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Q. Do Digital Locks Trump Educational Fair Dealing? A. Yes

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Friday November 26, 2010
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Crockett said:

Yes men ...
... and backup, format shifting, parody, mashups?
November 26, 2010

Napalm said:

....
...Youtube also proposed this one:

http://www.youtube.com/watch?v=LjCNErd0gao

Bwahahahaah!

Of course under C-32 it would be illegal so James could send a take down notice.

Nap. :-)
November 26, 2010

crade said:

...
Q. Do Digital Locks Trump X? A. Yes
November 26, 2010

Chris A said:

...
So pretty much all the "Don't worry about it" and "It doesn't say that" from some people is wrong? Good to know that, you know, they were wrong. Now all that needs to happen is the provision gets changed (without a levy added).
November 26, 2010

IamME said:

...
The web of deceit begins to unravel.
November 26, 2010

yt said:

ok...
more forward thinking from pappa harper and the 'because we say so' theory of value
November 26, 2010

Mark said:

...
Digital locks trump absolutely everything in C32. Fair dealing, private copying, and everything in between.
November 26, 2010

Crockett said:

Writer's Coalition plea
http://4.bp.blogspot.com/_qmKH...112310.jpg

There is some obvious misinformation in this newspaper advertisement. First of all fair does not automatically mean "free", as we all have heard numerous times now fair must pass at least a six step test. No wholesale 'theft' here folks. I even agree with John Degen in his desire for legislative clarity, no need to drag anyone through expensive litigation, so let's codify those steps (determined by our sypreme court) into Bill C-32.

Secondly, $24000 a year average income for artists ... Disgracefull. Sounds like they need better contracts or representation instead of more laws that are ultimately futile and counterproductive. I would even be willing to pay a small amount more for my purchases if it legally entitled me to fair personal uses AND I knew the extra was going to the Artist and not some mangers vacation fund.

I am getting tired of the rhetoric that certain 'creator activists' paint others. Just because you stand for fairness for consumers does not mean you want to 'steal & appropriate' from creators. Quite often it's even the opposite. If people tried to work together more rather than self interest hyperbole in the paper we'd be much better off.

Artists need a better deal, as they are being very poorly served now. Time for someone who understands both sides of the issues to step up and bring about progressive improvements rather than the old bag of tricks.
November 26, 2010

Chris A said:

@Crockett
It would be nice to not be treated like I'm out to screw the creator over as much as possible, but for some that just really seems to be something they just can't do. I blame the false rhetoric and scare tactics from various different organizations in the media industry, so I can't completely blame them, but it would be nice to see some of them actually try to have a consumer friendly debate.

And yes I do know that there are many consumer friendly ones out there, but unfortunately they seem to be the minority rather than the majority.
November 26, 2010

oldguy said:

Re: Writer's Coalition plea
@Crockett
..."$24000 a year average income for artists ... Disgraceful"

Yes it is. It's also the average yearly income for someone in the retail trade. And much more than the typical income for a pensioner. I'm not saying the artist doesn't deserve more, I'm saying keep a proper perspective. If it's disgraceful for the artist, it should be equally disgraceful for many, many others.

..."If people tried to work together more rather than self interest hyperbole"

There's a lot of that going 'round. Combine with a mix of; refusal to face the reality that society has already changed, and a perception that there must be a "single answer" to the dilemma facing them.

There is no denying that technology has completely changed the social landscape surrounding copyright. No surprises here, at least to the many that have already had to reinvent themselves because of the advance of technology. Again, perspective. The artist/writer/creator isn't the first to be affected by our changing society, and they won't be the last.

Do we need to rethink and rebuild our copyright laws to reflect our modern society? Emphatically yes.
Can it just be the same as it has been, but applied to modern technology? Not a chance. Advancing technology has enabled a major shift, a change, in the way our society interacts with copyrighted works. It generally isn't deliberate behavior, often it's not even recognized as copyright related. It's simply the way society has changed.

..."Time for someone who understands both sides of the issues to step up and bring about progressive improvements"

Certainly. But you will need more than just the 2 sides, the consumer/society advocate and the copyright holder advocate. You will also need input from a sociologist and a technologist. Whatever is proposed not only has to be balanced between the needs of society and the copyright holder, it has to be workable within the framework of a changing society and advancing technology.
That's a major part of the problems we have addressing copyright issues today. Finding the right "balance" continually runs up against the "workable" component of society and technology. It really doesn't matter how balanced a solution is; if that solution doesn't properly reflect usage by society, or isn't technologically workable, it is irrelevant. And this aspect should be the most frightening to any copyright holder, copyright laws are becoming more and more irrelevant every day. Not because of advocates, not because of balance, because of "workability" within a technological society framework.

C-32 would be a good first step on the long road back to relevance, except for it's internal inconsistencies. It is explicitly permitting something that society has treated as a natural expected behavior for quite some time. Good step forward. Then in the same bill it is removing that permission through TPM overrides. 2 steps back, make that 3 steps back. The way the bill treats TPM turns nominally legal actions into illegal ones, simply for removing the applied TPM. It even creates the situation were a public domain work distributed with TPM can no longer be copied and used as a public domain work. The way C-32 treats TPM supersedes and circumvents copyright law. It makes copyright law irrelevant.

November 27, 2010

Mark said:

...
Because digital locks are put on a work solely at the purview of the copyright holder, and the consumer has absolutely no say in the matter, under C32 absolutely *ALL* of the so-called "privileges" that are supposedly offered for consumers actually end up amounting to things which happen solely at the discretion of the copyright holder. Format shift? Only with permission. Backup copies? Only with permission. Privately copy? Only with permission. Limited copies within fair dealing scope? Only with permission. Under C32, virtually EVERYTHING that a consumer does with a copyrighted work, including possibly even simply watching or using it, is done at the copyright holder's discretion.
November 27, 2010

Eric L. said:

,,,
"In the States, the MAFIAA head clasped his hands and said 'Good...good...' The corporate lobbyists celebrated with snorting sessions, but since they are a part of corporation they can do no wrong (at least with a decent bribe)".
November 27, 2010

oldguy said:

...
@Mark

Although the common interpretation of C-32 and digital locks assumes that it is the copyright holder that makes the decision, that isn't what C-32 says. It simply says that removal of that digital lock is illegal (with very narrow exceptions). This applies even in the case of a public domain work distributed with a digital lock, it effectively removes usage of that distributed work from the domain of copyright law. In this case, the decision isn't made by a copyright holder, it is made by the distributor.
The way C-32 protects digital locks goes beyond and outside of copyright law. There are no terms, no useful exceptions, and it doesn't matter what is being distributed. If a distributor applies a digital lock, with or without a copyright holder's blessing, it makes everything embodied in copyright law irrelevant.
November 27, 2010

Mark said:

...
@oldguy
In most cases, where a distributor and copyright holder are not the same, the distributor is generally presumed to be acting in the best interests of the copyright holder anyways. My primary point still stands, however, which is that under C32, since the copyright holders (or, I suppose to be more precise, the agencies that represent them) have full say on the presence or absence of a digital lock, the consumer is barred from legally engaging in almost every conceivable activity with the work without receiving authorization to do so from the copyright holder (or the agencies that represent him or her). The lack of any digital lock on a work under C32 simply amounts to an implicit permission being given by the copyright holder and the distributor. C32's protection of digital locks goes far beyond what is remotely enforceable and even further beyond what is actually even necessary to protect the copyright holder's interests, (at least to the extent that any law that still permits individual freedom and privacy actually can).
November 27, 2010

Napalm said:

...
@Mark: "the distributor is generally presumed to be acting in the best interests of the copyright holder"

Yeah sure, that's what they do....

How about "helping the starving artists" by adding a couple of things:

- artists/creators have the legal right to break a licensing contract at any time if they think the distributor is not acting in their best interest (e.g. when they indulge in "Holywood accounting" or any other scam)

- there should be a legal minimum royalty to be paid (like 10% of retail price of the copy)

And how about public domain. What happens when the copyright expires (i.e. 99 years)? do the record label have the legal obligation to pass the original materials to a public library? Or ensure that the materials were well preserved?

How about some provisions about this?

Nap.
November 27, 2010

oldguy said:

...
@Mark

In essence I agree with you. But you still miss my point.

Digital lock protection under C-32 stretches well beyond the bounds of copyright law, and in the case of digital distribution of public domain works (where there is no rightsholder) allows a distributor to "lock down" such works. This is entirely outside the bounds of copyright law, in such cases legal protection of digital locks does not belong in copyright law at all.

Legal protection of digital locks must be severely constrained within C-32, applying only to cases of copyright infringement. Without such constraints, digital locks can be used to completely bypass, or even replace, copyright law.

The alternative is to remove the digital lock provisions from C-32 entirely.

November 27, 2010

Napalm said:

...
@oldguy: "The alternative is to remove the digital lock provisions from C-32 entirely. "

Which is the only sensible thing to do. This was supposed to be a "copyright" law not a "lockright" one.

nap.
November 27, 2010

Mark said:

...
C-32 is a proposed amendment to copyright law. Technically *ANY* changes to copyright law that incorporate new concepts go beyond copyright law, so saying C-32 goes beyond copyright law is really sort of an irrelevant issue. My point has always been that the extreme digital locks protection should *NOT* be put into the copyright act, because they effectively remove *ALL* possible privileges that a consumer might have thought of exercising with a work, even ones as fundamental as simply viewing or using it, unless the copyright holder (or the distributer, as the case may be), has permitted it, either by explicit authorization or simply by their choosing to not employ any digital lock on the work.
November 28, 2010

Crockett said:

A suggestion I put to John Degen's blog
Behind door #4 ...

I still wonder why we need levies at all, why not just include the extra few percentage that a levy would generate in the initial purchase price instead, then allow fair user rights such as backup and shifting. Then there is no need for TPM, litigation costs PR or campaigns at all.

Personally, I would pay a little more up front if it would make all this headache go away and clarified my rights and privileges on media use. I could then spend the countless hours I have put into campaigning for better consumer AND CREATOR rights doing something else. Maybe take up painting or a poetry ;)

I would think the distributors might even be able to absorb this cost and not have to pass it onto the creator. I would think the return in greater sales/less infringement would offset the costs. The creator would get his correct share as it would be passed on directly from the initial sale. No need for collective overhead costs or complex share formulas.

Still make infringement for non fair uses illegal and liable. TPM is not a real world impediment to pirates anyways so relying on them for that purpose is ineffective & unreasonable.

What do you think Mr. Degen, is this a workable solution?
November 28, 2010

Mark said:

...
I think what they are hoping to discourage is "casual" infringement with the new law... by having legislation in place that makes the technologies a person might want to use to break a copy protection measure illegal, they hope that the people who infringe on copyright without any specific intent to do so beyond that there's no apparent fence stopping them may be less likely to do so because the technologies they would employ become slightly more difficult to acquire, being forced underground so that the utilizers of the technologies are not prosecuted.

Admittedly, there is some potential for this bill to have some of the desired effect to that end.

However, what is much MORE likely is that it will have an antagonistic effect on consumers who discover they can no longer easily format shift or privately copy works that they have legally acquired, and what is bound to happen is that most will privately conclude for themselves that C32 is a bad law (to the extent they are aware of it), and will simply choose to ignore it, seeking out the technologies for themselves that C32 would propose to outlaw. Whether or not one would risk facing prosecution doing so is wholly irrelevant to that end, because historically people simply do not indefinitely continue to obey laws that they believe are wrong.

So C32 is, I believe, certain to ultimately create a nation of people who are indifferent about copyright, something which I can't imagine is anything remotely close to its actual goal.
November 28, 2010

Anon-K said:

@Mark
Discouraging "casual" infringement, perhaps. However even if they are this bill is not unlike trying to swat a fly with a sledgehammer; you are unlikely to achieve the aim but will likely cause a lot of collateral damage in the process.

Unfortunately, my experience has been that in Canada many bills are created using a knee-jerk reaction to a perceived problem, based on the advice of one or more special interest groups. While I give the government kudos in this case for not taking solely one side of the issue (no one seems to have gotten everything that they wanted), there are parts of this bill that do irk me. For instance, the lack of right to remove TPMs for otherwise explicitly non-infringing purposes, and especially on PD work. Unfortunately this is not really any different from any other exemption; in this case the exemption is held by the distributor or creator and allows them to override the rights of the user, in the same way that other exemptions override the rights of the creator.
November 28, 2010

Napalm said:

Vote often, vote wise
The party that will have the most reasonable position on this law will have my family's vote during next elections.

And no we won't forget until then. We tend to vote on proven track record not on empty electoral promises.

Nap.
November 28, 2010

Napalm said:

...
Our friends at work:

http://www.osnews.com/story/24...0_Websites

They don't need no copyright (or any other) law for doing it, so what was the problem again and why do we need C-32?

Nap.
November 28, 2010

Crockett said:

An inconvenient truth ...
@MARK "I think what they are hoping to discourage is "casual" infringement with the new law... by having legislation in place that makes the technologies a person might want to use to break a copy protection measure illegal"

It only takes one person to crack a TPM then it's out in the wild for everyone. NO amount of TPM will have any significant impact on 'piracy'. Harsher penalties and greater restrictions will only increase the disrespect consumers have for copyright and drive greater infringement. This is so obvious I wonder which of deception or denial to attribute to the media mouthpieces who keep saying otherwise.

Wake up artists and creators ... deliver products and services that make people want to support you, work hard for their hearts and minds.

Or just continue on with doing it the same old ways .. but no one wants to hang out with a bully.
November 28, 2010

Mark said:

...
@Crockett
I never meant to imply that that their approach would actually accomplish what they are hoping... The net effect of C32 will invariably be negative with respect to copyright in Canada, but that doesn't mean there won't be the occasional person that the existence of the law and the unavailability of legal technologies will not discourage some people. It's just not going to be very many, and our government is turning a completely blind eye to the overall negative effects on copyright that C32 is almost certain to produce.
November 28, 2010

Mark said:

...
By the way.... where is this clip from, exactly? Is the whole recording available anywhere?
November 28, 2010

Crockett said:

...
@Mark, "I never meant to imply that that their approach would actually accomplish what they are hoping..."

Sorry about that mark. I was making a general statement not a rebuttal to your post.
November 28, 2010

Crockett said:

Extremely troubling ...
@Napalm "Our friends at work: http://www.osnews.com/story/24...0_Websites"

So ... the continuing stripping of the WORLD'S rights and freedoms all in the name of Hollywood profits. A slippery short sighted slope for sure.

And then, John Degen was posting something on his site about Geist being a bully ... 0_o
November 28, 2010

Crockett said:

From our friends down south ...
Wikileaks - The Obama administration ordered diplomats to spy on foreign governments and dignitaries – including here in Canada – as a way to provide key biographical data to the Central Intelligence Agency.

Yes Prime minister Harper, let's do whatever is needed on the copyright bill as long as it keeps the Americans happy. They have our best interests in mind 0_o
November 28, 2010

Napalm said:

...
@Crockett: It's making headlines everywhere. According to CTV some 2648 documents are originated in Canada. I guess there will be plenty about Omar Khadr, Afghanistan and so on, but wouldn't it be interesting to find some related to Intellectual Property and Copyright....

Nap.
November 28, 2010

Crockett said:

...
@Nap "but wouldn't it be interesting to find some related to Intellectual Property and Copyright.... "

Well, it is close to Christmas after all ;)
November 28, 2010

Napalm said:

US copyright "industry" reaching new lows
Like in suing whoever helps the defendants:

http://www.osnews.com/story/24075/ US_Copyright_Group_Sues_Lawyer_for_Aiding_BitTorrent_De
fendants

Soon they'll sue defense lawyers and witnesses too, eh?

Don't worry, they're just trying to help the starving artists and creators...

Nap.
November 29, 2010

Degen said:

...
Crockett,

Get your facts right, please. I quoted someone who said Geist had a bully pulpit. Look it up.

You want to represent my ideas to the world? Understand them first.
November 29, 2010

Crockett said:

Splitting Hairs ...
John, I did say it was posted on your site (in the main body of the article), not that you said it directly yourself. My apologies if anyone took that differently.

As per the quote, "Geist — who has the bulliest of bully pulpits on this issue with his academic tenure, blog, and regular column", it is hard not to infer that one who uses 'the bulliest of bully pulpits' is not being labeled a bully.

Finally, the main point of my post id that there are much bigger 'bullies' on the other side of the fence. This is likely to come moire into the light in the next few days.
November 29, 2010

Eric L. said:

...
Very good point Degen. You have completely convinced me of your argument with that one totally relevant post.[/sarcasm]
November 29, 2010

Junji Hiroma said:

Geist Says the Lock Rules won't make the bill pass
Michael Geist, Canada Research Chair in Internet and e-commerce law at the University of Ottawa, said it's unlikely the government's proposed copy controls on CDs, region coding on DVDs and access controls on electronic books will survive — and for good reason.


"I've personally been heartened by what seems to be almost unanimity from all the opposition parties that something needs to change," said Geist, pointing out the "cleanest and fairest approach" to digital locks would be to return to the Liberal model proposed when they were in government and currently in place in New Zealand and Switzerland


This approach makes it a violation to circumvent a digital lock where the underlying purpose is to infringe copyright, such as picking a lock on a DVD and burn thousands of copies to sell. Consumers, though, could circumvent the lock for legal use, such as watching a DVD purchased overseas or transferring an e-book to read on another personal device"

http://www.canada.com/technology/High+stakes+copyright+bill+back+before/3862945/story.html#ixzz16n4sZmVE
November 30, 2010

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