1. Introduction
   
   • Good evening, my name is Jonathan Fritz. Tonight I’m going to attempt the nearly impossible: I’d like to discuss copyright law, while not putting you to sleep
2. Not a Lawyer
   
   • Copyright law is something that I’ve taken an interest in during my spare time. I’d like to make it clear from the outset that I am not a lawyer.
3. I am a Programmer
   
   • During the day, I’m a programmer for a small company called Skybound Software, and the co-owner of another small company called inScope Software and Solutions
   • The only reason that I mention these is because I want to make it clear that everything that I talk about this evening is 100% my opinion, and does not necessarily reflect the opinions of my employers or business partners
4. The Crowd
   
   • Now that the boring legal crap is out of the way, let’s jump into some more boring legal crap
   • Ok, so I’d like to see what kind of people we have in the audience tonight. Show of hands if you’re a:
     • Web developer
     • Web or print designer
     • Artist, photographer, or musician
     • Programmer or engineer
   • You may not realize it, but copyright law affects each and every one of you every single day
5. Copyright
   
   • Any time you commit something to record, be it a computer program, a photograph, a piece of music or art, it is covered in Canada by copyright.
6. What is Copyright?
   
   • Copyright is a poorly named body of law that gives people who make stuff a monopoly on the distribution of that stuff for a finite period of time
   • This is an effort to ensure that they make a decent living off of their stuff, and thus have an incentive to make even more stuff.
   • As a society, we enjoy the use of the stuff that they create, and so we give up some of our personal rights and freedoms to ensure that the people that create stuff can afford to continue to do so.
7. Poorly Named
   
   • I say that copyright is poorly named because it isn’t actually a right
   • It’s a privilege awarded by law, and thus by society as a whole.
   • In order for this to work, we have to all agree that the terms set out in copyright law are an appropriate balance between personal freedoms, and creators’ ability to make a decent living.
8. Lord Macaulay
   
   • During an 1841 debate in the British house of commons, one Lord Macaulay did a great job outlining this dilemma:
9. Evil Quote
   
   • “[Copyright] is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one… It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good”
10. Inspiration
    
    • So here’s the thing: In order for the temporary monopoly to work out as planned, it has to end within a reasonable period of time.
    • Society has to get their rights back at some point, or else they aren’t getting a fair deal.
    • Artists’ work is informed and influenced by the work of their contemporaries.
    • Without the ability to access, borrow from, or outright steal inspiration from other pieces of art, most artists wouldn’t be able to create with any kind of regularity.
    • Pablo Picasso by way of Steve Jobs: “Good artists borrow, great artists steal”
    • Imagine taking a photo haven never seen another persons’ work with lighting and composition.
    • Writing a song without ever nicking a particularly nice chord or melody?
    • Artists don’t create in a bubble – they filter and combine all kinds of different influences into works of their own.
11. Ghosts
    
    • Way back in ancient history, the monopoly awarded by copyright only lasted 14 years.
    • After that period, it was assumed that the rights’ holder had made his money (and it was always his money), and the work moved into the creative commons, meaning that anybody could use it however they saw fit.
    • Today in Canada, copyright lasts 50 years past the death of the rights’ holder.
    • Some countries have pushed that up to 70 years past death
12. Afoul of the Law
    
    • This means that far less media ends up in the creative commons while it is still relevant to society, which makes it increasingly hard for artists to create without running afoul of the law
13. Preservation of Culture, intro to C-32
    
    • More importantly, when reinforced by something called digital rights management, copyright laws make it very possible that our culture will not be preserved in the same way that past cultures were – but more on that later
    • Back in early June, the conservative government released Bill C-32, “The Copyright Modernization Act.”
    • It has been sponsored by the Honourable James Moore, Minister of Heritage and Official Languages, and the Honourable Tony Clement, Minister of Industry.
    • Just like the title says, this bill aims to modernize Canadian copyright law. This is a really good idea, because our current laws were haven’t been revised since 1997
14. 1997 Websites:
    
    • In 1997, the top five websites on the internet were:
      • Geocities
      • Yahoo (including services called yahooligans, yahoo sports, and my yahoo)
      • Starwave corporation “where more people click”
      • Excite, Magellan, and City.net
      • PathFinder, and the family of Time/Warner and CNN sites
15. 2010 Websites:
    
    • In March of 2010, the to five websites were: (15)
      • Google
      • Facebook
      • Yahoo
      • YouTube
      • MSN
16. You are a criminal
    
    • As you’ve probably noticed, a few things have changed.
    • Old folk may also remember that the infamous Napster, the first file-sharing service, wasn’t invented until 1999.
    • And BitTorrent, the American entertainment industry’s nefarious arch-enemy wasn’t invented until 2001.
    • Similarly, YouTube, harbinger of all things evil, didn’t hit the tubes until 2005.
    • Simply put, our existing laws don’t cover any of these massive shifts in technology, and many of the things that Canadians do on a daily basis are actually considered illegal under current laws.
17. The Good
    
    • Some important sections of proposed law that aims to fix these problems:
      • Network Services section:
        • a safe harbour clause for Internet service providers and other network operators.
        • Provides legal protection for hosting service operators whose customers may have uploaded copyrighted works to their servers
      • 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 (2007) and RIAA vs. Tenenbaum (2009) cases, this is an extremely important clause
      • Non-commercial User-generated Content section:
        • Makes it totally legal for you to sample copyrighted works for the purposes of creating a non-commercial mashup.
        • Now you can legally use whatever music you like as the soundtrack to your cute kitten and dancing baby videos.
      • Reproduction for Private Purposes section:
        • Allows for time and format shifting practices, thus making TiVo and iPods legal technologies in Canada, which sounds like something out of that old Rick Mercer bit, Talking to Americans.
18. The Bad
    
    • Technological Protection Measures and Rights Management Information section: counteracts every positive aspect of the proposed bill
    • Bans any technology or device capable of circumventing any technological protection measure (TPM) or called digital rights management (DRM) schemes that have been placed on the digital content by its distributor
    • The bill is written in such a way that this clause takes precedence over every one of those really cool sounding amendments that I just mentioned.
    • Basically, should C-32 pass, you’ll get a whole bunch of rights. But if the distributor of some media decides to put DRM on their products, they don’t matter, and you become a criminal if you attempt to exercise any of them.
    • At this very moment, DVDs, BluRay discs, video games, Cable television, Netflix digital downloads, eBooks, computer software of all sorts, online television services, and an uncountable number of other current and future consumer media products are all protected by some form of DRM.
    • 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.
    • So why do manufacturers use DRM anyway? Well, they seem to have gotten this idea that it somehow prevents people from pirating their media. Unfortunately, this belief could not be further from the truth.
19. Passive Systems
    
    • To demonstrate this problem, I’ll give you a bit of background on how DRM technologies generally work, demonstrate why they often fail, etc
    • There are basically three kinds of DRM
    • Passive Systems: The distributor of a file encrypts that file with a secret key that’s so big that it is theoretically impossible to guess.
    • She then makes a deal with the manufacturer of the device that is used to play back that file, and embeds the secret key into that device.
    • When a user attempts to play back the media file, the device is able to unlock it, and everything is cool. This is how DVDs work
    • Why they Suck: These systems tend to be very insecure, because they’re susceptible to what cryptographers call a class break.
    • Because all copies of the media file are encrypted with one of a finite number of keys, if somebody figures out a way to break through one copy of the protected media, he can usually manage to break through any piece of media that is protected with the same scheme.
    • Further, all of those keys are stored inside of some piece of software or some device in your living room that you have access to. It is only a matter of time before one is broken into, and the scheme is broken.
20. Active Systems
    
    • Just like before, the distributor of a file encrypts it with a massive secret key.
    • This time, however, she buys some servers, and makes a different deal with the people who distribute playback devices.
    • Now, when a user tries to play a file, the player connects to the server and asks for permission to play the file.
    • The server checks if the user is legitimate, and if so, gives the encryption key to the device. The media is then unlocked, and you can hear your tunes.
    • This is how video game DRM from services like Steam and Electronic Arts work.
    • Because these types of protection call home for permission to start playback, they require that the user has an always-active internet connection.
    • For those with dial up or using mobile devices, this is not always possible, so the scheme has to allow a certain number of plays without speaking to the home server.
    • By definition, this means that they can be attacked, because they can be fooled into thinking that they are always in this limbo state
    • Hybrid Systems: As the name implies, these present some combination of the previous two. In general, the media is encrypted, but in order to unlock it, the playback device executes some program that is embedded in the media that performs the authorization step.
    • This program can usually be easily updated, so that if the scheme is broken, it can be fixed in the field. This is how BluRay discs are protected.
    • These are far more complex than their simple cousins, but also quite a bit more resilient to attack.
    • Unfortunately, in the past, programmers have included malicious code in these types of systems that do some nasty low-level stuff to the users’ computer, potentially leaving it open for attack.
    • This is what happened in the Sony Rootkit case of 2005, in which Sony BMG released 52 CD titles that altered the way that Microsoft Windows functions in an attempt to block users from copying their contents
21. Consumer Suck
    
    • From a consumer perspective, all DRM systems suck.
    • By design, they intentionally limit what users can do with their digital media (see Defective by Design). This means that using digital media that is protected by a DRM scheme is more like licensing it than like purchasing it
    • Additionally, all types of DRM can result in property loss.
    • In the case of passive systems, this can happen if the devices used to play back the media are no longer produced.
    • In active systems, this can happen if the servers that are used for authentication are shut down. This often happens when a digital store ceases to be profitable, or if the company that operates it goes out of business
22. Getting in the Way
    
    • DRM systems that are designed to prevent people from pirating media also tend to get in the way of legitimate customers who are attempting to use their media in perfectly legal and acceptable ways
23. Smart Cows
    
    • Perhaps the most compelling evidence against the legislation of DRM systems is that they simply do not prevent people from pirating media.
    • In general, if you can open a legitimately purchased file, its contents can be copied out to a non-protected format, which can then be distributed.
    • If you can’t said file, but happen to be a hacker or encryption expert, you can usually figure out how to do so in short order
    • As soon as the DRM scheme is broken by one person, they can distribute it all other interested parties by way of the internet.
    • This is called the Smart Cow Problem (it takes only one cow to learn how to open a latch, and then a method can be developed that allows others to follow), and is the biggest issue facing companies relying on DRM to protect their products.
    • Combine this with the fact that every DRM system that I have ever heard of has been broken, often within weeks of release, and that the cost of creating and maintaining a DRM infrastructure can easily run into the billions, and you can see that it isn’t really a great technology to rely on to protect your digital media.
24. Ineffective Laws
    
    • If anti-circumvention laws were truly effective, piracy should never have become the problem that media companies claim that it is today
    • In the United States, the Digital Millenium Copyright Act (DMCA) put anti-circumvention laws like the ones proposed in Bill C-32 in place a full year before the invention of Napster and three years before the introduction of the BitTorrent file-sharing protocol
    • Although laws don’t translate directly into persecutions, they give authorities the tools to stop piracy.
    • In the United States, the MPAA and RIAA have used these tools to bring lawsuits against more than 20,000 of their own customers – and yet, piracy is still a major problem for their member organizations.
25. Locks
    
    • 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.
    • Because of these reasons, it is my opinion that the anti-circumvention clause in Bill C-32 makes its current form unacceptable to the Canadian people.
26. What We Can Do
    
    • I’ve been trying to get the word out about this issue in my own way. Obviously, I’m here speaking to you tonight. I’ve also tweeted about the issue, written blog posts on my website and others, written letters to various members of parliament, and spoken personally with Peter Braid, my member of parliament up in Waterloo
27. Contact Me
    
    • If you’re interested in getting involved, in telling me that I’m wrong, or just in talking more about this issue, please don’t hesitate to contact me

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.

CC: Marc Garneau (Liberal Industry critic)
CC: Pablo Rodriguez (Liberal Heritage critic)
CC: Charlie Angus (NDP Digital Affairs Critic)
CC: Peter Braid (MP, Kitcener-Waterloo)

Dear Members of Parliament:

It is with much consternation that I view the continued efforts of the federal Conservative government of Canada to ‘reform’ Canadian copyright law. I fear that the government has lost sight of the original purpose of copyright law, and has forgotten their sworn duty to protect the interests of their constituents over those of foreign media conglomerates.  This week brought the news that Prime Minister Stephen Harper has ordered the Honourable James Moore, Conservative Minister of Heritage & Official Languages, to proceed in drafting a copyright reform bill that is likely to include strong anti-circumvention clauses and an inflexible approach to fair dealing exceptions. As a Canadian citizen and an entrepreneur in our strong technology sector, I must make clear my view that these types of laws fail to benefit the end users of technology, and Canadian industry as a whole.

In particular, 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. Taken to their fullest extent, anti-circumvention laws prevent consumers from watching legitimately purchased films on their computers and from listening to personally owned music on their mobile devices. They encourage a marketplace that limits consumer choice and promotes vendor lock-in; a market that licenses media to consumers instead of selling it. This situation often results in the loss of personal property when DRM servers that consumers rely on to enjoy their media are inevitably shut down for economical reasons.

Last summer, the federal Conservative government conducted public copyright consultations under the auspices of creating what they advertised as a “made in Canada approach to copyright reform.” Unfortunately, it seems as though the thousands of voices that participated in those deliberations were largely ignored by this government, contrary to the very concept of a representative democracy. While we can all agree that copyright reform is necessary, it is important that the reforms that are ultimately enacted accurately represent the interests of the majority of Canadians, whose lives are impacted by their access to media technology on a daily basis. We must remember that the primary purpose of copyright law is provide a monetary incentive for artists to contribute to our society, and not to enrich foreign media conglomerates.

Thank you for your time,

Jonathan Fritz,

A concerned citizen

This open letter was emailed and posted to all listed Members of Parliament. If you are interested in joining in on the discussion and want your voice to be heard by your representatives, feel free to borrow my letter and to modify it as you wish. Alternatively, head over to the website of the Canadian Coalition for Electronic Rights and use their automated form to accomplish the same task.