Thoughts on C-32 committee meeting 17

Today I was invited to speak along with David Fewer from the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC). (Transcripts, audio/video and minutes are all online.)

CIPPIC was established at the University of Ottawa, Faculty of Law in the fall of 2003, and has offices in the law building at the University. I would like to take this opportunity to thank the law professors, law students and other staff at both the University of Ottawa Technology law and CIPPIC for all the help they have offered me over the years. They have allowed me to sit in on classes, attend the Torys Technology Law speaker series and other events, and have always been available when I needed to have points of law explained to me. This is an amazing and open group of people, and I am very thankful to live in Ottawa and to have been granted access to them.

I have known David Fewer for many years now, and was honoured to sit on the same panel with him. He was a great witness as always. CIPPIC isn't a group that looks at technology law from only one perspective, and has provided considerable assistance to people from a full spectrum of stakeholders in the copyright debate.

I feel an affinity for that viewpoint, especially in my roll as policy coordinator for CLUE which has members ranging from software users who have never written a line of code to people who intimately understand the internals of the Linux and BSD kernels and others that make their entire living through authoring software.

I cannot evaluate my own performance, and will leave that for others to add as comments.

I will make note of procedural issues. I was not certain that I would be invited to speak to the committee in person, but since I live in Ottawa I offered to be a stand-by if this was possible. The invitation to appear before the committee was made mid-afternoon yesterday. This will likely have meant that committee members received my brief (and translation) later than that, with it being unlikely any had time to read before committee.

I believe I saw the signs of that in a question from Ms. Lavallée who appeared to have skimmed and read my views on education institutional exceptions backwards. She believed that I thought that educational institutions paying creators was a government program masquerading as copyright. The English text reads, "I consider education institutional exceptions to copyright to be a government program, paid for on the backs of copyright holders, masquerading as copyright."

If briefs were available to committee members well in advance, including for people who were not yet scheduled to speak, it is possible that we would have had a more engaging dialogue. While we don't agree on methods, Ms. Lavallée and I both believe that creators should be receiving better compensation for their valuable contributions to society. Had she had a chance to read my brief, we might have been able to discuss some of the modern alternatives to the methods used in the past that appear to no longer work as well.

There wasn't a second panel, and after a brief discussion of inviting Gary Fung, the owner of ISOhunt, the meeting went in-camera.

I took an opportunity to check to see if there was commentary on the meeting in twitter. The most interesting came from an pseudonymous blogger using the @CopyrightCanada account.

The most telling was: "Note to McOrmond: TPMs protect artists/rights holders, just as locks protect your house"

This shows a clear lack of understanding of how the relevant technology works. This was tweeted after I gave my Protecting property rights in a digital world introduction which offered details on the questions of what is locked, who owns what is locked, and who maintains the keys. As I said in the introduction there are locks on content and locks on devices.

The following from my introduction may be the most important for the recording industry: "In most real-world examples of technical measures, copyright holders do not control the keys to locked content. They are sometimes but not always given the choice about whether it is locked or not, but not much control beyond that."

The locks on my house have keys where I as owner decide who gets keys. I am legally protected as the home owner to change the locks on my home, in case there is any question that a third party has obtained access to the keys.

Locks in a typical DRM system have locks on content and locks on devices where neither the copyright holder (owner 1) or the device owner (owner 2) are given keys. This is the opposite use of keys than locks that protect ones home.

It is very unfortunate that the recording industry is unwilling to hire any independent technical consultant so that they can do this analysis themselves. Non-owner locks on content and devices harm the interests of all the owners I discuss in my presentations: copyright holders, owners of tangible media, most software authors and device owners. The only beneficiaries of these non-owner locks are those few anti-competitive technology companies that maintain the keys.

It is unfortunate that the person posting via that twitter account hasn't disclosed their name. I have always had a problem with anonymous/pseudonymous participation in public debate. They can nit-pick the commentary of others, but are unwilling to expose themselves to being legitimate participants and have the same transparent and accountable public scrutiny of their own ideas: past and present.

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But the Recording Industry doesn't care

As far as they are concerned the entire electronic sales issue is a total pain in the ass, and they'd like it stopped, so they could go back to selling shiny discs, a business that they understand. And a business where they can keep the damned artists under control. With electronic sales through ITunes and Amazon the artists are abandoning them to deal directly with Apple and Amazon, cutting them out of what was for years a lucrative business.

Needless to say, they don't like loosing their cut. Bill C-32, our equivalent to the DMCA, is the first step. The next step would be an equivalent to COICA, and then an there would be attempts to further shut down the internet such as the French 'HADOPI' law, and 'ACTA".

The whole aim is to get back to selling the magic shiny discs and to hell with what the customers and artists want.


Not sure who is tweeting.

Some times in committee I have seen CMRRA President and CEO David Basskin typing away on his keyboard just before an @CopyrightCanada message was sent out. This isn't to say that it isn't the recording industry behind the account, but to say that it may be someone else who has quite different interests. David, along with 3 other people from CMRRA, is the single witness scheduled so far for Thursday.

I've met David a few times in the past. He knows his area of his industry well, but seems unaware of the dynamics within other creative industries. Once when recording for CBC's The Docket he shouted me down and claimed I was a pirate simply because I said I wasn't a customer of Apple or Microsoft. Unaware of FLOSS or any other competitors, he seemed to believe the only other option was that I infringed the copyright of Apple and/or Microsoft.

David doesn't represent the recording industry, but composers and publishers in specific collective management situations such as those licensed by CMRRA (mechanical, synchronization, etc) and the CPCC (Private Copying). Whatever you have to say about the private copying regime, David represents very different interests than the folks representing the major or minor labels.

As musicians skip the traditional labels, the relationship with composers is one of the things that is improved.

A cynical view might be that David wants money to flow into mechanical rights collectives (for shiny disks) rather than performance/communications rights collectives (SOCAN, for radio and if managed correctly online downloads+streaming). This would suggest he is a competitor to the interests of composers and publishers, rather than the head of an agency that exists to protect their interests. I'm not suggesting this is true, but it is an uncomfortable possibility.

Apple isn't really a case of skipping an intermediary, but swapping intermediaries. Whether the major labels or Apple will turn out to be better or worse for musicians is yet to be seen. My view is that if Apple is used as a stepping stone to bypassing Apple as well, then it can be a positive trend. If people get stuck with Apple (Apple given too much power from legal protection for TPMs applied to Apple manufactured hardware), I think musicians will come to feel that the relationship with the labels was better.

Free/Libre and Open Source Software (FLOSS) consultant.

Oh Dear

Sorry Russell, this is going to wander a bit.

First, after I posted my comment here, I posted a response to Barry Sookman titled Canada: online piracy a problem hurting artists, creators and the economy? in which I point out some inaccuracies. I also did an evaluation on the users in the Balanced Copyright Facebook Group, and found some interesting answers.

Second, yes, dumping the studios is cutting the middle men. The old system is:
Artist > Label > Distributor > Store > Consumer

The new system is:

Artist > Store > Consumer

with Apple and Amazon being a combination Distributor/Store and the artist taking on some functions of the label, with independents like myself doing some of the mechanical functions (i.e. recording). Cutting two levels out of the system makes the system far more efficient. The artist is closer to the customer, and therefore far more responsive. The artist can charge less money, but paradoxically make more, because less money is being wasted on non-productive parts of the system.

As to the the Orwellianly named CopyrightCanada Twitter Feed, it's run by the same people behind the Balanced Copyright Facebook Group and the Balanced Copyright website.

Take a look at the messages. They mirror the Facebook page posts. And like the Facebook page posts they've been getting more and more shrill as the legislation is further and further delayed. Consider some of them:

Fewer: "Businesses that build a biz model on wealth destroying activities should be illegal in Canada" / Are you listening Mr. Geist? #C32

Considering that recorded music badly hurt the sheet music market...

@russellmcormond – Yes, we’re all Luddites to you, Russell. #C32

Well they are :)

Piracy – the downside of the Oscar bounce via @globeandmail

An example of the same thing being posted in both places. Of course it had to be shrunk for Twitter.

I've checked. The Twitter Feed quotes everything that the Facebook account posts. When you ask who the Facebook account is, no one will say, but they say everyone knows. Curious, isn't it?

The entire 'Balanced Copyright' thing appears to have been started under the misapprehension that artists loved the labels, and would back them. The truth is that the Labels have treated the artists like indentured servants or even slaves for years. The second that the artists could see an alternative, they started to abandon ship.

With the artists ignoring Balanced Copyright, I am guessing that a panic happened, and the word went out to industry employees. If you go back to the start of the Facebook group it was dead. Everyone ignored it. Until the industry employees started to join, and make noises like they were there for the artists. Actually they were there for their own salaries.

I did an evaluation on Canadian artists, and it appears that almost none of them agree with Bill C-32. Some of the organizations that purport to represent artists claim to like it, but artists themselves aren't clamoring for it. This indicates that artists may want to clean house at the organizations that they've put together to represent them.

Another point is that we, as Canadians, might want to consider what laws should cover paid for blogging. What Barry Sookman is doing is paid for blogging for all intents and purposes, though he claims it isn't. But look at his blog. Not one post about his family - he must at least have parents (I was visiting a friends grave last year, and saw a Sookman in the cemetery - if that was one of Barry's relatives it was too bad he didn't pick that day to visit, he would have seen me standing over Lloyd's grave grave with a battery powered anplifier and a black electric guitar playing 'Temperature of Revenge', while trying to lean on a cane, but I digress).


Vendor-locked content delivery platforms are a middle-man

I won't repeat what I've been saying on this site for almost a decade now, but DRM (non-owner locks on content and devices) is in and of itself a new type of intermediary: a vendor-locked content delivery platform.

I would suggest that while eMusic is a retailer (music and audio book club), iTunes is not. iTunes may *contain* retail as part of its content delivery platform, but thinking of it as if it were retail distracts from understanding its impact on the relevant marketplaces.

Free/Libre and Open Source Software (FLOSS) consultant.

I should also mention

I was once told that the Ministry of Industry and the Ministry of Canadian Heritage were monitoring the Balanced Copyright Facebook page. The impression I'd gotten was that for some reason they thought that it was a real grass roots group. That's why I've been active in the Facebook Group, to provide a counterpoint to the trained seals from the industry.

I've also pointed out several times in the group that posters were from the industry, which has caused them considerable upset. One poster came back with, "I've never made any secret of where I work', my response was 'You've never posted anything about it here, and anyone who was reading the posts would have no way of knowing.'

Needless to say I am less than popular. But they have a problem. While I'm not a household name, I'm well enough known, and noisy enough, that if they ban me, it will make waves.

The current tactic is to try and insult me in the hope that I'll go away. Only problem for them is that I worked as a salesman for a damned long time. I don't go away.