Sunday, October 11, 2015

Harper locking Canada into failed Clinton-era policy at root of software-based corruption

Most people have heard about the emissions scandal where Volkswagen was caught hiding the fact that they were deliberately breaking the law.  This specific issue is minor when compared to the inevitable fatalities which will result from vehicles that allow remote control, or medical devices where the person whose life is being maintained by the technology aren't allowed to independently audit what and whose instructions it is obeying.

Harper amended the rules for a caretaker government this election so that his minister can continue pushing forward controversial policy which would lock Canadian law to disallow the required transparency and accountability of the very rules which govern everything from transportation and communications to medical devices and in some cases elections.

While the "copyright" aspects of the Trans-Pacific Partnership are being covered elsewhere, there are non-copyright aspects embedded in the leaked Intellectual Property Rights Chapter that regulate the general transparency and accountability of software.

Unlike the 1996 WIPO treaties which tie what are now called "use controls" to copyright infringing activities, article QQ.G.10: {Technological Protection Measures} of the TPP mandates legal protection of access controls.  The TPP is based on the USA's DMCA which is based on the failed Lehman report from 1995 during the Clinton administration. While Bill C-11 also protects access controls, this is a critical mistake by the Harper government that a future government will need to fix.  Harper is aggressively pushing Canada into the TPP which will require that a future government get permission from TPP "partners" to finally fix these problems.

Access controls are controversial for a number of important reasons:

  • Access controls and other non-owner locks on software and hardware reduces the transparency and accountability of the rules that govern these devices.  Technology owners are disallowed from making their own independent software choices, as well as doing their own or having trusted third parties do software audits.
  • Access controls applied to multimedia content (more commonly known as "encrypted media" outside of policy circles) are used to tie access to culture to specific brands of access technology, pretty much always technology where the hardware and software has non-owner locks to disable auditability.  This type of tied selling is known to be harmful to the economy (is included in most anti-trust or competition policy), but also impacts cultural rights embedded in the UN Universal Declaration of Human Rights.
  • These policies allegedly relating to "copyright" are being applied to technology which intermediates most aspects of our modern lives.  While there have been expensive court cases to create narrow exceptions for uses of devices unrelated to copyright, most businesses (and even fewer individuals) don't have the financial resources to fight court battles to protect basic property and other rights.  The harmful impacts to the economy go well beyond copyright related industries, and the harmful impacts extend to issues surrounding health and safety, privacy, and national security.
  • There has been no credible evidence to the claim that these controls reduce copyright infringement, and considerable evidence to suggest they induce infringement
  • Creators of cultural works are as dependent as audience are (if not more) on having control of their own technology, and thus these non-owner locks on technology harm creators' rights

The cost to taxpayors alone of Harper doubling-down on this failed policy cannot be understated.  As one small example, the Canadian Forces are hiring people to hack into vechicle control systems (See: Cyber Security of Automotive Systems (W7701-166085/A)) to do basic auditing, but given the illegitimate claims of exclusive rights this taxpayer funded audit will not likely be widely published. The only reason why taxpayers have to foot this bill, rather than the costs being distributed across other interested and skilled device owners is because of this Harper policy.

It is sad that Harper even promotes his reckless behavior during the election, trying to pull the wool over voters eyes by claiming the TPP is "trade" policy rather than the harmonization of non-trade related policies --- often untested policies, or where the policies were proven failures in countries where they were tested.

Harper suggests people should vote for him and his nominated candidates because of their record on the economy and on security. This policy is one example among many where Harpers record indicates failure.

Saturday, October 10, 2015

The federal election, partisanship, and copyright.

Advance polls are open for Canada's 42'nd general election.  Having been actively involved in previous elections I have been asked for my opinion about who they should vote for for those of us who consider authors' rights important.  I have spent a large portion of my life dedicated to this area of policy, especially between 2001 and 2012, meeting with sitting members of federal parliament, other politicians and other policy makers.

One thing I have observed is that while there is partisanship, it does not follow along political party lines.  It isn't possible for me to recommend any specific candidate based on their political party or the platform of a party, and you need to talk to the candidates to determine their partisanship.

As a creators' rights activist I don't concern myself with those few I have met over the years who oppose copyright.   The most important ideological separation is within those who strongly believe that creators have a right to moral and material rewards from their creativity, but that strongly disagree with each other in how to achieve that goal.

The simplest way to explain the difference is to call is orthodox vs evidence based policy making.

Orthodox Copyright

People who adhere to this belief system will agree with statements like, "if some copyright is good, more must be better".   They believe that increasing the breadth, strength and length of copyright will automatically increase the material and moral rewards to creators.

Superficially this is a very easy sell, and lends itself to easy soundbites and trivial analysis: No matter what the policy change is they can simply see if "copyright" is increasing and they can automatically come out in favor of it.   Even if something unrelated to copyright is called "copyright" they will also automatically come out in favor of it, regardless of any impact to creators.

Evidence-based Copyright

People who adhere to this belief system will agree with statements like,"Copyright is to creativity like water is to humans: too little and you dehydrate and die, too much and you drown and die".  They require economic and other analysis to determine the impact on creators of specific policy changes. They will recognize that one copyright holders interests are often in conflict with the rights of authors, and recognize that some policy changes can even be a transfer of rights from one copyright holding group to another.  They consider the idea that "more is better" to be naive at best, given specific policy changes which increase the breadth, strength and length of copyright have been well proven to decrease the material and moral rewards to authors.

This group has a much harder sell as it requires economic study and understanding of business, economics, and other disciplines which authors tend to want to let someone else worry about. Soundbites are rare, and even the simplest of policy changes require considerable understanding of market trends to understand the impact to authors.

Examples of copyright partisanship in federal political parties

The NDP offer the best example of how important the individual members of parliament are, more than what their party affiliation is.

From 2001 to 2004 the NDP Heritage Critic, and he person most involved in Copyright policy, was Wendy Lil.  She was a journalist, playwright, and writer who was extremely orthodox in her copyright views.  She showed no interest in discussing the economic and other analysis of policy proposals brought to her by fellow creators, but instead promoted policies which would have "grown" copyright in ways that would hurt most creators.

Ms. Lill retired and did not run in the 2004 election. Newly elected independent writer, broadcaster and musician Charlie Angus became the critic for copyright. He sat on the Heritage, C-32 and later C-11 committees.  Mr. Angus is an evidence-based copyright activist who closely listened to those of us who wanted to talk about economic analysis to benefit creators rather than only listening to or slinging harmful slogans.

As the NDP caucus grew after the last election the diversity grew.  There is a mixture of orthodox and evidence-based members, and I suspect there are some pretty interesting behind-the-scenes debates when policies impacting creators come up.

There is one external dynamic which impacts the NDP more than the other parties, and that is problems within many of the unions which allege to work in the interests of authors.  The executives of these unions have predominantly been made up of some of the more aggressive slogan-slinging orthodox adherents. While their easy sound bites make running for elections within the unions easier as they don't need to explain their positions, it has meant that most of these associations have been publicly advocating for policies which the evidence-based creators' rights activists believe are harmful.

The NDP as a party has long-standing ties with the labour movement, so when someone claiming to represent the interests of professional writers or from an authors union offers their partisan views they may blindly trust those views if they weren't already aware of the wider set of views in the creators' rights movement.

While the NDP is the best example given the complete flip that happened after the 2004 election, the same dynamic exists in the other parties.  I met with MPs from the other federal parties who were looking for economic analysis of policy proposals, and those who blindly trusted the slogans.

About the only party I had only a negative experience with was the Bloc who never showed interest in meeting with anyone living outside of Quebec.  The only MP from the Bloc I interacted much with was naive orthodox Carole LavallĂ©e who treated me as a hostile witness in the C-32 legislative committee.  I was trying to understand her "when have you stopped beating your wife" style of questioning through the simultaneous translator, but it was obvious that she has no interest in the evidence that various creators' rights advocates were bringing.  Fortunately the influence of the Bloc is dwindling, and it is even possible (crossing fingers) that this election may see them fade away entirely.

Exception to the general rule: Harper

Even if you find a great evidence-based policy person running for the "Conservative" party in your riding it won't likely matter.   Harper, not being a traditional conservative at all, likes to abuse the big hand of government to pick winners and losers in the marketplace.   While the copyright part of Bill C-11 was fairly balanced (the non-copyright part weren't), that balance has effectively been removed by Harper later.   He reduced the revenue of music composers by increasing the term of copyright for record labels as part of an omnibus budget, and he deputized Ed Fast to play Fast-and-loose with Canadian law and our economy in the Trans-Pacific Partnership in ways that will greatly harm authors (as well as most other Canadians in an agreement that will only increase Canada's trade/fiscal deficits and kill jobs).

As long as Harper retains tight control over the "united alternative" they remain a caucus of people whose leadership is not only uninterested but actively hostile towards evidence required to make good policy decisions.


See also: What will the future hold? Post your thoughts on the election!, written in 2006 during the 39th general election.

Friday, October 2, 2015

More trivially obvious ways to reduce copyright infringement

Contrast the following DVD pre-releases:

Doctor Who: Series 9 Part 1
This title will be released on November 3, 2015.

Doctor Who is currently airing on Space television (Currently owned by Bell Media) on Saturdays, with the rest of the first half airing later this October - with the DVD of those episodes being made available the week after.  As someone who doesn't have cable and isn't a customer of a BDU for Internet, I can also watch the episodes the day after they air on cable streamed from the website.  Past seasons starting from 2005 through to last years's Christmas special are all available on Netflix.

Personal: I'm watching via the website each week, and will be purchasing the full season DVD when it is released.  If last year is any indication, it will be available in December prior to the airing of the Christmas special (which will be available early in the new year).

Game of Thrones: Season 5
This title will be released on March 15, 2016

Game of Thrones season 5 aired from April 12 to June 14, 2015. It is only available directly via HBO, in Canada exclusively licensed to HBO Canada, which is also owned by Bell Media.  It is not available unbundled from Cable or Satellite as a streaming service.

While I would have no idea why anyone would want to infringe copyright on modern Doctor Who given how readily available it is in a wide variety of legitimate formats, I fully understand why people would infringe the copyright of Game of Thrones.  In the case of Game of Thrones  you are forced to choose between 3 inappropriate options:

  • Watch on Cable/Satellite : The tied selling of the Game of Thrones to an unrelated and unnecessary separate service (Cable or Satellite TV) is something that should be declared illegal under Canada's Competition Act.  If not, then it should be considered fair dealings under Copyright Law given under "effect of the market" fans aren't provided a legitimate market.
  • Infringe copyright
  • Wait nearly a full year after release, an illogical delay that can only be explained by HBO trying to drive people to the other two options. They may want to immorally force people to the tied selling, but just as legitimately are forcing people to copyright infringement.

Personal: I'm waiting for the DVD release, but will watch with someone else if they have acquired it via some other means.  I may not be willing to choose either of the first two options myself, but am willing to watch the show with someone else who has.

I know that orthodox copyright lobbiests try to paint a picture where innocent copyright holders are being attacked from all sides by the evil world, but reality is quite different.  The easiest way for copyright holders to reduce the vast majority of non-commercial copyright infringement is to stop the self-inflicted pain: business practises which induce fans of their works to infringe as legitimate methods to pay are not offered.

Monday, August 3, 2015

Learn something new every day: Ordering drinks in Budapest

Yesterday and today we went out for lunch at a local restaurant in the Pest part of Budapest, Hungary.  On the menu it would give non-alcoholic drink prices for .1L, but the actual drinks served are larger than that. You need to be specific about the size of drink you expect, otherwise you will end up with a larger drink and potentially a surprise when you receive the bill.

Yesterday we had goulash at Cyrano. This afternoon we visited the Borkakas Bistro where we finally asked for an explanation of the inconsistency. They not only gave us an explanation so we could finally understand what was happening, but they offered to reduce the bill to the price of the .1L drink.  I felt embarrassed to be asking so many questions about what is a fairly small amount of money (even if the Canadian dollar is down these days), but it was a curiosity what was causing us to wonder if prices were being inflated for us confused tourists  Nop -- just confused tourists.

We were walking around quite a bit and already feeling overly hot and a bit dehydrated, otherwise I would have been ordering beer where the price is far more clear (priced per regular mug and large mug) and cheaper than the same volume of non-alcoholic drink.

Friday, July 24, 2015

Inevitable fatalities when owners don't (and increasingly not legally allowed to) control digital technology.

I've been writing about technology property rights for years, and how it must be the owner who controls digital technology and not any third party.  I've given examples of unaccountable ballot-less voting technology, and medical technologies, and driver-less vehicles. It seems I should not have been limiting the warning to driver-less vehicles.  Negligent automobile manufacturers have tied entertainment computers (which includes wireless hotspots/etc) to on-board computers that control critical functions of the vehicle, something I believe they should be held fully liable for.

An article in wired magazine Hackers Remotely Kill a Jeep on the Highway—With Me in It discusses a negligently designed Jeep Cherokee which enabled remote access to air conditioning, radio stations, wind-shield wipers (blurring vision of road), and even the transmission.  While these are dangerous enough, this was only the access that was demonstrated to the reporter -- the full scale of the negligence of Jeep may be much worse.

This type of remote control is the type of thing which politicians are asking for all the time, under the pretext of "lawful" remote control which is just as counter-productive to reducing crime as inadequately monitored "lawful access".  The reality is that if a government authorized "intruder" is allowed third party access and control to technology, this same back-door (or in some cases front-door access) will always be able to be abused by non-government authorized "intruders".  Once you allow access that isn't authorized by the owner, then you have given up any ability to control the device from any non-owner authorized intruder.

This is also a good time to remind people that the problem is not the "unauthorized" third party attackers, so blame should never be put on the people who exploit the negligence of manufacturers or politicians.  The blame must always be put on the manufacturers and politicians who are deliberately making the world less safe, and with continuous warning from technologically literate citizens and witnesses at committees they can't claim they didn't know.  What they don't know is what they have deliberately refused to understand, or where they have trusted technologically illiterate lobbyists and lawyers who are simply not qualified to have been witnesses in the first place.

It is frustrating to watch, and fatalities from the decisions these politicians are making are inevitable.

Sunday, June 28, 2015


I just watched Ascension on Netflix.

Spoilers, Sweety..   It is really hard to discuss this show without giving something away.  Please consider watching the miniseries before reading, and come back..   It's only 6 episodes long...

The show reminded me of many Joss Whedon series like Firefly and Dollhouse which really aren't made for broadcast television.  They are smart, and have longer stories that evolve where you really don't have a clue what the show is about until many episodes in.   And like those shows, there is a superheroine that really surprises the audience.

The 6 episodes are in 3 2-part chapter pairs, with some pretty amazing reveals at the end of each chapter.

Chapter 1 ends with the revelation that the ship never took off, and that this is an experiment being held on earth.  What is the experiment?  Is it really about learning about the human impact of multi-generational space flight?

Chapter 2 ends with the X-men style superheroine girl reading someone's mind, after clearly exhibiting many other traits that suggest that she has evolved well beyond what we are currently aware of.

Chapter 3 ends with someone having really "gone into space" -- but not through a spaceship, but possibly by teleportation initiated by accident by the superheroine.  And it seems the man who's father was behind this multi-generational project predicted that this power could evolve.

Chapter 4?  Will we ever see one?  There are some very interesting possibilities of where they could take this type of story.  More government conspiracy type stuff that this was really about evolving a biological weapon?  Or a more positive spin of a new era of human space exploration without the environmental impact?  Or maybe for once an X-men style evolution of humanity where the normals encourage rather than hunt down the genetically advanced -- with the results of the experiment used to further enhance all of humanity (ya, I know -- highly unlikely storyline).

And who was that honey-pot agent really working for who said the child must be born?  That didn't seem like a throw-away line, but the beginning of a new thread in the story.  We are supposed to believe she works for the same agencies, but I'm not sure.

I suspect there will be others like me that really loved the show, but that it won't have "mainstream" appeal. This is where more niche programming can come in, and where broadcast alternatives like Netflix really shine.

Oh, and this is Canadian -- produced in Montreal -- did I forget to mention that?  Yes, Canada comes out with some pretty great programming, but only a few survive.  Out of Vancouver in the SF category we saw great things from BSG, the whole Stargate franchise, and Sanctuary.  We have a crew in hibernation with Stargate Universe that could be woken up, and Sanctuary could be resumed at any time -- two shows I would love to see new episodes from.

Unfortunately I suspect Ascension will be left like Defying Gravity (Vancouver) -- great potential that never makes it past first season.  On the chopping block when it really started to get you hooked....

Thursday, June 25, 2015

Works of cultural industry are nothing like "Happy Meal" toys.

When discussing cultural policy you will sometimes bump into individuals who seek to diminish the value of culture by comparing it to consumer products.  To them, one creative work is no different than another.  To quote Mark H. Goldberg who consults to the telecommunications industry (including "regulatory and government relations") and organizes the Canadian Telecom Summit:
As an author (mostly of software) who recognizes the value of the creative works of others, and as an audience and sometimes major fan of creative works, it is an understatement to say I disagree with that attitude.

Creative works obviously have economic value, and we creators deserve to be materially rewarded for our contributions, but creative works have value far beyond economics.  Whether you are the author or a fan, these works are part of who you are -- part of your identity, personality, and how you see yourself in the world.  Anyone who knows me knows I am a big fan of Doctor Who, and that I quote from Monty Python skits or Rush lyrics to express ideas.   I am obviously not unique in this, and culture should always be recognized as having value within society far beyond economics, and that these works permeate and are part of authors and audiences.

I could go on, but I suspect my point is clear: The idea of comparing cultural works, such as video content, to a "Happy Meal toy" is offensive.

There is a practical reason why many people who represent the interests of intermediaries express this view.   If creative works remained a conversation between creators and their fans, then the control (and thus the bulk of the economic value) would stay within that conversation.  Contrary to the rhetoric you will hear from these intermediary representatives, fans want creators to get paid as they want those creators to have the ability to create more.   In my experience it is far more likely some artificial barrier created by an intermediary is in the way of that payment, rather than some desire for audiences to access without compensating creators.  I'm not saying that people not paying never happens, but that this is by far not the greatest barrier to authors receiving the material rewards they deserve.

What these intermediaries are doing is abusing the intimate relationship between creators and audiences for the private economic gain of that intermediary.  They exploit the ways in which cultural works are not like consumer products to the detriment of both creators and their audiences.  In my view some of these business practices go as far as interfering with both parts of Article 27 of the UN Universal Declaration of Human Rights:
Article 27.
  • (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
  • (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
This is the article that justifies copyright and patent law, and why there is a UN specialized agency currently called WIPO. While I believe this agency required major reform to respect and protect the entire article (and not primarily the economic interests of intermediaries), I strongly agree with this article and the need for national and international laws and agencies to protect it.

Mr. Goldberg was trying to justify on twitter one of these artificial barriers that reduces the ability of audiences to access creative works.  Specific companies within the broadcast, telecommunications, or consumer electronics industries want exclusive deals with content producers to tie the ability to legally access cultural works to the purchase of their products or services.  It is obvious why this scheme might be good for these intermediaries, but it should be equally obvious why it is bad for everyone else.

In this specific thread it was the inability of Canadians to legally access HBO video content near the time it is broadcast without paying for the services of a few select companies (Broadcast Distribution Undertakings - BDU's like Bell, Rogers, etc) who force bundles of expensive unrelated services (Cable/etc) that people otherwise don't want.   We are told we either have to financially support business practices we find offensive, not access the works, or be driven to infringing sources.  I believe these business practices induce copyright infringement as much if not more than services like ISOHunt or Pirate Bay, and as an author I consider it the responsibility of the government to step in and deal with this contributory infringement.

For the HBO shows I follow I wait months or years later until I'm finally allowed to buy the DVD. I would be happy to pay a $10/month monthly fee similar to what I pay for the much larger Netflix catalog to watch HBO shows in a more timely manner. I would still be buying most of the same DVDs as I enjoy having that catalog in my home. What we want is a Netflix-like service which is not tied to a specific Internet provider, brand of consumer electronics, or unrelated broadcast related service. While HBO is experimenting with this in the USA, exclusive deals with BDUs make it unlikely to happen any time soon in Canada without government intervention.

My strong desire to pay isn't the issue, and it is barriers created by intermediaries blocking my ability to pay.

Far from being a legitimate business practice, these exclusive deals are something that the CRTC, Competition Bureau, and Parliament should clarify as illegal.  Section 77 of Canada's Competition Act prohibits this style of activity, but unfortunately the bureau has largely left manipulating markets for creative works inadequately regulated.  While creative works are more deserving of protection than traditional products or services due to their additional importance to the cultural lives of Canadians, current interpretations of the Intellectual Property Enforcement Guidelines (IPEG - See my submission to the bureau) appear to discourage the bureau from adequately intervening.

At this time of rapid technological change, regulation against this tied selling is the most critical form of protection that the cultural sector requires.  Regulators need to get past thinking that CANCON style rules that only applied to broadcasting will be of any help (more likely a hindrance) as multimedia creators and audiences move past broadcasting as a primary distribution method.