July 12, 2012 Supreme Court of Canada Decisions

The decisions in the 5 copyright cases were released by the Supreme Court today. On first glance things went well, with the scope and limits of copyright clarified.

What will be hard for the technical community is to separate the specifics of a technology from how Copyright regulates specific uses of a technology. An example is the separation of a "stream" and a "download" which aren't different from a technological standpoint, but that are being regulated differently. The specific non-technical purpose of the bits being stored or sent from one place to another is what Copyright is regulating, not the fact that bits were stored or transmitted using a specific technology.

The decisions:

Note: Chronology of Canadian Copyright Law page updated.

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Downloads versus streams

I have to disagree with you about streams and downloads. Even if both are sent as a bunch of packets, they are different: a stream is something that can be played and not saved as it is transmitted, whereas a download isn't normally played until the full copy is saved.

Yes, you could choose to record a stream, but then the recording is taking place at your end of the link. And yes, you could start playing a download before the download is complete, but to send you a download, a full copy is made at the host.

Streams really are much more like radio or playing a recording in public, and should be treated that way. Downloads are sending you a copy of the recording, and shouldn't be treated differently from sending you a physical copy on a CD.

I think the SC got this one right.

Law and technology

While I agree that there's little, if any, difference from a technical perspective between a stream and a download, isn't it often the case that there's no way for a piece of software to determine the legal implications of something ?

When I copy a file, it may or may not be copyright infringement, depending on all sorts of things, but the act of "copying" is the same whether it's infringing or not.

Can you be clearer about your concerns ?

(to dmurdoch2, I think the distinctions you're trying to make are meaningless form a technological perspective - in both a stream and a download, the data is sent in order from the server. What the client does with that data [essentially whether it renders it before it's received the whole file, and whether it stores the file in a location specified by a user] are things that the server has no knowledge of. In both cases, the "recording is taking place at your end of the link" [obviously - that's where your computer is]).

Recording a stream is not the normal thing

A stream is normally intended to be played and not recorded, so it is only played once. A download is normally intended to be saved, so it could be played multiple times.

It's possible to record a stream, and it's possible to play a download without saving it, but those are unusual things to do.

It's the difference between a store playing a CD and selling me a CD. I could record it when they play it, and I could throw it away after the first time I play it, but those are not the usual things to do.

"A stream is normally intended"

You are making my point for me without realizing it.

"normally intended" isn't a technological statement, but a social one. It isn't about a technology at all, but what people do with their technology. It is about as much an issue of technology as putting a "please only listen to this once" paragraph above the link would be.

This is fine, as Copyright may regulate activities we carry out with technology, but it didn't previously regulate technology itself. Copyright historically got very much into social questions that required people think about intent and other such things which are not about technology.

That was my origional point.

But you brought us right into a second point:

Streaming vs downloading isn't remotely like the difference between playing a CD and selling you the CD. In the case of streaming and downloading the content is sent into the privacy of the recipients home by the sender. It would be like shipping CDs to customers, one that has a note "keep this as long as you want" and the other with a note that says "please delete this after you listen to it".

The fact that non-technical people streaming/download is similar from a technological standpoint to listen in store and sell concerns me.

Whether copies are made or kept by the recipient is a decision of what software is used by the recipient. The recipient can throw away any caches and turn a "download" into a "stream" and they can keep the caches long-term and turn a "stream" into a "download". While the sender may send some metadata suggesting the wishes of the sender, that is metadata just like any other metadata (including rights management information, and so-on).

The more non-technical people believe these things are technologically distinct rather than socially or contractually distinct, the more they may seek to impose laws which force them to appear to be technologically distinct.

This is the bases of technological measures being abused to infringe the rights of technology owners: if you disallow the owner from being in control of what they own, then it is no longer the recipient of the data that is able to make any of these software decisions.

Note: Anti-owner TPMs don't necessarily help copyright holders, enforce streaming vs downloading, or enforce copyright license agreements. These measures transfer control from property owners to third parties, but these third parties are most often the device manufacturers. Device manufacturers can ignore the wishes of copyright holders as well, and given they have more economic/etc clout will be in a far better negotiating position than private citizens.

P.S. See what I wrote at the time on G+

While downloading a stream of the Supreme Court of Canada Webcast for December 6+7, a friend repeated the question about why lawyers like to differentiate "downloads" from "streams".

Separate the activities, when necessary to distinguish

I think the essence of Justices Abella and Moldaver's analysis is two-fold: first, adopt the perspective of the user and consider the entire transaction and second, only if necessary, decompose the transaction into distinct activities. Is the purpose of the transaction to create a durable copy? If so, then the transaction should be considered in the context of the reproduction right. If not, but instead there is an ephemeral presentation of the work, then the transaction should be evaluated as a communication.

Where the purposes of the user and service provider coincide, this is probably all that is necessary. Things may get more complicated where the two have different goals. If, say, the user retains a copy of the transmission which the provider did not intend, then there are likely two separate activities which may be analysed independently. The service provider is still likely communicating the work, but the user may separately be reproducing it. I think this approach is implicit in para. 41 of ESA.

In neither case will the details of the technology be determinative. The Court has emphasized quite firmly that the law is based on the actions and intentions of the human actors, not the details of the mechanisms involved.

For clarity: law/lawyers/politicians/etc vs tech/technologists

I should clarify my concern.

Rather than law and technology working together, I worry there is an increasing divide growing between the law and technology and the people involved in creating/manipulating them.

Technology people feel that they can write code to circumvent the law, thinking that the law is something that the Internet/etc should just "route around".

Legal people feeling that they can/should write law to circumvent the normal workings of technology, including but not limited to denying technology owners the basic right to control their own property for otherwise lawful purposes.

This growing divide shows itself in a number of ways. Cory Doctorow's current stump speech is about "war against the general purpose computer", and is much more direct than my related "4 owners" speech. We have both also written about "geek politics" and the harm of technologists ignoring politics and falsely believing they can write code to solve any problem.