Bill C-11 in the Senate: what would I say to them?

Bill C-11 started debate at second reading in the Senate on June 20'th, with debate resuming on the 21'st.

While it is unlikely that I will have a chance to speak in front of the Senate committee studying Bill C-11, the following is what I would have liked to say.

Thank you for inviting me.

Before you is another omnibus bill. On top of the copyright part of Bill C-11 we also have technological measures policy.

I will only be speaking to the technological measures part. I was an in-person observer for nearly every Bill C-32 and Bill C-11 committee meeting, as well as being called as a witness on March 8, 2011.

While I may not agree with all aspects of the Copyright policy in the bill, it was clear to me that the government understood and made informed policy choices. It is not my place at this time, nor do I believe it is the place of the Senate, to second-guess those specific and deliberate policy choices.

From my observations the government did not adequately understand the technology behind the technological measures policy, and thus were not making informed policy choices. It is because of this I believe this policy must have sober second thought.

The constituencies and dynamics are very different for copyright law and technological measures. With copyright law you have a necessary balance between the interests and rights of copyright holders and the public. Often this is discussed in terms of creators and users of works.

One narrative for technological measures suggests that they are something applied to copyrighted works which then do various things, such as denying the ability to copy or enforce the contractual licensing terms which the copyright holder has set. Part of the objection within this narrative is that it unbalanced the law by giving too much control to the copyright holder.

A technological measure applied to content alone cannot make decisions any more than a paperback book can read itself out loud. I also give presentations where I put up pictures of the Monster Book of Monsters from Harry Potter, a book which chases young Harry around the room trying to bite him.

If there are any decisions to be made they are encoded in software, and that software is running on some computer hardware. This means there are two additional stakeholder groups to be aware of and concerned for: software authors and hardware owners.

Computers simply follow the instructions given in the form of software. Who decides what software can run effectively controls the computer. Some hardware vendors have been trying to revoke this control from hardware owners. They allege to "sell" hardware, but they retain digital keys to the hardware such that it is the hardware vendor and not the owner that is in control of the hardware.

Just as it is an infringement of copyright when someone other than the copyright holder does an activity without permission that should be under the control of the owner, it must be understood to be an infringement of IT property rights when someone revokes control of this property from its owner.

You might ask how this relates to the bill before us. These hardware vendors have been falsely claiming that their infringement of IT property rights protect copyright. They believe it will be considered a circumvention of a technological measure, as defined by this bill, if an owner removes foreign locks from their property and replaces them with their own locks.

I have witnessed copyright holders, after being explained how these technologies work, move from being supporters of technological measures in copyright to being opponents. Once they realize that the rules are in software, they then realize that what software runs is outside the control of the copyright holder. They then have to ask themselves if they trust large transnational hardware companies more than they do their own audiences and fans. Those who recognize these measures infringe the rights of technology owners often recognize that it is a small step further to also disrespect the rights and interests of copyright holders.

I am a copyright holder of software and non-software copyrighted works. While my primary concern is the rights of technology owners, I also oppose technological measures in copyright law as they also harm the rights of competing software authors and other copyright holders.

As a software author I recognize that hardware owners must be protected in their right to make their own software choices, otherwise they can be denied the right to choose my software.

Contrary to the narrative where technological measures give too much control to copyright holders, the reality is that technological measures transfer control from copyright holders and device owners to device manufacturers and anti-competitive software companies.

Some copyright holders are contributory infringers in this scenario. While a technical measure applied to content can't make decisions, it can tie access to specific devices. Some copyright holders are tieing access to their content to the use of devices where the owners rights have been infringed, effectively inducing this infringement.

Just as we have laws against contributory infringement in copyright, we should have laws against contributory infringement of IT property rights. While it is true that they are likely ignorant of the harm as they are unaware of how the technology works, copyright law is a strict liability regime where there does not need to be intent or even knowledge that one was committing an offense. If this is the right regime for Copyright law, I believe it should be used for IT property rights where intent and ignorance of technology would not be considered defences.

Governments passing laws which legalize and/or legally protect these infringements of IT property rights are obviously contributing to the problem. I hope this harm will be quickly recognized, and this policy direction reversed before too much harm is done. While proponents of Bill C-11 speak of wealth destroying infringements in the context of copyright, I hope we can avoid the massive wealth destruction that will result from legalizing and inducing IT property rights infringements.

I welcome any questions you may have.