Copyright and the Right

Last night’s Republican presidential candidate debate featured a question on SOPA, leading all four remaining candidates to register their opposition to the bill. Their positions are consistent with the growing trend on the right in the United States as it the Republicans that are increasingly opposed to SOPA and PIPA with Democratic supporters left to wonder why their representatives remain so out-of-touch with the popular view of the public (this morning Democrat Senator Reid announced a delay in the vote on PIPA). In fact, it isn’t just Republican politicians who are opposed to overbroad copyright reforms: the right-leaning press and conservative think-tanks are expressing the same views. None of these groups or politicians can be accused of being soft on crime or weak on intellectual property. Rather, they recognize the need for government to tread carefully and to ensure that legislative initiatives do not undermine basic freedoms and personal property rights.

The opposition to SOPA is not limited to the right in the United States. In Canada, Blogging Tories, which aggregates dozens of right-leaning blogs, went dark in support of the SOPA protest and the National Post was the only major Canadian paper to publish an editorial on the issue, concluding:

On Wednesday, Wikipedia and a handful of other sites will shut down in protest of SOPA and PIPA. They have our full support. Governments should not be in the business of propping up outdated business models, nor of blocking legitimate speech. This draft legislation would do both.

All of this raises the question of whether the government’s approach in Bill C-11 is consistent with this trend. The overall talking points certainly are as the government talks about letting the market rule, protecting creators by targeting piracy, and giving consumers new freedoms. The devil is in the details, however.

Bill C-11 includes provisions to target infringement (the enabler provision) and shifts toward market-focused solutions with the creation of new consumer exceptions that ensure those rights are built into the price of the products, not subject to additional levies. The bill is also cognizant of the importance of Internet freedom with a notice-and-notice approach to Internet provider liability and a consistent rejection of proposals that could lead to terminating Internet service.

The outlier, however, remain the digital lock rules, as was noted in this National Post op-ed.  Far from adopting a market-focused approach, the C-11 digital lock rules are among the most restrictive in the world with the government intervening in the market by creating incentives to adopt digital locks. The government message to business is clear: with digital locks you get all your copyright rights plus you get to override consumer rights such as fair dealing, time shifting, or making backup copies. For consumers, the loss of property rights is enormously troubling (and one reason for doubts about the constitutionality of this aspect of the bill). The “right” approach on this issue is to avoid meddling in the market by linking circumvention of digital locks to actual copyright infringement. That would provide legal protection for digital locks but ensure that the copyright balance (including copyright exceptions) is not lost in the process.


  1. “I oppose the DMCA…”
    Didn’t G.W. Bush oppose the DMCA, only to sign it?

  2. Private property?
    It strikes me as odd and wrong-headed that the National Post would oppose digital lock rules on the basis of “private property” rights of consumers. The purchase and sale of copyrighted material is not like buying a piece of land or furniture. The seller profits from a *limited* monopoly over the copyrighted material, and the consumber pays for a *limited* license to use the copyrighted material. The problem with the digital locks is not that they violate private property rights, but that they allow the seller to circumvent legislated limits on the sellers’ limited monopoly in favour of the consumer’s license. In short, digital locks disrupt the delicate balance between private incentives to create and the public’s interest in the free exchange of ideas. “Private property” has nothing to do with it.

  3. Sorry Jimmy, property rights have everything to do with it. Digital locks do not exist in a virtual world. In order for the digital lock on your netflix video to work, there has to be software which cooperates with it running on your hardware. Digital lock rules then put a very real limit on your rights to use your personal and very real property.

    With digital locks, you are no longer permitted to run “unapproved” software for reading DVDs on your computer. You are no longer allowed to use mod chips to hack your Xbox so you can run “unapproved” software. You are no longer allowed to root your android phone or jail break your iPhone so that you can run “unapproved” software.

    You should be the one who gets to choose what software may run on your hardware. With digital lock rules, that choice is taken away from you. It may be your hardware, but you no longer are permitted to control it. That is a very real property right which is taken away from you.

  4. Re: Private property
    Actually, one of the bug problems with the digital lock rules is *exactly* that they effectively take away private property. I own DVDs that I bought in Europe (no, I didn’t license them, I bought them). I can only play them here in Canada by bypassing the region encoding, which is clearly an “access control” under C-11. If C-11 is passed as it stands, there is no longer a way for me to legally watch my DVDs here in Canada – the government is effectively taking those DVDs away from me (I guess I can still legally use them for skeet shooting or something, but not for the purpose I bought them for).

    Of course the Copyright Act doesn’t even grant rightsholders any control over how or where people enjoy the works they produce – this is strictly a right that C-11 allows them to take for themselves by applying DRM.

    You’re absolutely right that the digital lock rules in C-11 turn the *limited* monopoly that the Copyright Act grants into an *unlimited* monopoly, because it is no longer legal to bypass any DRM, however outrageous the rules it enforces are, but there are also clear effects on actual property rights.

  5. Jimmy Cloak says:

    Re: Private property
    The point is that if this is a battle over “private property” then Big Content has already won. Ideas, including software and artistic works, are *public goods* that you should have a right to access. As the public, we give creators an incentive by allowing them to profit from their work for a reasonable (now an unreasonable) period of time, but they should not be able to manipulate the product to take away rights you already have under the law, i.e. to use it on whatever device you choose, and to use it in all the ways permitted under legal fair use/fair dealing provisions.

  6. Dwight Williams says:

    Convergence over common cause
    And this is where the Right and Left meet honourably in the centre. This, right here.

  7. The reversal on SOPA/PIPA is only because the politicians started salivating at the amount of votes they could get if they opposed it, nothing more. This is the same reason all of a sudden it made it to the front pages of the news. The Province and Vancouver Sun and others could no longer try to hide this info deep down into their websites. They smelt money….

  8. Wow.

    I glanced at John Degen’s blog (The one that only people who agree with him, around one or two atm, now can post) and he’s put up three posts in the last three days over the issue. As you might guess, he appears totally pro-SOPA (not a surprise).

    He’s really annoyed over what happened on Wednesday.

  9. Rick Santorum, Newt Gingrich and Mittens Romney are all big government establishment candidates. The only reason they opposed SOPA/PIPA last night was because thats the way the wind was blowing. They knew how unpopular these bills were after seeing the backlash on Wednesday so they opposed the bills only to gain votes. I mean Mitt Romney said at Monday’s debate that he supports the NDAA bill. A provision in the NDAA bill states that the military can arrest US citizens on mere suspicion of being a terrorist or having some links to terrorists (keep in mind that the US considers gun owners, Occupy protesters and Tea Party members to be terrorists) without any proof or formal charges needed AND they will not be given access to a lawyer, will not get a trial and can be sent away to prison immediately. Romney supports this but is opposed to SOPA/PIPA? Give me a break.

    Ron Paul was opposed to these bills from day one and he was the only Republican presidential candidate publicly speaking out against these bills months before yesterdays debate. All of the other candidates want to be President for the power. Ron Paul wants to be President to give the power back to the people. His consistent record proves it.

    If you don’t know who Ron Paul is check him out on youtube.

  10. Is Obama now offside with Hollywood mavens?
    Some have said that Obama’s prominent support for SOPA may have be causing a considerable falloff in support.

  11. Ron Paul, a good man? Give me a break.
    He opposes the civil rights act because it mandates equal access – no segregation. And then opposes SOPA, which would grant the power to dish out preferential access… er licensing?

    Thank god I’m Canadian.

  12. Copyright Tax
    Mr. Geist, why don’t governments take the middle-ground in the copyright debate. For example, require all website publishers to place content (eg. videos, text, images) that is not their own behind a paywall?
    And then, tax a porion of revenues generated from users whoview this content to give back to the impacted parties (eg. film studios, music production companies etc.). Thank you,

  13. Paywalls and copyright
    There are so many things wrong with your question, I don’t know where to start. The very way you ask the question clearly shows you don’t understand “the internet”. Let me start with just a few examples:

    Which country?
    Which taxes?
    Which copyright holders?
    CC licensed works?

    The “internet” isn’t just large corporate sponsored websites, the vast majority of the “internet” is individuals that run their own websites, not for profit. With a couple of hours of effort, you can start your own small website. Most ISP’s offer “web serving” as a part of their hookup, so you don’t even have put up your own server.

    Paywalls have proven to ineffective for the most part, even for corporate sponsored websites. There are very narrow cases where it does work, but not generally.

    Film studios and music production and distribution companies are the businesses that are being made irrelevant by the internet. Authors and artists can now bypass them and go directly to their customers/audience because of the internet. Why would you/we want to “support” entities whose relevance in the “internet age” is rapidly declining?

    I can go on, but I’m sure you get the drift.

    There is no denying that the internet has created a problem for copyright holders, just as it disrupted many other industries and devalued many jobs before this. As it will continue to challenge and disrupt classic business and society values. The answer isn’t to look backward at “how things used to be”, trying to put the genie back into the bottle. The answers can only be found when you look forward to what will be.

    Welcome to the age of unknowns, guesses, and risks. Be prepared to turn on a dime. I wasn’t the first one to lose my career to the blossoming of the internet, long before we started to see all the concern over “copyright holders”, and I won’t be the last. Nobody tried to turn back the clock and pass draconian laws for my benefit, I was forced to look forward – and adapt. Understand it, get creative, and survive. It can be done.