Is Bill C-11 related to SOPA/PIPA?

Probably the claim you will read most often in recent weeks from my friendly archvillain Jason J Kee on his twitter feed is that, There is NO COMPARISON b/t #C11 & SOPA. While he is playing with words when he makes this claim, I think it is useful to discuss the narrow way in which he is correct as well as the ways he is trying to distract people from the similarities.

Stop Online Piracy Act (SOPA) could be said to primarily be an intermediary liability bill, where communications intermediaries like Internet Service Providers or search engines would be held legally liable for the infringing activities of their customers/users unless they took (drastic?) steps to stop those activities. There are many other provisions in the bills, but the intermediary liability sections are the most often discussed.

If we narrowly look at the intermediary liability sections of Bill C-11, we find what is called a "notice and notice" regime where communications intermediaries must forward infringement claims on to those who are alleged to have been infringing. This balanced approach deals with the fact that the identity of the infringer is not always known, and that the first step in any process should be informing the alleged infringer that they are infringing and should immediately cease. This process is far cheaper than going to court, and anecdotal evidence from ISPs suggests it is very effective in bringing down a majority of alleged infringing material.

If you stop your analysis there, what Jason suggests appears correct: you can't compare the extreme measures proposed in SOPA with the specific paragraphs in C-11 that deal with intermediary liability.

Bill C-11 is not only or even primarily about these intermediary liability clauses.

Bill C-11 contains an "enabler" provision which currently states, "It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service."

There have been many industry lobbiests that has called upon the government to change these provisions to be much closer to what SOPA offered which was to take down (via any means necessary, with minimal evidence required) these services rather than copyright holders having the right to bring alleged enablers to court. While C-11 enabler provisions may not read like SOPA today, it would when passed if Jason and allies get what they have been asking for. If Jason doesn't like people being worried about SOPA style harm being added to C-11, he should tone down his and his allies attempts to have that harm added to C-11.

The largest part of C-11, whether you measure by the number of words in the bill or by the amount of controversy, is the "technological protection measures" aspect of the bill.

If you believe that TPMs are something applied to content by a copyright holder then you won't see the connection to SOPA style bills. To believe that a copyright owner alone has the ability to use a TPM to prevent copying is to believe that copyrighted works can be encoded in a way that they can make decisions. Digitally-encoded content can’t make decisions any more than a paperback book is capable of reading itself out loud. If there are any rules to be enforced they are encoded in software which runs on some device. It is science fiction to believe that a TPM applied to content alone can "make decisions."

Understanding the real-world market impacts of these technologies requires understanding all the components, and including the motivations of software authors (including the anti-competitive interests of DRM vendors) as well as the fundamental (but all too often ignored) rights of the owners of the devices.

The conflict between the desires of some copyright holders and the rights of device owners was articulated well in 2005 by Stewart Baker, then U.S. Department of Homeland Security’s assistant secretary for policy. Speaking to a group of the larger media companies he said, "It’s very important to remember that it’s your intellectual property—it’s not your computer. And in the pursuit of protection of intellectual property, it’s important not to defeat or undermine the security measures that people need to adopt in these days."

In this very real way, TPMs implemented in our devices break the security of our devices. Normally locks are used to protect the interests and security of the owner, whether what is locked is our home or something else. With these TPMs this security model is turned on its head where the technologies protect the interests of the manufacturers and treat their owners as "criminals".

One of the worries with SOPA/PIPA was that it would mandate the breaking of the security of the Internet, including the Domain Name System Security Extensions (DNSSEC). The same breaking of critical communications technology security is part of C-11 as well, with only the details of which technology is being targeted being different.

One of the worries with SOPA/PIPA was that the incentives would open the policy to abuse. This would stifle non-infringing speech, where it would be expensive for the non-infringer to protect their freedom of speech. The same applies to C-11 TPMs given once a communications technology is under the control of someone other than its owner, there will be incentives for the entity in control to wield that power in ways that have nothing to do with copyright.

We can already see this with the Apple application marketplace where Apple has disallowed software based on criteria which have nothing to do with copyright. Copyright is the legal tool they have abused to claim owners unlocking their own devices (or changing the keys to ones managed by the owner) should be illegal. They are abusing the law to try to elevate any contractual or other disagreement they may have with technology owners or software authors to receiving the extreme remedies of the anti-circumvention laws they have pushed for in the USA and through them into Bill C-11. (See: Isn't the technical measures provisions of Bill C-32 just an implication of that section of the 1996 WIPO treaties?)

We can see this with video game console manufacturers, or devotees to their philosophy such as Jason, when they attack providers of so-called Modchips. Outside video game consoles we would all recognize these as legitimate and necessary products and services, providing for technology owners services similar to what a locksmith provides to home an car owners. Once you understand the technologies involved it becomes obvious that the target of these extremists is technology ownership, not copyright infringement. They try to paint anyone who supports technology ownership, and the right of owners to change the locks on what they own, as if they were "criminals". The fact is that non-owner locks are far more likely to circumvent the legitimate rights and interests of technology owners, and harm the economy, than they are to reduce infringement.

If we ignore the details for a moment and think at a higher level, the similarities are more obvious. SOPA/PIPA and Bill C-11 are bills that presume that the infringement problem is extreme, and that extreme measures are justified in trying to stop it.

The "sky is falling" hyperbole from the content industry, including their abuse of the word "theft, has never been substantiated in a legitimate peer reviewed study. Where the industry promoting these bills claim millions or billions of lost revenues, I bet a legitimate study would prove the harm is many orders of magnitude lower (if there is harm at all).

There are also false claims about a lack of harm to innocent bystanders from these proposed laws. The lack of respect for the property rights of technology owners is obvious in any conversation with the proponents of C-11 style TPMs. There were also false claims that SOPA couldn't be abused to stifle legitimate non-infringing speech and innovation.

I noticed some misinformation from the other side as well. There were people suggesting that a single infringing link on a site like Facebook could have the whole site blocked, something that wasn't true. Even with this misinformation from some opponents, the misinformation from the proponents was far more extreme and harmful.

Overall there are far more similarities than differences between SOPA and Bill C-11. Each of these bills could have been better, but as drafted would cause considerable harm to the economy and the legitimate rights of citizens. While I believe Bill C-11 style TPMs are more harmful than SOPA intermediary liability, this is an idea where reasonable people can disagree on which is harmful while agreeing that both are harmful.

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