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“Legislative Guidance” on Fair Dealing: The Plan to Reverse CCH?

My post this week on several writers groups objections to Bill C-32 has generated considerable discussion, with some taking me to task for focusing on their letter’s warning of “unintended consequences,””years of costly litigation,” and “serious damage to the cultural sector.”  Instead, they argue that I should have focused on the call for additional “legislative guidance” on the fair dealing reforms.  After all, who could be against greater clarity in the law?

In the discussion that has followed, I believe that it has become increasingly clear that the “legislative guidance” is not really about the fair dealing reforms found in C-32, but rather fair dealing more generally. Unfortunately, the writers’ letter only speaks of their concerns and does not provide any specific policy or legislative reform recommendations that would clarify their intentions. However, with the government having opened up the fair dealing provision, those groups may see an opportunity to reverse the Supreme Court of Canada’s CCH decision that characterized fair dealing as a user right and established guidelines for its interpretation. 

Why do I arrive at this conclusion?

First, there is no need for greater guidance on the meaning of “education” and, even if there was, the guidance would be unlikely to change the groups’ concern with its inclusion in fair dealing. By using the word alone, the government has sent the signal that it means education in the broad sense.  In fact, this is consistent with the Supreme Court of Canada, which ruled in Vancouver Society of Immigrant and Visible Minority Women v, M.N.R.:

There seems no logical or principled reason why the advancement of education should not be interpreted to include more informal training initiatives, aimed at teaching necessary life skills or providing information toward a practical end, so long as these are truly geared at the training of the mind and not just the promotion of a particular point of view…there is no good reason why non-traditional activities such as workshops, seminars, self-study, and the like should not be included alongside traditional, classroom-type instruction in a modern definition of “education.”

The groups could hope that legislative guidance would limit the scope of who qualifies under “education”, but given their aversion to some fair dealing uses within traditional education venues such as universities, colleges, and secondary schools, this can’t be what the writers groups have in mind. Any limitations on the scope of education would surely not exclude those institutions, yet they are precisely the institutions that seem to matter the most to the writers groups.  If the scope is designed to include those educational institutions, legislative guidance might mean dropping the reform altogether, but that isn’t guidance – it’s gutting the reform.

If legislative guidance is not about the scope of education, what is it about?  I think the answer lies in an attempt to codify into law the fairness criteria established by the Canadian courts to determine whether a particular use meets the fair dealing standard.  As I have repeatedly noted, the mere fact that education would be a recognized fair dealing category does not mean that all educational uses qualify as fair dealing.  Rather, any use must still meet the fairness test.  It is this test – which is not even part of Bill C-32 – that the writers groups likely want to target.  Given recent comments about the need to pay for any commercial use, the groups likely want to rewrite the fairness test to specifically exclude any commercial use from meeting the fairness criteria. That would mean rolling back the CCH decision so that fair dealing would actually become far more restrictive in Canada than is currently the case (and much more restrictive than the U.S. fair use provision which has no limits on categories and does allow for the possibility of commercial fair use).

This strategy is actually even more dangerous than it appears at first blush. While the writers groups are focused on the new education exception in C-32, codifying the fairness criteria would apply to all fair dealing categories.  This would mean restricting the use of fair dealing for research, private study, news reporting, criticism, and review (as well as parody and satire, which are also included in C-32).  To take one recent example, the decision to treat song previews as consumer research for fair dealing purposes would be overturned since it involves a commercial use. I fear the call for legislative guidance is not about clarifying the meaning of “education” but rather code for overturning the CCH decision and leaving in its wake a fair dealing provision that may have additional categories, but faces far more restrictions once the fairness test is applied.

141 Comments

  1. Richard Pitt says:

    Be careful what you wish for
    If the middle men in the publishing world get their way, all uses of “their” artists’ materials will be subject to charge.

    Of course there is always the alternative – simply not use their works but instead use those of us who create under our own banner and use such innovative licenses as Creative Commons.

    Open Source textbooks are already on the rise.

    Direct-to-consumer sales of music and other copyright materials are on the rise

    I’m almost of the opinion (not quite) that we should cave to them for a time – let them implode, then change back to a reasonable law after they’ve disappeared.

  2. Michael, with respect to your last para, I am not sure about the song previews. These previews are a commercial activity, yes, but in the sense of advertising by an authorized vendor through the use of a short sample of the song. The issue I have with a educational fair dealing exemption is the copying of potentially a large portion of the work for a third party (one who did not purchase the work themselves) with no renumeration to the rights holder.

    I have no problem with reproduction of a work, that you have legally paid for, for personal uses. However, whose interest is it in to allow reproductions of large portions of books by students in a library or by profs for their students? Arguably it is in the interest of the students and/or school board and/or post-secondary institution. However, would it not, then, be in the interests of the author/publisher to boost the price that libraries and educational institutions pay for the work? If they can expect that a sale of a single copy to library or school would result in the loss of sales of 100 copies, would they not be justified in making those institutions pay 50x more for the work?

  3. Humanities and economics, an open license discourse.
    “No animal is more dangerous than one who faces it’s own mortality” …

    It is a common aspect of human nature to act in one’s own self interest, something which we all must confess. From that perspective it is understandable those who manage IP would want to continue to do so to their benefit, and to take steps to insure so. I am sure also that there is some concern for the creators and their well being both financially and creatively.

    It is also a facet of our nature, that the consumer would want what he perceives as fairness in his transactions but also to want as much as he can attain within that parameter (of course there are those who want more than what is fair or due them but that is another unavoidable aspect of some in our society).

    With this in mind, one can see where the root of disagreements on this issue lie. Unfortunately, there does not seem to be a way to fully satisfy both parties. One wants to maximize the value of returns for their property (IP), the other wants the same for the exchange of their property (currency).

    There are two ways for such situations to play out, market forces or regulation. The former is a fickle thing that can move slowly or pounce unexpectedly, and as something with inertia, sudden turns can be bumpy and chaotic. The latter is often a reaction to the former although it can also be a precursor.

    Attitudes and expectations of access to IP has undergone a cultural shift in this last decade. The general public, especially the younger and/or technologically savvy, have enjoyed both the abundance and freedom of instant access to information.Those who have less familiarity with such are usually (though not exclusively) older and set in their ways of thinking. These are often the ones in charge of laws and governece in our society, thus are an impediment, or some say bulwark, to the changing landscape.

    Of course, the vehicle for this change has been the Internet. I am in my mid-life years yet I find it hard to recall how I obtained my information before the Internet we know today. Yes of course there were books and experts we could contact but the pace at which information could be accesed was painfully slow.The access to almost instant information has changed, for good or bad, the way learn and even the way we think.

    In as major a cultural and societal shift as this there is bound to be difficult transitions. Established ways of licencing and distributing information no longer complety fits the world we now live in, the genie is as they say is out of the bottle.
    I do not claim to have the solutions but I think the momentum of change is more on the side of the consumer of information than the creators. As such the creators (or at least those who manage their works), are the ones being backed into a corner and will fight to maintain what they have.

    I am a full supporter of creators being fairly compensated for their works. What is fair you may wonder? Well that is a debate that our society is currently trying to determine in it’s not so alturistic manner. There is a balance between creators and consumers that shifts an changes over time, now just happens to be a time where the scales are still wildy swinging.

    In all of this I hope we will remember that we are all people who want what is best for ourselves but also wish to earn the respect of others. As we enter this new paradimn it would be best for both sides to remember the golden rule as we pursue that balance.

  4. false assumptions
    anon-k: However, would it not, then, be in the interests of the author/publisher to boost the price that libraries and educational institutions pay for the work? If they can expect that a sale of a single copy to library or school would result in the loss of sales of 100 copies, would they not be justified in making those institutions pay 50x more for the work?
    ——————————-

    a false assumption is being made that every use (library/parrot adorned pirate) is a direct lost sale.

    this is a fundamentally flawed and illogical conclusion to draw.

    quite specifically, in the case of the library the primary users are the ones that can least afford the outlay of ‘brand new’ xxx; which also makes the shift to digital copies and associated drm to eliminate any secondary or used markets.

  5. Darryl Moore says:

    @mckracken
    I would also add that it is illegal to sell the exact same product under the exact same conditions to different people at different prices. Think “whites only” stores in the last century.

    Of course if the publishers get their way with the digital locks then that all goes out the window since you are no longer buying a object, but are instead buying a set of rights. They can then charge different amounts for the different sets of rights. In this case prices for libraries could be quite high indeed. Yet another obstacle to navigate in these dangerous copyright reform waters.

  6. Sandy Crawley says:

    Writers against Parody. Public Comment, Crticism & Private Study?
    Dr. Geist,

    Your suggestion that writers want to restrict these uses is not only incorrect, it is absurd. But I suppose you can’t resist stirring the pot with such far-fetched speculation.

  7. @Anon-K
    Based on the test for fair dealing, copying large amounts of any work is *not* fair dealing, regardless of the purpose.

  8. Darryl Moore says:

    @Helen222
    Interesting. I don’t know, but I think what Google is doing with their book scanning project would qualify as fair dealing. They not only copy large amounts of works, they copy EVERYTHING, and then some.

    “29. Fair dealing for the purpose of research or private study does not infringe copyright.”

    Certainly what they are offering is “for the purpose of research”. Now, as long as the cost of licensing these works through a collective is cheaper then the court battle that would be required to assert this right, I don’t expect they ever will assert these rights, but I believe they are already there.

  9. Darryl Moore says:

    I would say the use is fair since they are not making the data available to the public, but only snippits for the purpose of research. Like music sampling. That is fair so in the same way Googles book scanning should be too.

  10. @Darryl
    As has been explicitly stated over and over and (over) on this blog and on these threads — that section of the legislation you quoted does not mean that anything for those purposes is fair dealing. It means that anything that is *both* fair dealing and for those purposes is not infringement. Fair dealing is a legal test involving a contextual analysis, and you need to educate yourself on that legal test rather than presume. And if what Google is doing has been deemed to be fair dealing, then you have to look at that decision, and see for yourself why, in that specific context, it meets the legal test.

  11. Darryl Moore says:

    @Helen222
    [sigh] Right. I am not a lawyer and the six part test is admittedly kinda’ fuzzy but here is how I see it.

    The Purpose of the Dealing – research. There is an indirect commercial relationship in that Google makes money on adverts, but they do not make money on the work similar as to how they make money on content from other web pages that they direct people to.

    The Character of the Dealing – The works themselves are never made directly available to the public, only small snippets which in and of themselves would generally be considered fair.

    The Amount of the Dealing – All of it. (Slurrrrrp) But, as above only small amounts are ever made available at a time, and Googles purpose of indexing all of these works would not be achievable without taking all the works. Even the CCH vs LS decision allowed for copying the full text to be fair dealings. The argument here is similar.

    Alternatives to the Dealing – There are none. There is no way that Google could reasonably put together a complete database any other way.

    The Nature of the Work – Honestly, I’m not sure how to interpret this criteria. As I said I’m not a lawyer. Now I know that they were not indexing unpublished or confidential works so I suspect they probably pass here too.

    Effect of the Dealing on the Work – Commercial interests are not compromised in the least and may even be increased due to the extra attention Google brings to the works.

    Again. IANAL but I have done some work “to educate [myself] on that legal test”. You can never predict what a court would say especially with these fuzzy laws, but I do think there is a damn good chance they would see this as fair dealings. Do you have any good reason to predict that a court would NOT see it this way? Do tell.

  12. Michael Geist says:

    @Sandy Crawley
    You suggest my post is incorrect and is stirring the pot with speculation. Ok – perhaps you can enlighten everyone on what precisely the writers do want since your letter says virtually nothing about the specific reforms you are seeking. What are the specific areas you believe need “legislative guidance”? Is it a change to the scope of education within C-32? What would you propose? Is it a change to the fairness test as applied to the proposed education exception only? What of research, news reporting and review, which are not on your list of fair dealing exceptions? Do you support a different fairness test for research? for news reporting? for review? And what is “public comment”? Do you support the current fairness test for the categories you cite?

    I have written extensively about the specific changes I think are needed in Bill C-32 and I’ve edited a forthcoming peer reviewed book for a Canadian publisher with 20 articles from professors across the country who share their specific views and recommendations. Why have the writers groups declined to identify their proposed changes?

    MG

  13. @Geist
    It will be interesting to see how many of the 20 articles differ from Professor Geist’s opinions. And it will be fun to see if we can apply a “broad” interpretation to research and private study by encouraging widespread “sharing” of each article – after all, a single article is clearly an acceptable unit to fall under fairness, so if each chapter is copied separately and then redistributed…well, this does seem to be within how fair dealing has been construed here. If it guts the market for the book, we can assume that academics don’t write for money.

    More seriously, I think you can expect two things to emerge. First, there is the view, certainly with the creator community, that the SCC was very imprecise in the CCH ruling, and also posed all sorts of rhetorical limits to their analysis. As was said in the Federal Court of Appeal in the recent CMEC/Access Copyright decision, words do have to be interpreted within some semantic limits. So asking Parliament to have a look at the uncertainty only makes sense. However, that isn’t necessarily going to involve trying to roll back commercial uses.

    Next, of course there is going to be opposition to adding education to fair dealing. Unless Professor Geist is saying categorically that it will have no monetary impact whatever on sales of materials or on licensing tariffs, those who stand to lose will object.

    In a society in which many smart kids can’t afford to go to university, and people sleep on street corners and beg for food, hammering away at “user rights” seems strangely inappropriate. Even accepting that users do have rights, those rights are obtained at someone else’s expense. The “someone else” doesn’t have to agree with that and is fully entitled to make that known to legislators.

  14. Nice to see Dr. Geist admitting to stirring the pot. Rarely is he so forthcoming about his methods.

    I’ve been away all day at secret writer meetings where we are plotting to overthrow the Supreme Court of Canada, otherwise I would have commented earlier.

    Is this the C-32 committee? No? Well, maybe then we’ll just all have to take the letter at its word and wait for the specific suggestions before the committee.

    But by all means, continue to speculate wildly about a cabal of writer groups attempting to reverse an SCC decision. That will probably work. Maybe make a video that uses lots of gun, chain and lock imagery, and a deep serious-voiced narrator… “Your freedom to learn? WRITERS want to take that away. The Supreme Court wants to stop them, but the WRITERS have a plan.”

    That scares people.

  15. @bob
    I agree with many of your points, except:

    “In a society in which many smart kids can’t afford to go to university, and people sleep on street corners and beg for food, hammering away at “user rights” seems strangely inappropriate.”

    Inappropriate how exactly? Are you suggesting that having a discussion on user rights somehow reduces society’s ability to eliminate homelessness and reduce tuition rates? I’m genuinely confused about your statement.

    “Even accepting that users do have rights, those rights are obtained at someone else’s expense.”

    I love the condescension in this statement. I agree that user and creator rights need to be balanced, and both sides have the right to express their opinion to legislators (and to criticize each other). But the implication in your statement is that either you, or some content creators, believe that users should not have any rights, and that sort of lop-sided opinion does not lend itself to a serious discussion on copyright reform.

  16. @Darryl
    The test is here: http://www.canadianheritage.gc.ca/pc-ch/org/sectr/ac-ca/pda-cpb/publctn/cch-2007/102-eng.cfm.

    I admit I don’t know much about Google books, or what they are making available, so I can’t common on it. And respectfully, I have no real interest in debating Google Books.

    I’m sorry if you found my suggestion that you educate yourself a little heavyhanded. In retrospect, I agree with you on that point. But you and others have consistently suggested that s. 29 of the statute reads as though it says “29. Fair dealing [is any reproduction] for the purpose of research or private study [and] does not infringe copyright.” It simply does not say that. This isn’t a question of interpretation — it’s just not what is written. That’s really all I have to say.

  17. creature feature
    “After all, who could be against greater clarity in the law?”

    Well, respectfully, Michael, on the proposed education exception, it kind of appears that you are.

    While I don’t purport to speak here for Sandy Crawley or any other Canadian professional writer or writer organizations, I think it is perfectly legitimate for them to raise concerns about the proposed law and to call for clarity or amendment in respect of any proposed provisions without being accused of “fear mongering”.

    As you likely know, the ministry officials that introduced Bill C-32 spoke of the proposed education exception as one being applicable in a “structured context”. The bill currently provides no such structure. I don’t know if any writer group is considering or will call for the codification of what you call the “fairness test” in respect of the proposed education exception (or any other exception for that matter), but would some form of codification or structure not be one of a number of legitimate proposals that professional writers could put on the table for parliamentarians to consider as part of the legislative process? I would have thought so. After all, besides obvious democratic principles, the SCC has stated on a number of occasions that Canadian copyright is a “creature of statute”.

    WS

  18. Well, once again, my comment has set off the alarm, and is now being held by the administrator for clearance. One of these days I’m going to do a series of one word test comments to figure out which of my words is so offensive to the robots over here. I have the feeling it might just be the good doctor’s name. Checking all references.

    Something’s just occurred to me though. Why hasn’t “the professor” given us the title of his upcoming book? Why didn’t he share details of each of the essays?

    What is he hiding? Why has he declined to disclose more fully about this book?

    Now, I’m just speculating, but is it possible the book is called “Why Copyright Should be Abolished, Especially if Doing So Will Hurt Writer Groups”?

    It has become increasingly clear to me through the discussion here that this book will not be complimentary to copyright holders, so my speculation must be accurate.

    Somebody get me to my blog.

  19. Ha, didn’t mention him by name, and the comment went through right away.

    Dare I speculate further as to why this blog would want all comments referencing a certain name to be checked first?

  20. lots of argument
    Lots of argument here, some of it coherent, mostly on the part of Dr. Geist (way to brain spank that troll) but I still, STILL don’t see why these changes are truly necessary; the various involved industries weren’t starving before, so what really changed? ACTA of course.
    Which in itself is just an economic weapon of certain economic super powers, I say this because it will most likely prove ineffective for its stated purpose, but will DEFINITELY punish average citizens like myself.

  21. @Degen, “Dare I speculate further as to why this blog would want all comments referencing a certain name to be checked first?”

    My posts are checked about one in 5 times or so I think it is random.

  22. I don’t think it is random as Dr. Geist made a comment a few days ago about key words triggering review

  23. Laurel L. Russwurm says:

    a fine example of digital locks
    @ Mr. Degen

    Interesting that you get so rattled by the DRM on Dr. Geist’s blog.

    One feature of DRM/TPM is that even when someone runs legitimate software on their own domain they don’t necessarily get to control it.

    And amazingly, sometimes software or devices just don’t work correctly. (aka “broken”)

    Which is why making circumvention for legal purposes is not a good idea.

  24. Michael Geist says:

    Responses
    @Bob

    The book will be available from Irwin Law under a Creative Commons licence so all articles will be free to download if people prefer to access that way. No contributor was told what to write or selected on the basis of their views – the majority of Canadian professors in the IP field were invited to participate.

    @Degen

    I don’t what is setting off the spam filter, but some of my posts are being held as well. I’m going to ask my web hosts to clarify.

    @Warren

    I’m not against clarity. I’m saying I think the law is pretty clear. To the extent there is some flexibility within fair dealing, that is a feature, not a bug. If the writers groups disagree, fine. But I think they need to disclose what they are asking to be changed/clarified and be upfront about the fact that the desired changes involve fair dealing more generally, not the C-32 specific reforms. Moreover, the claims about the effects of including education within the categories of fair dealing have been fear mongering because they have led many to fear that the changes will mean that education will face no restrictions in making copies without compensation. This is plainly inaccurate.

    MG

  25. Laurel L. Russwurm says:

    correction @ Mr. Degen
    the last line of the above comment should read:

    Which is why making anti-circumvention a criminal offense for legal purposes is not a good idea.

  26. Laurel L. Russwurm says:

    Quite an interesting article about “received wisdom” on copyright
    from Duke University Libraries: Scholarly Communications @ Duke

    What everybody knows
    http://library.duke.edu/blogs/scholcomm/2010/08/27/what-everybody-knows/

  27. I did find the article about how low copyright protection in Germany actually helped creators more than hurt them.

  28. @Geist
    So the book is published by Irwin Law, but each article is available for separate download. Imagine I’m a law prof. I send each student a link to the article we’ll be discussing that week. And I do this every week. No-one needs to buy the book. Is this fair dealing for the purpose of education. Please discuss.

  29. Laurel L. Russwurm says:

    creative commons licensing is empowering
    Hmmm… if Dr. Geist’s book is being made available for download under a Creative Commons license (a valid creator choice under copyright), depending on the license fair dealing probably doesn’t come into it.

    This is a brilliant marketing strategy. I own a great many books, but I’d already read most of them before purchasing. Even some text books. My brother was recently amused to discover “The Four Ages of Man” which was his high school mythology text on my shelves. I’d read his school text when we were kids and as an adult went out and purchased my own. Others in my family have also read it. Because its a good book.

    The only books I’m likely to buy that I have not already read are books from a trusted writer whose other works I have already read, or books that are seriously marked down at either a remainder table or used book store.

    Trying to force students to purchase an entire book because they will be looking at one small part of the text for one class doesn’t seem a very good way to build a following. Or very fair.

  30. @Laurel
    But you aren’t answering my question. Whether it’s a good way to build a following isn’t the issue. I repeat – would this means of accessing the entire book for multiple users be fair dealing for the purpose of education?

  31. @Laurel (again)
    And the Creative Commons thing really isn’t the issue either. Really it’s just an analog DRM that enables you to set upper limits on what you authorise. But as has been said time and time again on this blog, fair dealing exists regardless of what the copyright owner wants.

  32. Laurel L. Russwurm says:

    @bob
    It isn’t that fair dealing doesn’t exist when you use Creative Commons licensing, it’s that it isn’t necessary under some Creative Commons licenses because the license confers permission to copy.

    It depends on the choices made by the creator.

    http://creativecommons.org/about/licenses/

  33. Laurel L. Russwurm says:

    @bob (again)
    rather than “analog DRM” CC licenses are quite often employed to free creations from oppressive copyright law restraints.

  34. @Laurel
    Creative Commons licenses may allow more than fair dealing but they usually do set some limits. But still, my question remains unanswered – is the scenario that I described fair dealing?

  35. @Bob
    …”And the Creative Commons thing really isn’t the issue either. Really it’s just an analog DRM that enables you to set upper limits on what you authorise.”

    CC is a license, covered under copyright law, unrelated to the technology of DRM.

    DRM (and TPM etc) are a totally separate topic from copyright. You can use (or attempt to use) DRM to protect public domain works, private works, or even information and works not covered by copyright at all. It is a technology totally separate from anything to with the laws and usage of copyright.

    The above comment indicates you have confused and somehow linked DRM with copyright law. I suspect this misconception is one of the reasons there is such a gap between the pro DRM camp and the anti DRM camp.
    The pro camp sees it as a possible mechanism to “protect” copyrighted works, while the anti camp sees how DRM affects many, many other things. With the current version of C32, the “protection” of DRM applies far beyond pure copyright issues. The anti camp wants to restrict the legal protection of DRM/TPM within C32 to pure copyright issues only. The pro camp sees any resistance to protection of DRM/TPM as an attack on copyright itself.

    This goes far beyond the secondary question of technical effectiveness of TPM/DRM when applied to copyrighted works. It delves into a fundamental (mis)understanding of what TPM/DRM actually *is* vs an understanding of what copyright actually *is*. Discussions can center around how such technology might be appropriately applied to copyrighted works, without conflating the topics themselves. A resistance to unbounded legal protection of DRM/TPM is not an attack on copyright itself. Nor should discussion of pure copyright issues even reference DRM/TPM, they are conceptually unrelated. One of them is pure technology, the other is a social/legal construct.

  36. Michael Geist says:

    @Bob
    I must admit that I thought Laurel’s response was sufficient. This work will be openly licenced under a Creative Commons licence that would certainly permit the use you have just described. Therefore there is no fair dealing analysis since the use is permitted without regard for any exceptions under the Copyright Act.

    Further, the works would be available for the use you describe in other ways that do not implicate fair dealing. For example, Irwin makes many of their titles available in a database that is licenced by all Canadian law schools. I’m not sure if this title will be available, but that would be another alternative if it is. Many of the authors may also make pre-prints openly available using self-archiving services such as SSRN (some may be required to do so under the terms of their grants) which would be another source.

    This is very relevant for the earlier discussion on Access Copyright licences, since it again shows how works are often readily available from different sources that do not require a licence. In fact, all the articles in the forthcoming book use an open citation method that prioritizes citations to openly available versions of cases, statutes, and other materials. I think you’ll find that the majority of cites have an open alternative.

    So your example does not work well here. In fact, it demonstrates that many academics prioritize access over compensation and will choose open licences to help facilitate access. This is particularly true for classroom uses, where academics will often demand that any publishing agreement grant them the right to use their work in the classroom environment without any further permissions or payment.

    Leaving this example aside, you ask whether linking to an authorized version of all the articles in a book for classroom purposes would qualify as fair dealing under the education exception. I do not believe a link alone represents a copy and therefore there is still no need for a fair dealing analysis since exceptions arise for copying, not pointing to the location of copyrighted works.

    Note that I have seen references that suggest that this means there is nothing to stop the teacher from posting the articles themselves and pointing their students to the online version via link. However, this fails to recognize that the teacher’s unauthorized posting of the articles for the purposes of linking to it for students would likely not qualify as fair dealing.

    MG

  37. Attacking fair dealing is an attack on democracy itself, not matter what the intentions or motives are. Who the hell do these people think they are? The public at large is already extremely angry not just at the creative industries, but also with the culture of greed presented by some in the private sector. It’s stunts like this, that pull the creative community down on a whole. Nice job guys, and nice to see Degen’s other personally bob appear with his crap on this as well. Did you forget your pills again there Degen? We really need to get that looked after.

  38. @Jason. I don’t think it is productive to go overboard on the personal attacks. While many may not agree with Degen, he has as much right to be here as anyone. Let’s all keep this civil lest the issues get lost in hyperbole.

  39. @Geist…and @Jason..and@old guy
    No, I’m not confusing DRM with copyright, I’m trying to make a joke. Wasted, obviously.

    To question the scope of fair dealing is not an attack on democracy. It’s engaging in a debate that as seems increasingly clear does not easily yield consensus.

    And finally, no Dr. Geist, Laurel answered a question I didn’t ask. I can go on reframing the question to strip away any diversions. But I think you have come close to giving an answer – directed multiple copying will likely fail the fairness test. By extension, it seems to me, that a link to an article, with students directed to the link, might also result in a level of activity that is unfair. I agree that the link itself cannot infringe copyright. But – and this is what AC is getting at in its tariff – a link may be indicative of subsequent infringement if the multiple copying that results is unfair. Fascinating stuff. You can see now why writers want some clarity around fair dealing.

  40. To continue:

    * I suspect that Warren is right in saying that users don’t want clarity around fair dealing. If it’s vague, then they can always say they didn’t realize they were on the wrong side of the line.
    * Of course, if there is what our American cousins called a bright line, then allowing the breaking of digital locks might be a more acceptable proposition. It’s the vagueness that’s the problem, because anyone and everyone will obviously say they thought they were exercising their fair dealing rights.
    * So, do we have clarity? And if we do, where do we draw the line?
    * And finally, CC licenses are perfect for well-paid academics whose salaries are intended to finance their writing. Of course they should make their work available in this way. When the Copyright Board determines the AUCC tariff it will obviously look at this. It will also make allowance for pre-paid institutional database licenses, as copying from these clearly can’t be included in the tariff either.

  41. @Bob
    …”No, I’m not confusing DRM with copyright, I’m trying to make a joke. Wasted, obviously.”

    Yes, your “joke” fell flat, for a number of reasons. The primary reason is the way you “made it” is exactly the form which many proponents of blanket DRM legal protection use, in a very serious fashion. Jokes framed this way are detrimental to creating a real understanding of DRM and how the technology applies within copyright law.

    In fact, the way you framed your “joke” did not in any way indicate that you understand the differences, and disconnect, between DRM and copyright. Quite the opposite.

  42. Existing law or proposed law
    “I’m not against clarity. I’m saying I think the law is pretty clear.”

    Sure, perhaps the law is pretty clear as it currently stands in respect of fair dealing as it currently stands, Michael. But that’s not what we’re discussing here. The Conservatives have proposed to change the law by, among other things, baldly introducing “education” as an allowable fair dealing purpose. Because the bill does not contain, in respect of this proposed new exception, the “structured context” which Ministry officials have suggested is intended, there is uncertainty about its proposed application. This is a big deal for self-employed professional writers that earn a living from their copyrights.

    Currently, there is no knowing the exact substance, or application of what you have called a “fairness test” to this new exception, were it to become law. No such set test exists. It would be perfectly legitimate and appropriate for the government to set one in respect of any new, proposed broad exception. Canadian copyright is, after all, a creature of statute.

    In CCH, the SCC took a curiously categorical view in respect of research that the market “is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.” Would the SCC reiterate this view in respect of education as a ‘user’s right’? And if so what would that mean for “restrictions in making copies without compensation”? I suspect that the overwhelming majority of Canada’s professional writers don’t laud that uncertainty as virtuous “flexibility”.

    With respect to your call for writer groups “to disclose what they are asking to be changed/clarified”, is that not exactly what they say they will do in the letter with which you have taken issue: “In the near future and through the parliamentary review of Bill C-32 you will be hearing from us with suggestions on how to amend Bill C-32 in ways that will sustain the creative community that is a key component of growth in every aspect of the knowledge economy.” I imagine Canada’s professional authors, freelancers, playwrights, poets, writers, and translators, and other creator groups, will be in a better position to do so once the government’s intent and policy choices that led to the introduction of the proposed exception in the first place are clarified in the coming weeks.

    WS

  43. stuck in the filter?
    …it appears that my comment is being caught now too.

    WS

  44. Michael Geist says:

    @Warren
    Let me get this straight. The writers groups warn against a U.S. fair use provision during the copyright consultation because it lacks Canadian context. The government agrees and introduces a far more limited amendment within section 29. The same groups now the claim that this still lacks context? C’mon. Education is included among several other exceptions/user rights for which the test is known. It is not listed as a separate exception for which one could attempt a plausible argument that perhaps a different test applies. There is absolutely no reason to believe that the same fair dealing test would not apply here.

    If the government wanted a different test for education (or to codify a test for fair dealing more generally) it would have done so. If it wanted to limit the scope of education, it would have done so. I understand the writers don’t like the inclusion of education as an exception, but at least they should say what it is they do want. Simply warning of dire consequences and misleadingly conflating exception categories with the fairness test/analysis creates unnecessary fear and an inaccurate understanding of C-32.

    MG

  45. @Geist
    I’m perfectly happy to say that I don’t like the inclusion of education as a fair dealing purpose. Obviously it expands the activities that allow reproduction of content without payment. If you make your living from selling content, why should you support this?

    The different fair dealing purposes are somewhat different in character, and I’m not sure that identical fairness tests will apply. And as Warren pointed out, the materials that accompanies Bill C-32 did indeed talk of a structured context. So far we haven’t seen this. Nor have we seen a definition of education. Yours is taken from a very different set of circumstances and these may, or may not, be appropriate to a Copyright Act definition. Howard Knopf in his blog is categorical in ruling out some settings as being education as envisaged by Bill C-32.

    Either way, what seems clear is that users want as flexible and bendy a definition as possible because it allows more and provides cover if challenged. The creators of what is going to be used without permission or payment want to know what exactly they are being forced to give up. There is no other form of property that would be expropriated without clear guidelines and limits, and to ask the same for intellectual property [cue for angry bloggers to say that there is no parallel between IP and other forms of property] is perfectly reasonable. If there are fears on the part of creators, I see very little here to allay them.

  46. incomplete spin of objective
    bob:

    Either way, what seems clear is that users want as flexible and bendy a definition as possible because it allows more and provides cover if challenged. The creators of what is going to be used without permission or payment want to know what exactly they are being forced to give up. There is no other form of property that would be expropriated without clear guidelines and limits, and to ask the same for intellectual property [cue for angry bloggers to say that there is no parallel between IP and other forms of property] is perfectly reasonable. If there are fears on the part of creators, I see very little here to allay them.

    ——————

    there seems to be something of a disconnect regarding the consumer and the creator. an entire industry that takes a very large cut out of both parties. it’s called distribution and tends to be represented by ‘industry groups’ of varying flavours.

    sure, someone wants an item and in paying for it they want a reasonably clear definition of what that payment stands for. or, in the lack of guidance or attempts at subterfuge in the concept of ‘ownership’ rather than ‘license’ they are forced into a grey area of noncompliant use by doing the things that ‘ownership’ implies.

    the complex contracts that creators enter into with these distribution companies are exactly the same rule sets that consumers seek (an exactly defined term of use within a fair context for reasonable exchange), but find themselves limited to much less by forced collective bargaining without much representation.

    the real clear winners in these circumstances will invariably be those with the deepest pockets capable of deeply influencing the rule set’s creation. a very specific example here is one i believe anyone over the age of 25 can appreciate: loaning a book to a friend. have i stolen a sale from the creator/distributor? in our new technological context is it even possible to do that without infringing copyright and being held criminally liable? further to that; given the costs of distribution are now born by the consumer in infrastructure costs (i can’t download if i don’t pay the isp for access), and yet the pricing structure has deviated very little from a physical copy and what costs it represents, then what have i gained as a consumer from buying into or being forced into a situation that further erodes the perception of value in ‘ownership’ of that work?

    i get that as creator you’d like to be compensated better for your contribution to our society as a whole. i suggest you get a better agent or negotiate a better contract with the distributor if that’s the case. just don’t force me into multiple revenue streams under the banner of ‘save the artist’ when the distributor is the one we need to pay attention to.

  47. John Wilson says:

    Education has always been included in copyright law so what’s the panic? Part 1
    In fact the act in Westminster that established copyright in the United Kingdom, and by extension British Empire, The Statue of Anne contains full reference to education in the long title “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned”.

    This being the case the inclusion of the word Education in s.29 only restates what has been present in law since 1709.

    That publishers managed to convince authors that an act intended to regulate the book trade was really about the authors being paid is a nice study in 18th Century astroturfing that was so effective that writers (and others) continue to labour under that delusion in the 21st Century.

    I do get suspicious when I read comments on copyright reform that insist this is all about the artist (writer, singer, photographer, insert art form here) when it has always been about protection of the publisher (record company, movie company, insert middle man here) and regulation of the trade in books or whatever.

    Taking real history, rather than made up, into account the inclusion of learning (education) in the revision isn’t anything new I’m left to wonder what the fuss is all about.

    Parliament can specify all the things it wants to about education until it runs headlong into the SCC, The Charter of Rights and case law stretching back 300 years. This isn’t to say that some of the writer’s concerns aren’t valid. Simply the way the discussion is framed here rewards publishers (insert middle man here) far more than it would any relatively unknown writer of educational or other material.

    The other disconnect here is that most textbooks, manuals and other “educational” books are written on a contract with a given publisher. Therefore the author or authors have, to a large extent, been paid long before the paper meets press for proof copy.

    Before some one points out that novelists, poets and other written word collections aren’t prepaid for their work I already know that. As this is about education I thought I’d take the textbook market out the the equation first. Most of the former aren’t paid a penny prior to publication and often not even then.

    Rest assured that the rare and few Margret Atwood’s of the world have been and will continue to be well paid. Given advances and so on by a publisher waiting to get their hands on the next guaranteed best seller. (Not a shot at Atwood, by the way, I’m a huge fan and have bought, new, most of her works.)

  48. John Wilson says:

    Education has always been included in copyright law so what’s the panic? Part 2
    Next straw man argument. “People will copy a part of my work and pass it around without me getting paid.” I hate to tell you this but students have been at this since ancient Athens or earlier. Lacking a way to copy that section the book has been passed around to those that need it at high school and university level until it falls apart, read from at a university or public library and so on. Since the dawn of easy photocopying that has continued in a different form. So while the technology has changed and continues to change the renumeration to the author and publisher hasn’t. What was zero is still zero.

    Next straw man. “But if we allow it it’ll be file shared all over the interwebs!!!!”
    There seems to me to be the knee jerk response that if sale are dropping it must be that awful bittorrent again! (only half joking) No taking into account that the market may have changed, that the buying public feels ripped off by overly expensive retail prices, quality has gone down or any other reason than the evil interwebs! No doubt there is file sharing happening.

    I do hate to puncture the fragile egos I see in play here but unless you’re the above mentioned Ms Atwood or a writer of her sales potential I doubt that it’s happening a great deal. If your book is remainder bin material I can’t see anyone taking the time to scan and do all that need to be done to pirate the darned thing.

    I could go on. There’s enough straw men (and women) to keep me busy for a week or two.

    Boil it all down and it’s a sense of entitlement. “I spent the time to write this and I want to get paid now, thanks, even if you’re not the least bit interested in it” from the author and “We spent the time, money, design and effort turning this rather pedestrian manuscript into a book that we’ll convince Chapters/Indigo to stock as a best seller” and we’re damned well going to get paid for it and now. Oh, and having spent so much on promotion and all on this thing there may, just may, be a dime or two to pass to the author who we never would have published if they hadn’t handed over their copyright to us in the first place.

    Sigh.

    The reason we’re spending so much time debating this issue here is, partly or largely, a beautiful repeat of the astroturfing of the 18th Century by the publishers (insert middle man here) aided by “grassroots” writers groups. (Forgive me if I’m skeptical these days about “grassrooots” groups when, in most cases, scratch the surface and there’s something much bigger behind them.)

    Uncertainty, folks, is a fact of life. Just as the (increasingly rare) family farmer that there’s certainty at the end of the crop season about prices and they’ll laugh in your face. Ask the Nortel workers out of jobs and in many cases out of a pension and long term disability besides. Ask those who lost jobs in the crash of 2008 which we’re not out of yet. I’m sure the response to writers and publishers demanding certainty will be educational for those two groups.

    Better yet, ask the Tamils who just landed in Victoria about certainty!

    Maybe so many people unemployed and seeing little hope of getting a full time job any time soon has caused the decline in book sales? Huh?

    The courts are doing a good job in the knife edge balancing act that is ruling on alleged copyright infringement. They don’t need legislative “guidance” by well funded lobby groups nor do Canadian citizens.

    Copyright has always been about learning and education. Get over it.

    And start to realize that copyright is a privilege not a right to be expanded at whim to the enrichment of vested interests feeling overly entitled. What the citizenry gave you we can take back. Keep that in mind.


  49. “And start to realize that copyright is a privilege not a right to be expanded at whim to the enrichment of vested interests feeling overly entitled. What the citizenry gave you we can take back. Keep that in mind.”

    Here, here!

  50. Uncertainty, folks, is a fact of life.
    For anything relating to publishing, or information transfer, or information manipulation, uncertainty is even more so today than at any time in the last 500 years. We are in the middle of a massive shift that rivals or exceeds society changes since the early days of Gutenberg.

    If something can be digitized and communicated, it will be. This affects everyone. From telecommuting, to education, to advertising, to entertainment, to the postal service, to offshoring of information based development and work.

    Consider the changes still to come;

    What will “going to school” eventually mean? What will the role of a teacher or professor morph into?
    What will happen to visual “actors” when CGI becomes easy and indiscernible from today’s actor?

    The list can go on and on. It reaches everywhere.

    It appears there are many here that would benefit from taking time out to consider the bigger picture of the times we live in. Read Elizabeth Eisenstein’s “The Printing Press as an Agent of Change” for perspective, or review some of the musings of Clay Shirky.
    http://www.shirky.com/weblog

    Yes we are dealing with important decisions that we, as a society, need to make. But the changes are still happening, and accelerating. The decisions we make need to be very carefully considered, and flexible by design. It will be a LOT of years before we encounter anything resembling “certainty”.

  51. robber baron says:

    All quite fascinating. No copyright, nothing put out there, except by well-paid profs.

  52. The big, big difference between 2010 and 1710 is that you didn’t have millions of students copying textbooks. The risks, really, were pretty limited.

    As far as I can see, the citizenry has very little say in what gets legislated. And we are way beyond the point at which copyright is seen as a privilege. Parliament’s ability to reduce copyright protection is in fact very limited. Canada has signed various copyright treaties, and one of them – the Berne Convention – may well prevent adding education to fair dealing.

  53. Darryl Moore says:

    “Parliament’s ability to reduce copyright protection is in fact very limited. Canada has signed various copyright treaties, and one of them – the Berne Convention…”

    Indeed, and the Berne Convention will undoubtedly prove to be one of the biggest obstacles to the most necessary reforms. The resulting delay in these reforms will cause great pain and expense for everyone. Pity, but unavoidable.

  54. @Bob
    …”Parliament’s ability to reduce copyright protection is in fact very limited.”

    To a certain level, this is correct.

    …”Canada has signed various copyright treaties, and one of them – the Berne Convention”

    Again, correct. To a certain level.

    But you still haven’t started to consider the bigger picture. The issues and questions surrounding copyright and anything that can be digitized are much bigger than any single country. At a larger level, even the Berne Convention is starting to be questioned by scholars and various segments of our global society. These questions are not simply coming from anarchists or pirates, but also thoughtful people that see the changes within our global interconnected society. I don’t think anyone yet has answers, just as pre-Gutenberg society could not predict what society would be like 100 years after the printing press.
    But we won’t need 100 years to sort this out. The very mechanism that has springboarded this society change can be used to quickly adapt to it. Witness the mode of this very discussion we are having, and the audience it entails.

    From a national perspective, the best we can do is to stay flexible in our laws. The only sure knowledge is that things will continue changing, and we don’t have any guideposts.

    …”the citizenry has very little say in what gets legislated”

    And this too is changing, on a local, national, and global scale. No certainty there either.

    Like a surfer that has caught a big one, they have some choices in how they ride it, but not many. They certainly can’t change the wave.

  55. Straight
    Michael,

    There is no fixed “fair dealing test” applicable to the proposed education exception. That we have straight. However, for all of the reasons previously stated, one could be statutorily provided. That we have straight too, and I figure we’ll hear more about this as part of the parliamentary review of Bill C-32.

    It’s your wish to have the government leave the substance of fairness analysis applicable to such proposed exception open and left up to the determination of the very courts that unequivocally state that Canadian copyright is a creature of statute. Given the SCC’s view expressed in CCH that the impact of dealing on the copyright owner’s market “is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair”, your wish is certainly not surprising, and indeed is very straight-forward. But it remains to be seen whether that wish is shared by the keeper of the creature — parliament.

    WS

  56. We all need to take one step back
    Creators want to be paid, Consumers want to consume, Distributors want their piece of the pie. Place all three in the blender known as the Internet and you have the slurry we are faced with today.

    The Internet has increased opportunity for the creator and consumer while decreasing the need for the traditional distributor. Since the distributor has in the past been the dominant partner, they are now in the uncomfortable position of fighting for their relevancy.

    As Oldguy states above, a massive societal change in how we produce and consume information on an order equal or greater to that of the printing press is upon us.

    It’s not so much that bloggers here are anti-copyright (as labeled), but rather they understand that copyright is itself undergoing a transformation and reevaluation by the society at large, even if most don’t realize it.

    Rather than trying to lobby stale-practice laws that will not be followed by the public, there should be a more co-operative open discussion.
    I don’t think anti/pro fair-use/copyright tit for tat is really the best way to accomplish that. Neither punitive over reaching litigation or the free for all buffet of the P2P nets.

    The harder copyright holders push around consumers to restrict their activities the less they will wish to respect their property. The more people consume without compensating creators the harder they will want to push back. A vicious circle with no clear solution.

    What we need to do is to ‘demilitarize’ the conflict and be willing to look at fresh solutions. It may mean opening up definitions of copyright and fair-use. This cannot be done on a individual, group or even country level, but rather I think will have to be international in scope. Ha, that kind of sounds like ACTA? Well in a way I suppose it must be, but with both transparency and an equal representation of creator and user groups (which ACTA certainly was neither). The alternative is to continue the fighting and chaos we see today.

    Well, that was my thought for the night. What do you think?

  57. My personal opinion is that the more specific copyright law, the faster it becomes irrelevant for day to day life. With the fast changing pace of technology today, the way people get information is going through a vast transformation which is not remotely near done yet. Trying to craft a law to ignore this fact, which seems to be what the writers groups are wanting to do to plug some (possibly imaginary) hole they see, will lead to the law being irrelevant.

  58. @Chris A and others
    So maybe the Europeans have it right after all, with levies

  59. @Bob
    They’re an option, but it tends to ignore what people fully use the technology for. Even levies would not work that well as new technology emerges, as the current one we have here shows. That is unless you plan to levy everything someone buys that could remotely be used to look at any information electronically.

  60. Email spying is very profitable
    My suggestion for Access Copyright to create their own central distribution server was in response to Degen’s red herring for linking by introducing Access Copyright only charges for content in their repertoire. Playing Degen’s little games are fun. However, the games end.

    Access Copyright’s business model is to _charge for usage of content not on a list, or an exclusion list._ Access Copyright basically tries to add more works into their repertoire as they find usage. It has little to do with Access Copyright creating or funding new original works and add to their repertoire, but everything to do with finding usage of _existing works_ and add to it. Thus, Access Copyright will only charge for their repertoire’s usage is somewhat true, but their main focus is to charge for works that will be in use and _added in the future._ The potential for _adding new future works_ to Access Copyright’s repertoire _without creating it themselves_ are astronomically profitable. _Without creating it themselves_ is everything here because Access Copyright’s monies’ distribution methods are not transparent. This is why popularity is important to Degen, and essentially means more money is paid for more popularity on the ever growing collections of usage.

    Linking in private emails are important to Access Copyright because they want to know the works being in use, so they can have those works added to their repertoire. This is why Access Copyright wants all educational institutions to create a spy-on-educational-members digital infrastructure, and why my suggestion for a central distribution server fails their business model. A central distribution server cannot allow them to _charge for usage of content not on a list, or an exclusion list;_ and their ability to charge outside of the exclusion list practically ends, which would end their business model.

    Access Copyright is timing their attacks on the political process, such as having the Tariff objection date expire in the middle of summer, where people’s attention are distracted and diverted. Access Copyright is waiting for a last-minute like time to tender their proposals to prevent critics from scrutinizing and mobilizing against them.

    Degen’s motives are transparent, although Degen doesn’t elaborate or care to answer any questions. Degen only wants to divert and deflect attentions, including using ad hominems to distract people from the real questions or issues.

    > So maybe the Europeans have it right after all, with levies

    No, no, no, taxing levies and Tariffs are over. The time now is Open/Freedom, Creative Commons, and so forth. You copyright owners are too greedy and deserve nothing less than Open/Freedom. Your middleman collection agencies are dwindling as more and more Open/Freedom are available, and people moving away from the taxing levies and Tariffs. Your content will then be considered locked in their pay-per-use tombs. People will pay for Open/Freedom, like they pay for Open/Free Source Software.

  61. Sandy Crawley says:

    @ Crockett
    I agree with your “thought for the night”. And the writers group letter that was the catalyst for all the heat was certainly intended to produce more of the light you refer to. The professional groups who signed that letter do not want to restrict access to their works, they simply want the principle of compensation for use to remain an option. I think you will find that their minds are open to creative solutions. But in the absence of any Arcadian international accord, there is an onus on the organizations to address the realpolitik of intended amendments. Indeed, the WIPO treaties may be outdated but nation states are still trying to align with them. Not to beat a dead horse but the fact that the Council of Ministers of Education have been pushing hard for the education exception in Fair Dealing, while avoiding direct negotiations with rights holders does not instill great trust or prompt us to accept Professor Geist’s insistence that the change is anodyne with regard to collective rights administration.

  62. Crockett,

    I appreciate your stepping in and trying to moderate the discussion a bit. I had a nice weekend off, but it looks like Bob and Warren did just fine protecting valid points from being buried in revisionsit history, misdirection and angry populism.

    “Issues lost in hyperbole” could be the name of this blog.

    … and the rest

    I hope it’s at least clear to the casual observer — if any casual observers exist here — that this is not an argument between creator groups and the citizenry, which is of course the prefered positioning — writers want to take away fair dealing rights from the people!

    As I always say, the economic and business arrangements around intellectual property in the digital age are going to be worked out. We’ll get to the digital promised land. And so, we can get there with strong individual rights or weakened ones.

    As popular as it is around here to define copyright in terms of its benefit to corporate middlemen, it actually is an individual right, and I for one celebrate it as such — for instance, speculative effect on an economic boom notwithstanding, I kind of like the idea that Germany decided to bring in a formal system of individual rights. Wish that impulse had lasted.

    I couldn’t care less if every professor in the world decided to publish only under CC licenses from now on, or if every professional author adopted the Doctorow doctrine. Since those two interactions involve the professional exercise of individual rights under copyright, I respect them.

    Same for fair dealing. I want every student to exercise fair dealing in as free and robust a way as possible, including producing parody videos of their stuffed-shirt, posturing professors and putting them up on YouTube – that would be fantastic. But I also want those students to know their individual rights over the work they create are protected, and are well defined.

    I think clear definition and legislative guidance can only strengthen the individual rights of the citizenry. It’s terribly inexact and superficial to think of the citizenry as just a collection of consumers; we need well-defined laws that factor in just how complex and multi-dimensional we are.

  63. And someone, please, help me understand what Tom is saying.

    I’m not trying to be needlessly contentious or insulting. I really, actually do not understand why he focuses so much anger on me or what he thinks I’m up do in my hidden laboratory.

    To me, allowing that kind of baffling, anger-filled diatribe to stand uncontested is just irresponsible. I think those with whom Tom seems to agree need to deal with the fact that he’s there in your camp. He sure isn’t in mine, and that’s about all I really do know about his arguments.

  64. @Degen
    I think the bigger problem with Tom’s post is that he doesn’t seem to understand how copyright collectives work. But to try and remedy that is not a good use of time. Just as birthers are driven to increasingly delusional reasons why Obama wasn’t born in the US (the latest is that he only got a Hawaii birth certificate because his mother got a flight minutes after he was born and flew back across the international date line and so arrived on US territory the same day as he was actually born in Kenya) so any explanation just spark off another round of conspiracy theories.

    People on this blog are in one of these categories: people who understand but choose to distort, people who understand and try to explain, people who don’t understand but are open to learning, and people who don’t get it and don’t want to. Focus on number 3. With the rest, you’re wasting your time. Remember also that for all the angst, there aren’t in fact that many players here and in the scheme of things they aren’t very important.

  65. definitive statement
    bob:
    People on this blog are in one of these categories: people who understand but choose to distort, people who understand and try to explain, people who don’t understand but are open to learning, and people who don’t get it and don’t want to. Focus on number 3. With the rest, you’re wasting your time. Remember also that for all the angst, there aren’t in fact that many players here and in the scheme of things they aren’t very important.

    —————————-

    always pleasant to hear how the plebes are unimportant.

    have any answers to my questions above? you seem to have glossed them over ;p

  66. @Degen
    “As I always say, the economic and business arrangements around intellectual property in the digital age are going to be worked out. We’ll get to the digital promised land. And so, we can get there with strong individual rights or weakened ones.”

    There is no economic argument to weakling democratic and constitutional rights in society. Economics is based on a contract of rights with creators. There are no creative “rights” that trump the rights of society. Creators rights have to work around what is set into place in a democratic environment, rather than constantly trying to weaken the rights of society on economic grounds, and gains.

    In short, you don’t have a “right” to get paid for your work, you have that privileged of payment, around free market principles. You have the “right” to engage in that market, but you don’t have a right to get paid if the market is not in demand or rejects your product. To suggest otherwise, puts society in a different political spectrum. One where government forces the market, and one that is not based on democratic principles. If creators based their proposals on what society deems acceptable in a free market and democratic environment, rather than test those principles, maybe, just maybe the creative communities would be far better off. If they keep pushing unacceptable proposals based on market failure, than the creative industries are set to decline much further down the rabbit hole.

  67. Un-Trusted Computing says:

    Jonathan Swift….
    Methinks Tom’s Modest Proposal went straight over the heads of the literary elite who visit this blog to explain how their view of the universe is actually good for us.

    Captcha: reunch to

  68. @mccracken
    I include myself in the “not very important” category so hardly elitist. Bill C-32 isn’t exactly a grateful response to Geist and his merry bloggers. Or to those here who lean more in favour of strong copyright. And it doesn’t help that people often don’t understand what they’re talking about – I mean, love Access Copyright or hate it, but it does perform a needed function, has a growing membership including thousands of professors, and it you’re going to be critical, at least take the time to be better informed. Personal attacks sure don’t help, from either side of the debate. And that goes for the moderator who should be more tolerant of views he doesn’t personally share. Lastly, it is in some ways those people who keep the debate going. If the pro-copyright side totally ignored this blog, most of the posts would have an active discussion life of a few hours.

  69. – Sigh … –
    I’m really starting to dislike the pro- anti- labels people use. almost as bad as radical and extremist.

    If supporting creators being compensated for their work means I’m pro-copyright then I suppose I am.
    If believing I should be able to make a backup of media I have purchased for personal use means I’m anti-copyright then I suppose I am.
    If not agreeing with Minister Moore’s C-32 digital lock provisions means I’m a radical extremist then I suppose I am.

    I applaud and appreciate the discussions that take place on these forums (from all sides) and for Dr. Geist’s efforts for the sole reason that he is a voice against the insanity of the media industry’s legislative and litigious death frenzy (RIAA anyone?). Having said that I do not necessarily agree with everything Dr. Geist postulates and I even might agree with a few things Degen and Sandy have said 0_o

    I don’t think it’s profitable to put people into categories, everyone has something to bring to the table.

  70. How about clarity around fair dealing as a pre-condition to allowing digital locks to be broken to exercise fair dealing?

  71. A pair of spectacles may increase your clarity
    I’m pretty sure the clarity is already in there in the stated provisions such as backup, format shifting, parody & satire … inexplicably all secured behind the whims of the media distributors digital locks and keys. Of course they are free to allow said fair uses by not implementing such measures but their past and current behavior speaks volumes against the likeliness of such an outcome.

    Including the simple phrase, “except for non infringing purposes” to C-32 would make all the pro- anti- kerfuffel go away.

    If that does not happen then giving the copyright holders the lock and keys and the consumers no control at all except closing their wallets will be a broken solution from the start. It will actually make matters worse as laws that are not respected will ultimately be ignored and copyright infringement will increase. Creators will loose out on new opportunities due to the media industries inept handling of managing the necessary good will required to maintain the customer.

    Of course none of this is a problem as we are free to revisit these issues in the governments proposed 5 year review 0_o … lol.

  72. Interesting read
    It seems not everyone thinks that book scanning is the end of the world …

    “This study has found no support for an imminent monopoly by Google over books.
    Publishers of printed books continue to increase their sales and profits. Their rate of sales
    growth has increased since the scanning of books into GBS by Google. Book sales are growing
    faster than retail sales or the economy as a whole. These findings suggest that the benefits of
    digital libraries to American students and persons of limited disposable income, in terms of
    accessibility of information about and inside books, need not be sacrificed to save publishers
    from “Napsterization” and the loss of their customers. Moreover, the potential gains in
    economic efficiency, freedom of expression, and global democratization represented by digital
    libraries like GBS are more likely to outweigh any damage done by GBS to publishers, than had
    the findings of this study been otherwise.”

    source: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1634126

  73. Un-Trusted Computing says:

    @Bob
    “How about clarity around fair dealing as a pre-condition to allowing digital locks to be broken to exercise fair dealing?”
    __________________________________________________________

    How about we don’t enshrine protection for digital locks because we all know that folks will lobby to keep these protection in place once the rules are there?

    The only thing protection for digital locks will ensure is a cumbersome burden of proof process that will largely be ignored for quicker illegal lock-busting. If we simply identify copyright offenses and pursue them under existing or future copyright law then the law has accomplished its purpose.

    If we opt for digital lock protections then you’re essentially surrendering all distribution to rights holders; which isn’t really a situation copyright is supposed to promote.

  74. @Bob
    …”How about clarity around fair dealing as a pre-condition to allowing digital locks to be broken to exercise fair dealing?”

    I would love to see more clarity, in all areas of copyright. Unfortunately, in the “blender” (thanks Crockett) of the times we are living in, I personally don’t see how it would be possible to define long term consistent answers to this desire.
    Even so, it may be possible to achieve improved clarity and still stay flexible enough to maintain validity in this fast changing world.

    Do you have any specific suggestions on how you would “clarify” fair dealing exceptions? Something similar in vein to the specific suggestion of adding “except for non infringing purposes” to the DRM clauses in C32?

  75. Laurel L. Russwurm says:

    2 little points
    1. supporting sane copyright reform does not mean anti-copyright.

    Labeling people, especially mislabeling the position of the people who disagree with you is a form or “name calling” which is an aspect of bullying. Hardly conducive to intelligent discourse.

    2. Digital locks should have no business in any discussion about copyright.

    Digital locks are not controlled by copyright holders, but rather software and hardware manufacturers.

    Setting digital locks above copyright is ludicrous.

  76. Jason,

    At some point you’re going to have to deal with what I actually say, and not with what you would like me to have said that you have a ready answer for.

    The point I was making above is perhaps a bit abstract, but it’s accurate I think. The creator/user dichotomoy in the standard copyright argument is false. We are not either/or, we are at all times both. Whether or not you ever choose to exercise it, your right to profit from the work of your intellect is actually an individual human right declared by the UN, and it is in tight association with your individual human right to enjoy the common culture. Whether or not you WILL profit is a side issue related to the quality of your work and the market — but you have the right to profit where profit exists.

    You can say protecting the rights of creators weakens user rights, but that doesn’t exactly work when user and creator are actually or even potentially the same person. My point about the digital promised land is that we need to get ourselves – as individuals – there with no weakening of our related individual rights — a much trickier prospect than “do we help the creators or the users?”

    Buying into the “copyright is for corporations” canard allows us to make false dichotomies between rightsholders and consumers — and these dichotomies can be very satisfying to those with pre-set anti-corporate, stick-it-to-the-man ideologies. Nevertheless they are false for the purposes of copyright.

    Because in copyright, we are all the man. And sure, we don’t have to act like the man — we can act like the generous, sharing gurus we know we all are. But we can, and should, do that guru-work without weakened individual rights.

    You can argue that DRM significantly weakens user rights, but I believe that on balance it does not. No DRM can stop me copying, quoting, parodying, refering to, teaching, or studying any content within the limts of fair dealing as I understand and exercise it. DRM can absolutely cut me off from certain WAYS of copying, but it cannot stop me from my fair dealing as a user. At the same time it can help me define my creative content within the marketplace, and if I’m a successful and careful professional creator it need not have any influence on how I make my work available to my fans (see Doctorow doctrine).

    So, please keep all this in mind when you approach my arguments — I want my total package of rights as an individual unweakened in copyright reform. Rage against the corporations all you want. That line of argumentation has no impact on my position. That’s all.

  77. A little advice to the self entitled …
    Here is an interesting article:
    http://arstechnica.com/tech-policy/news/2010/08/trade-groups-policing-our-digital-copyrights-is-just-too-hard.ars?comments=1#comments-bar

    It shows the real disconnect between some artists and the real world. My father managed a live theater in Vancouver and I grew up around that culture. I can personally attest that a large percentage of people there had a very severe case of self importance. In their minds the public is there to serve them, not them the public. I think this attitude is part of the problem and why there is a lack of respect from the consumer, who ironically are the very fans they hope to endear.

    This attitude runs rampant right to the core of the RIAA/MPAA and the like. No one likes a whiner, even less one who acts like a bully. And they wonder why their ‘fans’ don’t pay them the homage they think they deserve?

    Here is a quote from a music industry trade blog that seems to have some common sense on the issue …

    “Last week, the music industry blog Hypebot described the RIAA as “one of the most loathed, criticized and beleaguered industry trade groups of the last decade,” pointing to similar comments from Sherman to VICE magazine.”

    I think the RIAA could save a lot of money by replacing their staff with whiny self important 8 year olds and pay them with candy. I’m sure no one would notice the difference. 😉

    Seriously … I am speaking to ‘artists’ and this may not apply to all creator collectives out there. But for the **AA crowd I suggest you fire your trade industry reps and hire some real people off the streets who can help you understand the real world.

    Treat people with respect, be fair and most will respond in kind. Whine and stomp if you want to be reviled and ignored.

    As I like to say .. not rocket science.

  78. slight adjustment
    Laurel L. Russwurm: 2. Digital locks should have no business in any discussion about copyright.

    Digital locks are not controlled by copyright holders, but rather software and hardware manufacturers.
    —————-

    i would suggest that while the hardware/software crowd inherently enables these abilities, it will ALWAYS be a decision of the publisher of the work whether a lock would be included or not (as defined by contract). as it is the publishers, rather than individual ‘creators’, who follow up on any legal action related to the work itself.

    due to the proposed changes, digital locks on work are a part of the discussion and cannot be left off as they relate directly to criminal penalties for ‘infringing actions’.

    about the most sane thing to do would be as mentioned above, the addition of a clause that denotes ‘non infringing use’ such as a simple format shift already considered fair use in law.

    @bob: you really need to tone the rhetoric down a notch. stating that :

    “I mean, love Access Copyright or hate it, but it does perform a needed function, has a growing membership including thousands of professors, and it you’re going to be critical, at least take the time to be better informed. Personal attacks sure don’t help, from either side of the debate.”

    personal attacks? if this statement is directed at me, then show me a personal attack? oh,here it is under the guise of “and i(f) you’re going to be critical, at least take the time to be better informed.”

    i’m sorry, my kindergarten class i had that one day only let’s me talk to the other children rather than the ‘adults’ in this discussion? having been around technology for a long enough time to see the browbeating and ‘save the artist’ rants for decades, you’ll forgive me for being critical of the publishing/distributing houses and their spurious claims of abject poverty along with the suggestion that worldwide culture will implode without their careful safeguarding of our future.

  79. Darryl Moore says:

    “You can argue that DRM significantly weakens user rights, but I believe that on balance it does not. No DRM can stop me copying, quoting, parodying….[etc]…”

    No, but it can prevent you from enjoying the data on the device of your choice non-hdmi TV, Open source DVD player, out of region dvd player, etc.

    It can prevent you from enjoying the data in the way you like. DVDs that force you to sit through previews and copyright messages.

    It can take your data away from you when you least expect it. Such as Amazons 1984 scandal or Apples original DRM servers going down.

    It can take away your privacy.

    It can take away your private property rights to hack and customize devices you have purchased, and use as you see fit.

    It can give a monopoly for an entire market to a device manufacturer forcing, not just users, but creators as well, to adhere to increasingly unreasonable terms.

    So yeah… you can still parody, but somehow that seems to be the least of what we should be concerned with.

  80. Degen,

    I’m not anti-corporate at all. I’m pro democracy and for the rights granted in the constitution. You yourself have expressed strong feelings against “user rights”. Just like you and your battle to protect creator rights, I have chosen my path as a creator to protect “user rights” which are also human rights protected by the UN, and far more important to a democratic society in my view than creative rights.

    DRM is irrelevant, I’ve been stating this and against all positions taken on this. The market has already spoken on DRM. It’s unenforceable unless we change our democratic and constitutional rights, which won’t happen. It will not “protect” creators right to get paid. In fact there’s quite the danger that it could actually hurt the creative industries, due to a huge rejection in this technology.

    I agree with you with respect to creators having a right to profit from their works where profit exists, but the profit does not exist anymore on outdated and obsolete business and distribution models. It’s one thing to protect those rights where the profit exists, it’s another to continue to put forth laws that are irrelevant and propping up old business models that are not making any profit, and will continue to decline while undermining basic democratic rights on society. We get into the economic argument of creative destruction here.

    We fight for the same thing you and I, just different ideologies. I don’t believe in protecting a sense of control over the marketplace the incumbents have. I think the way forward is to follow the market demands, and see how we can make money around the democratic rights of society, rather than putting those democratic rights to test, to see if we can gain back control and protect incumbent obsolete models (which will further decline the pay to the creative industries IMO).

    Rock and Roll was once considered the worst evil to come out of the music industry. A large part of that was human ignorance and failure to understand what they didn’t. We can profit off of the sharing of new media, there’s just a reluctance to do so, due to the lack of control the incumbents will have if we go to this model, which is inevitable.

    “That line of argumentation has no impact on my position”

    Than why bother responding?

  81. Wow, someone in the music industry who actually gets it …
    In other news, hell is holed up in a blizzard and the moon is really made of cheese.

    http://www.hypebot.com

  82. Darryl,

    This comment thread follows a posting about fair dealing. You have just agreed with me that DRM would not affect fair dealing. Thanks for backing me up on that.

    Where you do feel restricted by DRM has little to do with copyright as far as I can tell, and everything to do with your enjoyment as an electronics consumer. I encourage you as a consumer to demand the freedoms you want from the device-makers and related content distributors.

  83. oh, and Jason, substituting the word “incumbent” for “corporate” does little to disguise your ideological stance. Show me the incumbent content producer who is not attempting to adapt from obsolete distribution models.

  84. Darryl Moore says:

    “Where you do feel restricted by DRM has little to do with copyright as far as I can tell”

    EXACTLY! So what are we doing putting protection for these infernal things into copyright law?

  85. I left the music industry, because in large part the incumbents are impeding new business models and income for musicians, due to the fact they can’t see past their own bum holes. That and a lot of resentment towards the consumer, for what is in large part a deep, gouging self inflicting wound which the incumbents poor salt over every opportunity they get.

    Granted this isn’t just about the music industry, but what happened in the music industry can serve as an example when creators go on the extreme with protectionist measures on society and go on crusades with “creator rights” as Degen. I admire and understand Degen’s approach, and it’s just a matter of time before the market reacts to this type of crusade, which will be amplified even more so in a time of economic uncertainty.

    The birth of new media is here which includes all aspects of creativity. Creators have in large part lost the battle over copyright. The next major issue to shove human and democratic rights aside, lies in Net Neutrality:

    The creative industries have an image problem. Degen if often bewildered on why the large portion of society is now anti-corporation. I think they have good reason mistrust the corporate world especially after the 2008 market collapse, and bail outs that followed. That and the attacks on democratic rights, in my view is the center of mistrust with society around corporate entities. It’s well founded, and something the corporate world seems to not want to address, in fact in many respects putting validation to those concerns.

    It’s going to be a long time before we have any economic stability due to the ignorance of those in the private sector. The trust with society has to be earned back, not expected post 2008.

  86. @Degen, “I encourage you as a consumer to demand the freedoms you want from the device-makers.”

    Isn’t that what recently happened in the USA with the new exclusion to ‘jail-break’ iphone/pods?

  87. Crockett,

    If you mean “is that an example of consumer demand for gadget flexibility?”, then my answer is yes. If you are also asking the related question “isn’t that new exclusion a great solution?”, I would answer no.

    It’s a solution, but it is in the wrong place. Let’s keep our consumer demands for gadget flexibility out of our copyright law. That stuff is about implicit purchase agreements and responsible vending, not copyright.

    To answer Darryl – who still seems to be supporting my claim that DRM does not trump fair dealing (which kind of is a central claim over here… just saying) – where DRM interacts with content, it deserves to be protected in copyright law. That’s the right place for it. Where it interacts with devices, that belongs somewheres else.

    In my humble opinion.

    Furthermore, I would even go so far as to say that intentional muddying of the waters about what belongs in copyright – where a consumer demand for responsible vending is labeled a copyright “user right” — is irresponsible advocacy.

  88. Oh, good we agree.
    @Degen “Let’s keep our consumer demands for gadget flexibility out of our copyright law”

    OK, I am pleased to hear you say that.

    When C-32 includes the criminalization of bypassing digital locks [for even non infringing purposes] and the use of tools to do so, then it IS affecting “gadget flexibility” via the purchase agreements and [ir]responsible vending of the media distributors.

    No DVD playback on Linux. No DVD format shifting to mobile devices. No Backups of DRM media. etc. etc.

    It seems we agree then? The digital locks provision has no place in copyright law and should go.

  89. Darryl Moore says:

    Escher drawings
    “where DRM interacts with content, it deserves to be protected in copyright law. That’s the right place for it. Where it interacts with devices, that belongs somewheres else. ”

    Oh John, if that statement were a picture it would be an Escher drawing for sure. The fact is that it is not possible to have DRM that only interacts with content without also interacting with devices. The two have to work together. Again, you demonstrate your ignorance of technology.

    So what is your answer when the DRM interacts with BOTH, as it necessarily does. Does it, or does it not belong in copyright law?

    FYI, you misinterpret my statements as notes of support, once again only hearing what you want to hear. I can go into some detail explaining how you are wrong about fair dealing not being affected by DRM, but not yet. I would so much rather hear your answer to the question above first.

  90. … and so I repeat, DRM does not trump fair dealing; and where DRM interacts with content, it deserves to be protected in copyright law.

    Concluding that lock protection has no place in C-32 based on what I’ve written is ideologically sound (for you), but illogical.

    Voici the problem of the advocacy over here and, I suggest, the reason reasonable creators and politicians lose patience.

  91. @Degen
    “Show me the incumbent content producer who is not attempting to adapt from obsolete distribution models.”

    Walk into HMV!

  92. It’s all about control and the industries loss of it. Will they adapt? … it depends.
    John, if you think advocacy for laws that reflect what the ELECTORATE desires as opposed to what industry demands should make legislators loose patience, then your view of democracy is as narrow as that to copyright.

    It’s rather simple to understand the advocacy over here in regards to digital locks.

    1) C-32 prevents the bypassing of digital locks for ANY reason, even legitimate ones stated in the same bill.
    2) It is not in the interest or intention of media distributors to release anything without a digital lock if they can help it.
    3) This leaves industry with all the control and the consumer with none.

    While the above is great for the distributor it is unacceptable [and now possible to ignore] for pretty much every consumer. There is currently zero goodwill from the consumers to the distributors and this is THE problem you need to face. The consumer is your CUSTOMER, which seems to have been be forgotten. You cater to their needs, they do not cater to your desire for ever greater control and profits. You can desire and call for all the legislation you want but the page has turned on consumer expectations. The copyright infringement you abhor is not the reason for DRM, it’s the symptom of the same.

    In no other industry outside IP do I see them so blatantly trying to legislate their unacceptable business practices. Does GM call for laws that everyone has to drive Hummers because they don’t want to re-tool for the lower profit margin gas-miser vehicles the public demands?

    Tell me John, please, that you are content to take you vehicle to the $150/hour shop-time dealer for repairs because your local mechanic is locked out of the software diagnostic codes by DRM? 99 out of a hundred people surveyed will so NO to that. Laws are now on the books to change that, and if you can honestly say yes to that then I will be happy to let you live in your copyright bubble world.

  93. Darryl Moore says:

    But John, why didn’t you repeat your second statement too?

    “Where it interacts with devices, that belongs somewheres else. ”

    Your two statements are mutually exclusive. Since you only repeated the first, I guess that means that your first statement trumps your second.

    AKA DRM trumps user rights.

  94. Darryl and Crockett and JK,

    I’ve tried to explain. If you don’t understand, or don’t want to understand, what I’ve said about keeping consumer device demands out of copyright law, or about user and creator being the same person, then I leave that to you to work out.
    My patience for the same old same old “the consumer is your customer” argument is now non-existent.

    I am the consumer. And I don’t want copyright law confused and crowded with demands that don’t belong there. The consumer revolt eveyou keep warning me about looks an awful lot like four or five guys on a blog saying the same tired things over and over again. Meanwhile, real folks buy DRM controlled content all day everyday.

  95. Darryl Moore says:

    But if consumers’ device demands don’t belong in copyright law. (Which I agree with) then why do think copyright holders’ device demands do belong in copyright law?

    It is this fundamental inequity of including one groups demands for laws governing devices into copyright law, but not including the other groups, that is the problem. What I think the all of us are saying is that no laws governing devices should be in copyright law. If some are there for the benefit of one side, then there also has to be some protection for the other side as well. You are saying no, put device regulating laws in copyright for creators, but nothing to protect consumers. Talk about bias!

    The fact that there are some requirements via WIPO that require some device laws, means that we should be doing the minimal necessary to be compliant. (Since it is not likely we will ever grow the balls we need to acknowledge it is a bad treaty and not ratify it.)

  96. The digital lock references in C-32 are for where locks interact with content. Content is different from the device (or even media) on which it appears. If you break a lock to interact with the content, you will run afoul of the new law as it applies to that content — and should, since breaking locks to get at content protected by them is what pirates do.

    This law, the Copyright Act, is about content — works — not gadgets that access works. So, no, Darryl, I’m not advocating that anyone’s device demands belong in the law. I’m saying the opposite. Content demands, yes. Device demands, no.

    Since no-one has so far shown me how fair dealing will actually be trumped in practice (and remember fair dealing is about copying, not tools to facilitate copying – again, the content not the device) can we please move on, pass laws to protect content appropriately and turn our consumer attention to the device manufacturers in some other section of the law?

  97. Darryl Moore says:

    John, again you are demonstration that you do not in fact understand the technology. IT IS NOT POSSIBLE to have locks that interact with content without also interacting with devices. Because of this, the locks you advocate for directly infringe the rights of the people who own the devices.

    The law, the Copyright Act, SHOULD be about content — works — but with the inclusion of DRM (of any kind) it is also about gadgets that access works.

    Ideally there would be no DRM in copyright law what-so-ever, and therefore no effect on gadgets. The fact that it is there, means that to be fair it has to protect the rights of people who own gadgets as well as the rights of people who sell content for the gadgets. The only way to do this is to add “except for non-infringing purposes” to the law against breaking DRM.

    Do you get it yet?

  98. Darryl Moore says:

    You say you want protection for locks that interact with content, but are in fact advocating for protection for locks that interact with both content and devices. You are not acknowledging that the owners of those devices have some rights too, which are being negatively affected by this legislation. It is reasonable that if device owners rights are being negatively affected by this legislation, then this legislation should also include some provision to mitigate these effects. Without that sort of provision this becomes a grossly unfair Bill. Can you seriously not see that?

  99. @Degen
    “and should, since breaking locks to get at content protected by them is what pirates do.”

    This is absurd. Not only pirates do this. There are many fair dealing reasons to break a lock (backup, format shift to name 2 examples)

    Might as well just go out and say “murderers eat so they can live and commit murder. We should outlaw eating because that’s what murderers do.”

    See the absurdity in that?

  100. Degen, the customer discussion is THE core issue
    “Meanwhile, real folks buy DRM controlled content all day everyday.”

    Degen, a large percentage of ‘real folks’ also do NOT buy DRM controlled content. They go without or they take it. The whole stated reason for increased legislation is to ‘stamp out piracy’. This is obviously a huge concern for the content industry, if not then why all the whining?

    The sad thing is DRM or legislation will not be effective to deter this activity. Any DRM is inherently fallible and legislation unenforceable on a large scale. This is a war you cannot win with brute force and is a waste of your time and resources.

    There always has/is/will be people who will share media without paying for it. Accept that and move on. The area you need to focus on is the customers you are loosing by not offering a product or service with expected value.

    Any business needs to change to meet customer expectations. If you think the only people out there that are not happy with DRM are ‘four or five guys on a blog’ then you really need to get out more.

    I also challenge you to answer my question about car dealers locking out other repair shops via DRM for car repairs. I’d be interested to hear you take on this real world example.

  101. Wow, I gave you guys some brain pain there. I can just see y’all scratching your heads. “What is that evil consumer-hating Degen talking about now — content not gadgetry? Why, what a preposterous distinction!”

    And I love how quickly Darryl jumps to the standard “you don’t understand technology.” Ask Russell how that appraoch works on legislators. Very convincing.

    Of course, I am talking about differences in law. As I said before, it’s a bit abstract — but I have confidence you guys will get it eventually. All it takes is the will to understand.

    So, I do understand that DRM might well exist on certain gadgets you as a consumer want to use. And where it unhappily impedes your enjoyment of those gadgets, you should complain about it — by referncing another set of laws. Darryl, you keep saying it yourself. You want to own the gadget and therefore have total control over it. I wish you well in your quest.

    Me, I couldn’t care less about jailbreaking my iPhone. It does what it does. I knew what it was when I bought it. I try not to invest too much of my time or emotional energy in it. It’s a tool that I use, and my kids play games on it. So far, well worth the money I paid for it.

    On the other hand, wanting to have total control over the content you buy is an altogether different proposition. Your control over content is understandably and reasonably regulated by copyright law. You may have bought the gadget and some content at the exact same moment but – and here’s the abstraction – they are not the same thing.

    So, once again, and really this has to be the last time – where DRM interacts with content it should be protected under copyright law (the law that protects content and regulates its use). Where DRM interacts with the actual functioning of a gadget you bought, your concerns about that DRM should be addressed to a different section of the law. IMO

    Now, Crockett, your large percentage of folks needs some quanitfying, because I’m seeing increased sales of e-readers, ipads, iPhones and streaming music services. When minor and reasonable DRM limitations are offset by attractive features, I know what I choose.

    As for the car question, my take on that real world scenario is that I have never experienced such a thing, and I have my warrantied car serviced by a non-dealer all the time. I’ve never heard anyone, except four or five guys on a blog (hey, this blog in fact), complain about such a thing, and IF such a thing were to become commonplace I’m guessing the market would speak loud and clear to discourage it.

  102. @Crockett
    The car dealer thing? Didn’t Geist float that a while back? Either way the owner pays. If manufacturers can’t lock the diagnostic codes then they’ll charge more for the car to offset the likely loss of servicing business to local shops.

  103. Darryl Moore says:

    @Bob
    “Either way the owner pays.”

    Sure that’s right, but it is sort of like our closed oligarchy cellular phone system, vs the rest of the world’s open phone systems.

    One way we end up paying a whole lot more than the other.

  104. I have answered, btw. It is, as usual, being held by the administrator.

    I tell you, this computer gadget of mine is just not working the way I want it to. I blame Micheal Geist’s content.

  105. Competition is hardly ever a bad thing.
    “The car dealer thing? Didn’t Geist float that a while back? Either way the owner pays. If manufacturers can’t lock the diagnostic codes then they’ll charge more for the car to offset the likely loss of servicing business to local shops.”

    That may be so, but the effect is still to leave control in the hands of the distributor rather than the consumer. The customer has no choice and that is the root of the problem. Also increased competition from out of dealer servicing would bring down prices. If you prefer to be at the whim of your car dealer every time the engine pings then that is your decision, personally I would prefer to have a choice.

  106. antonia provost says:

    ms
    Wasn’t “fair dealing” first moooted in the days when a PhD thesis would exist in 5 typed copies, 4 of which would be promptly lost on the shelves and binned after 5 years? How does that compare with today’s practice of making every bit of “educational” work available on the internet – thus allowing for a series of “educational” publiaitons to jointly publish an unpublished work, or a work in copyright? All in pursuance of an academic career, i.e. for money, the infringer’s rise in status and income !!!
    Where does that leave the creator? Starving in the street!
    I wouldn’t allow anyone any quote or excerpt, however short, these days, if I were an artist.
    It is a conundrum

  107. phones and cars
    My point, and my only point, is that one or another, you will pay. Unlocked phones cost more than locked. If all phones are required to be unlocked, the price will end up somewhere in the middle. Same with cars. If the manufacturer has invested in the diagnostic codes, they will get that money back somehow. I’m not saying there shouldn’t be a consumer choice.

  108. Darryl Moore says:

    more phones and cars
    And my only point, is that if you give car manufacturers a monopoly (or an oligopoly) you will pay much more than you would in a true free market system, exactly like what we have with the phone system.

    It’s not a matter of them getting “money back somehow” it’s a matter of them being given a license to fleece consumers. Don’t look at the cost of unlocked phones vs locked phones in this country. Look at the cost of phone service in this country compared to others.

    And you are saying there shouldn’t be any consumer choice. At least unless the consumer is willing to make a whole new investment into another car with another manufacturer who will lock them in nearly as much. That’s not much of a choice. Just like having to choose between being robbed by Bell, Telus, or Rogers, hardly qualifies as a choice either.

  109. @Bob
    …”If manufacturers can’t lock the diagnostic codes then they’ll charge more for the car to offset the likely loss of servicing business to local shops.”

    That might be an interesting point, if it were true. It isn’t. The service departments in dealer owned shops are required to run at a profit and don’t receive any budget income based on locked down (DRM/TPM) diagnostic systems.

    Likewise, fleet purchases (minus warranty), don’t result in much of a break on the price of a new vehicle. Individuals can’t even obtain such a deal from the dealership.

    Talk to the account or bookkeeper for a dealership sometime. Business practices in various industries can be interesting.

    Your theory sounds fine, but it isn’t practiced. DRM/TPM in the automotive industry is used much like the DMCA is often used in the US, simply as an anti-competitive tool. There is no end “benefit” to the customer.

  110. Clarity on Canadian libel / Defamation Laws
    This is sort of a tangent to the discussion of satire in this post. I’m wondering if anyone has any advice as far as what is / isn’t acceptable as far as acceptable. I’ve been told that ‘parody’ is acceptable, however that ‘satire’ is not as it is essentially making comment on something different than the medium itself (i.e. Using a fake news article to parody a politician, rather than merely parodying a news article itself).
    So am I to believe that via this criterion, something like This Hour Has 22 Minutes would be illegal? I consulted a lawyer on this matter and basically gave me a serious of jargon-filled circular answers in exchange for my money.
    Anyhow, I’d really appreciate any insight anyone has on this issue.

  111. Darryl Moore says:

    “So, I do understand that DRM might well exist on certain gadgets you as a consumer want to use. And where it unhappily impedes your enjoyment of those gadgets, you should complain about it — by referncing another set of laws”

    John, that statement is totally nonsensical. The problem isn’t so much with the DRM on the gadget (Though there are some issues). I’d happy hack my way around that when it gets in the way. The problem is with the law you want in copyright that prevents be from doing that. So what? You want another law which somehow undoes the damage your copyright law does?

    You don’t understand the technology, and it does matter! It is not possible to have DRM which protects content without also infringing other important rights.

    But you want a law that protects this DRM without that law giving any consideration to the unintended consequences of the imperfect DRM it protects.

    Not only that, but now you somehow think that simply creating some more laws somewhere else can somehow deal with these consequences. How?

    What other law will give me back my right to use open source software to watch DVDs? What other law will give me back my right to jailbreak my cell phone? I wont even go into format and time shifting which I consider equally my right.

    Honestly John. You know what you want, but there is no way to get there and in your blind drive to that destination you are totally ignoring the hazards on the road.

    OMG another car analogy 😐

  112. Darryl,

    What can I say? I disagree. I think you completely miss my point about content v. gadgets, much in the same way you consistently miss my point about text v. book. And since these twwo points are fundamental to an understanding of copyright, I don’t have much faith in our continued discussion.

    I use technology all the time and understand it very well as both creator and consumer.

    I think the problem here, right now, is your lack of understanding about the subtlety of the law. You want to use open source software on a DVD that has been locked against such a use. I’ll bet there’s a way for you to have that right under the law, as long as once you do cracck the DVD, you don’t touch the content on it.

    On the other hand, if you then use that right to access content on that DVD that has been intentionally locked away from you, well, you’ve infringed copyright.

    You want the law to respect your right as a consumer but not my right as a creator? Well, that’s just unfair.

    I think the real problem is not that you want to be able to use a DVD with open source software, but that you want to be able to watch content on that DVD with open source software. That’s a bit of a conundrum, and unfortunately content owners might just not want that to happen because the same hack that gets you the technological access you want exposes the content to piracy.

    And I believe it is the right of the content owner to react in fear like that. Ultimately the smartest thing? Probably not. But certainly a right that should be respected.

    Since everyone here clearly understands the technology better than I do, how ’bout y’all figure out a way to convince content owners that your breaking of DRM to format shift will NOT result in piracy. That would pretty much solve everything, wouldn’t it?

    I mean, can’t we all just get along?

  113. Darryl Moore says:

    “I don’t have much faith in our continued discussion. ”

    Sigh. For once I agree with you.

    “On the other hand, if you then use that right to access content on that DVD that has been intentionally locked away from you, well, you’ve infringed copyright.”

    And so I do. And so I should be able to. Copyright, has no business enforcing such restrictions. What you are doing is using copyright to enforce non-negotiated contract. This isn’t about copyright. This is about control.

    Since you mention Russell. Someone whom I know you respect despite your significant differences. I’ll leave you with this parting thought.

    Russell now freely uses OSS to watch and format shift DVDs he has purchased. He stated (in you blog i believe) that he has given up on the law coming to its senses and will continue to do this even after it becomes explicitly illegal.

    Now if the law is going to drive someone who has dedicated much of his life to protecting creator rights, to active defiance, do you really think this is a law that will earn very much respect from anybody else?

    This law will do nothing to stop piracy, and without better exemptions for DRM protection, will create more disrespect for copyright over all. At the same time it will create distribution monopolies increasing the costs for consumers and creators alike. It totally boggles my mind how you can be in support of this.

    But I know. What can you say? You disagree. Unfortunately, if you get your way, we will both share in your peril.

  114. OK John, thanks for your thoughts. Here are my parting comments.
    Copyright infringement [aka piracy] will continue with or without DRM. It serves as no impediment to those who just want to take content without paying. All DRM is effective in doing is inconveniencing the honest consumer to the point that they diverge into the former group. So to say DRM is a tool against piracy is either illusory or self delusional.

    The real purpose of DRM (if we will all be honest for a moment) is control of how the content is used. If someone buys a DVD and wants to watch it on their iPod then that will be another 2.99 please. A smart move if profit is a business’ only concern but that is no way to stay in business.

    There is something equally important to profits and that is a well understood business 101 concept called goodwill and loyalty. Loose that and those lovely profits dry right up with it.

    This is exactly what is happening in the media industry today to the peril of the creators and the distributors. It used to be there were a few major TV stations, book publishers, forms of popular entertainment. Today there are 100’s of channels, blogs, video games, web browsing, you tube, social networking, and a new low cost distribution system to boot! If you are no longer the king of the hill, dictating your terms to your customers is a wonderful road to obscurity.

    Contrary to perceptions otherwise, I truly champion the creators and think they could do well operating in the digital era. It’s just going to take new ways of thinking both on the creative and consuming side.

    This cannot happen in the current bi-lateral environment of distrust and anger. It is up to the distributors to reach out and generate the goodwill they need to get themselves back on track. The waters are poisoned with avarice and it is going to take quite a bit of cleanup to make it right. Acting like BP is not going to win you any friends.

    Really it is very simple. Listen to what the consumer wants and give it to them. It may mean lower profits and loss of some control but so what? If you continue on the path you are on then you will sure to loose much more.

    I hope the movers and shakers out there in the business world, look past their shareholder reports, and come to their senses. Only then will we be able to fix this.

    I mean, can’t we all just get along?

  115. @Degen
    If corporations and politicians don’t listen to the majority of society, this fuels the culture of mistrust. It’s the responsibility of the private sector, and our political leaders to act upon what the public thinks especially now, to gain that trust back.

    We are not only in a transition to the digital world culturally, but also in a transition politically, and it’s also generational as well. The private sector must get behind public expectations, and work around those expectations rather than fighting them off with ideological nonsense. If not than our creative industries will continue to decline. If our politicians act on private sector protectionist behavior, they will be seen as corrupt and voted out, or the most likely environment is more majority governments.

    There’s a good explanation for this socially and there are well established and historical factors that play into the culture of mistrust currently gripping global society. We have a convergence of about 4 or 5 factors right now in Canada. Until we transition out of this (could be decades depending if our politicians keep acting like dumb cattle to this), good luck on getting any copyright policy through without it exactly matching the expectations of society.

    We each have our own opinions, explanations and ideology which can be argued for years. What matters is the public perception of the creative industries right now, and I can tell you with great certainty that perception is quite negative and deeply entrenched after a generation of constant attacks by this industry on society.

    While I respect your views John, those views are actually hurting your future, rather than protecting it. I as a creator understand your fight. I hope you understand that. You are a creator, well known for siding with those in industry who have vastly different views than the rest of society on what copyright should look like. You will have opposition on this blog and within the public realm because of that, no matter how valid or invalid that opposition might seem to you.

  116. @Degen
    I said:

    “or the most likely environment is more majority governments.”

    Sorry meant more minority governments.

  117. @Degen
    The fight isn’t with Geist or his supporters, or trying to discredit people on this blog, it’s with the public perception of your chosen industry, and over a decade of damage that has occurred to the perception now amplified 1000 times by economic concerns and mistrust in the private sector from the 2008 market crash globally. The public image of the creative industries needs to be repaired big time, and there is such reluctance to do this within this industry, this may continue for generations and is destroying a lot of potential income.

  118. I quote from the law itself, I have no fair use where digital locks are concerned
    29.24 (1) It is not an infringement of copyright in a work or other subject-matter for a person who owns — or has a licence to use — a copy of the work or subject-matter (in this section referred to as the “source copy”) to reproduce the source copy if

    (a) the person does so solely for backup purposes in case the source copy is lost, damaged or otherwise rendered unusable;

    (b) the source copy is not an infringing copy;

    (c) the person, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection meas- ure, as defined in that section, or cause one to be circumvented; and

    (d) the person does not give any of the reproductions away.

  119. It’s doubtful this law will pass
    I think it’s interesting that digital locks which to this point have proven ineffective at actually protecting works will most likely sink this bill and many of the reforms(like getting at pirate services such as illegal peer-to-peer file sharing sites) that may have helped will be delayed once more.

  120. Jeff,

    Technically what that section prohibits is a certain method of copying, not the act of copying itself. Fair dealing does not guarantee copying “by any method desired”; it simply allows copying.

    Therefore, you continue to enjoy fair dealing privileges under the proposed new law.

  121. Darryl Moore says:

    John, (sorry I actually though I was done with this thread but I could let this pass.)

    There is nothing in the law that discusses how a copy is made. It only talks about making copies, and protection measures to prevent you from making copies. If you find some way to make a permanent copy of a file which is digitally protected, it does not matter how you made that copy, you have circumvented the protection measure. By definition!

  122. @Degen, here is where your argument goes completely off the rails , the point of the use is to make a “copy for backup purposes”, if you can’t make a duplicate copy then in many instances it will not function properly or not at all and therefor is not a backup.

  123. Jeff,

    I see your point, but I still think it’s a matter of interpretation — and it is why I’m uncomfortable with the whole idea of a new “backup copy” addition to the law. Not too many products are required to guarantee a back-up right.

    If you drop your book in a lake and ruin it, you can’t walk into a bookstore and demand your back-up copy. The consumer has certain responsibilities toward safeguarding her purchase.

    On the other hand, if a product does not deliver on promised or assumed quality – if the book’s binding falls apart for instance — then I believe the publisher or vender has a responsibility to provide replacement. My Kobo e-reader recently froze on the loading page. Kobo replaced the whole unit without complaint, and because of their personal online library feature, I lost zero purchased content. The gadget and content features in that case are both decidedly consumer friendly despite Canada’s outdated copyright laws, and “draconian” new direction.

    Find a way to convince content owners that backing up perfect copies despite DRM will not result in unauthorized sharing and/or piracy, and we’re good to go. Until then, it’s silly to blame people for wanting to protect their property with appropriate laws.

  124. John, how is this a matter of interpretation? , the fair use stipulation here is quite clear and allows for a backup copy, should we now go back through the bill and pull parts you don’t like?. Also some forms of media are under more abuse than others , such as a game that needs to be pulled in and out of a game console, but as long as we’re both agreed that DRM will cancel out fair use.
    And if I wish to make a backup copy of my book there’s nothing from stopping me from doing so. Contract does not over rule copyright.
    And as far as format shifting using analogue outputs, let’s just make it as difficult for the consumer as possible.

  125. Jeff,

    Pulling parts we don’t like is the whole point of the amendment process. You, and others here, don’t like the digital lock provisions and want them pulled. Why is your desire for amendment pure while mine seems unreasonable.

    Back-up copy provisions are new. I think they need to be very carefully worded to avoid misinterpretation, and I welcome the use of the DRM out-clause here because it means if a content owner does not want you to make a back-up copy, then that will be plainly apparent during the sale. If you require all your content to be backed up, don’t buy the stuff you are asked to NOT back up. If enough people do that, the economic impact on the owner might very well spur a change of policy.

    Once again, fair dealing (“dealing” in Canada; “use” in the States) does not, as far as I can tell, guarantee a method or quality of copying. It just gives you leave for limited copying.

  126. In Canada it does not remove quality of copying. As DRM does.

  127. I knew we’d agree on something!
    @Degen “if a content owner does not want you to make a back-up copy, then that will be plainly apparent during the sale.”

    Great, that is something we can agree on. I too think what rights the consumer has when purchasing media should be labeled on the package or plainly made clear in an agreement, not buried somewhere in a 45 page small print* ‘click to continue’ pop up. I don’t think this would have a positive effect on sales though, be careful what you wish for.

    *As a note of interest, a study concluded that if workers and consumers stopped to fully read all the ‘agreements’ they are presented with daily then the loss of time and productivity would plunge us to economic ruin.

  128. “If enough people do that, the economic impact on the owner might very well spur a change of policy.”

    Enough people are already doing this, it’s called P2P. That doesn’t seem to have changed policy around DRM has it?

  129. To follow up on your question (although a little late, sorry)
    @Degen “As for the car question, my take on that real world scenario is that I have never experienced such a thing, and I have my warrantied car serviced by a non-dealer all the time. I’ve never heard anyone, except four or five guys on a blog (hey, this blog in fact), complain about such a thing”

    Most cars have a UART in them that allows you to read off diagnostic codes and information about what may be wrong with the vehicle so you can repair it. LATE MODEL cars have been getting increasingly complex and dependent on computers which has caused them, as with most things digital, to move towards a proprietary DRM for these tools, diagnostic codes and updated repair information. This has kept independent auto-shops out of the market for fixing your car and relegating you to depend on pricier dealers to get your automotive ailments cured. The proposed bill still has a provision to protect trade secrets but is a step forward to open up the codes and tools necessary to keep your car running.”

  130. The above reference is from the USA, but is still relevant to the conversation. There is a bill going through congress at this moment to prevent DRM from limiting your choice of repair facilities.

    “IF such a thing were to become commonplace I’m guessing the market would speak loud and clear to discourage it.”

    Well, golly gee .. seems it is.

    And the more people realize how DRM is confining their rights the louder it’s gonna’ get.

  131. P.S.
    By the way, I think the US congress counts for more than “four or five guys on a blog” 😉 That quote is getting a bit old.

  132. Crockett,

    I drive a 2009 Mazda and get it serviced at a generic shop. Never had a problem. Not once.

    Nevertheless, thank you for pointing out that gadget issues can be and are being dealt with outside of copyright. Of course, your car example is about access to proprietary information and not copying, but we can stick with it if you insist.

    Allow content owners to protect their work through the appropriate law (copyright), and allow consumers to protest proprietary gadget restrictions and pricing concerns elsewhere.

    Content ownership is a copyright issue. Gadget ownership is a physical property issue. Keep the two things as separate in possible, in law, and you protect everyone appropriately.

    Jason — are you saying P2P has had a detrimental economic impact on the content industries? You know that goes against the gospel over here, don’t you?

    My initial reference, of course, was to consumers making legal, non-infringing choices to not by DRMed content, not to choosing an illicit free alternative because no one can see you doing it.

  133. @Degen
    “My initial reference, of course, was to consumers making legal, non-infringing choices to not by DRMed content, not to choosing an illicit free alternative because no one can see you doing it.”

    Because they KNOW they can circumvent the DRM and format shift. You really think people would still be buying CDs if they couldn’t convert them to MP3 format?

  134. John, I’m on your side.
    @Degen “– are you saying P2P has had a detrimental economic impact on the content industries? You know that goes against the gospel over here, don’t you?”

    OK, to start. Because someone is pro fair-use does not equate to being a P2P file sharer. I purchase all my content, as do many others.

    And of course P2P has had a detrimental affect to the content industries, obviously. It’s the fix that we disagree on.

    First of all let’s dispense with the ‘a copy is a lost sale’ nonsense. File sharing, in some cases, even has a positive effect as it gives exposure (somewhat like radio) but I agree that overall there is a negative effect to profits. Also, P2P is not the ONLY cause of decreased profits to some major industries as there are other contributing factors (rise/fall of CD-ROM standard for example).

    My position though is increased DRM is detrimental to your profits and business model. You’ve said a few times that you worry if DRM is allowed to be bypassed that the copy will end up being shared. Well, here’s a news flash for you … It’s gonna’ happen anyways. Someone who wants to share a copy is going to break the DRM, it’s easy, fast and unenforceable.

    OK, I actually hear your argument that a distributor should have the choice to put DRM restriction on a product if they choose. And to that I can agree. I just don’t think it’s a good idea.

    I truly believe that the less DRM is used the more willing the consumer will be to purchase the product rather than ‘P2P’ it. Make a product easy to use and have increased value (shift, backup) and sales will increase.

    John, you may not realize it, but I am actually on your side. I’m trying to give you a consumer’s perspective on how to IMPROVE your business practices leading to better customer loyalty and sales. I think many others here would be of that mindset as well. People who blog here are passionate about this industry. If we wanted just wanted to pirate stuff why waste our time energy blogging here?

    This is what I would like to see happen:

    1) Greater freedom of use of use of media for consumers [generating goodwill]
    2) Decreased copyright infringement via P2P and other sources [from goodwill]
    3) Increased profits for creators

    The current global trend of increased DRM & punitive legislation [3 strikes] and the insane litigation tactics, that are still going on through ‘arms length’ legal firms is not, I think, the way to get there.

    I actually do think, as you say, if we just ‘all get along’ it would go better for everyone.

  135. Isn’t the freedom of choice wonderful?
    “I drive a 2009 Mazda and get it serviced at a generic shop. Never had a problem. Not once.”

    That’s great John, but this is a regional issue (state/province), and others may not be able to enjoy the freedom of choice you have. I won’t get into the DRM software/device argument with you on this. It’s simply the person on the street wants the freedom not to be locked into a vendor’s control, of which you seem to agree as you have taken advantage of that opportunity.

  136. DRM technology
    …”Content ownership is a copyright issue. Gadget ownership is a physical property issue. Keep the two things as separate in possible, in law, and you protect everyone appropriately.”

    From a technology perspective, there is no difference in applying DRM to content and DRM to “gadgets”.

    This is why you must be very careful in how you word or create those laws. The laws must explicitly define the context in which any “protection” of DRM can be applied and which contexts it cannot be applied. Any “blanket” protection cannot be applied, even if there are exceptions to that blanket. Turn the wording around, and explicitly specify the circumstances under which “breaking” of DRM is not allowed and things become much clearer.

    This concept is why many do not like the way that C32 goes about “protecting” DRM. It is NOT tied to any particular action. Rather, it is a blanket protection that has “exceptions”. Exceptions that are incomplete and can never be complete.

    Think of it this way. Compare:

    A) Everything you do is automatically classified as illegal, and the only things you are allowed to do are the things specifically allowed under law.

    B) The law defines the things that are illegal, but everything else is allowed.

    Would like to live under a legal structure built under the philosophy of A or B? Extrapolate to the way C32 has been created and worded.

  137. @Degen
    “Jason — are you saying P2P has had a detrimental economic impact on the content industries? You know that goes against the gospel over here, don’t you?”

    I am in complete agreement with Crockett’s response to this, especially:

    This is what I would like to see happen:

    1) Greater freedom of use of use of media for consumers [generating goodwill]
    2) Decreased copyright infringement via P2P and other sources [from goodwill]
    3) Increased profits for creators

    I think once consumers have more freedom on media, they will be less likely to go towards the P2P channels to obtain it, especially if the studio’s and producers start by releasing their own content sites. I think trying to slam things down the throat of the consumer which the market has already rejected and seen as an anti-consumer approach (which includes the 3 strikes law), doesn’t help decrease the popularity of the P2P networks, which should be the ultimate goal here.

    The media industry need to be…wait for it…you’re going to hate this John…CONSUMER FRIENDLY! That my friend will be the ONLY way to secure your future I’m afraid. Otherwise this “war” with consumers will continue.

  138. Un-Trusted Computing says:

    @Jason K
    A lot of us would like to see the industry go in the direction that Crockett and yourself described.

    DRM is all in all a waste of time, and attacks paying consumer (hence the ongoing “war with your customers” discussion)

    C-32, and its predecessors have all had proposed steeper penalties for breaking DRM that those for downloading DRM-free, copyright infringing content.

    In the end I think most folks commenting on this blog are looking out for consumers; if we were looking to infringe freely we’d just shut up and get with it.

  139. I found this highly amusing
    “Industry executives are very enthusiastic about Google entering the market to compete with iTunes. Although the labels are “grateful” to Apple for what the company has done for digital music sales, Apple’s increased dominance also has music labels worried.”

    The Music industry is such a sweetheart, worried about a distributor that has too much control. Thanks for looking out for my rights RIAA!

  140. Un-Trusted Computing says:

    @Crockett
    The reality is that iTunes was probably the biggest financial drain on RIAA member labels and single handed-ly moved music away from the CD/physical media.

    I’m sure a lot of the anger towards infringing digital downloads is transferred anger from their losing battle with iTunes and other digital download services; who will eventually put them out of business faster than any p2p service ever could.

    I’m purely speculating here but with the recent demise of DRM in digital download services its only a step away from “watch a commercial get an mp3” type of promos, leading to an even bigger loss of control by these entities.

  141. misrepresentation of fact
    @degen:
    “You want the law to respect your right as a consumer but not my right as a creator? Well, that’s just unfair.”

    ————————-

    once again you step around the elephant in the room by painting the ‘creator’ as the party who distributes and therefore controls the lock on the door to ‘content’. the simple fact is the ‘creator’ has nothing to do with it.

    in all cases the publisher/distributor has complete control over manufacturing processes and the inclusion of locks, not the ‘creator’. the sole exception to this would be a ‘self publishing/distributing’ enterprise.

    in the specific example of a late model car repair related to computer codes have you inquired of your mechanic how they received the diagnostic codes for their vehicle shop? or perhaps it’s a case of ‘don’t ask, don’t tell’ to avoid any morally/liability compromising issues for you?

    ‘your honor, yes it’s my car, but i had no idea…..’
    ‘jugdement to mitsubishi for the amount of 250,000 for your benefiting from piracy’.