Wednesday, May 19, 2010

Science vs Science fiction

Just tossing some ideas here, as I haven't solidified what I'm wanting to say. Please hit reply and join the discussion.

This morning I am trying to read a paper by Carys J. Craig which Michael Geist referenced on his blog.

Like many articles written by lawyers or journalists about "Digital Locks" or "technical measures" (TMs), it is a hard read as it seems to be talking about some science fiction Star Trek replicator stuff, while I am trying to map what they are talking about to real-world technology.

Whenever talking about communications technology I try to break what is being said into the 4 things (and potentially 4 different owners) from my Protecting property rights in a digital world talk.

I try to do the same thing when speaking with fellow creators-rights activists, such as what I wrote as comments on John Degen's blog on his article "weapons down, please".

Of the four things, they can each have locks put on them. The relevant questions to me are:

  • Who owns the thing that is locked
  • Who has the keys to the locks, and is it the owner or someone else.
  • Are there legitimate limits on the rights of owners.
  • What law protects the rights of the relevant owner, and what laws limit the rights of owners.

In those 4 things I believe Copyright has a legitimate roll when discussing the copyrighted content, and when discussing the software. Copyright clearly has limitations and exceptions which are there to not only benefit society as a whole, but also (and more often) to protect the interests of future creators building on the past.

I believe Copyright has no legitimate roll when discussing the physical media (if any), or when discussing devices. The ownership rights should be both protected and limited by provincial property law. In Canada I believe it should be clearly unconstitutional for the federal Copyright law to seek to limit (or in the case of non-owner locks on devices, effectively abolish) tangible property rights.

The paper by Mr. Craig has some interesting points relating to a reasonable interpretation of Article 11 of the WCT which reads:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Mr. Craig emphasised the phrase, "used by authors in connection with the exercise of their rights". When I first read the WIPO treaties they didn't concern me. Of the 4 things it would mean that a TM applied by a copyright holder to their copyrighted work to protect the copyright related interests would be protected, and a TM applied by a software author to their software to protect the copyright interests of that software would be protected.

The flip side of that would be that TMs applied by someone other than the owner of the media would not be protected, and TMs applied by someone other than the owner of a device would not be protected. It also suggested that TMs applied by software authors that alleged to protect the interests of some separate copyrighted works would not be protected.

The problem is that it is TMs applied by other than the owners to things not related to copyright that are the source of a vast majority of the controversies we run into.

Technical Measures applied to media

With more and more content moving towards digital downloads and other 'communications by telecommunications', the various TMs applied to physical media will become less of a concern.

We will need to educate people about the loss of property rights that were applied to the physical medium once that physical medium no longer exists. As an example, there are many things you can do as the owner of book that can be denied from you as someone who acquired an e-book. An e-book is more analogous to software (with all its complex licensing agreements, limits, etc) than it is to a physical book. Simple question: How many books do you own that are more than 30 years old, and how much software do you run that is more than 30 years old (Note: software updates or new editions don't count). This is the world people adopting e-books are moving to.

I spent a lot of time in the 1980's helping people whose hardware was being damaged by TMs applied to physical media. In the 80's there wasn't the collusion between copyright holders and device manufacturers, so nearly all "copy control" was accomplished through deliberate media defects. In the case of Commodore games they actually put laser holes into the floppy disks such that when the disk drive read that part of the disk it would get random information. This allowed the software that was previously loaded to detect if the floppy was an original or a copy onto an undamaged floppy.

The key problem was that the 1541 drives would try to reset themselves when it noticed these defects. That reset involved bringing the disk head back to a reset position and literally banging against a piece of metal. That metal constantly needed to be adjusted, and in some cases became hit so often it was beyond repair.

As a service to some of our best customers we would give people a unprotected copy of the software when they bought the box. They were instructed to use the unprotected copy and leave the original as proof of purchase. Technically this unprotected copy was an infringing copy, but most of us in the business considered there to be no moral issue with this. In fact, most of us considered it immoral of the software author to cause physical damage to hardware in their failed attempt to reduce infringement.

I observed nearly 30 years ago what I still observe today: "copy control" or what is now called DRM drives more people to infringe copyright than it discourages from infringement. This type of technical measure reduces sales, not increases.

Technical measures applied to devices

I know it upsets some people, but I consider this to be a simple matter of basic respect for tangible property rights. I believe that if a device is locked it should be the owner that controls the keys. I believe it must be legally protected for an owner to remove a non-owner lock, and to apply their own lock if they so choose.

I don't care if some copyright holders want to experiment with new business models. I don't believe that any business model built upon a form of theft should be legalised or legally protected. We have laws against theft for a good reason, and I see no reason to turn our backs on hundreds of years of legal thought just because some people are confused when you add the word "digital" in front of something.

I believe proponents of non-owner locks fall into one of the following categories:

  • Immoral proponents of legalising theft
  • Amoral apologists who don't see theft as a problem
  • Dangerously inadequately informed people who don't understand the real-world technology enough to realise they are advocating/apologising for a form of theft

It is worth repeating that existing relationships fullfill all the legitimate needs of copyright holders. There are times when they want to offer content via a specific platform which they, or someone under contract with them, control. This can be accomplished simply by renting the relevant hardware, so that any TMs involved are there to protect the owner. I consider it extremely dishonest to claim that non-owner locks are required (and require legal protection) when existing rental arrangements could be used to avoid the conflict.

Technical measures applied to content

There are many legitimate uses of TMs by copyright holders, which we can discuss case by case if people wish.

One thing I don't consider to be legitimate is the use of TMs to encode content such that it is only interoperable with specific brands of end-user devices. Inevitably the only brands of devices these copyright holders "authorise" are those that have non-owner locks applied to them.

I consider those who apply non-owner locks to devices to be theives. I believe those who doesn't involve themself in the theft directly, but put people in a dangerous position, to have unclean hands.

In this case provincial property laws aren't the right place to deal with this conflict. I believe that federal competition law would be appropriate, and should prohibit the condition of a copyright license on the use of non-owner locked devices. If necessary, especially if we ratify the 1996 WIPO treaties, we may need to have clarification of this prohibition in the Copyright act for those who would not be aware of competition law.

Technical measures applied to software

This is similar to the content question, with additional limitations required. What we need to avoid is collusion between specific content copyright holders and specific software copyright holders to circumvent the balance of copyright, property or competition laws.

I believe the best book for understanding the roll of software as a regulatory force is still Lessig's Code: and other laws of cyberspace (v1 or v2). Since software has a regulatory aspect to it, there is a need to put additional limitations on software copyright holders that wouldn't apply to copyright holders of non-software works.
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