Digital Copyright and Bill C-32: My Ignite! Waterloo Presentation

A few weeks ago, I gave a shortened version of my C-32 and You presentation at Ignite! Waterloo. It was a great experience, and really challenged me as a speaker. Although I do quite a bit of public speaking, the format of this particular presentation required me to know my presentation cold, and to cut down on the rambling that usually gets me by when I inevitably forget everything shortly after taking the stage.

If you’ve never been out to an Ignite! event, I highly suggest that you check one out. It’s kind of like a TED talk, but each presentation is only 5 minutes long, and consists of 20 slides that auto advance every 15 seconds. Since the event had a videographer, you can choose to either watch my presentation or to scroll down to see my slides and notes. I won’t fault you for either.

Talking Pictures

For all you ADD-riddled folks with no patience, here’s the video version:

In Words

For those of you who like to read stuff, here are my slides and associated text. Keep in mind that the text below the slides is what I was supposed to say, and is not necessarily the same as what I actually said.

Good evening everybody, my name is Jonathan Fritz. Tonight I’d like to speak to you about intellectual property. Before I begin though, I should stress the fact that I’m not a lawyer. I’m just a computer programmer who has spent way too much time reading way too much legalese. To save you from a similar fate, I’ll try to quickly brief you on everything that I’ve learned about copyright.

Intellectual property is a fancy name that lawyers have given to the ownership of ideas. Since ideas are non-physical, intangible, and infinite things, a new set of laws had to be developed so that they could be owned in the same sense as the physical objects that we’re all used to. This lead to the three primary types of intellectual property and their associated bodies of law.

The first type of intellectual property that I’d like to address is called a Trademark. This is a distinctive sign or indicator that is used by a business to identify itself, its products, and services to customers. Common trademarks include slogans, catch-phrases, jingles, and logos.

The second type of intellectual property is called a Patent. This is a set of legal rights that can be issued to the inventor or discoverer of some method or process. Once a patent has been granted, its holder retains the sole right to benefit from any implementation of their invention or idea for a finite period of time.

The third type of intellectual property, and the on that I want to focus on this evening, is called Copyright. Once granted, it gives the author of a recorded work the exclusive right to distribute copies of that work for a finite period of time. Throughout most of the world, whenever you commit something to record, you are immediately granted copyright to that work.

Now the differences between these bodies of law are key. Both trademarks and patents protect ideas and concepts – abstract stuff that isn’t tangible. Copyright on the other hand, protects the expression of those ideas, like a book or a compact disc. When a work is copyrighted, the copyright holder can control who makes and distributes copies of the work, but not the ideas or themes that the work deals with.

The idea behind copyright is to provide an incentive for authors to make more stuff. We all enjoy the stuff that they make, and so we agree to give up some of our personal rights to ensure that they can afford to continue to make it. This requires that we strike a careful balance; we don’t want to give up too many rights, but we do want authors and artists to be able to make a living.

Copyright is a poorly named body of law. The truth is, the rights that it provides aren’t natural rights as the name implies. They are awarded by governments and courts. This means that we all have to agree on the rights that copyright provides to both the author and the user of her work. This fact is often lost in the rhetoric surrounding debates about the subject.

The idea of copyright only works because of the temporary monopoly that it provides. When that monopoly expires, the works that copyright protects go into the creative commons. This means that anybody can use them in any way, shape, or form. As copyright terms lengthen, works enter the commons with less regularity, and we chance losing access to our history and culture.

Note: This slide should read public domain in place of creative commons. The two are distinct and equally important concepts that shouldn’t be confused. Sorry. – Jonathan

In order for this temporary monopoly to work out, it has to be just that: Temporary. When copyright was original proposed, the term lasted for only fourteen years. In present-day Canada, copyright terms last for fifty years past the death of their original owner. In the USA and the UK, terms last for seventy years past the death of their original owner.

Artists are inspired by the works of others. “Good artists borrow, great artists steal.” That’s a Pablo Picasso quote that was stolen by Steve Jobs. Because artists don’t create in a bubble, they need access to past works in order to create inspiring and relevant art. If our works of art stop being distributed just as soon as they are no longer profitable to their owners, we as a society lose access to them.

Back in June, the Conservative Federal Government introduced Bill C-32. The goal of the bill is to modernize copyright law in Canada. This is a great idea, because our current laws date back to 1997.

If you’ve been on the internet since 1997, you’ll know that a lot has changed. The rise of digital cloud-based media like Hulu, Netflix, YouTube, Last.FM, and Pandora have really challenged our conception of traditional copyright. We don’t really have anything in our existing laws to handle these technologies.

In addition, common activities like ripping a CD or DVD to your computer, or taping a television show on your VCR or PVR to play back later are technically illegal under current Canadian law. The proposed bill includes lots of positive clauses that correct these problems with our current laws.

In recent years, file-sharing has kind of broken down traditional media economies. Today, it is possible to make an unlimited number of perfect copies of a movie or a song and send them to friends via the internet for next to nothing. This poses a serious challenge to traditional media companies who made their money by controlling the distribution of physical media.

To counter this trend, media companies started to encrypt their content and began selling licenses to unlock it. This practice is called DRM, or Digital Rights Management. It generally stops people from making copies of their media, and is currently used to protect video games, movies, television broadcasts, and other media. Bill C-32 aims to make it illegal to break this protection once it has been placed on your media.

The problem with this approach is that it has already been tried, and has failed miserably. In 1998, the USA passed the DMCA, or Digital Millenium Copyright Act. It resulted in thousands of people being sued by record and movie companies, and yet piracy rates have only increased since its introduction.

In 1999, Napster was introduced, and file-sharing became a household phenomenon. In 2001, BitTorrent improved on the technology, and file sharers started to move entire movies around the internet in addition to smaller music files. By 2005, YouTube had made a business model out of sharing largely copyrighted music and video clips that were all ripped from protected sources.

So get in touch with your government and make your voice heard. Anti-circumvention laws like those proposed in C-32 don’t work, and just result in people getting sued by entertainment companies who are cannibalizing their own consumer base instead of modernizing their business practices. I’ve only managed to touch on the tip of the iceberg during this presentation, so please check out my various online presences or come and talk to me after the show if you’d like to discuss copyright and Bill C-32 farther.

In Closing

That’s about it. Be sure to check out all of the videos from this and past Ignite! Waterloo events on their YouTube page, and to take a look at the reviews that my colleagues Tyler Burton and Phil Downey posted earlier this week.

The Minister’s Response

MP James Moore: Please Drop the Rhetoric

We tried to be civil. Unfortunately, Conservative Heritage Minister James Moore has decided to take the battle over Bill C-32 to a new low:

In the video, Moore frames all opposed to his precious copyright reform bill as fear mongers and evil doers who are against any kind of copyright reform. This kind of false rhetorical framing will not result in a copyright solution that benefits all affected parties. Instead, it just muddies the waters and makes it tough to have a real discussion about the important issues that are at hand.

As many have probably guessed from the contents of my website and twitter stream, I am against the current iteration of Bill C-32. That said, I believe strongly that copyright reform is necessary in this country. Our current laws were written before the internet really took off, and need to be modernized in order to effectively deal with new technologies and situations. Most of the proposed bill is quality content, but the Section 41, Technological Protection Measures and Rights Management Information, is not.

Mr. Moore needs to step down from his high horse, cut out the rhetorical bullshit, and join in on the discussion that we are having about his proposed bill. Plugging your ears and screaming ‘na-na-na-na-boo-boo’ just doesn’t cut it when you’re an elected representative of the people.

The Problem with Bill C-32

This past week, the Honourable James Moore, Conservative Minister of Heritage & Official Languages and the Honourable Tony Clement, Conservative Minister of Industry introduced Bill C-32, “Copyright Modernization Act“ at the Electronic Arts studios in Montreal, Quebec. As its title suggests, the aim of the bill is to modernize copyright law in Canada, an admirable goal considering that our copyright laws haven’t been reviewed since 1997. In Internet time, that’s nearly an eternity, and a lot has changed since then. With respect to its stated goal, Bill C-32 is a reasonably good proposal of law. It contains some much needed legislation that will indeed clarify and modernize our copyright code.

For example, the Network Services section provides a safe harbour clause for Internet service providers and other network operators. In particular, the section provides legal protection for hosting service operators whose customers may have uploaded copyrighted works to their servers. Likewise, the Copyright Infringement section sets maximum monetary awards for copyright owners who successfully charge an individual with infringement of works for personal or commercial use. Given the astronomical awards granted by American courts in both the Capitol vs. Thomas and RIAA vs. Tenenbaum cases, this is an extremely important clause.

Unfortunately, these positive aspects of the proposed law are counteracted in the Technological Protection Measures and Rights Management Information section of the bill. In this section, the proposed law explicitly bans the use, manufacture, import, distribution, sale, or rental of any technology or device capable of circumventing any technological protection measures (also called digital rights management, or DRM) schemes that have been placed on the digital content by its distributor. Under the proposed law, any use of the aforementioned technologies constitutes an immediate infringement of copyright, and makes the responsible party liable to all damages outlined therein. The problem with this section is that it effectively removes all of the rights granted in earlier sections of the bill, including Non-commercial User-generated Content and Reproduction for Private Purposes, the two sections that the government is using to desperately peddle this bill as consumer-positive, when in fact it is nothing of the sort. In particular, the latter section proposes that it be made legal to create personal reproductions of copyrighted material so long as a number of conditions are met, one of which is that “the individual, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented.”

And just like that, with a single sentence, all of the ‘rights’ that the government is waving around as they insist that their approach to copyright reform is not bought and paid for by foreign media conglomerates are struck from the record. You see, with an anti-circumvention clause built into our copyright law, the ability to use legitimately purchased digital media in a fair and open manner (generally called fair use in the USA or fair dealing here in Canada) ceases to exist. The reason for this is because an excruciatingly small minority of the digital media that is for sale today is unencumbered by some form of digital rights management. DVDs? Encrypted. Your player contains software that allows them to be read. BluRay discs? Same deal. Video Games? Absolutely. Why do you think the government introduced the law at Electronic Arts’ Montreal studios? Cable television, Netflix digital downloads, eBooks, computer software of all sorts, online television from Hulu and other major providers, and an uncountable number of other consumer media products are all protected by some form of DRM. About the only type of digital media that you can actually buy that doesn’t come coated in some form of protection measure is music, but millions of people who purchased music from the iTunes store prior to January of 2009 still have affected tracks in their music collections. Under the proposed law, none of this digital content can be backed up, moved to a different device, transcoded to a different format, or otherwise tampered with, because to do so would require that its owner break the DRM that has been placed on it, thus making that person a criminal in the eyes of Canadian courts.

Perhaps the most interesting thing about laws of this sort is that they are known to be ineffective at stopping internet piracy. Way back in 1996, before Napster, KaZaa, Limewire, or BitTorrent were invented, a group of countries got together and signed the World Intellectual Property Organization Treaty, a document that required that signatory countries enact laws prohibiting the circumvention of digital rights management schemes. The United States did so in its 1998 Digital Millennium Copyright Act, and 12 years later, the Canadian government is seeking to ratify the treaty under pressure from the United States and the European Union by following suit. Unfortunately for the government, a lot has happened since the turn of the century, and many consumers are now aware of the problems that rights management schemes can cause them while trying to use their legitimately purchased media in seemingly acceptable ways. In those same 12 years, the piracy situation has yet to stabalize, and the various media industries still attribute billions of dollars per year in losses to digital piracy. So what’s going on? If anti-circumvention laws were truly effective, wouldn’t the rate of piracy drop in countries where they are introduced?

Allow me to explain with a quote from one of my previous posts, An Open Letter to the Conservative Government of Canada:

Anti-circumvention laws styled after those of the United States’ 1998 Digital Millenium Copyright Act serve only to reduce consumer choice while failing to prevent digital piracy in any capacity whatsoever. Lawmakers would do well to understand that digital rights management (DRM) schemes are no more than the digital counterparts of real-world mechanical locks. There has never been, and will never be, a lock that cannot be broken by any determined party with time, knowledge, and resources on their side. In the digital case, a single defeat of the DRM system designed to protect digital media often results in the widespread availability of that media to any and all interested parties by way of the internet. Therein lies the biggest problem with DRM schemes: One does not have to be a determined hacker to access the media that a DRM scheme is intended to protect; one simply requires access to the internet, and knowledge of a website that distributes media that has been helpfully unlocked by other, more capable parties. The global nature of the internet ensures that the parties most interested in defeating digital rights management schemes need not operate in countries unfriendly to their cause. As such, a government mandate that protects the sanctity of digital locks will not have the desired effect of preventing widespread domestic piracy. Instead, such a ruling will serve only to impact the ability of consumers to utilize their rightfully purchased digital media in a fair and open manner.

Since anti-circumvention legislation has not reduced piracy rates in countries where it has been introduced, and since the digital rights management schemes that it aims to sanctify often do little to stop widespread piracy, but do inconvenience legitimate customers on a wide scale, it is a simple matter to conclude that this type of legislation is not, and never will be, in the best interests of the consumer, who also happens to be the voter responsible for electing the officers of government that attempt to introduce it into law. So why are your elected representatives being complacent in protecting your interests? Perhaps you should ask them about it.

Those readers with an interest in copyright law, internet piracy, and the effects of anti-circumvention legislation are encouraged to read Ripped by Greg Kot and Moral Panics and the Copyright Wars by William Patry, as well as to check out Professor Michael Geist’s excellent Blog.