Reining in the rhetoric on copyright reform

One of the other participants in the copyright reform debate that uses a chicken little "theft is theft" inflation of the harm to copyright holders from infringement, while continuing to dismiss the legitimate rights and interests of technology owners and others impacted by their promoted policy proposals, is McCarthy Tétrault lawyer (and registered CRIA/MPAA/etc lobbiest) Barry Sookman (Search for Sookman on this blog).

He wrote an article on the Financial Post and his blog claiming that it was people who disagreed with his extreme rhetoric who were the ones who were making outrageous claims. While Michael Geist offered a point-by-point rebuttle of Sookman, I posted some comments to his blog which I will repost here.

Funny that in an article calling for toned down rhetoric, you simply continued your own.

Your attack on products and services required to allow owners to remove any locks placed by the previous owner demonstrated a lack of respect for the property rights of technology owners.

You appear to wrap your disrespect up in claiming it is necessary to reduce infringement, something which has never been proven in an independant study. Even if there was such a study, the alleged ends simply will never justify the means. Your rhetoric on this issue is like claiming that since home owners are more likely to commit insurance fraud than the homeless, then the solution is to disallow home ownership.

Those of us who respect and wish to protect IT property rights will never understand those of you who don’t.

Mr Sookman replied to my comment, "confessing" that he had a hard time understanding it so I added the following:

You once again only recognized one of the classes of owners impacted by Bill C-11 TPMs, dismissing the legitimate interests of all other owners.

With a physical book there are two owners, the copyright holder and the owner of the tangible book. Each have their own respective rights, and recognizing and respecting the rights of one doesn't require dismissing the rights of another.

When talking about TPMs there are the rights and interests of 2 additional classes of owners to be concerned with: the copyright holder of the software (and software authors in general, which I am one of) and the owner of the information technology. The primary reason I entered the copyright reform debate is to try to protect the legitimate property rights of technology owners, a class of owners that you don't seem willing to acknowledge the existence of in your lobbying.

A TPM applied to content alone can no more "make decisions" (including whether it can be copied) than a paperback book can read itself out loud. Any decision making TPM is authored in software and executed on a device. Who authors that software and who owns those devices can not be dismissed, as much as your clients want to dismiss their legitimate property and other interests.

Recognizing the rights of one of these 4 classes of owners should never mean dismissing the rights of the others. You appear to be falsely claiming that I am disrespecting the legitimate interests of copyright holders simply because I recognize the legitimate interests of all relevant owners.

You appear to be part of that subset of people who believe that copyright is best protected by only offering it through a closed communications platform. That is the copyright holders choice, and if a copyright holder is uncomfortable making their content available in a marketplace where audiences own their own technology, it is their choice not to offer their content for sale in that marketplace. You appear to have this backwards: it is the copyright holder that has the right to give up sales if they are frightened by privately owned technology, not up to technology owners to give up their legitimate property rights because some copyright holders are frightened.

While there is little proof that a closed platform will increase rather than decrease sales, that is a separate issue that protecting the legitimate property rights of device owners.

Just like there is an honest and a dishonest way to acquire copyrighted content, there is an honest and a dishonest way to create a closed computing platform. The honest way is for the platform company to retain ownership, offering the technology through rental or similar agreements, and thus any locks on that platform are there to protect the owner of the devices. The dishonest way is to abandon protection of property rights and allow the previous owner of the device to retain the keys to locks.

Just as acquiring copyrighted works in a way that disrespects the copyright owner is illegal, creating a closed communications platform in a way that disrespects the device owner should also be illegal.

You and your clients have been promoting the dishonest way to create a closed platform. Not only do you want to legalize the previous owner being allowed to put locks on someone elses property, you want to make it illegal for the owners to change those locks.

While you complain about people disrespecting the legitimate rights of copyright holders, your clients have demonstrated an even lower respect for the legitimate rights of technology owners than organizations like ISOHunt have for copyright owners.