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The Problem With Digital Locks

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Friday October 28, 2011
The National Post runs a masthead editorial that tears apart the digital lock rules in Bill C-11, describing the bill as a "flawed piece of legislation" that the government should either kill or amend on its own initiative. It argues:

Preventing consumers from playing material that they have paid for, on the device of their choosing, is a violation of private property rights. Making it illegal to produce or distribute the software necessary to do so is also an outrage. It reminds many critics of the Soviet-era laws that forbade typewriters and Xerox machines.
Comments (32)add comment

BillM said:

The Conservatives
are hell-bent on doing every little thing the US MPAA and RIAA demand of them. After all, the Canadian Government doesn't have time to pay attention, listen and care about the concerns of ordinary Canadians when it's busy kowtowing (again) to US special interests.
October 28, 2011

Shawn said:

Just Say No
I stopped listening and viewing any material with DRM or EULA years ago. There is plenty of legal and free material on the web to satisfy any taste. If you don't buy, then the legislation becomes irrelevant since no-one can sell a product with a digital lock.
October 28, 2011

Mark said:

...
One could make a reasonable case argument that simply remembering something constitutes making a personal copy of whatever it is that one is remembering... should that be outlawed as well if what one is remembering happens to be a copyrighted work? Pay no attention to the fact that this is wholly technologically unenforceable... after all, by the Conservative's own admission, there is no active intent to hold anyone accountable for privately breaking a digital lock anyways (although it will still be illegal... which is about the stupidest self-contradictory piece of B.S. that I'd dare say I've ever seen any government of this nation try to pull).
October 28, 2011

end user said:

...
So how is the gov going to account for this http://mjg59.dreamwidth.org/5552.html and http://www.networkworld.com/community/node/78727

So I bought a computer that has Windows 8 on it yet I discover Windows 8 sucks and I want to load up another OS, after all I bought the computer for the hardware, the OSis just a fraction of the price of the syste. Oh wooops I can't and if I find a away to install my favorite OS I'm now breaking the law.

BUT thats ok because according to an appointed member of the GOV I won't be prosecuted for it.
October 28, 2011

Davegravy said:

Let's be honest
"Preventing consumers from playing material that they have paid for, on the device of their choosing, is a violation of private property rights"

Let's be honest, the RIAA/MPAA doesn't really consider media YOUR property after you have paid for it. They consider that you have purchased a license to play the media an unlimited number of times but only in a specific format and only on a specific class, type, or instance of a device.

The legal reality of things might be entirely different (IANAL).
October 28, 2011

end user said:

...
>They consider that you have purchased a license to play the media an unlimited number of times but only in a specific format and only on a specific class, type, or instance of a device.

Then they need to state that in big letters. This DVD and the video in it are licensed to be played on DVD players only. Format shifting is prohibited under this license.

There that solves all DRM/Lock issues. Now let the free market decide...

October 28, 2011

IamME said:

@Davegravy
"Let's be honest, the RIAA/MPAA doesn't really consider media YOUR property after you have paid for it. They consider that you have purchased a license to play the media an unlimited number of times but only in a specific format and only on a specific class, type, or instance of a device."

...and this is truly a flaw in their thinking that they will ultimately be forced to change. If I'm paying for a limited use item, then I'm certainly not going to pay much for it...if anything. The RIAA discovered this years ago with their use of DRM.

With movies, they tout "Digital Copy" comes with the DVD/BluRay, so you don't have to rip it. Those digital copies are usually low quality Windows media files (WMV) and usually hampered with DRM. I've never seen one that wasn't WMV. Many media players don't even support WMV. They're such a waste of time and pain in the a$$ I don't even bother copying them anymore. The reality is that while it's considerably larger, it's easier and faster, and more portable, to just copy the entire DVD...and disk space is CHEAP.

The MPAA will discover the same drop in sales as the RIAA if they make it difficult for people to use their products.
October 28, 2011

Bart Simpson said:

...
The ironing is delicious:

http://canadianmags.blogspot.com/2011/10/did-national-post-plagiarize-itself.html
October 28, 2011

Crockett said:

And now, a freely offered opinion on an open blog that welcomes debate ...
Well now that I, and a number of other people who do not agree with John Degen's view of the world, have been banned from his blog, fortunately I will still be able to post relevant comment here.

http://johndegen.blogspot.com/2011/10/internet-comments-and-free-expression.html

John, you are of course welcome to chime in on this open blog if you wish.

John's latest post speaks of this article from the NP being a reprint from an earlier opinion piece in the same paper. You can see the comparison here.

http://johndegen.blogspot.com/2011/10/natpos-editorial-on-copyright-is-well.html

This is an interesting point, calling the 'reprint' an example of lazy 'free culture' resulting in a lack of originality. After reading both articles, they do indeed cover many of the same points, often using the same language, perhaps there was a little too much cut-and-paste. Although one could assume that this is their own content so there was no actual copyright issue.

Now that this little bit of irony of a 'copied' article on copyright has allowed some a little mirth one might wonder why a national paper, part of the 'established old-media players' would want to expand and reprint such views to their masthead?

Could it be that they consider it an important enough issue to say it twice? And more prominently the second time? If they were truly lazy (or panicked) the natural reaction would be to ignore the issue and stick your head in sand.

It's a good thing that our government is not taking this tack ... Oh wait.
October 28, 2011

Darryl said:

@Bart
Ummm Bart. Sorry I think I'll starve trying to find the irony here. How does one plagiarize oneself? Whether reusing large portions of the first column in the editorial is fair or not depends entirely upon the working arrangement between the author and the newspaper. Do you know something the rest of us don't?

Also, the editorial is dealing with digital locks, fair dealing, and private property. Plagiarism is an entirely different issue. Where is the irony?... Or are you thinking that the column writer somehow would have been in control of the digital lock on the article (if there had been one), in which case you are merely delusional.

Of course, I would have brought these points up with Degen (original blogger), but since recently admitting that he supports perpetual copyright terms, he has shut out comments on his website. I suppose as his views on copyright have become more radical he is becoming less and less comfortable with reasonable debate.
October 28, 2011

Bart Simpson said:

...
That's weird. I just commented on Degen's blog, and it went up without problem. Comments seem active to me.

Maybe you just have to say something relevant?
October 28, 2011

Darryl said:

...
You know John, you don't have to use a pseudonym here. Us free culture types are an accepting lot. We have lots of different opinions, and though we may not agree with you, and we may express it, we will always support your right to express your opinion.

Your blog use to be the only blog on the "strong-copyright" side of the debate that supported the same ideal. Now sadly it is the same as all the rest. I am very glad that Geist has kept his blog open to all. I hope and expect that it will remain so.
October 28, 2011

National Post reader said:

The Shock
Degen has outdone himself on this one. You mean to tell me that a National Post editorial was written by a staffer at the National Post? Or that a newspaper editorial does not include a byline of the author? Why that happens, uh, every day at every paper in the country.

The Post editorial obviously uses Kline's piece. It was probably written Kline. The difference is that Kline's was an opinion piece from one person and the editorial is now the position of the National Post. This isn't copying, it's endorsing the views on C-11.

Note the big difference in conclusion, where the paper extends the discussion to provide its view on what should happen next:

"Canada shouldn't be telling Canadians when and where they can use media they have purchased. We shouldn't be making it a crime to read books or watch movies that we already own. Bill C-11 is a flawed piece of legislation. Even if the opposition parties are powerless to block it, the Tories should kill it or amend it on their own initiative."

That goes beyond Kline's initial piece. Degen's just playing the usual distraction game. A major conservative paper just criticized his views and adopted "free culture" opinions. Better try to shift the attention to who wrote the piece.
October 28, 2011

Crockett said:

...
John is a fan of The Simpsons, he once compared me to the 'Comic Book guy' which was actually somewhat frightfully accurate ;)
October 28, 2011

Tim said:

...
iTunes has shown quite clearly that people are willing to pay a REASONABLE amount to listen to the music of their choice in the format of their choice.

As disk (flash and HD) capacities continue to explode soon you will be able have every song, movie, TV show and book you ever heard, saw or read on a device the size of a deck of cards. It will be with you wherever you go and survive upgrades as each generation gets smaller.

Telling people they have to buy music in LP, cassette, CD and MP3 to listen to it on each generation of device is over. We buy digital and keep it with us for as long as we want.
October 28, 2011

Bart Simpson said:

...
Gosh, you guys must really miss this Degen guy. You even talk about him when he's not here? That's a little sad.
October 28, 2011

Darryl said:

...
John, you're funny. A bit of a jerk, but funny. It is nice that there is still one place left where you can present your oddball opinions like this one on the National Post, and the rest of us can tell you how are wrong and out to lunch it is. It is the process of discussing, even these strange perspectives, which give the rest of us a better understanding of our own opinions.
October 28, 2011

Byte said:

Off but then On-topic
Off-topic:
C'mon people, Degen is allowed his opinions too. Oftentimes I don't agree, but he is still entitled to his opinion and his right to express it, here or on his own blog.

http://johndegen.blogspot.com/2011/10/what-we-talk-about-when-we-talk-about.html
"the folks most concerned with the public domain right now are extremely wealthy, privately-held, for-profit corporations who want to make a tonne of money from the “free” works in the public domain." Bzzzzt, these are just the ones that are able to make themselves heard. There are plenty of small-time organizations that act instead of talk, gutenberg.org, imslp.org, archive.org with IMSLP almost shutting down after one C&D letter from a European business. They don't have the big PR budgets like Google has.

On-topic:
Let's be celebratory that a more-or-less mainstream publication like the National Post is taking the public's side on the TPM circumvention issue, and is using common-sense arguments to support their position. Anti-circumvention for non-infringing purposes is an immediate threat and should be fought first and foremost; we have the wide support needed to win.It's also important to use this opportunity get as much public attention to IP issues as possible.

Once this storm blows over, a medium-term strategy regarding a new zero-base 21st century copyright regime can be discussed and implemented but we will need to reach out to like-minded people in Europe, Asia and Africa. This uphill battle against a well-funded enemy, utilizing their "made men" figureheads in public and who-knows-what in secretive backroom deals with politicians, can only be fought on a global scale.
October 28, 2011

Darryl said:

...
Hey Byte, of course Degen is allowed to have his opinion. I wouldn't have it any other way, though I wish he'd drop all the pseudonyms. I'm going to miss going to his blog and pointing out his fallacies, but as long as he comes by here ever once in a while to share his quirky thoughts with us, that will make me happy. Despite his closing comments on his blog, he must like interacting with us too otherwise he wouldn't continue to drop by.

I am thrilled with the NP editorial, though I'm not sure anything will make a difference at this point with the cons being hell bent on making the system worse.

Everything they are doing now can be undone by the next government with relatively little difficulty. My bigger fear at this point is that they are going to follow this up with legislation increasing copyright terms. That will be much harder for any subsequent government to set right.
October 28, 2011

Jeff said:

Sent to my MP, C. Paradis, and J. Moore
I sent the following by email:

~

I am writing you to express my concerns over Bill C-11 (An Act to amend the Copyright Act). I will be brief since I hope that you will give my words thorough consideration.

I strongly oppose the notion of "digital locks" embodied in Bill C-11 (section 2.5.2).

1) "Digital locks" directly undermine individual property rights by removing the expectation of control. (I don't know about you, but I do not believe I own something if I do not control it. That's why when I "buy" a truck I expect to get the keys to it, and a manual, not just "the right to sit in the driver's seat".) This bill would effectively redefine property but, as I'm sure you know, this is exclusively the right of the provinces (section 92.13 of the Constitution Act, 1867).

2) "Digital locks" punish -- and Bill C-11 would criminalize -- innovators. Heavy copyright policy in general is discouraging to the sorts of economic activities that lead to sustainable growth: namely permissionless invention and reuse.

If you have some time, I encourage you to read the following declaration representing the views of "over 180 experts from 32 countries and six continents [seeking] to help re-articulate the public interest dimension in intellectual property law and policy":

http://infojustice.org/washington-declaration-html

Even if you don't have time, please find some to watch a very moving presentation on these issues, from the perspective of a contemporary Canadian author:

http://ww3.tvo.org/video/165056/cory-doctorow-copyright-vs-universal-access

"Digital locks" are hardly controversial: all the other major political parties and a large number of stakeholder groups have come out against them, including the Retail Council of Canada. "Digital locks" have been called everything from "anti-social" to "un-Canadian."

It is important to remember as we attempt to move forward that while copyright is not a "natural right," private property rights certainly are ("life, liberty, and property" -- John Locke).

We must recognize that growth occurs brick by brick and that the individuals and businesses laying tomorrow's bricks won't be the ones we see laying bricks today. We need to allow for that transition to occur on a time scale that reflects the speed of technology or we risk running out of bricks. In information-based societies, bricks are ideas, technological improvements, inventions, tools, methods, cultural goods, and the continuing revision of these. We are all bricklayers. As such, sustained innovation requires that we strengthen our laws to ensure individuals retain the ability to produce all these things and, not surprisingly, to make copies. Our laws should support and enshrine access to education, including the ability to tinker, as well as to share and to repurpose digital objects, including the rights to obtain, create, and disseminate digital tools, and techniques that, under Bill C-11, are very likely be deemed illegal. For our continued prosperity, Canada requires laws that guarantee the individual's freedom to create and repurpose without prior permission.

As far as the Retail Council of Canada is concerned, "If Bill C-32 [Bill C-11's word-for-word copy from the prior session] as now exists had been on the books in 1980, we would not have had the VCR, the personal computer and countless other products that we have depended upon."

We are all "standing on the shoulders of Giants" today, and the keys to our continued growth lie in removing obstacles to innovation, access, and the reuse of digital objects, not in creating new ones. We can't predict the future, but to paraphrase one of the giants of computing: we can invent it.

As a Canadian, I believe Bill C-11 is the wrong road to take.
October 29, 2011

Crockett said:

1
Good letter Jeff.
October 29, 2011

Watching said:

Missing Degen?
If it were merely an opposing opinion on a topic then Degen would be ok but his blatant and consistent mud slinging intertwined with his arguments here in the past make him highly aggressive and grating at best, deeply insulting and bordering on slander at worst. I'm not surprised some have lost their temper at this guy (which he then uses against them, naturally for I think he's posted such on his own blog). Makes me think he's been taking lessons from Scientology.
October 29, 2011

Byte said:

Washington Declaration
Interesting letter, Jeff, but did you see this in the Washington Declaration?

"Advocate for a permanent moratorium on further extensions of copyright, related rights and patent terms."
I believe copyright and related rights terms should be drastically reduced to a maximum the term used for patent protection.

"Encourage experimentation with, and research on, systems of indirect rewards, such as levies on media, equipment, or usage."
iPod Tax? This will never work; compare the size required for a single BD image (~50 gig) to the size required for FLAC images of Audio CDs or even AAC lossy encodes of the same.

October 29, 2011

Jeff said:

@Byte, Re: Washington Declaration
I think a moratorium would be good. It shouldn't prevent term reductions, which I would also like to see. (I'm against software patents, for example, and so I question the relevance of the whole thing as a reward system.)

With regard to levies, no, they are not my preferred route but I certainly don't oppose a rational discussion that evaluates (experiments, and researches) their pros and cons. For example, while I am definitely opposed to open-ended levies -- that would just be a new tax -- I might consider a levy for the purpose of funding creative work, recognizing the stormy economy for creators. We have the National Film Board, for example, which I think has done well. It feels good to see that label at the end of things that have received global recognition, so I would not be opposed to broadening that type of support for creative work. Past that, I'm inclined to tell someone to re-train and try to contribute in ways that the private sector will fund in order to make a more predictable income. I certainly do not feel compelled to pay for someone to continue a career as a musician or director or author or philosopher because they've been doing it for as long as they can remember and simply don't want to do anything else. I'm only willing to help people make transitions, if they need it. (Similarly, I think all taxes should be time-limited and tied to a specific purpose. We've gotten so used to seeing percentage deductions that we no longer ask what they are used for, so we never quite know.) I would not support paying distributors for the same reason I don't make donations to multinationals, and I would not support the creation of a collective to distribute income to simply preserve the status quo in the creative "industry". There are no guarantees for any of us, but life goes on.

In short, I felt the levy language was inquisitional enough that I could get behind it and it didn't distract from the rest, which I thought presented a very optimistic future. That's something you don't usually see in collective "declarations". (WIPO just makes my head hurt.)
October 29, 2011

Byte said:

@Jeff
When reading the introduction to the Declaration, valid points are raised, one being "A quarter century of adverse changes in the international intellectual property system are on the cusp of becoming effectively irreversible, at least in the lives of present generations." By advocating to maintain the status quo regarding copyright and related rights terms, you are effectivly resiging to those extensions being irreversible.

Let's look at the more broader picture:

Putting Intellectual Property in Its Place
Intellectual property systems are designed to serve human values and must be tailored to this end. Expansion of intellectual property rights and remedies may conflict with legal doctrines that express and safeguard these values, including human rights, consumer protection, competition and privacy laws.

I have no idea what is meant by "designed to serve human values" and whether this is just the basic idea of virtual property (a certain sequence of musical notes, for example) or a statement of support for the current post-Berne Life+ lockdown including the "moral rights". If it's the latter, perhaps they (the 180+ experts, not you Jeff) would be so kind to explain why they believe it serves human values that the copyright for the song "Happy Birthday to You", registered in the year 1935 A.D. does not expire until 2017 in the EU and 2030 in the US.

Back in 2002 I followed the story behind the remix of the 1968 Elvis song "A Little Less Conversation" by Junkie XL and the difficulty of obtaining permission from the Elvis Presley Estate - that's why it was suddenly JXL. But Elvis had been dead for almost 25 years at the time. Would he not have recorded and released it in 1968 if the copyright hadn't been extending until far into the next century? If Junkie XL had not obtained permission, we would never have seen that remix. This makes one wonder how many other great remixes we will never see.

I'm sorry but for that reason alone I will not sign the Washington Declaration. I have and will not advocate a status quo regarding copyright and related right terms. I will advocate a short copyright term of 10-20 years, with a possibility for a one-time, *levied*, registered (which includes depositing a DRM-free copy) extension of the same term to allow high-value properties a longer term. The levy would go to the same funds as Jeff proposed, except it comes out of corporate funds rather than the public's pocket, and it also prevents frivolous copyright extensions. It would also free up all "orphan works" older than 20 years. To my ear, this proposal sounds a lot more like serving human values than a system that has every commercially released 33 rpm vinyl LP ever still locked away behind a copyright wall.
October 30, 2011

Jeff said:

@Byte
I think we agree.
October 30, 2011

Gregg said:

God forbid we say no to the locks and....
.... Hollywood cuts us off and we have to actually develop our own advanced movie and music culture like any other REAL nation. God forbid such a tradgedy! *rolleyes*
October 31, 2011

Darryl said:

@Gregg
I recognize your sarcasm but...

Hollywood has already demonstrated that they would not cut anyone off as demonstrated when they lost the fight for the broadcast flag in the States ( a fight they are ironically about to win here )

Actually we have a pretty good movie/tv/music culture here. Unfortunately it is somewhat suffocated by what the Americans dump on us. Perhaps we could simply address the dumping issue.
October 31, 2011

Gregg said:

Hi Darryl
Actually, it was half sarcastic.

"Hollywood has already demonstrated that they would not cut anyone off as demonstrated when they lost the fight for the broadcast flag in the States ( a fight they are ironically about to win here )"

While their syndications do play throughout the world, even in countries with REALLY high piracy, they have been known to restrict Canada to getting episodes two seasons behind (Stargate is an example). In the meantime, Canadians have downloaded the recent episodes from the US (or Italy or wherever) and when the "current" seasons episodes air, we just aren't that interested anymore. The advertisers know this and the series disappears.


"Actually we have a pretty good movie/tv/music culture here. Unfortunately it is somewhat suffocated by what the Americans dump on us."

Correction, Quebec has a good movie culture.... english Canada has a mediocre one. Good for comedy, but execs kill that quick. Music always was good, if ever given a chance. Do you think Diana Krall or Michael Buble would have been more than "coffee shop" musician's had they not hit the USA?

Canada has zero appreciation of their own artists *until* they hit it big. The Sheepdogs are the latest example of that. Until that magazine contest, my radio station (who prides itself on CanCon anything... as long as its rock, they'll play it) never played them. That's sad as they play super garage bands from cities I had no idea were in the country!

But, the people speak - after a year of great local content, advertisers listening to the people are slowly forcing the little radio station into a Clear Channel Top-40 station. Canadian's have no idea what they have.... and they absolutely do not care, either.

Back to movies and TV, I was listening to a BBC producer on CBC-1. Even he says, "What the hell are you people doing over here?" He says we throw $10 at something that needs $10,000 and pass on great ideas (American Idol could have been ours... remember CBC's "Homegrown Cafe"?) and also we push into production ideas that should not have got off the desk. Pure "...executive incompetence".


"Perhaps we could simply address the dumping issue."

Tried that, failed.

Remember when the law went through that US carrier satellite receivers couldn't be sold here anymore? A $170 million industry was killed at the stroke of a pen (I was involved in it... the figure is accurate). Did it stop the bleed of customers? HA! I see more Direct-TV dishes now because you can get them online and anyone can get an account from them. Plus, now they're contraband, the desire for them has gone through the roof.

Bottom line is when it comes to TV and movies, we are a conquered culture. Canadian productions will be popular everywhere except Canada. They do not reach us as a people. We have been very Americanized and want the glitter, the effects, the glamour - the thing Canadian productions are worst at and don't give a damn about the story, which is the one thing Canadian writers are very good at.
October 31, 2011

Byte said:

Great Canadian TV Show successes
The Border (CBC) *cancelled after Season 3*
The Borgias (Brave) *season 2 ordered*
Flashpoint (CTV) *season 5 episodes ordered*
The Listener (CTV) *season 3 ordered*
Lost Girl (Showcase) *season 2 running*
Rookie Blue (Global) *season 3 ordered*
Sanctuary (Space) *season 4 running*
XIII - The Series (Mystery/Showcase) *season 2 "undecided"*

Coming soon:
Primeval - New World (Space)

These are as far as I know considered Canadian productions, if you count the co-productions with major Canadian input (like the Stargate franchise) you can extend this list considerably.
November 01, 2011

Darryl said:

...
I would also add (you may or may not agree with this selection)

Slings and arrows
Due South
Aderley (do you remeber that one)
Battlestar Galactica (well it was filmed here with sa lot of Canadian talent)
Da Vinci
E.N.G.
Air Farce
SCTV
Street Legal
Republic of Doyle

I'm sure I could come up with more.

On the movie front there is:

H2O
Meatballs
Dead Ringers
The Gods must be crazy
Men with brooms
The Corporation
Gunless
Bon Cop, Bad Cop
Anne of green gables
Avro Arrow


These are all ones I've seen anyway, but you do almost have to go out of your way to find them.

One way to handle the anti-dumping issue given the extreme mobility of data via internet and satellite, would be to reduce the amount of copyright protection for companies deemed to be dumping their product. This is essentially what I believe Brazil did as a WTO sanctioned counter trade barrier with the States. (Of course that will have about a snowballs chance in heck of happening here)
November 01, 2011

Gregg said:

At least I've heard of Darryl's selections....
And notice the thing about them - the glorious past.

Yes, were *were* good, weren't we?

What happened? The answer lies in my post.
November 02, 2011

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