Separating Fact from Fiction: My Fair Copyright Proposals

With a copyright bill only weeks away, thousands of Canadians are again speaking out for a fair, balanced approach.  The public interest in copyright has predictably led to mischaracterizations of fair copyright as some claim that it is really about wanting everything for free or about opposing copyright reform.  This increasingly leads to a blame the user mentality – the award-winning Vancouver Film School video on DRM and the Amazon Kindle incident from last summer discussed in yesterday's post is labeled as "ridiculous fear-mongering" (yet for years rights holders opened every movie with this film) or users are said to ignore creator concerns with a "gimme" attitude (yet the Writers Union recently urged its members to lobby MPs by claiming that flexible fair dealing would legalize theft). 

The reality is that inflammatory and inaccurate rhetoric can be found on both creator and consumer-focused sites. There are undoubtedly some who use fair copyright to justify obvious cases of infringement, just as there are those that use copyright reform to preserve outdated business models or to guard against uses that the Supreme Court of Canada would surely view as fair dealing. Even a cursory search for online discussion demonstrates that claims that "sensationalist campaigning" on Canadian copyright is primarily found on sites such as mine are simply wrong. 

So yet again in an effort to separate fact from fiction, here is my submission to the copyright consultation from last summer.  It doesn't call for everything to be free, it calls for WIPO implementation, and it emphasizes that updating the law means accounting for both creator and consumer needs.  As I've discussed over the past ten days, sources say Canadian Heritage Minister James Moore has largely rejected this submission – along with thousands of other submissions calling for a fair copyright approach – but it can't hurt to reiterate what those reforms could look like.  For the many Canadians whose views may also be ignored, now is a good time to remind their MPs and the Ministers what they think the copyright bill should contain.

Copyright Consultation Submission

My name is Michael Geist.  I am a law professor at the University of Ottawa, Faculty of Law, where I hold the Canada Research Chair in Internet and E-commerce Law.  I am also a syndicated weekly columnist on law and technology issues for the Toronto Star and the Ottawa Citizen. 

I have been actively engaged on copyright reform issues for many years.  In 2005, I edited In the Public Interest: The Future of Canadian Copyright Law, an 18-essay collection that assessed Bill C-60.  I provided extensive commentary on Bill C-61 on my blog with dozens of postings examining virtually every major provision in the bill.  I have appeared before several Parliamentary committees on copyright issues and I founded the Fair Copyright for Canada Facebook group, which grew to more than 92,000 members in the weeks following the introduction of the bill.  In the fall of 2008, I released Why Copyright?, a documentary film co-produced with Daniel Albahary that featured interviews with a wide range of Canadians on the issue of copyright reform.

I was grateful for the opportunity to participate at the copyright roundtable held in Gatineau, Quebec this past July.  This submission supplements those comments with additional specifics on recommended reforms.  My comments are provided in my personal capacity as a Canadian with a keen interest in the future of Canadian copyright.

Copyright Reform Process

Before addressing the consultation questions, I have two comments about process.  First, thank you to Industry Minister Clement and Canadian Heritage Minister Moore for launching this consultation.  As promised, it has been fair, transparent, and accessible to all Canadians. 

Second, this consultation should be viewed as the start of an ongoing process to craft Canadian copyright law.  Once a bill is tabled, it is essential that Canadians again have the opportunity to register their views through an open, comprehensive committee process.  Moreover, Canadians should determine the shape and scope of Canadian copyright law.  International treaty negotiations, particularly the ongoing Anti-Counterfeiting Trade Agreement discussions, should not effectively pre-determine domestic reforms.  The ACTA negotiations have generated considerable concern among many Canadians and the government should demand that those negotiations be conducted in an open manner with the release of draft text for public comment.

Why does copyright matter?

The consultation’s first question is also the most personal since the answer will be different for almost everyone. 

For me, copyright matters because I am a professor and my students need access to copyrighted materials and the freedom to use those materials.  It matters because I am a researcher who needs assurance that as materials are archived they will not be locked down under digital rights management.  It matters because I am deeply concerned about privacy and fear that DRM could be harmful to my personal privacy.  It matters because I have created videos and need flexibility in the law to allow for remix and transformed works and do not want my content taken down from the Internet based on unproven claims.  It matters because I am a writer and I need certainty of access to speak freely.  It matters because I am a consumer of digital entertainment and I want the law to reasonably reflect the right to view the content on the device of my choice.  It matters because I am a parent whose children have only known life with the Internet and I want to ensure that they experience all the digital world has to offer.  It matters because I live in a city with a strong connection to the digital economy and we need forward-looking laws to allow the next generation of companies to thrive.  It matters because I am a proud Canadian who wants laws based not on external political pressure, but rather on the best interest of millions of Canadians.

How to remain relevant?

Developing copyright law principles that remain relevant years from now is unquestionably a difficult challenge.  With references to VHS tapes and the decision to block network-based PVR services, Bill C-61 was outdated the moment it was introduced. In order to introduce legislation that will stand the test of time, the government needs a principle-based, forward-looking approach.  I would argue that there are four essential ingredients.

First, copyright law should strive for balance between creator rights and users’ rights.  If the law tilts too far in one direction, the other side is virtually guaranteed to put the issue of reform back on the table and the changes do not last. 

Second, the law must be technologically neutral.  Copyright has proven remarkably resilient over the decades in large measure because it states broad principles about the scope and limits of protection.  If copyright veers too far toward specific technologies by mandating new protection for specific business models or technological innovations, those rules risk being overtaken as the technologies and marketplace evolve.

Third, the law should strive for simplification and clarity.  Copyright may once have been a niche issue understood by a small number of experts, yet today it affects the daily lives of millions of Canadians.  If Canadians are to respect the law, they must first understand it.  When Bill C-61 proposed a 12-part test to determine whether recording a television program was legal, it rendered the law far too complex for the average person.

Fourth, the law should embrace flexibility, which has allowed many copyright provisions to adapt to continually changing economic and technology environments. Flexibility takes a general purpose law and ensures that it works for stakeholders across the spectrum, whether documentary film makers, musicians, teachers, researchers, businesses, or consumers.

Flexibility applies not only domestically but at the international level as well.  The same challenges we face on the domestic front are only magnified at the international level in treaties.  That means that those treaties – particularly the WIPO Internet treaties – are more flexible that is often appreciated.  Compliance with those treaties can be achieved in many ways and following a single model – such as the U.S. DMCA – is not needed to meet the standard.

What to do?

The final three consultation questions really ask the same thing with slightly altered perspectives – what should we do to foster innovation and creativity, competition and investment, and to position the country as a leader in the digital world.  At its heart, each of these questions is asking for comments on proposed reforms that are forward-looking and ensure that the goals of innovation, creativity, and marketplace success are met.  While it is possible to answer each individually, there is considerable overlap.  For example, a more flexible fair dealing provision has benefits for innovation, for creativity, for competition, and for the digital economy. The same is true for anti-circumvention provisions that retain the copyright balance.

In an ideal world, we might start from scratch to create a law that truly makes sense in the current environment.  We are not starting from scratch, however.  The reality is that there is an international context with treaties we have ratified (Berne Convention) and treaties we have signed but not yet implemented ((WIPO Internet treaties). Moreover, there is a domestic context, with Bill C-61 surely used as reference point. 

My response focuses on seven areas of copyright reform.

1.    Flexible Fair Dealing

Expand the fair dealing provision by adding flexibility through the addition of “such as” to the current wording. 

Led by the United States, several countries around the world have established fair use provisions within their copyright laws (Israel being the most recent).  Fair use does not mean free use – rather, it means that there is a balance that allows certain uses of works without permission so long as the use is fair.  The Supreme Court of Canada has already ruled that Canada’s fair dealing provision must be interpreted in a broad and liberal manner. Yet the law currently includes a limited number of categories (research, private study, criticism, news reporting, and review) that renders many everyday activities illegal.  The ideal remedy to address other categories such as parody, time shifting, and device shifting is to make the current list of categories illustrative rather than exhaustive.  This can be best achieved by adding the words “such as” to the current provision.  This would be a clean, technology-neutral approach.

In the event that specific new fair dealing exceptions are required (either directly within the statute or to provide guidance on the new flexible provision), key exceptions to address include:

  1. Parody and Satire
  2. Time Shifting
  3. Format Shifting
  4. Music Shifting
  5. Teaching

2.    The Anti-Circumvention Provisions

Anti-circumvention provisions must be directly linked to copyright infringement. 

The anti-circumvention provisions have been by far the most controversial element of recent attempts at Canadian copyright reform.  The experience in the United States, where anti-circumvention provisions effectively trump fair use rights, provides the paradigm example of what not do to.  It should only be a violation of the law to circumvent a technological protection measure (TPM) if the underlying purpose is to infringe copyright. Circumvention should be permitted to access a work for fair dealing, private copying, or any other legal purposes.  This approach – which is similar (though not identical) to the failed Bill C-60 – would allow Canada to implement the World Intellectual Property Organization’s Internet treaties and avoid some of the negative “unintended consequences” that have arisen under the DMCA.

The need for the link between anti-circumvention for the purpose of copyright infringement is crucial since to do otherwise goes far beyond what is needed to comply with the WIPO Internet treaties and ultimately has the effect of eviscerating fair dealing in the digital environment. 

Indeed, using a C-61 style approach to anti-circumvention necessitates a myriad of exceptions.  These include exceptions for:

  • Circumvention of cell phone locks
  • Fair Dealing
  • Court cases, laws, and government documents
  • Personal uses
  • Digital archiving
  • Teaching
  • Protection of Minors
  • Software filtering programs
  • Obsolete or broken digital locks
  • Non-infringing access
  • Research
  • Interoperability
  • Privacy
  • Perceptual disabilities

Many of these exceptions were missing from C-61.  Should the government decide to re-introduce the C-61, exception-based approach to anti-circumvention, these additional exceptions should be included.

No ban on devices that can be used to circumvent a TPM, provided that it has non-infringing uses. 

Canada should not ban devices that can be used to circumvent a TPM.  The reason is obvious – if Canadians cannot access the tools necessary to exercise their user rights under the Copyright Act, those rights are effectively extinguished.  If organizations are permitted to use TPMs to lock down content that threatens fair dealing, Canadians should have the right to access and use technologies that restores the copyright balance.

From a WIPO ratification perspective, there is no requirement for this provision.  Indeed, Bill C-60 provided a model that did not touch devices themselves, choosing instead to target conduct involving circumvention for the purposes of copyright infringement.  By removing the unnecessary ban on devices that can be used to circumvent, there is a greater likelihood that Canadians would have access to programs that could be used to retain their existing rights and protect their privacy.

Create authorized circumventers

The removal of the provisions that target the legality of circumvention devices is one way to help ensure that the law does not eliminate basic copyright user rights.  There are other approaches, however, that can be introduced in tandem with that change. New Zealand's recent copyright law reforms introduced the concept of "qualified circumventers." The law grants special rights to trusted third parties who are permitted to circumvent on behalf of other users who are entitled to circumvent but technically unable to do so.  The current list of qualified circumventers includes librarians, archivists, and educational institutions. This approach rightly recognizes that many people will be unable to effectively use the exceptions inserted into the law.  By creating a class of trusted circumventers, the law creates at least one mechanism to ensure that users retain their existing copyright rights.

Establish a Positive Requirement to Unlock for Exceptions/Right of Access

Many countries have recognized the danger that combination of DRM and anti-circumvention legislation may effectively eliminate user rights or copyright exceptions in the digital environment.  Creating exceptions is one way to address the issue, but another is to adopt an approach of "with rights come responsibilities."  In this case, if companies obtain new legal rights for DRM, they must also shoulder the responsibility of unlocking their content when requested to do so by users for legal purposes.  This is a common theme in copyright laws around the world, which often identify courts, tribunals or mediators as the source to ensure that rights holders do not use DRM to eliminate user rights.

3.    The Intermediary Provisions

Establish a legal safe harbour for Internet intermediaries supported by a “notice and notice” takedown system

The creation of a legal safe harbour that protects Internet intermediaries from liability for the actions of their users is critically important to foster a robust and vibrant online world.  Indeed, without such protections, intermediaries (which include Internet service providers, search engines, video sites, blog hosts, and individual bloggers) frequently remove legitimate content in the face of legal threats.  Canadian law should include an explicit safe harbour that insulates intermediaries from liability where they follow a prescribed model that balances the interests of users and content owners.  The ideal Canadian model would be a “notice and notice” system that has been used successfully for many years on an informal basis.

Establish a Useful Provision for ILTs

The inclusion of "Information Location Tool Providers" (ie. search engines) provisions in Bill C-61 was a bit of a surprise. By far the most problematic aspect of the ILT provisions was the creation of a notice-and-takedown system for search engines.  Unlike ISPs – who were subject to the more-balanced notice-and-notice approach – ILTs were effectively subject to a notice-and-takedown system without any of the counter-notification or balancing provisions contained in the U.S. DMCA. Bill C-61 created a parallel notice and takedown system for ILTs since section 41.27(2)(f) limited the availability of the safe harbour to instances where no notification of copyright infringement has been received.  This would have effectively forced ILTs to remove content upon notification since failure to do so risked potential liability. 
While a notice-and-takedown approach for ILTs was bad enough, it was made worse by the absence of any balancing provisions.  For example, the U.S. DMCA includes a "counter-notification" provision that allows for the re-posting of content that has been taken down.  There was no such provision in C-61, meaning that the ILT provisions were ripe for abuse. There are benefits to creating an ILT safe harbour, but they should not incorporate a notice-and-takedown requirement.

Reject A Three-Strikes and You’re Out System

Several countries have begun to consider establishing a “three-strikes and you’re out system” that removes Internet access based on unproven allegations of infringement. Attempts at three-strikes systems have struck out in virtually every country where they have been raised. Internet access is far too important to establish a system that would cut off access based on unproven allegations of infringement.  The proposals raise a host of due process and constitutional concerns and should be rejected as a possible alternative for Canada.

4.    Modernize the Law

Modernize the backup copy provision

As part of a major set of copyright reforms in 1988, Canadian copyright law was amended to allow for the making of backup copies of computer programs. In 1988, backing up digital data meant backing up software programs.  Today, digital data includes CDs, DVDs, and video games.  All of these products suffer from the same frailties as software programs, namely the ease with which hard drives become corrupted or CDs and DVDs scratched and non-functional.  From a policy perspective, the issue is the same – ensuring that consumers have a simple way to protect their investment. "Modernizing" copyright law should include bringing this provision into the 21st century by expanding the right to make a backup copy to all digital consumer products.

Rationalize the Statutory Damages Provision

Canada is one of the only countries in the world to have a statutory damages provision.  It creates the prospect of massive liability – up to $20,000 per infringement – without any evidence of actual loss.  This system may have been designed for commercial-scale infringement, but its primary use today is found in the U.S. where statutory damages led to the massive liability for several peer-to-peer file sharing defendants and leaves many with little option but onerous settlement.  Before Canada faces similar developments, we should amend the statutory damages provision by clarifying that it only applies in cases of commercial gain. Moreover, the provision should not apply where the infringer had a good faith belief that the alleged infringement was fair dealing.

5.    Enhance the Public Domain

Do not harm the public domain with copyright term extension

While some countries have extended the term of copyright beyond the Berne Convention requirement of life of the author plus 50 years, there is no compelling reason – either from an economic, creativity, or innovation perspective – to extend the term.  Indeed, there are strong arguments that harming the public domain would have the opposite effect. The government should make a clear commitment not to extend any further.  Moreover, it should identify a presumed public domain date (based on birth date and reasonable life expectancy) to facilitate digitization of Canadian heritage.

Abolish Crown Copyright

Dating back to the 1700s, crown copyright reflects a centuries-old perspective that the government ought to control the public's ability to use official documents.  Today crown copyright extends for fifty years from creation and it requires anyone who wants to use or republish a government report, parliamentary hearing, or other work to first seek permission.  While permission is often granted, it is not automatic. The Canadian approach stands in sharp contrast to the situation in the U.S. where the federal government does not hold copyright over work created by an officer or employee as part of that person's official duties.  Government reports, court cases, and Congressional transcripts can therefore be freely used and published.

The existence of crown copyright affects both the print and audio-visual worlds and is increasingly viewed as a barrier to Canadian film making, political advocacy, and educational publishing. Beyond the policy reasons for abandoning crown copyright, there are financial reasons for reforms.  The federal crown copyright system costs taxpayers hundreds of thousands of dollars.  Documents from Public Works and Government Services Canada, which administers the crown copyright system, reveal that in the 2006-7 fiscal year, crown copyright licensing generated less than $7,000 in revenue, yet the system cost over $200,000 to administer. In most instances, Canadians obtain little return for this investment.  Ninety-five percent of crown copyright requests are approved, with requests ranging from archival photos to copies of the Copyright Act.

Given the significant costs associated with a program that does more harm than good, any new copyright reform should eliminate crown copyright and adopt in its place a presumption that government materials belong to the public domain to be freely used without prior permission or compensation.

6.    Effective Library and Education Provisions

Do Not Implement An Internet Exception for Education

One of the most controversial aspects of Bill C-61 was the inclusion of special educational Internet exception.  The provision split the education community, generating support from some education groups and opposition from others. I do not believe that the exception is either necessary or equitable.  The law already permits many educational uses of Internet materials without compensation. The educational Internet exception should be dropped in favour of a more flexible fair dealing provision discussed above that treats educators, creators, and all Canadians in an equitable manner.

In fact, the Internet exception was more than just unnecessary – it was harmful.  First, rather than improving access, the exception would have encouraged people to take content offline or to erect barriers that limit access (including DRM).  Many website owners who may be entirely comfortable with non-commercial or limited educational use of their materials, may object to a new law that grants the education community unfettered (and uncompensated) usage rights.  Accordingly, many sites may opt out of the exception by making their work unavailable to everyone.  This is obviously a lose-lose scenario that arises directly out of the exception.

Second, the implication of the exception was that using publicly-available Internet materials is not permitted unless one has prior authorization or qualifies for the exception.  This suggests that millions of Canadians outside the education system who use Internet-based materials are somehow violating the law.  This is simply wrong – an enormous amount of online content is intended for public use or qualifies as fair dealing – and to imply otherwise sends the wrong message.  Indeed, many of the concerns expressed by the education community apply equally to other groups who do not qualify for the exception. Third, the exception may have violated international law.  There are doubts that the provision complied with Canada’s existing obligations under the Berne Convention, the world's foremost international copyright treaty.  Given that the exception raised these real harms, it should scrapped by moving toward a flexible fair dealing provision.

Library Provisions Should Rely on Fair Dealing

E-reserves are the electronic equivalent of the traditional library book reserves – books or materials that a professor places on reserve in the library so that it is accessible to the entire class. In the aftermath of the LSUC v. CCH Supreme Court of Canada decision, a growing number of universities began to establish (or consider establishing) e-reserve policies based on fair dealing. Most libraries had traditionally sought licenses for the use of electronic copies of these additional research and reading materials, yet the frustration of lengthy delays and the CCH case spurred many to think about a fair dealing based approach.  For example, the University of Calgary has established an e-reserve policy that links to accessible online content and scans print material that qualifies as fair dealing. The move toward fair dealing based e-reserve policies have been gaining momentum in Canada, yet Bill C-61 tried to steer libraries in a different direction as the bill includes a specific provision that promotes a license-based approach.  New legislation should reverse that course by emphasizing the benefits of a fair dealing model.

7.    Contract and Copyright

The use of contractual terms to effectively void privacy protection or basic copyright user rights has become all too common with cases such as the Sony rootkit providing a classic example of how contractual terms that quash important legal rights are buried beneath the "I agree" button.

Governments are understandably loath to intervene in privately negotiated contracts.  However, not every contract or contractual term is enforceable – there are certain terms (and certain contracts) which run counter to important public policy goals that will often be rendered unenforceable by a sympathetic court.  On this particular issue, we should not wait for the courts to intervene.  Rather, Canada should identify the core protections and policies that underlie the copyright balance and establish rules that prohibit attempts to "contract out" of such terms.


  1. Copyright Bill
    I think you should write the copyright bill Michael. That would save us a lot of time and headache.

  2. pat donovan says:

    c-61 2010
    an illegal contract is null and void
    bad law doesn’t need to be obeyed.

    all your region 1 dvd players, e-books, nets, web, news TV sets and radios belong to us now.

    canwest saying use ‘open source’ cheap tools aside, my bets are on ‘and all your software is ours now too’ being next.

    dark-neting wifi, anyone? there’s WAY too much noise on the line these days.


  3. I do not see how your submission addresses the issues continously claimed by the copyright holders. Truth be told, I don’t understand why nearly none of the suggestions (other than notice and takedown) from any side of the debate even attempt to address this.
    Can you help point out how any of the changes you suggest work more (relative to current legislation) towards lowering the amount of infringment that seems to be the main source of grievance from (and support for) the copyright holders?

  4. Sorry I meant to say “other than the 3-strikes provision”, not “other than notice and takedown”, I’m getting my terms confused.

  5. Michael Leamy says:

    Kudos Mr. Geist. 🙂
    Clearly spoken and obviously well researched. In other words, you’ve nailed it. On issues copyright, when so many business models are so fundamentally broken, only a fundamental rethinking of the goals and implementations of copyright legislation will suffice.

  6. Copyright Holder vs. File Sharing
    Wasn’t there an article released some time ago which basically debunked copyright holder claims, showing file sharing had a negligable effect on actual copyright holder profits? The bad press would seem to hurt them far more than the file sharing. They should take a lesson from Metallica. Don’t sue your customers, it alienates them and drives them as well as others away. I used to be a huge Metallica fan, but will NEVER buy another album because of this. I will NEVER support them. Many people who file share, eventually buy much of stuff they download.

  7. There has been plenty of articles released that claim to debunk copyright holder claims of loss due to piracy, but saying their claims don’t need to be addressed because an article shows them to be unfounded isn’t exactly in the spirit of compromise 🙂

  8. Actinolite says:

    Reducing infringement
    For one, this suggestions in this submission would reduce infringement by redefining what ‘infringement’ includes. By excluding many common practices (time shifting, format shifting, parody, satire) for which most people feel no ethical compulsion to compensate someone, we simply redefine the term to better align with the moral judgement of our society.

  9. @Actinolite
    I agree with you, but there is no compromise made there either. The labels are not claiming they are losing money because some things are labeled infringment that shouldn’t be.

  10. @crade
    If memory serves, it was exactly that the labels were claiming they were losing money because of things such as format shifting that led to the adoption of the recordable media levy in Canada. I seem to remember them stopping to advocate for the levy, but that came about as a reaction to the SCOC declaring that because of the levy format shifting, etc, for PERSONAL use, was now legal in Canada. By dropping the levy, they would regain the capability to sue their customers for infringement for personal use, since they wouldn’t be compensated for someone having the capability to make a personal copy.

    The law is supposed to reflect the values of society in general. When the majority of the population believes that creating, for personal use only, a copy of a copyrighted work shouldn’t be illegal, well, all I can say is welcome to democracy.

  11. Hindgrinder says:

    Mad windy-props and kudos x2
    Credit where credit is due….
    Love your ideas here MG.
    Gonna take a bit to absorb the depth of context.
    HG – Singing “Whiskey for my peer friends, beer for my IP Lawyers…”

  12. Impressive!
    We need more MPs like you, smart and honest! We need to turn this blog into a bill!

  13. @Anon-K
    Their public stance has always been that it is people who are taking copies without having paid for them that are the evils of the world and basically the sole cause of their woes, not the users who bought a cd already and want to listen to it on their ipod too. They get no support by claiming people owe them extra for using Teevo or listening to record they paid for on a different device. However, there is plently of support out there for a claim that people shouldn’t be alowed to “pirate” (copy something that they have not already bought)

    It isn’t just Mike’s proposal, from my understanding of the copyright holders claim, and definately the understanding of those I have talked to personally who support “stronger copyright laws”, the whole reason we need “stronger copyright laws” is because of rampant “piracy” am I the only one who thinks hardly anything being considered really seem to be focused on fighting “piracy” at all?

  14. Hephaestus says:

    When a system is so lobbied for and bent in the wrong direction ….
    ” do not see how your submission addresses the issues continously claimed by the copyright holders. Truth be told, I don’t understand why nearly none of the suggestions (other than notice and takedown) from any side of the debate even attempt to address this. ”

    You are complaining that Michael is voicing his concerns about consumer protection and not the copyright holders. If you have read the old bill or ACTA you will see that they are extremely one sided. They only maximize copyright towards the rights owners and do everything to remove consumer rights. Its only fair that he point out the flaws from the consumer side of the equation.

    “Can you help point out how any of the changes you suggest work more (relative to current legislation) towards lowering the amount of infringment that seems to be the main source of grievance from (and support for) the copyright holders?”

    The only thing that will work to lower infringement is, to compete in a fair way, at a price the market sets for their product. Not at a monopoly set price like they are currently doing. Until they do compete, infringement will continue and grow eventually cause them to fail.

  15. cndcitizen says:

    the whole reason we need “stronger copyright laws” is because of rampant “piracy” am I the only one who thinks hardly anything being considered really seem to be focused on fighting “piracy” at all?

    “Piracy” is being used to discuss a number of situations that are really not piracy. I pay for a full HDTV subscription with all channels, own a PVR which currently illigal (time shift) under todays laws except the content providers sell them to us. The rulling parties tried to sell us the ability to record TV shows in C-61 and it was sold to the Canadian public as for the people. Looking into the bill it was anything but. I am all for the rights of content producers the issue is that the content producers are not meeting the publics demand.

    Currently I only download TV shows (commercial free) as I have already paid for the license to watch them in the method I want. I know arguments are that they are advertise supported so the company is losing money because of adverts. If I had the option to watch those shows ( here in Canada without using a US based proxy, you could argue that you can get rid of cable all together and just watch TV for free from your web enabled TV. If we had a subscribtion service here in Canada that delivered my selected shows on a nightly basis in full quality without commercials, I would be more then willing to pay for that service. Unfortunatly we don’t have that type of service.

    We have to remember that Copyright was provided by the population to allow for protection for limited commerical return on creative works and to protect from commercial gain. Expanding copyright has futher pushed it out to monopolies. As any economist knows, as supply increase past demand, cost for the product comes down. With an infinate supply, cost is near zero. WIth the price for the product now zero, you have to figure out how to monetize that to get a return on the cost to produce the product. The reason we are having this discussion on Copyright is that the old model that people are trying to save is no longer working. Consumers are going right to the arists (YouTube, local bands, etc). Artist and creative people will always create, they have done since the first cave man painted on the walls. Some business models come and go but artist will always be creative.

    So the point…find a way to meet customers requirements, which c-61 ACTA, etc do not address. They only address the failing business model from the lobby groups.

  16. Sean Hunt says:

    Crown Copyright has its uses
    While I’m for abolishing the Crown copyright in the general sense, there are still situations where it is useful. I’m an Alberta student. I’ve written four diploma examinations. Every one of them has a copyrighted by the government, and the consequences would be disastrous if they were not. Perhaps the Crown copyright should be abolished except where otherwise specified by law, so that governments do not need to invent separate laws for distribution of material that must remain confidential.

  17. The Industry Must Learn
    Quoting Hephaestus…
    “The only thing that will work to lower infringement is, to compete in a fair way, at a price the market sets for their product.”

    This gets it in a nutshell for me. Overly strict copyright will only dig hardcore pirates deeper in. The industry has to learn to embrace the technology, but in a fair non-onerous way, otherwise it will never get adopted. Just look back at our history in the last 20-30 years.

    **They were sure VHS piracy was going to put them out of business so they started anti piracy campiegns and started cracking down on pirate sales and introduced Macrovision, which was subsequently cracked and the pirate VHS trade fourished for years.

    **Next comes the DVD. Many commercial DVDs are dual layer, which was not widely adopted by the comsumer world, but there are many many tools out there to strip features and compress the video to make a dual layer DVD fit on to a single layer. Next, came ripping a DVD. First it was VCDs and SVCD since they were native formats on many DVD players. Then a file format such as DivX, XVid, mKv, etc file took over. At the outset, say 10-15 years ago this was difficult to do well and time consuming, often taking over 12 hours to encode a movie. Tools these days are much more sophisticated and a movie can be ripped with a few clicks of the mouse, in faster than real time, with little knowledge of the underlying technology.

    **Now we’re at today; let’s think like a pirate for a minute. Now there’s both DVD and BluRay, but space and bandwidth is so cheap these days why bother taking all that extra time to rip when I can take a perfect ISO copy of the disk. These days it’s not unheard of for someone to have an 8Tb server. That is enough capacity to hold 930 dual layer DVDs filled to capacity. In reality that server would probably be capable of holding closer to 1400 DVD-quality movies. That same server, if filled with average DivX/XVid movies would house over 11000 movies.

    I know people who spent a great deal of time digitizing their entire DVD collection and putting it in storage to save space in already cramped appartments. They then watch their movies using a home theater computer hooked straight in to their home theater. This is the way things are going. For 11000 movies…two boxes no bigger than a stack of 5 or 6 hard-cover novels. In comparison 11000 standard DVD cases would cover the floor of a 12’x12′ room over a foot deep!!! The path to digitization and miniaturization has already been paved and there’s no stopping it now, the industry must adapt and embrace the technology or face the consequences, it’s that simple. It will never be able to stop the pirates, they will always find a way around any circumvention measure. The trick is to make the media accessable in such a way that makes pirating it less attractive.

    Transport techniques and security meassures also improved greatly over the years. UseNet, EfNet / Fileserv, FTP, SFTP (Secure FTP), SCP (Secure Copy), early forms of file sharing such as Napster, Kazaa and eDonkey wre a step back in security but much more accessable to the average user. Now, next gen file sharing such as Vuse and Bittorrent with fully integrated RC4 encyrption, full proxy server support as well as IP logging and blocking make it very expensive and difficult to 100% identify illegal traffic. The short and long of it is if they try to kill file sharing, like other technologies in the past, it will evolve in to something else, something more secure and more difficult to track and the industry will be no further ahead.

    I realize this makes me sound like an advocate of piracy, and that may have been true some years ago, but not for a long time since I can actually afford to buy most of my entertainment now. Mind you, much of what I downloaded in those days were extrememly rare foreign horror movies and would have been legal under the Berne Convention at that time. Many have since been replace with DVD (Gotta love Anchor Bay). I’m more concerned that good people are going to start seeing law suits in Canada like those fiascos in the US. And really, did they do any good at all, other than to ruin otherwise good people’s lives? Did it really bail the entertainment industry out of certain turmoil? Did it slow down piracy? Of course not!!

  18. I don’t know if it is possible to beat piracy or not, but I swear they aren’t even trying. I don’t know what the heck they *are* trying to do, but it is dumb.

  19. Hindgrinder says:

    Beating piracy is like teaching your kids not to share.
    Parents know it’s good to teach their kids to share.
    Learn from them.

    HG – Support Letter of Marque for Teachers!

  20. @IamME
    You have it pretty well nailed. I have been saying this for quite some time. I have a strong background in the technologies that are used, tech that can obscure the content, the packet flows, even the connections. These technologies aren’t something special to P2P file sharing, but are used by various other industries and corporations. Everything from secure online banking (including debit and CC terminals), to VPN based corporate and inter-corporate networks. The tech is there, and fundamental to the use of way too many valid, critical, internet technologies. Effectively, if you find a way to “break” the tech used to obscure P2P sharing, you have also “broken” the tech used to protect all banking and corporate intranets. You can bet the technology is pretty solid, without glaring holes. In the event it gets “broken” through some obscure trick, it will get fixed very fast.

    So don’t expect technology to solve this problem. DRM will be broken, P2P networks will be obscured and hidden. Bet on it, just like you bet your on your bank’s security measures.

    This is a social issue, which can only be resolved through social interaction, with the weight of society behind it. In this case, it is a digitally connected society, with different needs and wants – and resources. It also happens to be where we are all heading. Engage with this society. Understand it. Deal with it. Adapt.

  21. Joel Cairo says:

    i agree with Hindgrinder

    sharing is good, stealing is bad. Film and music are illusions and you cannot steal the ethereal. ‘intellectual property’ is a contradiction in terms, it’s a legal creation used to criminalize people. most people get paid once for the work they do.

  22. Scott Watkins says:

    Plus que ca change…
    I submitted an ‘idea’ to the new Digital Economy section on ‘Digital Infrastructure’ saying that the government should enact a copyright law that reflects the opinions expressed in the consultation last year, as copyright law is a fundamental piece of digital infrastructure.

    I went back today and it was removed.

  23. re: “deal with it… adapt”
    we will all have to adapt to the fact that ISP’s will be legislated to compensate content creators. right or wrong, it’s the only gateway that can be controlled. just like radio stations have to pay.

  24. Your wrong, there are plenty of ways to try to control everyone that people won’t accept besides this one.

  25. “ISP’s will be legislated to compensate content creators”

    Ultimately this may be the only feasible solution. Hardly perfect or even “good”, but doable. If you combine this with usage based billing, you open doors to new ways of doing business.

    Example: Consider the case of cable TV. That model allows the cable provider to effectively “host” and redistribute TV content to their customers. If you extend this model to an ISP basis, allowing the ISP to set up a “content server farm” to redistribute that content to customers, you open up whole new avenues. “One time viewing” (streamed) content with advertising. DRM free (transferable to other devices) downloading. If these servers are also part of the P2P sharing networks, you can even exploit the characteristics of P2P (fastest data transfers) to effectively “direct” most of the P2P traffic to these servers. Price it attractively, and you cut down on the reasons most P2P sharing happens. Encourage independents to directly place their content on these ISP hosted servers.

    You won’t eliminate digital copyright infringement, but you can put a big dent in it. It gives an incentive to ISPs to upgrade their internal infrastructure. It gives an incentive to copyright holders to make that digital content available in a timely fashion – and in different packages. If customers find it easier or faster, for a fair price, they will gravitate to it.

    The key is to “roll with the technology” that is already there. It has already proven to be easy and acceptable to users.

  26. Business models and Copyright law
    I would just like to clarify something about the tangent we/I seem to have got off to. Business models should have nothing to do with Copyright law. These are separate subjects. We shouldn’t be using Copyright law to define, or support, particular business models. Levies or ISP forced compensation are examples of just that. Likewise making an ISP responsible for policing or enforcement of copyright law. Same with DRM “protection” measures. None of these should be covered or even addressed in copyright law, except as directly related to specific copyright infringement.

    Copyright law should focus on the fact that these laws are a pact between general society (customer/audience) and the creator of the copyrighted content. Technology can affect the balance, especially when the technology creates economies of scale that tend to send the cost of “making a copy” towards zero. The overall guide should be “what is the minimum protection granted to the copyright holder to maximize the benefit to society?”
    What is an appropriate copyright term? What is fair use of copyrighted works? Is transferring a copyrighted work to a (or another) digital device “fair” to the content creator?
    These, and other questions like them, should be the focus of copyright law, and the only focus, constrained and guided by the maxim, “what is the minimum required protection granted to a copyright holder that is needed to maximize the benefit to society?”

    If a wide swath of society has somehow found it easier or more convenient to infringe copyright laws than to abide by them, it is a sure sign that the business models no longer meet the needs of that society. It does necessarily not mean the laws are inadequate or wrong.

    Likewise our changing society has changed the answers to the questions, as guided by the maxim I referenced above. What the laws cover, and their phrasing, needs to be updated to reflect a more modern society. Let business take care of itself, within the terms of modernized copyright law.

  27. Scott MacQuarrie says:

    Not a single comment of suggestion about how to protect the individual artist/creator, which is WHY copyright was invented in the first place. Viewing copyright through the model of Corporation/User is simply an incorrect assumption.

    Copyright was invented so artists could protect their work and make a living (and thus more art for the benefit of all).

    How about giving photographers the copyright on their work by default? (Like the rest of the planet.

    I have no real issue with the suggestions, except for statutory damages. It needs to be enhanced or combined with the ability of an individual artist to defend themselves against corporate infringement.

    BTW, the primary benefactors of copyright removal and orphan works legislation are the corporations that will reap the rewards to distributing content.

  28. “Not a single comment of suggestion about how to protect the individual artist/creator, which is WHY copyright was invented in the first place. Viewing copyright through the model of Corporation/User is simply an incorrect assumption.”

    Which is exactly why I believe copyright law should stay far away from business models, or contract law.

    There are many reasons for a creator wanting to protect their works, monetary compensation is only one of them. Works released under a Creative Commons license or the GPL are the most prominent examples, but there are many others as well.

    “Copyright was invented so artists could protect their work and make a living (and thus more art for the benefit of all).”

    I agree with the first half of your statement (up to the “and”), but not the second half. “Making a living” hedges into business models, and customer demand.

    “primary benefactors of copyright removal and orphan works legislation are the corporations”

    Now this is one of the areas that P2P sharing and worldwide networks could really change things. I disagree with your assessment. Corporations might benefit, but I doubt they would consider it worthwhile. On the other hand, the benefit to society is enormous.

  29. Jason Hargrove says:

    Soulular COGA (Chief of Geekineering, Always)
    @oldguy You have it right. The focus should be on the law, not on the business models that leverage the law.

    ## My Perspective

    I’ve been a creator since birth (art, words, graphic design, photography, brand strategy and software).

    By nature of life I give most of what I produce away, however, I do make a good living by my works as well.

    Profiting by said works is a choice. MY choice.

    Just because Person A wants what I produce, doesn’t give them the right to it.

    ## Declaration

    I do not work for free.

    I am not your slave. Nor am I a slave of society.

    # As such, I require copyright law to protect myself and my family.

    ## /////////////////////////////////////////////////////////// ADDITIONAL THOUGHT

    ## Business Models

    In my life I’ve traded creation in numerous ways:

    Sold. Shared. Bartered. Given freely. (And yes, I’ve been stolen from, which I’ve generally chose to ignore.)

    I am a contributor to a number of open source software projects, and my company Soulular will soon release a software framework in the same vain. This is a project I’ve blood-sweat-teared over for the last two years. Free! This is my choice.

    We have a business model that understands societal choice. I believe that the “theft” occurring on the web can be curbed with innovation. Soulular is powered by this belief.

    I expect to be successful for this. We will take market share from companies who are clinging to the past.

    And we will do this, without feeling the need to challenge our societal copyright laws.

    ## Suggestion to the Loud Critics

    If you do not like a creator’s business practices, then do not consume the creation.

    We have democratic processes for pressuring companies and individuals to be better.

    Speak up. Give your allegiance to those who lead by innovation. You’ll weed out the rest in time.

    ## Re Some Comments Here on Intellectual Property

    Those who say Intellectual Property is just “an idea” have a very very narrow perspective.

    IP rights are invoked every time you buy a car, a hamburger, go to the dentist, watch a hockey game, pay your taxes, ride a subway, go to work, get paid, cash cheques, etc, etc.

    Copyright is one of the greatest civil protections that ANYBODY has. It isn’t just for filmmakers and record producers.

    ## And now the irony

    Here’s a link to a video clip I do not own. I’m not profiting from sharing it, nor do I advocate the methodology that allowed it to be made freely available online.

    However! In the spirit of societal progress… In the spirit of education… I post it here freely.

    If I’m breaking a law… so be it. It is just a clip afterall. And it is my hope you’ll go out and rent or purchase the film. And the book that inspired it.

    # Howard Roark Speech from The Fountainhead

    (In the clip Roark defends his right to Intellectual Property, as well as his individual right to stand alone, without regard to the benefit of society.)

    Roark worked for his work. Not anything else. And that is his right. Regardless of whether or not society believes his work was theirs.

    Don’t like it. Don’t consume it.

  30. I also rely on copyright for my living, but that doesn’t mean I am happy to see the mockery that it has become, and the corruption driving it’s direction. I see perfectly well that it is becoming easier and more profitable to try to trick people with fancy license agreements than it is to entice them with quality products. I see that the law is directed not to benefit creators, but to benefit the big companies with the money to direct the law. I am not in denial that these companies have my interests in mind, nor the interests of anyone but themselves. I know better. I know corporations role in capitalism.

    I wouldn’t agree with this sort of crap in physical law and I don’t agree with it in Intellectual Law.

    I feel like they are trying to pass a law that says McDonalds can issue 2000$ fines to everyone who looks like they might be a smoker, and everyone is arguing about whether people should be allowed to smoke or not, and no one is saying “what do you mean ‘looks like’ they ‘might be’?” and “why would we trust McDonalds with this kind of authority?”

  31. Sorry, it was supposed to be smoking crack, since everyone already knows that no matter what, the fact that smoking crack is illegal will not change.

  32. @crade

    A: the corporations role in capitalism is diverse as capitalism itself. Don’t be naive that all corporations exist to screw society, and I won’t be naive to think that all corporations exist to save society.

    B: if McDonald’s was ever able to issue such a fine, I’d be as up in arms as you. I see the point you’re trying to make, but your choice of words is so far outside of the discussion it’s difficult to take your point seriously.

    C: no matter how you look at it, downloading a product and not paying for it is lame. If you can afford to pay, you should pay.


    IMHO, this issue is moot. And sort of dumb. The resolutions passed will not change society… society will change it. We already are. What you want is inevitable. Regardless of what laws are written.

    I won’t blame the grey of this issue on capitalism, nor the corporation. I blame a very powerful group of businesses who are dying. And either do not know, or are in denial.

    They will die. And a new paradigm will take their place. Things will balance.

    In the meantime, steal your movies and (to use your example…) smoke your crack. It’s 1 in a million you’ll ever be busted for any of this. It’s just a lot of noise.

  33. I never said they exist to screw society. They exist to make money for their shareholders. That is a corporations role in capitalism as I understand it. This is good for society in many ways, just not in a legislative role in my opinion.

    As to my point, it is simply that I believe it is pointless in terms of our current reform to argue whether copyright is essential or not. Abandoning the current system is not up for debate, and not going to happen. Meanwhile while everyone is arguing we are going to end up with laws that condemn people with no evidence, hinder technology, don’t really help enforce copyright and harm both sides and everyone in between.

  34. Getting off topic, but so has this thread 😛

    Michael attempts to separate fact from fiction, and to focus on the topic at hand. Meanwhile here we are doing exactly the opposite. Ah well, it’s interesting.


    Corporations exist to provide a separate legal entity that is offered various privileges specific to its nature. It also offers a certain amount of protection to the people who form the corporation. They are employed for profit, and not for profit. The majority of corporations are privately held and have no shareholders than the founders.

    The broad-stroke of villainy painted on corporations and business is annoying. And counter productive.

    If I were so inclined, I’d make my case about the specific companies that make you fear the outcome of today’s copyright legislation. Further, I’d go out of my way to locate and highlight the companies who are doing “the right thing”.

    Contribute to rational outcry. Support guys like Michael Geist who are clearly 1000% more educated on the topic than 99% of us.

    Positive action. That’s what will change things. Not random complaint / debate.

  35. there is a flaw in the idea : “ISP’s will be legislated to compensate content creators” .
    How would the isps calculate and then distribute the payments?

    Almost all systems involving payments for ‘re-use’ of things are redistributive- there is no direct link between the individual right-holders getting a payment and the individual consumer making a payment, as there was (at least in theory) when you paid at the counter for the DVD .
    Great success in movies, music , books, art is rare, the competent & the average is by comparison very numerous; thus a redistributive ‘copyright’ system will inevitably tend to either; reward the more numerous , the typical , the mediocre, at the expense of the very rare, the very good, OR more commonly it will redistribute to the benefit of entrenched interests that can control the method of distribution. SoundExchange is a very ‘good’ example of this sort of problem.

    This is not what copyright is for. If the size of copyright payments to an individual are not directly proportionately linked to the frequency of purchase of that individuals creation(s) then it is not actually a ‘copyright’. Rather it is a dysfunctional quasi privatized , redistributive tax.

  36. @john
    “How would the isps calculate and then distribute the payments?”

    As I mentioned above, the idea isn’t perfect or even very good. You have put your finger on the biggest flaw in this idea, equitable distribution of the fees. Same problem with levies, like we have with the CD levy.

    But even with these flaws, there can be some “statistics” that would perhaps help.
    Given the example I suggested, ISP’s could easily track direct “streaming” downloads. P2P is more difficult, but again if the ISP is hosting an array of servers that also participate in P2P sharing, they can track which content is the most “popular” (at least as far as their servers are concerned). That gives them a starting point to determine how to “divvy up” user fees to content creators.

    P2P would still extend beyond the particular ISP’s internal network, and for content they do not host they would have no idea of which content to credit. If such a system were put into place, it would actually be in the holder interest to make sure it was placed on as many ISP “internal P2P systems” as possible, and quickly, so they can fully participate in the statistics.

    Like I said, it is doable, with at least some statistical fairness. With our current situation it may even become the default “compromise” option.

    This type of solution is squarely in the business realm relating to copyright, and I personally believe it shouldn’t be mandated by law. But it has a potential chance of acceptance by many.

  37. The history on these things is not that good.
    For example;
    The australian Copyright Agency Limited has for 30 years run a similar sort of program ‘distributing’ payments to authors for educational photocopying ( in Unis and schools).
    What CAL has actually done for years and years is extract 10 million in payments to the management of CAL, AND then pass the remainder on to publishers to ‘distribute’ to authors.

    As the old payola scandals attest- Sampling methods are easily manipulated.

    What exactly is the ISP paying for?, is it for the right to sell copies ? – for distribution rights on stuff that it dos not sell? ?
    The unis are not at all happy with having to pay for the costs organising of sampling( a expensive time consuming task.) But they at least do supply education/photocopying.

    Finally “mandated by law” = duty author term for a transaction tax. I agree that there is little basis for a mandated tax on all the users of ISPs to pay for the behavior of some of the users of ISPs. It could actually make the problem worse(moral Hazard and all that.)
    There is a dangerous assumption under a lot of the talk around copyright. The ‘Music industry’ (for example) is not necessarily the ‘music distribution industry’ that prior to about ten years ago had a natural monopoly on distribution- many of these proposals seem to entail protective tariffs to protect the un-competitive.

    And as far as ‘equitable’ goes copyright is like , talent and success, not meant to be equitable.

  38. The basis for an ISP user levy is exactly the same as the one for the CD levy. Compromise between changing society behaviour, outdated copyright law, and outdated business methods.

    I disagreed with the CD levy, and I disagree with the concept of a mandated ISP levy. That would be politics defining business models. I agree with your perception of user “unfairness” in a levy. But it is a possible political reality.

    But if we accept that it is a possibility, there exist technical measures that can make it closer to “fair” than anything the CD levy could accomplish. Add usage based ISP billing into the picture. It still wouldn’t be properly “fair” on an individual or creator basis, but it is something that can be accomplished, and is better than a legal bun fight.

    Distribution of payments to content creators and statistics manipulation doesn’t really have a bearing on the concept itself, these are details of administration.

    Other proposals I have seen, like DRM protection and 3 strikes, have effectively no chance of success in addressing the root of the issue. They are based on the concept of “controlling” a behaviour that is seen as undesirable on one side and natural on the other side. Control through essentially technical means, that are also easily bypassed using existing technologies. Ultimately, “control” will not succeed – it just makes enemies of potential customers.

    The problem we are seeing is the same one faced in many other industries, if you don’t stay abreast or meet your customers needs they will go elsewhere. But in this case, “elsewhere” doesn’t mean they won’t obtain the product, it just means they will obtain it through channels you don’t, and ultimately can’t, control. In the digital world of content, a “copy” is just as good as the “original”. In fact, that’s all the content “product” is, a copy. Fundamentally, this is still a business problem, a problem created by technology and changing customer behaviour.

    Until the business models evolve (or are shaken out), an ISP levy might supply an interim compromise. Ideally, it should be a “limited time” levy to allow business models to evolve and/or adapt.

  39. W McLean says:

    I’ve written four diploma examinations. Every one of them has a copyrighted by the government, and the consequences would be disastrous if they were not.

    = = =

    What disastrous consequences would there be?

  40. W McLean says:

    How about giving photographers the copyright on their work by default?

    = = =

    For the most part, already done. Read the Act.

    It’s not the photographer’s interests that aren’t protected in current law; it’s the interests of the subject and commissioner of domestice photography. Why do photographers want them to have no rights?

  41. @Jason Hargrove
    Quoting Jason Hargrove…
    “no matter how you look at it, downloading a product and not paying for it is lame. If you can afford to pay, you should pay”

    As a software developer myself, I absolutely agree!! And I would go one step further to say that if you can’t afford to pay for it you should go without. What I don’t agree with is the aproach. Especially where they’re trying to make illegal and demonize behaviour which they’ve allowed to become ingrained in our society.

    **The idea that I can’t tape or or use a PVR to copy a TV show is LAME and has been a relied-upon family institution for literally decades!!!! Have you ever tried to keep up with a TV show with small children? Gimme a break. What is the justification for not being able to download a TV show that has already aired. So what are my options? Miss it and go on my merry way? With today’s technology, and the $70/mo I’m paying for satelite and $60/mo I’m paying for Internet, that should NOT be the only option. Someone should be able to come up with a decent solution. Why can the networks not provide a means of downloading the content…downloading, not streaming!!! I would pay, a small fee, to download a TV show, that I can then watch at my liesure, I WILL NOT pay to stream. 99.99% of people would just watch it and delete it anyway, even if they paid for it. If a half decent quality source was provided, people wouldn’t feel the need to resort to elsewhere.

    **Back in the day I could buy a bunch of tapes or CDs and use those same tapes or CDs to make mixed tapes and CDs. That I could then play that CD in my car, in my wife’s car, in my portable CD player, in my wife’s diskman, in the CD player in the bedroom and the one my living room. Under the new laws, I would have to PURCHASE the same track at least 6 times to achieve this. This is pure and simple GREED and if it comes to this I simply will not buy it, and I know I’m not alone in this stance. At the rate of piracy these days, they should take their money and be happy I was willing to pay for it at all. And yes, I’m one of those freaks that actually buys a vast majority of my MP3s, as well as my movies and software.

    It wasn’t always so. Back in the dark days of university, I lived on student loans and had no money at all. In a situation like that, the only option to get new music/movies/software is to pirate it. $40 for a new movie is A HELL OF A LOT of money to someone in that situation. You don’t think about it, you don’t feel remorse, all you know is that it’s your only option and trust me. Coming from a situation like that, you do NOT feel sorry for the recording industry execs or the Metallica’s of the world sueing single mothers, students and kids for what? The money they get pocket change to them, but it completely ruins the life of the who is sued. You become even more disillusioned when you realize these same execs they have more money than GAWD and and make more money in their anual bonus than you’re likely to see in your entire lifetime. So, I don’t feel sorry for the recording industry or the entertainment industry as a whole. It was their own lack of foresight that put them in this situation. I do feel sorry for the artists, trying to make a living in one of the most corrupt and difficult industries on the planet and I would be far happier to go to a band’s web site and buy an album directly from them that I would be to buy it from a big franchise. At least then, I know I’m supporting the artist directly. I once saw a video that said less than 5% of bands actually make money on their album sales…5%?!?!? The industry is broken and is in major need of an overhaul!!!

  42. Ammendment
    To be clear, I’m not saying it’s alright for students to pirate, only that that is often the mentality I ran across, including my own, when I was in university. Wrong is still wrong. Also, if the documentary I saw was accurate, with only 5% of bands actually making money on their album sales, should the artists not be looking at the recording industry for some answers. AND, why do the other 95% care if an MP3 is downloaded if they make a all or a vast majority of their money from concerts and merchandise sale? Don’t they want their music distributed as widely as possible?

    What it really comes down to is the recording industry is scared to death because the Internet allows any Joe Blow with a back-yard studio to get the same distribution as them. This equals infinite competition. MP3 mean there no need of the BIG mass production the recording industry offers.

  43. oldbloke
    Tax payments and copyright payments have opposite intentions.
    The problem with replacing copyright with a amalgam of tax & copyright is that it will act as an anti-innovation and anti risk taking measure. It will favor the typical over the exceptional. Re use levies inevitably favor the entrenched and large over the new and small.

  44. there are a number of problems, from an economic-social cost benefit perspective with the the argument for the community need ( benefit) for a tax-like levy on file sharers
    1 it is impossible to do a double blind trial and thus claims of NET loss to the music/film and publishing industry are claims that cannot be empirically tested.
    2 It is very difficult to even begin to estimate how many of the copies made by domestic users actually equate to actually lost new sales . When I was young home coping was largely limited to poorish quality tape , but this did not result in my buying 2 or copies of the same record.
    3 some copying actually can be seen as a form of free advertising= a economic net gain to the industry.
    4 These schemes are to a degree a ‘monopoly restriction of terms of trade of unrelated third parties’- this has significant opportunity costs for both the individual consumer and the individual creative and thus is a concealed net cost
    of any mandated levy on the use of copyright material.
    5 these sort of schemes also undermine highly conserved common law conceptions about economic rights as an right of the individual as apposed to being a power of groups. Thus they set precedents whose wider impacts (and costs) on other aspects of economic rights law are very hard to predict.

    On the other hand fining ordinary people tens of thousands of dollars (or even jailing them) for stealing something worth less than ten dollars is an approach worthy of late 18C england, it did not work then.

    What did ,slowly, work was : reducing the power: the stranglehold over representation, of the UKs very entrenched , very corrupt and very mediocre ruling elite, spreading wealth to a growing middle class and then by providing this growing ‘nation of small sole traders ‘ with the means, through acts like the patent act of 1852 to protect their individual innovations from exploitation by the powerful. A growing number of people felt that they had a real investment in a real loyalty to ‘their’ legal system.

  45. “Until the business models evolve (or are shaken out), an ISP levy might supply an interim compromise.”
    Mandated Tariff protection = keep on doing it, keep on being uncompetitive.

    ” Ideally, it should be a “limited time” levy ….. ” are you serious? pull the other one its got bells on it!!!
    “…business models to evolve and/or adapt. “-did the various blank media taxes you have had for decades in in Canada achieve this? Did the industry become all tough and buffed in time for the arrival of the iPod?

    When ever a group of business men get together the talk inevitably turns to talk of monopoly , Adam Smiths words are as true now as they ever were.

  46. Jason Hargrove (JH) says:


    “As a software developer myself, I absolutely agree!! And I would go one step further to say that if you can’t afford to pay for it you should go without.”

    I’m with you brotha. The only reason I stop from going that far is because as I started my career (as a student) I had absolutely no financial backing and no way to afford extremely costly software (primarily coming from Adobe).

    Does this justify theft? No. Totally not. If ever I was to download software illegally, it was a personal morality issue where I identified greater good.

    If not for that, I wouldn’t be here today creating opportunity for tomorrow. Job creation. Innovation. Etc. But specific to this creator, my corporations have lined Adobe’s pockets over the years.

    If they were smart they’d recognize this.

    It’s the same issue that gives fundamental power to the open source movement. Something that numerous profit-oriented corporations now support. Apple. Google. Even Microsoft.

    The changes these corporations are bringing are an example of how businesses can adapt to reflect the needs of society. And it works.

    I no longer have to worry about stealing. It’s a non issue.

    Not a matter for law, but smart business. Copyright owners should have full authority to protect every production. Every line of code. To the tenth degree. Just as YOU should have the law on your side protecting YOUR rights.


    Side note:

    The aforementioned example of piracy was an educated choice that meant my livilihood and future. In those days, there were no alternatives.

    I do not believe my rational there applies to things like music and movies.

    Unless you’re a musician or filmmaker, I don’t know if I could say downloading that media is a matter of livihood. I don’t really think there’s much justification there.

    (Particularly today when you have legal options like, Pandora,, etc)


    “What I don’t agree with is the aproach. Especially where they’re trying to make illegal and demonize behaviour which they’ve allowed to become ingrained in our society.”

    — Just because bad behaviour is de facto doesn’t mean we should respond by altering laws.

    That argument essentially would excuse Adolf Hitler and his movement.

    Personally I do not trust my liberty in the hands of the mob… Sounds too much like anarchy.

    No. No. No.

    A democratic government protects all interests, not just the subjects of rule.


    “*The idea that I can’t tape or or use a PVR to copy a TV show is LAME and has been a relied-upon family institution for literally decades!!!”

    I completely agree. Solution is better business models (see comments above, and see next comment).


    “I would pay, a small fee, to download a TV show, that I can then watch at my liesure”

    This exists. It’s called the iTunes store. I use it to purchase all my fave shows. (Will be watching LOST tonight, in fact.)

    It’s a download. Not a stream.

    This model has SAVES ME A FORTUNE, compared to paying for HD cable, as well as the savings on the DVD release I would have purchased at the end of each season.

    I watch it when it comes out. I own it for life.


    — Note on your comments of mixtapes —

    I also purchase CDs from iTunes store, and can make any sort of mix-cd I want.

    If I was so inclined, I could burn a CD, then rip that CD to get the MP3 and do whatever the heck I want.

    But I still purchased that first copy. And in my mind that is fair practice.


    ### Bottom Line

    An educated consumer is objective.

    An educated consumer takes positive action.

    Almost all of this stuff is available in hard-copy and that won’t change until we run out of paper.

    If you want to lend your movie, book, CD — don’t buy digital until DRM is perfected. Simple!

    Purchase from retailers, manufacturers, producers who share your values. Utilize the open software world which generally produces comparable, or in many cases, better software.

    Evolution, not revolution.

    While industry evolves (it takes time): Use your head. Use your dollars.

    Those companies who are obstinant become obsolete. I have every trust that this is a social matter that will resolve itself with consumer outcry.

    Nuff said.

  47. Jason Hargrove (JH) says:

    Btw, just want to clarify my position about justifying theft of software when I could not afford it. A decision I made based on livelihood and future — with no options of the time.

    Though I morally felt fine:

    I did what I did knowing full well that it was a possibility I’d be busted.

    In that event, I would only have myself to blame.

    // IMHO, this acceptance of responsibility is the fine-line between my views and those leaning a little more left on this issue.

    Do the crime. Do the time. (If you get caught.)

  48. “Copyright owners should have full authority to protect every production. Every line of code. To the tenth degree. Just as YOU should have the law on your side protecting YOUR rights. ”

    This is ridiculous. No one has “full authority” to protect their rights. You can’t do whatever you want in the name of protecting your rights. You aren’t allowed for instance to go cut someone’s internet cable if you suspect they are stealing from you, because that would violate their rights.

    When we are talking about new laws, if your protections potentially infringe on others rights (as they do in this case), they need to be considered carefully. Laws are supposed to balance everyone’s needs, not give anyone “full authority” to trample other people’s rights in the name of protecting theirs.

  49. BuddyRich says:

    Fair Use
    My biggest gripe are the lack of protection for fair use provisions against antiDRM circumvention provisions. In effect this gives the producer ALL of the control and the consumer none whereby the producer locks it and the consumer has no choice but to use it as is dictated to him.

    In effect that’s like buying a chair but being told you can only use it to sit in and not use it as a makeshift stepstool to change a lightbulb. It also makes everyone renters rather than owners.

    Like a physical object, once the sale is made I should be able to do what I want with the object so long as I don’t use more than one copy at any one time.

    This would mean I could copy it but I couldn’t give it away without destroying my copy first. It means I could put a copy on multiple devices but only use one at any one time, afterall I only bought one copy. This would make something that is easily and infinitely copyable more like a physical object.

    In some ways that would invalidate some common uses. Ie giving away a mixtape (though you could still make one for your own use).

  50. @Jason Hargrove (JH)
    Thanks for the tip on iTunes Store. I will check it out. I’ve been avoiding iTunes as the software is historically a resource pig and hard to get rid of.

    “Just because bad behaviour is de facto doesn’t mean we should respond by altering laws. That argument essentially would excuse Adolf Hitler and his movement. ”

    I’m not saying things shouldn’t be changed…just within reason. I object to them trying to demonize the behaviour when they’ve allowed devices which enable and even encourage piracy such as VCRs, PVRs, MP3 players, and file sharing to become mainstream societal staples.

    That’s like supplying a drug addict with crack for 10 years, then informing him it’s illegal and can no longer have it. You damn well know he’s addicted and will find any means necessary to maintain the habit, even if they have to pay through the nose. This is what the industry is relying on and realy, this is not too much different than extortion and it should be heavily policed to make sure the public’s rights are not being infringed upon by the Industry.

    If I legally purchase a piece of digital media, don’t force me to re-buy it because I ran my wife’s MP3 player through the washer. Buying it should give me unlimited “personal” use, including the right to make back-ups, just as much as buying the hard-copy of a CD or DVD gives me the right to make back-ups and copies for personal use. They certainly aren’t charging a whole lot less for digital copies, which is a whole other issue in itself.

    I’ve said this in a number of posts. It’s the industry’s own lack of foresight, or perhaps it was even willfill ignorance, that has caused this and now they’re trying to make society pay for it.

  51. IamME

    “I don’t feel sorry for the recording industry or the entertainment industry as a whole. It was their own lack of foresight that put them in this situation. I do feel sorry for the artists, trying to make a living in one of the most corrupt and difficult industries on the planet ”

    I am a visual artist and have been an INDIE for all of my professional life , Could not agree with you more!
    The stories my muso friends tell of the ‘music industry’ are shocking .

  52. @crade My apologies for not being explicit. I meant full authority provided by law. I do not mean an ultimate authority above. I do not envision a scenario where anyone has Gestapo powers here. Though it seems to be the fancy of many voices on this subject to make it appear as such.

    This isn’t 1984. I think people need to temper their perspectives a bit.

    I trust that the results will be **balanced**.

    I don’t believe that you all will get everything you’re hoping for. And I do not believe you have to fear what you seem to be terrified of.

  53. (cont) admittedly the word “authority” was perhaps not the wisest. Let me be more basic.

    Hmm. Perhaps a field trip!

    1. Walk over to your local convenience store.
    2. Grab a bottle of your favorite soft drink
    3. Ask the clerk how much
    4. When s/he responds reply, “nah I want a sample first”
    5. Crack the seal and take a sip
    6. Perhaps you decide to buy. If so. Stop here. (And congratulate yourself for being a solid citizen.)
    7. You’ve decided not to buy.
    8. Place the cap back on the bottle (Or don’t. What’s it to you anyway?)
    9. Grab a bag of your favourite chips.
    10. Walk out the story.


    You’ll find out what I’m referring to next. That clerk is going to exercise their authority. And then some other authorities will exercise theirs.

    Oh. But you know, those chips and pop taste so good! “My caffeine addiction excuses me.” (and such)

    There’s really no difference. That stupid commercial they show you before the movies may be a joke. Doesn’t mean it’s not right.

  54. @IamME

    “Thanks for the tip on iTunes Store. I will check it out. I’ve been avoiding iTunes as the software is historically a resource pig and hard to get rid of. ”

    I hear you on resource hog. I personally hate using my MBP to consume media. I buy all my shows through Apple TV which is a wonderful product. It’s designed for the task at hand. Couldn’t ask for anything better.

    I’m no Apple Fanboy. I’m simply an educated consumer that has tried everything under the sun.

    ## Some notes on why I believe this model is superior to stealing:

    As far as portability, I can watch the same show on my ATV, iPhone, MBP (iTunes). And if I had a wife and kids they could do the same on theirs. If I had an iPad I could move it there too.

    The hardware is cheaper than comparable HD hardware from your cable company. The media is cheaper too.

    It’s cheaper than PayPerView. Cheaper than Blockbuster. 48 hours to watch your movie rental simultaneously on as many devices as you like in your home. Watch it 4 times if you like. Save on late fees. Save on the walk or drive to pick up or return.

    ****ATV is small enough that I can take it with me to a friend’s house. I do it all the time.****

    And if I REALLY want to REALLY share, I can give a friend my iTunes Store password and away they go.

    I mean really, what’s the problem? Valid and viable.

    It isn’t perfect. But neither is life. This is 2010 and we’re in an infancy on this matter. People need to really open their eyes and realize that there’s an entire industry unfolding. If folks stopped looking at Pirate Bay and started looking for legal options they might surprise themselves.

    Apple is just one company out of a number.


    This is a very rambling (you might call it disjointed) article, but it points out some very valid problems with the copyright based industry today. And it comes from someone whose livelyhood depends on that industry.

  56. @JH
    I’m not terrified. I just know it is wrong and I don’t want it. This isn’t 1984, it is just a big step in the wrong direction for the wrong reasons. It is going overboard on restrictions and monitoring in the name of protecting against non-violent crimes to the point of allowing people to be condemned with no evidence and censoring technology.

    How much of my friends and family’s rights am I willing to sacrifice to support an unsupported theory that the number of people doing this will go down by an unknown amount? Not sure, but what they are asking is definately too much considering the benefits are unproven and even dubious.

    “I meant full authority provided by law” – I don’t think you know what you mean. The law can provide any authority. I’m not sure where you think the natural limit is on what authority the law can provide to protect one set of rights at the expense of another. Maybe what you are thinking of is the maximum amount of authority you would like the law to give before it starts encroaching on the rights you care about instead of just the ones I care about.

  57. @crade

    You talk about your friends and family’s rights, but in all of this I’ve failed to see where you have any. Other than the right to negotiate and walk away, of course.

    This is basic stuff. Life 101. We live in a society where everyone thinks they are entitled to something. It’s pervasive. And often perverted. We can see the effects of this mentality in the news everyday. The attitude is the same on both sides of this argument. “Gimme gimme gimme. Mine mine mine.” Never any compromise. Everything is bipartisan. Always all or nothing.

    There’s a middle ground. And this middle ground isn’t based in superstition or fear.


    Anyhow I think I’ve emptied my well in this discussion. For all future comments I’d simply redirect folks back to my first post. I’m interested to see what comes down the road. And as a producer I intend to do business my way. And lead by example. That’s really all that matters in the end. Y’all can live life how you like.

    In the meantime I’m exercising my purchasing power and taking great pleasure in supporting and advocating the companies that are giving me room to play. (Those profit-minded but sincere people who are going to bat for me against those crooks who’d otherwise keep us in the 90’s.)

    I type to you with my headphones on listening to (a mere $3/month) enjoying some super awesome music I would have never known to find. And thinking about how great my experience was last night. After hitting the 1-click button, waiting a whole 45 seconds, for an HD episode of LOST that I’ve already backed up on my network that I’ll surely have longer than I ever had a DVD or CD or VHS or Cassette Tape. All for $3 and change.

    I thought of everyone here as I marveled at the high definition wrinkles in Jack’s skin as finally embraced his new responsibilities with conviction. (After letting go of his trouble belief system after so much challenge and struggle.) Such a great episode, I think I might watch it again. Also… we’re having a LOST party on Sunday for the big finale. I’ll be hooking up the ATV and we’re going to marathon through our fave episodes. Click. Click. No fuss no muss. So much fun!


  58. I am already compromising. I have already conceded that you can do whatever you want with your entertainment junk. I am even willing to allow them to put restrictions on how I use my own luxury property that I have already purchased without agreeing to any such restrictions.
    That stuff isn’t important, it’s a luxury and completely expendable in my book. As far as I’m concerned, if your “protection” laws only affect access to entertainment, go wild.

    Just make sure copyright can’t be used as an excuse to oppress people by:
    Allowing them to force the removal and censorship of political speech(or any other essential speech) without some sort of public oversight.
    Condemning people to punishment without a fair process.
    Making it illegal to break digital locks that are intended for purposes other than protecting copyright interests.
    Making it illegal to build the tools necesary to break digital locks used for purposes other than protecting copyright interests.
    Legally protecting anti-competitive behavior in non-luxury areas.
    Monitoring and recording everyone’s work and other non luxury activities “just in case” they may be after luxury entertainment junk. (This is just too obviously open to security leaks).

    I am not superstitious. As far as I’m concerned, the harm comes from the law, not from people or corporations who may or may not use the law as it is written and intended.

    I type to you from work, on a short break from my work building copyrighted software to try to help prevent and handle catastrophies in the oilfield.
    I am also interested to see what comes, and I know my influence is incredibly limited, but I will do what I can to prevent what I see as irresponsible laws.

  59. Crade Agree , it is the potential -implications in the wider society that are the real worry about this stuff. Many (on both sides of the ‘argument’) treat the web as though it was separate from the real world, it is not.

    The wide implications of the radical changes to common law understandings of economic/property rights implicit in many of the ‘solutions’ proposed by the copyright collection industry are very troubling.

    As far as the shop and the bottle of soda pop analogy , I think a better analogy is: If I go into a book shop, pick up a book, read it for ten minutes , decide that I don’t like the book that much – put it back on the shelf, and then walk out – I have committed no offense.

    In the digital ‘shop’ it is hard to distinguish between legit browsing and shoplifting. The problem is that the test is no longer an clearly observable/testable behavior – walking out the door (with the book in your bag) without paying for it, the test has become a matter of intention, a very tricky matter for law.

  60. @crade @john

    Just checking in and wanted you to know I read your comments and accept them. I may be guilty of optimism and trust (in society at large.) If I am guilty, well it’s a great feeling, this burden. The only point I really have is I, personally, have nothing to fear.

    As for your view, I admire your stalwartness, and if our democracy fails us on this issue I’m glad to know you’re watching out for it.

  61. JH , I agree . Questions of economic rights are questions of power and thus In a civil society the answer to questions of power is never absolute; in a civil society the answer will always be a compromise .

  62. @john

    well said

  63. JH
    The words are really Edmond Burke’s.
    ‘philosophical refections on the Sublime’ was required reading when I was a young art student.
    His letter about why he supported the lawful american revolution and opposed the lawless french Revolution is still worth reading.

  64. – “It’s not the photographer’s interests that aren’t protected in current law”

    They aren’t protected under the current copyright legislation – unlike any other creator (apart from engravers… and how many of them do you know?)

    – “it’s the interests of the subject and commissioner of domestice photography. Why do photographers want them to have no rights?”

    Nowhere else and with no other creator/author does current copyright law automatically put the rights of the commissioner of a work above those of the creator. It doesn’t apply to filmakers or videographer (including wedding videographers), why should it apply to photographers?

    The whole issue of people not being able to have use their wedding photographs or family portraits is a straw man thrown up by a certain area of overzealous copyright reformers with no understanding or regard for a specific group of individual authors/creators who already get the dirty end of the stick from the corporate world as far as copyright is concerned.

    That photographers and engravers are the only two creators/authors who do not automatically own the copyright to the works they create is an anachronism remaining from the days when they were considered “merely” tradesmen and were begrudgingly included under the copyright umbrella. Almost every jurisdiction whose copyright law derives from UK law (where this peculiar exception has its roots) long ago revised their legislation and put photographers on the same footing as every other creator. Much to the chagrin of photographers over the last 40 or so years, Canada never got around to it. There may be very few engravers still working commercially, but there are many more photographers who still are. Unlike writers, artists of every other kind, film makers, architects, designers, videographers etc. etc. photographers are still not given the same basic copyright control over their own work. There is no genuine reason for this being the case and it needs to be corrected in the current reform process (indeed , it should have been done 20+ years ago – the ones who prevented it were not “fearful” portrait subjects as some would have you believe, but rather the powerful corporate lobby of newspaper, magazine and other publishers who saw themselves losing the very useful leverage (and cheap images) this anomalous exception gave them over individual photographers).

    The rights of “subjects” is outside the remit of copyright legislation and has no place in it. This should remain so and should be dealt with by, for example, privacy legislation (as it generally now is).

  65. tim regarding the rights of subjects.
    Photographs and copyright is a bit complicated .
    For a photograph to qualify as an invention, a creation, is a bit tricky. I can patent a method of producing a chemical I cannot patent that molecule in its itself.
    A photograph is (at its most basic) the recording of a pattern of light reflected off an ‘event’ in the world :such as a wedding party. You cant copyright ‘a wedding party’ in itself. No offense but most day to day photography is not Cartier Bresson , the value and significance of the resulting photo lies mostly with the “subjects” being recorded and not in the person pressing the button. Thus the question would be; has the photographer paid the subject for the value that the “subject” has added to the other wise blank sensor screen?

  66. “tim regarding the rights of subjects.
    Photographs and copyright is a bit complicated”

    Not complicated at all – and certainly not an issue in the current copyright. It was pretty much decidied long ago where the bar is for a work to be considered original in the context of works protected by copyright – including photography.

    “For a photograph to qualify as an invention, a creation, is a bit tricky.” “Inventions” have nothing to do with copyright. But if you mean for a photograph to qualify as an original work (vis-a-vis Copyright), it’s not at all tricky – failry simple and straightforward in fact.

    As such most “day to day” photography is protected by copyright, however mundane. They don’t have to qualify as an invention (which has little to do with copyright) or a “creation” or “creative – merely as orginal works as defined by the Act and case law. For photography the bar has been set somewhere around a slavish “copy photograph” – i.e. having something two dimesnsional (drawing, map etc) to be copied placed on a stand with the camera fixed above it and the photographer clicks the shutter and moves on to the next 2D thing to be copied. Any form of photogrphy “above” that would generally meet the requirments of the act to be protected by copyright. Anything below – possibly not (as for copy photographs themselves – they are in the grey area. In some jurisdictions it probably is protected by copyright, others possibly not).

    This is similar to writing (and all other forms of work that can be protected by copyright). A letter to your girlfriend is protected by copyright, as are the musings of an adolescent teen in his journal. Simple lists of things aren’t though aren’t necessarily protected.

    A work being protected by copyright generally has nothing to do with the author (visual or otherwise) “adding vaue” by paying a subject. Nor should it.

  67. Tim , bit confused, at one moment you seem to be saying that photographers/photographs are not protected by copyright law and then you seem to say that they are are.
    Are you referring to the fact that many photographers have in the past assigned copyright to their employer (as part of their terms of employment) in both the publishing and the Academic spheres ?