Tuesday, October 11, 2016

Is Contributory Infringement a more appropriate #DigiCanCon topic?

When I read the following tweets I became concerned that we might see a repeat with the current Canadian Content in a Digital World Consultations of what I saw in the 10+ years of copyright consultations and committee hearings (C-60, C-61, C-32)  that eventually lead to the passage of Bill C-11.





This is similar to how ACRTA and the Writers Guild continuously and mistakenly suggest that a willingness on the part of audiences to pay is a primary or even important consideration when it comes to scenarios when people are not paying.

Educating people, young or otherwise, about the importance of paying for content is an irrelevant conversation when appropriate mechanisms to pay aren't offered.

Secondary Infringement

This got me thinking -- maybe there is an aspect of copyright law that is appropriate to be discussing, specifically policies targeted at those businesses which are the root cause of that potential infringement.

The idea of contributory or secondary infringement has been part of copyright law for quite some time (See section 27), with a new section on provision of services that "enable" infringement being added as part of Bill C-11.  The recent addition was a narrowing of a concept called "inducement" where those who were seen to be "inducing" people to infringe would be considered liable as contributors to that infringement.

This concept was narrowed to not go after those who induce infringement, but only unauthorized providers of services which enable access.  The reasons for this change was obvious to me, but not to the government: the entities most guilty of inducing Canadians to infringe copyright were many of the same people lobbying the government for even "stronger" copyright.

Las weekend I openly asked the question: Can Canadians stream TV without eventually going to unauthorized sources?

Whether I personally go to an unauthorized and/or infringing source to watch the missing episode is ultimately irrelevant.  This episode is unavailable for me to pay, so claiming it is a matter of price is nonsense as no price has been offered.  The only choices offered to me by the broadcasters are not watching the episode (and subsequent episodes this season) or to go to an unauthorized (and possibly infringing) source.

What is relevant is that even someone who has spent decades speaking with fellow authors about how we can receive better material and moral rewards for our creativity feels pressure to infringe copyright by failures of the business models of intermediaries.

Copyright should become a tool to go after those who are inducing the infringement.  In this case the perpetrator is Bell Canada, who through actions and inaction through their various subsidiaries is easily the greatest secondary infringer in Canada.  They are not so coincidentally the perpetrator in the example I gave in my posting.

Note: I'm aware that it is unlikely that the relevant copyright holders would go after these secondary infringers as they are blocked by a Stockholm Syndrome where they have far too much sympathy for those who are the largest cause of copyright infringement in Canada.  It might require that government agencies be able to step in and protect these interests, which includes the rights of Canadian audiences who both want to access content and be offered mechanisms to pay.

Broadcast Television and BDUs not a relevant market

Anyone who tries to tell me that I should just subscribe to a cable package and be happy about it must realize that what they are asking for is conformity and not compensation.

I consider BDU's to be an outdated method of watching scripted programming, and one that is in many ways incompatible with my livelihood.  Telling me I should just suck it up is rudely throwing money on the floor, from someone who thinks that the customer could never be right.  You lose all authority to be claiming that those who don't pay are somehow immoral, rather than your unwillingness to accept our money (or being apologists for secondary infringers) being the core problem.

There are practical business reasons why I'm uninterested in a BDU.

As a software author I depend on peoples ability to choose my software in order for me to get paid at all.  This makes attacks against software choice, not copyright infringement, the primary threat to my business interests.

In order for people to have software choice they need to not be forced into a narrow set of devices where the manufacturer imposes or filters what software is allowed to be used.  One of the ways that device choice has been greatly narrowed recently is through the tie between encrypted content and "authorized" devices that contain the decryption keys.  This tied selling between the ability to access content from "authorized" sources and specific brands of technology should be considered illegal under our Competition Act, but is currently presumed protected by the "technological measures" aspect of our Copyright Act.  While there has been no credible evidence to suggest this tied selling reduces rather than  incentivises copyright infringement, it does reduce software choice and infringes the rights of technology owners.


Television has been going backward in recent decades.  With analog OTA and cable the signalling was a vendor-neutral standard, allowing audiences to use access devices of their own choosing. Confusion around the digital transition was abused by BDUs where rather than using standard digital signalling as is used in other countries, the BDUs moved to using proprietary signalling requiring that people purchase or rent specific brands of technology authorized by the BDUs to access content. This alone makes BDUs an undesirable choice for me as a BDU subscription would be a payment to an industry that is promoting policies that if left unchecked will put me out of a job.

On top of the practical business reasons, there are also others.  I not only want to access scripted programming on the devices of my choosing, but I also want it to be at a time of my choosing.  Even if I had a legacy cable subscription I would only ever use the PVR function and never watch "live".  I am not a computer and am unwilling to have my life programmed by someone else.  I will watch programming when I am available to do so, not when someone at a broadcaster said I should watch it.

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