.