A (non)Copyright question in a Canadian federal election 2015 quiz.

On Monday many co-workers were circulating around a links to political quizzes.  I was asked what I thought about one that included a copyright related question, and if I was happy that Copyright was considered important enough to be part of one of these quizzes.

I would have been excited, except that what I found was one of those non-copyright related issues which people commonly lump in with copyright law -- including governments who add these non-copyright related issues to copyright acts.

The issue is so-called "digital locks", which when applied to content in the form of encrypted media are a competition law issues (Tied selling) and when applied to devices and software is a property law issue (IE: non-owners applying locks to things they don't own).

The wording of the question and the available answers were:

Should the government allow digital publishers to place locks on their content (MP3s, etc)?

Yes

No

Let the free market, instead of the government, decide

Yes, locks are critical to protecting artist's revenues

Add your own stance

I of course clicked "Add your own stance" and said "No, these locks should be considered illegal tied selling under competition law.  There has been no proof that these technologies benefit the interests of artists."

• I obviously disagree with the unjustified "Yes"
• Saying "No" over-simplifies the question and allows the presumption in the question that this is an issue that only or even primarily affects "digital publishers" and thus they should be the only ones involved in decision.  The impact to software authors and hardware owners is far greater than the impact to "digital publishers" - and in all cases the impact is negative (Beneficiary is hardware vendors).
• Statutory monopoly laws are a massive government intervention in the market, so the pseudo-libertarian folks can't have it both ways.  Other than those with an orthodox ideologically blinded view on statutory monopolies, most recognize a need to have anti-trust/competition and other laws balance the statutory monopolies granted by government in copyright, patent and related laws.
• I have yet to see evidence that encrypted media (digital locks, access controls applied to multimedia files) protect rather than threaten artist's revenues.  Most analysis that claims benefit are based on incorrect understandings of how the technologies actually work, and thus lead to incorrect conclusions about the impact.

The Bill C-11 FAQ contains quite a bit of information on digital locks and the real-world issues around them (Rather than the Harry Potter fictional understanding most non-technical people have of digital locks).

Why I don't consider what most call "strategic voting" to be strategic

When most people talk about voting strategically they mean voting for someone who they don't consider to be the most qualified candidate in order to keep someone they dislike the most out of power.

Being strategic to me would be to make voting decisions today that have a longer term goal in mind.  What most call "strategic voting" may superficially may feel like a consideration of the future, but I consider it to be short-term thinking.  Even if you only take the specific vote in front of you, you are voting for someone you consider to be a lesser candidate which means that the best case scenario for your strategy is a bad outcome.


Lets look at what we have seen in recent decades to see what some of the failures caused by some of these strategies.

After the Progressive Conservatives were reduced to two seats in the 1993 general elections, those who consider themselves to be conservative in some aspect of their political beliefs tried to regroup.  In the 1997 election the Reform and Progressive Conservative parties both ran, but of course under the antiquated First Past the Post electoral system they split votes from voters who might have more in common with either of those parties candidates than the candidate who won in their riding.  As is also typical of this disruptive electoral system, the PC party had nearly as many votes as the Reform party, but only ended up with 1/3 of the seats.

Rather than working with people across parties and non-partisans who wanted to modernize the electoral system, some conservatives decided to create a "united alternative" movement to create an alternative to the Liberal party who has predominantly been the beneficiary of this disruptive electoral system.  In the 2000 election the Reform party and some converts ran under the new name of the "Canadian Alliance", and they then progressed to what many consider to be a hostile takeover and eventual annexation of the federal Progressive Conservative party.  By the 2004 election the PC party was gone, with only the renamed "Canadian Alliance" now using the title "Conservative Party of Canada" remaining.


You might ask: who cares?  A party with "conservative" in the name, the Liberals and the NDP all existed prior to the 1993 election and do today.  The problem is that much was lost within the conservative movement when the new coalition party was created. There are noises about creating yet another "united alternative" with the only difference being it is from those who consider themselves to be from the left.  If we continue down this path, we will end up with Canada having a system as dysfunctional as that in the USA where fringe elements of society effectively define the two potential governing political parties where the vast majority of reasonable thinking moderates are ignored.

I consider the possibility of subjecting Canada to another "united alternative" movement to be worse than any electoral outcome.  One has been bad enough for Canada, and we should be looking for ways to gain sanity in our politics -- not make an already bad situation worse.


I personally felt the loss within the restructuring of conservatism in Canada.  I was not involved in politics until the 1990's while I at university.  Friends had introduced me to the NDP and Liberals, but I didn't see anything of myself in those parties.  I was introduced to the Green party by someone who articulated the vision of the German Green party, but in the Green Party I kept bumping up against what I felt were disenfranchised NDP supporters.

I became quite excited by the PC leadership race of David Orchard, and joined the PC party in 1998. Mr Orchard lost to Joe Clark who considered Mr Orchard and his supporters to be "tourists" in the party.  I didn't support Mr. Clark, didn't feel welcome in the PC party, and put my political support back behind the Green Party.  When I compared the 2000 platforms of the PC party under Clark and the Green Party there were enough similarities that I could easily have stayed with the PC party, an possibly even helped get a candidate elected in my riding.

What I saw in Clark's PC party, I see nearly the opposite in Harpers's "Conservative" party.

While there are many types of conservatism, and not all people who consider themselves conservative agree with each other, there are some core values that unite us.  One is a belief that the government should not intrude on the private lives of its citizens. On those rare occasions when some intrusion is necessary to protect life and property that this be done with full independent court oversight to monitor the government (often in the form of the police) to keep those intrusions to the minimum that is absolutely necessary.

You can see the feelings about this type of policy with the multi-election campaign about the "wasteful and ineffective long-gun registry". The Harper government eventually ended the campaign (err... registry) and included requirements that the police destroy all records from the registry.   This was one of those issues that could unite all types of conservatives, including those in urban settings who saw it as a "motherhood and apple pie" type issue that might not affect them, but just felt right.  It was treating private information from law abiding citizens in a way that it felt accusatory of those citizens.

Unfortunately what the Harper government did from a policy point of view was a dishonest slight of hand. While the data from the long-gun registry was kept in Canada and only available to law enforcement agencies, we have the Harper government ramming through Bill C-51 which shares a much broader amount of citizen's private information across many more government departments and "law" enforcement agencies. Coupled with Harper's massive push to cave in on the Trans-pacific partnership  (TPP), this boondoggle database about law abiding citizens can't even be guaranteed to be restricted to access regulated by Canadian law.  Add in Harper's disastrous economic policies based on gut feelings rather than evidence stifling Canada's high-tech sector, and we can pretty much guarantee even our health information will be stored only in foreign databases.

While Harpercrits (Harper devotees) claim the TPP is a "trade" agreement, trying to argue that past benefits from free trade will apply, it is really a reckless untested policy harmonization treaty that was authored at the request of a very few special interests at the expensive of the economy and the interests of citizens as a whole.



I will not be the only conservative minded person who feels this way about Steven Harpers failed and in most respects anti-conservative policies.   The problem is: under our current antiquated voting system, and with these big-tent parties ignoring the views of moderates, who are people to vote for?  Harpercrits can still drum up fear of the Liberals to effectively get votes from people who strongly disagree with them, thus freeing Harper to do anything he want no matter how opposed it is to core conservative values.

While I held my nose and voted for David McGuinty in my current riding of Ottawa South, their vote on Bill C-51 reminded me of all the things that I've always hated about the Liberals.  While Harper's big government manipulation of markets and intrusion in the private lives of law abiding citizens is out of place with a party calling themselves "Conservative", it is very consistent with the long-standing policies of the Liberal party. Bill C-51 is effectively the same intrusive thinking that went into the long-gun registry, only on massive amounts of steroids -- exponentially increased by the job, privacy and economy destroying TPP.

I still don't feel comfortable with the NDP on many levels (don't get me started about unions...), but under Tom Mulcair the party has shifted to the right a bit (some say they are to the right of the Liberals under Justin Trudeau).  They have also come out more strongly in favour of modernizing our electoral system, repealing Bill C-51, and rejecting the TPP : three core policies for me that I consider to have far more longer term implications than any single election.

So, what does strategic look like to me?   If the NDP were even on the map in Ottawa South, I  -- a past member of the Progressive Conservative party -- would have voted NDP.  Given this particular riding will be decided between the Liberals and the Harpercrits, I voted Green as there is no long-term strategically minded alternative to vote for.

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.

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 Lavallée 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.

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 space.ca 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.