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Seven Copyright Questions for Canadian Heritage Minister James Moore

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Tuesday May 25, 2010
My op-ed in this week's Hill Times (HT version (sub req), homepage version) notes that with reports that a new copyright bill could be introduced this week, thousands of Canadians have been expressing concern with the government's plans, as there are mounting fears that the results from last summer's copyright consultation may be shelved in favour of a repeat of the much-criticized Bill C-61.  

The foundational principle behind C-61 was the primacy of digital locks. When a digital lock (often referred to as digital rights management or technological protection measure) is used - to control copying, access or stifle competition - the lock supersedes virtually all other rights.  The fight over the issue has pitted the tech-savvy Industry Minister Tony Clement, who has reportedly argued for a flexible implementation, against Canadian Heritage Minister James Moore, who has adopted what many view as an out-of-touch approach that would bring back the digital lock provisions virtually unchanged.

Moore has declined to comment on his position, but his approach raises some difficult questions:

1.  Moore has been an outspoken critic of the extension of the private copying levy to iPods, deriding it as the iTax.  He is content to leave the levy on blank CDs in place, yet the forthcoming bill is likely to block personal copying of consumer purchased CDs that contain copy-controls onto blank CDs.  Why does Moore believe it is acceptable for Canadians to pay twice - once for the CD and a second time for the levy on a blank CD - and still face the prospect of violating the law?

2.  Thousands of Canadians buy DVDs from outside the country as they seek content not typically available at home.  Yet DVDs purchased in Europe, Asia, or South America do not work on Canadian DVD players.  The forthcoming bill is likely to block attempts to circumvent the region coding on DVDs and thereby stop Canadians from legally viewing DVDs they have purchased. Is this consistent with Moore's pro-consumer position in other areas?

3.  Documentary film makers and visual artists often use small clips from DVDs in their art.  The use of those works without permission is currently permitted through the criticism and review sections of the fair dealing provision in the Copyright Act.  The forthcoming bill is likely to block unlocking a DVD to use such clips, however, since the presence of a digital lock will trump fair dealing.  In fact, even the much-discussed potential introduction of new artists' exceptions for parody and satire would be limited by locks. What is Moore's plan to allow Canadian creators to complete their art?

4.  The Canadian media regularly rely on the news reporting section of the fair dealing provision to use portions of audio or video without permission. The forthcoming bill is likely to render such activities violations of the law anytime a digital lock guards the audio or video.  Does Moore believe this strikes a fair balance between copyright and freedom of the press?

5.  With the emergence of the Amazon Kindle and Apple iPad, Canadian teachers and students are facing increasing pressure to switch to electronic books.  E-books offer great potential, but also frequently come with restrictive digital locks that have been used to remotely delete content from users' devices in their own homes.  Given the importance of the research and private study sections in the fair dealing provision, is Moore satisfied with an approach that would hamper the use of those sections for a critical part of the education process?

6.  The new copyright bill is likely to reintroduce new exceptions that legalize recording television shows (time shifting) or moving purchased content from one format to another (format shifting).  While consumers will undoubtedly welcome these long overdue reforms, they will likely be contingent on the absence of any digital locks.  Does Moore fear the new rights will be regularly blocked by anti-copying technologies?

7.  Is Moore aware that the solution to all of these concerns is a single provision that would allow Canada to implement the World Intellectual Property Organization's Internet treaties, provide legal protection for digital locks, and preserve the copyright balance by simply confirming that circumvention of a digital lock is not prohibited when undertaken for lawful purposes?
Comments (56)add comment

Anarchist Philanthrapist said:

Question Violation of the Charter
Is heritage minister Moore aware that the Bill C-61 / ACTA / DMCA that he is introducing going to violate not only the new privacy act but also the Canadian Charter of Rights and Freedoms? Is he aware the charter will be violated in at least 4 places that even someone without a legal education can see?
May 25, 2010

B MacEachern said:

Gov't always knows what's best for us
Can someone explain to me why we are so beholden to the US Big Content lobbyists that we need to bend over backwards to accomodate them? Are they holding Moore's dog in a bag or something? Do we have something to lose by telling them to take a hike?
May 25, 2010

VancouverDave said:

RE: Gov't always knows what's best for us
We don't have anything to lose, but every political party in Canada (and, I suspect in most of the Western world) stands to lose a series of VERY large "donations".
May 25, 2010

anon said:

...
Ditto all of it. Tourists bring DVDs back from Europe or other parts of the world, only to discover their purchases don't work because of the region coding. Does Mr Moore want to make law breakers out of Canadian tourists? If this bill actually reads as has been reported , than their are already some serious problems with it.

What was the purpose of the consultation again?
May 25, 2010

Anonyme said:

@anon
It was only a PR Stunt
May 25, 2010

Junji Hiroma said:

Canada is already the New Mexio & China
It'll be a matter of Time before Canada becomes like mexico has. The North American Union is alive and American law will trump our laws once it is complete.Harper is just following orders to Make the NAU a reality faster with these draconian laws.
May 25, 2010

Jason K said:

Increase Cost to SME's
While digital locks will be largely unenforceable with respect to consumers, the real issue here would be how Small to Medium sized businesses will have to deal with this. The cost of adapting new software and hardware to an existing system will be tremendous.

DRM would give the developer complete control over how any software is used. Businesses could wake up one day to find the developer patched the software and disables computer fax machines for instance, holding the business hostage until they pay more for that capability who have already paid for this service during the purchase of the software. That will be possible under the new law.

Or better yet, and more realistically, once the software is purchased, another more expensive license will have to be purchased to adapt the software/hardware to existing systems. This will have a negative effect on our overall economy since most of our economy here in Canada is built on SME's.

If we are to go down this route, than we will need law makers to come up with a label scheme to throw on DRM stickers on each product that has DRM/TMP installed. Let the consumer have the choice whether to purchase the product or not.

May 25, 2010

Mark said:

...
It's fairly obvious that with the introduction of a tougher copyright bill that does not permit the bypassing of copy protection without an exemption for personal use that this aspect of the law will not be enforced in cases where the person is not drawing any attention to him or herself while doing it. Of course, if they decide to actively look for evidence of infraction, they might very well find it (possibly even without violating the person's privacy in the process)... but it would be utterly time and cost prohibitive to do so for every resident, so they would probably only do this when they sufficient cause.

So in other words, it's a law that they can use to hammer somebody down with when a person does something else that they don't happen to like, whether or not the latter actually happens to be illegal.

There's also something fundamentally (ethically) wrong about any law that it's perfectly okay to break as long as you don't get caught.
May 25, 2010

Jason K said:

@Mark
"There's also something fundamentally (ethically) wrong about any law that it's perfectly okay to break as long as you don't get caught."

That's the real danger with respect to the entire bill. This is why we need to enforce new business models around the "reality" of the situation. When law starts to become irrelevant, than it's quite obvious the problems industry faces are not actively being tackled (nor will be), which is a dis-service to Moore, and Clement's positions, Canadian Creators, and our economic stability.

If creators and government continue to listen to groups like the CRIA, ESA, etc, than the chances of receiving any real raise in pay cheques is virtually nil at best. In fact many of these industries are losing money due to the vast expense that comes with IP protection, rather than investing in much needed innovation and new business models.

http://www.themusicvoid.com/2010/04/exclusive-the-big-debate-jeremy-silver-on-that-piracy-thing/
May 25, 2010

end user said:

So are we ready
for the influx of lawsuit/extorsion letters from record/media companies against Canadian like they are doing in the US. We know you are infringing, pay up $3000 or we take you to court.
May 25, 2010

IamME said:

Out-of-Region DVDs
In theory, out-of-region DVDs would be confiscated as "illegal contraband" if you get caught trying to import them in to the country. The larger question for me is, under ACTA will over-seas companies who make region 0 (Play anywhere) disks be forced to use region coding and/or will such disks also become illegal?
May 25, 2010

Captain Hook said:

@IamME
Just how do you figure that?
May 25, 2010

Hindgrinder said:

Charlie Angus for Prime Minister!
""You can't put locks on your citizens!""

http://www.youtube.com/watch?v=ufV6LYXy7iI&feature=related

HG
www.pirateparty.ca - The Minister For 8-Tracks Was "Made In Canada".
May 25, 2010

Concerned said:

You forgot a big one....
Let's also not forget that the 'digital locks' themselves are also potentially damaging. Remember the Sony 'root kit' debacle where they installed software on people's computers that effectively opened up a security vulnerability? Is this the type of lock that we are to allow? And what about requiring locks to work cross platform as opposed to being based on a proprietary scheme which simply props up a monopoly in some other area by requiring their technology to open the lock?
May 25, 2010

Junji Hiroma said:

...
@IamMe Um... Blu-ray has Region 1 (US,Canada And Japan),your PS3 and the region one movie would be Legal.Imported PS2 games are not illegal the last time I checked,If I want a movie in a region JAP locked PS2,I should be able to get that DVD,not getting it confiscated by customs.I wonder if James Moore was think that he had China in mind when he made this Bill....
May 25, 2010

rip it, rip it good said:

...
as a protest, stop buying cds, dvds, software, cancel cable, don't by msm media, boycott all Hollywood movies. solidarity brought down ussr. (people stopped going to work). actively talk- blog against the conservative party of Canada. this is an Illuminati job. it's about freedom of speech.today your files, tomorrow your opinions- read Henry Makow
May 25, 2010

IamME said:

@Captain Hook
"Just how do you figure that? "

I'm just putting it out there. They're trying to make region free players illegal (Luckily I have 2 now and I really should buy another, just in case), why whould it be out of the realm of posibility that they try to make region free disks also illegal? I have lots of movies that say "This disk is not region coded". I could buy a region free disk from Hong Kong and still play it here on a normal player...I still imported it though. By banning the players, they're trying to ban the imports.

Again, they're trying to control the market by limiting the technology, which is short sighted and will ultimately fail.

My question about whether or not ACTA would force makers to use region coding over region free, would obviously only apply to makers in countries who are participating in ACTA. Under this legislation, our customs people would confiscate anything that was discovered to be out-of-region anyway. Perhaps this was a little vague.

If it's something like a region 2 "Ironman 2", and it hasn't been released yet, then of course I can see them confiscating it, because it's obviously a pirate. If it's a valid, non-pirated, commercial release of "Dellamorte Dellamore: Red Edition" from Germany, I don't think they should have any right to touch it, just because it's R2.
May 25, 2010

IamME said:

@Junji Hiroma
Yes, BluRay region A1 includes Japan. In stadard-def DVD, Japan is R2 and Canada is R1. You might encounter problems if you want to import something from say Europe or China.

Out of curiousity, does a region-free BluRay player exist yet?
May 25, 2010

Junji Hiroma said:

...
Not yet,but someone will make one.
"If You Build It,They Will Come." - Field Of Dreams
May 25, 2010

bilbous said:

sneaking suspicion
I suspect what this really means is that we can expect an election sometime in the near future so that these measures can die yet again on the order paper and the government can still claim to the IP cartel that they tried to enact them.
May 25, 2010

Laurel L. Russwurm said:

Fight for your online rights
@IamME "My question about whether or not ACTA would force makers to use region coding over region free, would obviously only apply to makers in countries who are participating in ACTA."

>>I suspect not. The point of ACTA is to weld the signatories into a powerful entity who will create an unassailable instrument that can be used to bully the non-signatories (aka the entire rest of the world) into to following suit. Or else.

Canadian Copyright Law:
should give more weight to Canadian voices than foreign lobby groups when it comes to writing Canadian Law. At least as long as we are a sovereign nation. Canadians must make this clear to the government. They are, after all, our employees.

We can do that by writing letters etc: http://whoacanada.wordpress.co...nkin-dmca/
We can make our voice louder by telling others. Many people don't know about this. Explain it to them if they don't get it. Get THEM to write letters.

We need to make noise. Be unseemly.

Because once it is illegal to break digital locks its a tiny hop to allowing or forcing ISPs to spy on our internet traffic, or worse, to tiptoe through our computers without a warrant. After all, once you start from the assumption that people are guilty until proven innocent, and allegations are deemed to be equal to proof we won't have any rights.

Oh wait, the CRTC gave Bell permission to use Deep Packet Inspection already...

Just because the Government doesn't seem to have listened... or some of them don't seem to have listened... does not mean we shouldn't be making strong submissions to the #digicon.
http://stopusagebasedbilling.wordpress.com/2010/05/21/digicon/

We are lucky enough to have a minority government. After all, that'e why we don't have a Canadian DMCA. Yet.

But we still need to speak up. Loud. Canadians can't afford to let the turkeys get us down.

One more thing: please don't fall into the trap of thinking that changing governments will guarantee us Good copyright law.... after all, their version of the Canadian DMCA may not be better; it could as easily be worse. After all, the original "Canadian DMCA" was the Liberal Bill C-60.


May 25, 2010

LT said:

...
And the biggest irony of all is that CBC DVDs are all region 0. Heritage minister, my ass.
May 25, 2010

pat donovan said:

Nuc at carbornium ieligitti est
pardon my french. Or latin.
whatever.

Nortel. Crushed. internet, filtered.
Bell. NOW charging by the byte, and NOT making gig/sec lines availble.
ACTRA: all your dvd players are now rented.

privacey, property and freedom of speech/info are all being offered up to corperate profit motives. prqay for a satalite system that by passes them all.

packrat
May 25, 2010

anon said:

Enough with the Peace
I'm sick of peaceful solutions; I say we hang him for treason.
May 25, 2010

oldguy said:

Enough with the Peace

Relax.. It's this kind of talk that shuts down any chance of a discourse.

There are many other means to show your outrage. Means that don't involve idle threats to another person.

May 25, 2010

oldguy said:

...

This isn't strictly a question, but I would highly recommend that Mr Moore run any proposed laws by a technical analyst skilled in the technology he is attempting to legislate around. He might start with any of the people in PWGSC/ITSSO. They might not be exactly the "right" people to discuss this with, but they will know where to find the right ones.
This kind of knowledge and skill goes way beyond being able to tweet or copy songs to an iPod.

May 25, 2010

Jason said:

Moore is just another idiotic right wing corporate asshole...
...who just got handed a portfolio position with no real experience in the area to deal with the job just like the rest of Harper's shufflable cabinet members. The best was Industry's Prentice moving to Environment, how's that for fox in the henhouse! What a joke Harper and his ilk are!
May 25, 2010

Ben said:

Region Codes
The solution to the region code issue is easy: buy players from the regions you wish to watch from or set the seperate DVD drives in your computers to different regions. If your computer doesn't have more than one DVD drive, buy some externals or a few cheap laptops and set their regions accordingly.

Region codes are a big issue for me as I watch DVDs from Japan (R2), Hong Kong (R3), and here (R1). I'd be much happier if Moore put region codes as an excemption to the DRM laws (especially considering we are a nation of immigrants and try so desperately hard to be all multicultural). Plus, if he put region codes as an excamption it'd be a lot cheaper for me than buying a bunch of new players just to stay legal. Anyone know how Americans get away with using multiregion DVD players? I know they do.

Of course, I'd be a whole lot happier if this whole DRM/lawsuits nonsense was dropped all together and the industry just got with the times. I might even actually vote for the Conservatives next time if the did that too.
May 25, 2010

exploderator said:

Region Codes.
Who's going to refund me the price of Slysoft's AnyDVD, which I LEGALLY bought to watch DVD's in my choice of LEGAL players (Media Player Classic), regardless of how broken said DVD's are when I LEGALLY buy them (DRM failures, region code mismatches).

As far as I can tell, should C61 have passed, it would have become a criminal offense to own this software, with jail and huge fines applicable, in spite of a complete lack of commercial intent on my behalf. I would serve less jail time and pay much smaller fines for repeatedly driving drunk.

So, if this next round of law makes to crush us in brutal disproportion to all sanity, do not try to politely sidestep it. Buying extra DVD players is a waste of precious energy that should be spent otherwise. The only sane response to such a violation of the social trust is to fight back en masse, and fight back hard, until we regain fair freedom and sound justice. Legal defense funds, public awareness campaigns, political campaigns, boycotts, and the like will be where we need to spend our efforts.
May 26, 2010

Ben said:

Region Coding
Wikipedia says "region code enforcement has been discussed as a possible violation of World Trade Organization free trade free trade agreements and competition law."

That said, I legally bought the foreign DVD and, if I am not mistaken, buying the DVD is the same as buying the right to watch the film on the disk. I paid the right people for the ability to watch the DVD. Now all I ask for is for the industry and government to kindly shut up and let me do it without fear of being arrested for exercising that right.

Out of curiosity, if I circumvent the region coding who has the authority to enforce that region lock? Is it the HK company that manufactured the disk or the government?
May 26, 2010

Ben said:

...
Here's the wiki article I referred to in my previous post. I forgot to put the link. There's lots of other good information there on region coding in the whole article too and it's well worth a read for anyone unfamiliar with region coding and the pointless headaches it causes people like me.

http://en.wikipedia.org/wiki/DVD_region_code#Criticism_and_legal_concerns



May 26, 2010

IamME said:

...
And this is the root of the problem. They're trying to argue that all these activities, which have been allowed to be promoted, advertised, specialized hardware/software created for and has become commonplace for a very large number of people are illegal. And perhaps they are right, but they missed the boat and it's way passed the point of effectively controlling it. There has to be a point when someone says enough is enough.

The Internet scares the entertainment dinosaurs. It opens up a whole world of entertainment options which were previously only spoken about in "geek" crowds and rumored about in Internet chat rooms. For instance, because of the Internet, movies like "Ringu" (The Ring), "Ju On" (The Grudge), "Kairo" (Pulse), "Uzumaki" (Spiral), "Otogiriso" (St. John's Wort) and "Honogurai mizu no soko kara" (Dark water) became so incredibly popular in the Western world that Hollywood went through a phase of remaking Asian movies. They remade 4 of these alone and even some of the sequels. Generally, IMHO, the remakes lack much of the atmosphere present in the original Asian presentation. France, Germany, Italy, England, Russia and so many more have successfully entered in to the world movie market and are giving Hollywood a run for their money. The Internet, with cheap advertising and far reaching, unrestricted fingers make this possible. A lot of the foreign movies are indie feeling (Which can turn some people off) and have people who can actually act. It makes a difference and I think Hollywood is feeling the pinch as people learn that Hollywood is not the only game in town anymore.

Of course, this is out of their realm of control, so they desperately strike out at what they think they can control; DRM to prevent copies and force people to buy multiple copies, Region code enforcement to try and limit imports until they can acquire distro rights and can take their piece of the pie, Internet monitoring, scare tactics, threats, unreasonable punishments, privacy invasion, etc, etc, etc. What is it? 5 years in jail they threaten...per offense no less? That's within the average range of a jail sentence (5-10 years) for manslaughter Canada. Yes, downloading a movie or a song is equivalent to killing someone.

The "Boomers" are all retiring, the vacation is over. What they fail to realize is by choosing to place limitations on the technology, they risk alienating a vast majority of their future consumer base who are much more fickle and MUCH less likely to develop a "brand loyalty". A consumer base, probably starting with those who are mid-late 30's now, which is increasingly tech hungry. You know...there was a spot for cell phone number on my son's kindergarten registration form...his cell phone number. He doesn't have one, but if it's there there must have been a need. Those who are teens now have their iPods and iPhones and XBox and all sorts of technology-based toys. They know nothing else and will never know a world which is not "connected". Piss the tech savvy, tech addicted consumer off and they'll turn to open alternatives or resort to piracy before being told they can't have their toys. The old business models are out-dated and no longer suitable for the situation.
May 26, 2010

Mark said:

...
"Is Moore aware that the solution to all of these concerns is a single provision that would allow Canada to implement the World Intellectual Property Organization's Internet treaties, provide legal protection for digital locks, and preserve the copyright balance by simply confirming that circumvention of a digital lock is not prohibited when undertaken for lawful purposes?"

I would personally amend that to read "... is not prohibited when otherwise undertaken for lawful purposes", because otherwise it would be moot when the act of circumvention itself is made illegal. It's exactly the sort of giving-with-one-hand-and-taking-it-back-with-the-other type of maneuver that I would not put past our government to try to pull.
May 26, 2010

Talbot said:

VLC
@ Ben ...

If watching on a computer, use VLC media player. It is free, open source and will play ANYTHING.
May 26, 2010

Alex Savulescu said:

...
"There's also something fundamentally (ethically) wrong about any law that it's perfectly okay to break as long as you don't get caught. "

By Jove, you got it! That's exactly what they did during Communism in Romania, as well as in the regimes that followed... This creates a dangerous separation between laws and the individuals they're supposed to protect.
May 26, 2010

rick said:

dam it
dam it I m going to break the law once this happens. gee I copy stuff from england that just doesn't get shown here. Dvd have a 5 year life before the layers inside them start to rust and then pin prick. An ISP number doesn't mean id someone .
May 26, 2010

Ben said:

...
@Talbot

VLC is an amazing little program and proof you don't need money as an incentive to make good software. I use it now to play my imported DVDs right now (though the region bypass thing doesn't work on all DVD drives). I am assuming it will be illegal to use VLC to bypass region coding under the upcoming copyright bill, so in my earlier post I was just listing what would be legal alternatives for watching foreign region encoded DVDs under the new bill.
May 26, 2010

IamME said:

@Rick
"Dvd have a 5 year life before the layers inside them start to rust and then pin prick."

This is not true of commercial DVDs, which are typically stamped using a method called glass mastering. The manufacturer life expectancy of a commercial DVD is expected to be between 30 and 100 years, depending on environment and how they're taken care of. The metal used is typically aluminum, but sometimes silver or gold, and it is encased in layers of plastic so it has little opportunity oxidize or otherwise degrade. Bending the disks, however, will greatly reduce their life expectency, especially on DVD+/-R. I have many commercial DVDs well over 10 years old and have never had a problem.

Consumer grade recordable DVDs generally use a chemical dye to write data and generally are good for 2 to 5 years even though many of the labels say 10 years or more. Some companies make "archive grade" DVD recordables which are considerably more expensive but some manufacturers claim will last anywhere from 300 to 1000 years.
May 26, 2010

IamME said:

...in addition...
I have CDs upwards of 20 years old that still work fine.
May 26, 2010

nan said:

...
so Alex thinks Canadian law is like communist Romania. I'll take his word for it. I've only read about Stalin Lenin and Marx in books; books surely slated for banning in Harper's Canada. keep em' stupid Harper. everyone should watch the polish film 'Katyn' from 2007, it's on iso hunt with subtitles. when the communists arrive - round up the officers and university professors first! everyone born in Canada should be ashamed of Ottawa- our federal government has been hijacked. We should focus on WHO is behind this garbage. As always, follow the money. who benefits?
May 26, 2010

Cdn bacon said:

US Copyright laws created an Apple monopoly
US Copyright laws created an Apple monopoly..

Apple controls 76% of the online music market.
Sad but true.. iTouch, iPad, iPhone and iPod.

Books are next.

Why has Harper allowed a US company to control our music industry? Will he do the same for tv and movies? What about Canadian books? These laws will only help bury Canadian culture. Nothing Canadian if Americains control our music, tv, movies and books.

Think Apple.. Music industry thought keys/locks were great _until_ they ended up with an Apple monopoly.

If only Canadians knew... we are handing America the keys to our culture. We will be locked to their culture not ours.





May 26, 2010

Cam said:

Censorship
I think Canadian laws pertaining to media and content are long over due. It seems that rather than work towards a advanced digital age the long standing establishment of the movie and record industries want to keep their drastically inflated income streams. But I do not think that prices will drop with so many people exchanging files with each other, I think rather that the canadian public needs to boycott buying media to send a message that "Hey, you guys are getting away with highway robbery. And this is why we where looking for cheaper sources." I think in keeping with the push back of industry Canada will have to legislate locking down all forms of media and having the ISPs police it with a 3 strikes rule which results in either jail time and black listing of internet usage. Eventually, we will get so many rules in place that we will have no citizens left to break them. Who will buy those CDs then?
May 27, 2010

Mac said:

The Fault with DRM E-Books
One thing that I haven't noticed mentioned is the fact that DRM-protected E-books cannot be read by many types of assistive computer software for the blind and those who have learning disabilities or any other reading impairment. Only unprotected electronic documents can be read by these programs. How is losing accessibility for these people fair?
May 27, 2010

Stephen Davis said:

Striking a baance
Entire response is posted here http://danlargo.com/2010/05/27...rotection/

My view on content distribution and fair use usually falls back on the rules of business…the tighter you hold on to something the less money you are likely to make from it.

So here is my basic issue…

The reliance on the fair use concept as an excuse for DRM circumvention is wrong, and it puts the emphasis on the wrong problem.

Fair use is legal, no argument. Currently, the only way to guarantee fair use of my legally purchased content is by using DRM circumvention technologies. However the same DRM circumvention technologies that enable fair use are being used to illegally copy and distribute content in violation of the content creators rights, both by “pirates” and the general public.

One impediment to a creative solution to this problem is that consumers have no idea what constitutes a fair price for content, mainly because the content owners set pricing for content at all levels to try to maximize revenue without ever really explaining the different access and use rights to the consumer.

Let’s look at an example…

A band offers a DRM-free version of a song for $2, which is free and clear of any restrictive technology, can be copied anywhere, to any device as long as it is for my own personal use.

The band offer the same song in a DRM-protected version for $1 and explains that use is restricted to a single protected playback device.

Question…

Does this give me the right to remove the DRM from the lower priced version and claim fair use, in violation of the license agreement? I would say no.

Does the band have the right to restrict access to it’s content? I would say yes.

Is it even possible to define a generic price point that implicitly allows me to apply DRM circumvention technologies in violation of a license agreement (or a law) in order to exercise my fair use rights? I would say no.

Is it possible to adequately explain the different licensing models to the consumer in a way that allows them to make an informed decision between different priced alternatives? I would suggest that it is almost impossible.

It seems to me that the content owner always has the ultimate control over their content, if they are too restrictive they risk losing revenue, if they are too open they risk losing revenue as well due to illegal copies that will surface on the Internet. Just because you paid for access to their content does not imply that you paid enough to enable unlimited access to the content in violation of the license agreement.

When I go see a movie in a theater I do not automatically get the right to download the same movie from the Internet and watch it on my computer. When I attend a concert I do not get the right to download all the songs from Limewire and load them on my iPod. I must specifically pay for different versions of the digital content and am bound by the restrictions placed on that version.

So here is my proposal…
- Define fair use, plainly and simply so everyone understands.
- Define illegal copying, plainly and simply so everyone understands.
- Establish fines for illegal copying, make them reasonable, understandable and enforceable.
- Define content licenses, in a broad sense, that allow the consumer to understand, before they purchase content, what they are allowed to do with it.
- Establish branding for content licensing (like the rating system) that informs the consumer of the type of digital license that is present.
- Stop trying to control technologies that enable the average citizen to protect their digital investments.
- Insist that content distributors develop DRM technologies that allow consumers to copy content within their home, for fair use and protection of investment.
- Make the illegal copying provisions of the legislation null and void if the content distributor does not follow the rules.

A provision in the law that allows DRM circumvention for fair use of content would be great but a better solution is to avoid the DRM arms race all together. It is getting harder and harder to circumvent the DRM that is being placed on content, eventually the normal citizen will not have access to the necessary technology to exercise their fair use rights. Without access to the technology the guarantee of fair use of content provided by this provision will be useless.

It is important that any legislation protect all of the parties involved, content owners and consumers. Putting either of these groups at a disadvantage to protect the other does not solve the problem:

DRM-free content guarantees lost revenue, illegal copying and lost of control for the content owner.


DRM-restrictive technology guarantees lost of fair use rights for the consumer.

Instead of simply pushing for one side of the equation let’s come up with something that is fair for everyone.
May 27, 2010

IamME said:

RE: Striking a balance
Well stated, but this would actually require public consultation, which has so far been ignored, and would take far longer than the RIAA and MPAA are willing to wait.

The main issue I have with current on-line content is the cost...they're still charging off-line prices...in some cases, more. Once-upon-a-time the recording industry argued agaisnt lowering prices on the justification that the packaging and shipping to distributors was a large portion of the cost. I don't really mind the cost of music, say on Napster (Though I still consider it a little over-priced), it's something I can enjoy over and over again...as long as I can get it DRM free. If I can't or find that I can't remove the DRM, I'll stop buying it, plain and simple. If I can't back it up for safety, if I can't use it on multiple devices, it's useless to me. Fair use for trumps all. This goes for any content I buy.

Where I do have a problem is with movies and TV content. I can go on iTunes and buy a new movie for between $19.99 and $24.99 (USD, I assume). That has none of the packaging or related shipping costs, yes there is a hardware cost for the servers and architecture, but that's peanuts compared to the cost manufacturing, packaging and shipping that much stock. I can go to Walmart or HMV and get it for about the same price, sometimes cheaper...AND it will have special features and often comes with a digital copy already. Where is the cost saving buying it on-line should allow me? How can they justify charging the same price? That leads me in to TV. A single TV show on iTunes runs about $3.50 (Again, probably USD), so consider that. For a 24 episode season of something like Heroes, that would cost me $84 for the entire season. The pre-order season 4 DVD pack on Amazon is on sale for $53.99 right now. Downloading is 36% more expensive than waiting for the DVDs. A single TV show is something most people would watch once and delete. For most people, it does not have the continued intrinsic enjoyment value a song or even a movie has; it should be no more than 99 cents.
May 27, 2010

oldguy said:

Re: Striking a balance
Stephen, I appreciate and agree with the the sentiment behind your comment and proposal(s). But there are also some real world issues that impact them, at least the way they are proposed. We have to factor in society values and behavior, which are in somewhat of a flux at the moment.

You point out that DRM is getting harder to bypass by the average person. But someone, somewhere, with the appropriate skill and frustration level will eventually do so, and share it. P2P and downloading is becoming easier, so the "average person" that is just as frustrated in transferring the content to another device, will take the easy path and just download it or obtain it some other way. P2P and other tech is also advancing to a degree that attempting to control such behaviour will just make it harder and harder to catch and enforce.

So the questions of what to do involves not only what is the "right" thing to do for all sides, it also involves what can be made workable within the larger aspects of our changing society and it's advancing technology. Ultimately, a technological measure like DRM or even attempting to restrict P2P will fail.

To find an answer, we have to go beyond "rights", beyond observing that society is changing, we have to dig into the reasons behind those changes. Question everything, from copyright terms, to pricing, to availability in various formats, to business models.

Like you, I am trying to find a middle ground. Your proposals are the right idea and direction. But we also have to find a way to make them workable.

May 28, 2010

MikeB said:

...
@Stephen

"Fair use is legal, no argument..." Here is the "wrong problem" stated in a nutshell: ban the tools because they CAN BE used to do something they may not have been intended to do. Axes can kill people if used in a malicious manner, which is not the intended use of an axe, but I still see them in hardware stores. DRM circumvention technologies do one thing, circumvent DRM. They do not automatically place the file on the internet for all to access or post it on a P2P site. That is the action of the DRM circumvention technology's user. As such, why should users who use the tool in a legal manner for personal use lose this accesibility? Target the users, not the tools.

"Does the band have the right to restrict access ..." I would say yes as well, up to the point that I exchanged money for that content and I've transferred that specific content to my property (ie computer). At that point, any legal usage of that content, including all the means necessary to access the content, should no longer be the right of the band. It should now be my right. BTW, can you give an example of a band or other content provider offering non-DRM content for more money than DRM content (by means of the same container and quality - not mp3 vs aac or new songs vs old songs)?

"Is it even possible to define a generic price point ..." Price is irrelevant if I've already agreed and paid said amount.

"Is it possible to adequately explain the different licensing models ..." Irrelevant as nobody is doing this. Again, I would invite you to provide an example of a content provider employing different price schedules based on severity of DRM.

"It seems to me that the content owner always has the ultimate control over their content ..." Problem is there is no acknowledgment that the first reason may be occuring. All revenue loss is blamed on the latter reason and thus attempts are made to ensure that restrictive DRM (including laws to protect DRM) is the only option available. If I paid for and transferred that content to my computer, then I've paid enough to access it and there should be no limitations to the amount of time that I access it.

"When I go see a movie in a theater ..." Both of your examples have absolutely nothing to do with DRM or DRM circumvention. Your sentence should have started with "When I purchase the DVD of a movie, I do (or should) have the right to...." Anything short of redistribution in that sentence should be a "yes".

"So here is my proposal..." I would change "illegal copying" to "illegal distribution" throughout. I don't see where making a copy should ever be illegal. The illegality comes in what you potentially do with that copy. Second last bullet: you honestly expect that content providers should develop DRM that any home user can easily circumvent? What would be the point of having DRM in the first place in this situation? I would replace most your points with one simple point - tie any illegality associated with DRM circumvention to illegal distribution. If you don't wish to put in the effort to actually target those who illegally distribute your content (and collect sufficient evidence to ensure that the distributed content is actually your content), don't push for encompassing laws that punish those who legally enforce their fair use. I do agree somewhat in your last bullet, in that there should be some sort of reverse restrictions or dissuation on content providers that unreasonably prevent the fair use of content.

"It is important that any legislation protect all of the parties involved ..." Can you show me the study which concludes with DRM-free content "guarantees" lost revenue? Is that why iTunes went completely DRM-free, because they decided they were making too much money? It couldn't be that the DRM-free content was actually selling better when there was a choice between DRM and non-DRM content, right? End of the day for me is I don't care if a content provider employs DRM. Just don't call me a "pirate" because I copy my DVDs to my laptop when travelling or tranfer my CDs to my son's mp3 player. And if I use a "tool" to aid in that copying, so be it. The moment I put something on a P2P site or upload it to an ftp site, you're more than welcome to break down my door and haul me away.
May 28, 2010

oldguy said:

...
... "change "illegal copying" to "illegal distribution" throughout"

Good idea. It aligns the wording to more closely match what I think is what is wanted.

... "The moment I put something on a P2P site or upload it to an ftp site, you're more than welcome to break down my door and haul me away."

Add the qualification "if you can catch me". This is the real world. The P2P applications are now starting to implement security and capabilities as used in the banking industry, internet commerce, spam management, corporate VPN, and other technologies. These aren't new or unique technologies, just their application to P2P. Technologies fundamental to the privacy and security of internet commerce.

There is no point in creating unpopular and unenforceable laws. It doesn't solve anything. It just creates an angry, and growing, segment of society. Anything proposed has to be acceptable and workable at a social level.

May 29, 2010

Guest said:

What constitutes a digital lock?
I have to agree with Jason K (up near the top). Imagine the vendor lock...

Dear Valued Customer,

The web service by which your data is accessed employs a security system most commonly referred to as a digital lock. Access to the service is restricted to authorized software and devices. Limiting access to authorized software and devices is essential in ensuring we can provide the highest quality of service possible to all of our customers.

As indicated by the EULA, you own your data and always have the option of manual data conversion if you require a different data format. If you would prefer to automate the process we would like to take this opportunity to suggest the following authorized data conversion application(s) which can convert your data to a neutral format:

1) Data Conversion Kit - $5000

Sincerely,
The people holding your data hostage.

I actually saw something somewhat similar happen once. The dominant software in a certain industry was getting displaced by a competitor and the author of the losing side wanted something like $3000 for the password to the embedded database. Since the software had a perpetual license the author wasn't technically depriving anyone of access to their data. It wasn't expensive software either. I doubt they paid much more than $3k originally.
May 31, 2010

John Kerr said:

Define a digital lock
Define a digital lock. Is it a string of software code on a dvd or CD that prevents copying or is it an electronic device that is on a circuit board?

The later is dangerous, as it could be used to block the use of Free and Open Source Software on a computer. It could also be used to prevent independent artists from creating and distributing their own work.
May 31, 2010

John Kerr said:

So here is my proposal..." I would change "illegal copying" to "illegal distribution" throughout.
Right on!!!!! Mikeb

"The moment I put something on a P2P site or upload it to an ftp site, you're more than welcome to break down my door and haul me away."

They can take me away too.
May 31, 2010

IamME said:

RE: John Kerr - Define a digital lock
"It could also be used to prevent independent artists from creating and distributing their own work."

I've been saying this for some time. I think independent artists scare the recording industry far more than piracy. The Internet is creating far less of a need for the large entertainment conglomerates...especially in music. As technology grows more and more, any remotely tech savvy musician can set up a small studio in their back yard and release their music over the Internet. This gives them the same, or even more opportunity for distribution than the large companies. They can sell for much less at much higher profit margins and ALL the profits go where they’re supposed to go…to the artist. I think over the next few years, more and more artists, especially those who are already well established, will go this route as contracts expire and constitute a much larger loss for the recording industry than piracy could ever hope to.
May 31, 2010

oldguy said:

...
.. "Define a digital lock. Is it a string of software code on a dvd or CD that prevents copying or is it an electronic device that is on a circuit board?"

It's actually 2 parts. One part is the hardware that "decrypts" the data with the "embedded code". You can't really have one without the other, even if the "hardware" is a full blown PC with special software, or simply a DVD player or e-book reader (Kindle).

The "lock" is actually in the hardware. The "key" is in the embedded code on the DVD media.

Hope this helps..

May 31, 2010

Richard Westgate said:

Boycott
You know, it would probably only take a few months of everyone - and I mean EVERYONE - boycotting every disc and DVD that incorporated digital locks, driving the companies out of business, to do away with the whole problem. I for one would be willing to commit to buying ONLY products that do not use locks, and to deliberately support those companies that allow fair use. I can't do it - don't understand how - but perhaps someone can start an online movement to promote a customer bill of rights and to support on the companies that have sane copyright policies?
May 31, 2010

Jinny said:

Toronto Marketing Company
Great thoughts and views from the viewers.
June 02, 2010

bubbles said:

Apple monopoly
@Cdn bacon - I couldn't agree more. Aside from the cost, the reasons that most people download media from torrents is because they CAN'T GET THEM in the form they'd otherwise like - I don't WANT a DVD, I don't WANT 12 songs, I want to be able to pick and choose the media I own and I want it to be affordable and convenient and environmentally friendly - and I want to be able to do it without being FORCED to use iTunes. Where is the competition? Why does iTunes own this market?
June 03, 2010

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