Sunday, February 15, 2015

Samsung, the Harper Government, and Technology Property Rights

I have found the media attention around the recognition that manufacturers like Samsung can spy on technology owners to be interesting. After decades of misunderstanding, ignoring, misdirecting or actively lobbying against owners on this issue, the media is finally reporting one of many examples of the issue.

While some are starting to discuss complex and expensive regulation to manage some of the worst symptoms of this problem, I still believe that fully recognizing and legally protecting technology property rights is the most effective solution. Unfortunately the Harper Government has thus far been opposed to property rights, so it might be an uphill battle to solve the problem in Canada.

Fundamentally the problem is that technology is obeying the instructions of a third party, rather than those of the owner. These instructions exist in the form of software, so it needs to be the owner and not a third party who chooses what software is executed on any hardware they own.

Most technology owners are not software authors, so it is not enough to protect the rights of owners to author their own software. Owners must have the right to choose software authors they trust, and be able to hire this trusted software vendor to replace the software running on their hardware. Some owners may trust the hardware vendor, and will leave the technology the same way it came. This should be their choice, not something imposed on them by the government.

We can only effectively protect our rights as long as third parties are not allowed to condition the supply of a product or service on us waiving our property rights, something that was recognized and included in our federal privacy legislation as it relates to our privacy rights.

That is 3 conditions required to protect the most basic of property rights for technology owners

  1. That owners have the right to author software to control devices which they own
  2. That owners have the right to make their own choices of software authored by others
  3. That the provision of a product or service cannot be condition on an owner waiving either of the above two rights.
For the hundreds of Canadians who already signed it, these conditions will sound familiar from the Petition to protect Information Technology Property Rights. That petition was created during the process leading up to the passage of a copyright bill, with statutory monopolies like copyright often being abused to justify direct and contributory infringements of our technology property rights.
  1. By far the largest barrier to owners authoring their own software come in the form of statutory monopolies on interfaces, including interface copyright and software patents. While there is a minority who believe that all statutory monopolies are somehow good, proper economic analysis has recognized that the harm to the economy and rights of citizens of these types of statutory monopolies greatly outweigh the alleged (but never demonstrated) benefits. Some Governments have specifically excluded interfaces from copyright protection, such as within the European Union (Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs)
  2. The right of technology owners to choose software written by the authors of their own choosing is all too often denied by device manufacturers who apply locks on devices which disable owners from making that choice. This is coupled with laws, such as the technological protection measures aspect of the Harper Government's so-called "balanced" copyright bill C-11 which many believe protects these anti-owner locks. The law should be modernized to clarify that not only are these non-owner locks not legally protected under any legislation (including, but not limited to copyright), but that they are clearly prohibited.
  3. The Harper Government's C-11 is also presumed to legally protect techniques such as encrypted media where copyrighted content is encrypted, and keys are only provided to providers of hardware and software which have anti-owner locks. This is a clear example of conditioning the ability to pay for copyrighted works on technology owners waiving their property rights, a scheme that should be clearly legally prohibited.

(Also published on the Digital Copyright Canada blog)