Saturday, December 12, 2015

Trans-Pacific Partnership would lock Canada into Harper's mistakes

The following is the text of a letter sent to our Prime Minister, my local MP, and a few key ministers.

The Right Honourable Justin P. J. Trudeau, Prime Minister of Canada

Copies to:

David McGuinty, M.P., Ottawa South (my riding)

The Honourable Chrystia Freeland, Minister of International Trade (asking for feedback on TPP)

The Honourable Navdeep Singh Bains,  Minister of Innovation, Science and Economic Development (Non-owner locks on digital technology has great impact on this portfolio. Industry Minister listed as responsible for Copyright Act currently tainted with problematic policy)

The Honourable Kirsty Duncan,  Minister of Science (Support for problematic policy largely comes from science fiction belief of how technology works.  Policy needs scientific evidence based review)

Prime Minister Trudeau,

We met at your constituency office in July 2010, and you tweeted my summary of the meeting to your followers:

We discussed the then Harper Government copyright bill, with my emphasis being on the technological measures aspect of the Bill.   While I believe Harper made some serious mistakes in that part of the bill, I am writing you today to alert you to the fact that section article 18.68 of the Trans-Pacific Partnership would lock Canada into Harper's mistake.

When talking about technological measures, what people often call "digital locks", it is important to understand that there are two locks and not one.

A lock on copyrighted works, nearly always in the form of "encrypted media", cannot do much on its own. Contrary to the common science fiction belief, copyrighted works can not "come alive" and decide to do things (to be copied or not, to self destruct after rental period, etc).  What encrypted media can do is try to tie the decryption and use of the media to devices that are "authorized" by the copyright holder.  Rather than this being a copyright issue, this is a competition law issue (section 77 tied selling) which has all the economic and other harm that requires competition law.

The more critical issue is that, while there are legitimate business arrangements available, the only devices that ever get "authorized" are locked in a way that treats owners as an intruder.  In no other aspect of our lives do we allow third parties to lock owners out of their property, and this should be explicitly prohibited with digital technology.  Discussing copyright in this context is a distraction as the relevant issues include property rights, software transparency and software accountability.  When discussing this policy I would often mention privacy and other human rights infringing telecommunications equipment, medical devices, online banking and retail, and technology used for voting.  More recent issues to add to the list are driverless vehicles, drones, and the Volkswagen emissions scandal. There have been demonstrations of intruders remotely disabling a Jeep while it was on a highway.

Non-owner locks on devices also disallow owners installing software that would extend the useful life of hardware, allowing hardware vendors to force premature hardware upgrades, which has a great impact on the environment.

As more and more aspects of our lives, including basic issues such as transportation, communications, privacy and public safety, are intermediated by computers we must enact legislation that protects software transparency and accountability.  Technologies such as encrypted media abused to tie the ability to access creative works to non-owner locked devices must be legally prohibited, not legally protected as under Harper's bill C-11.  Non-owner locks on devices must be legally prohibited, as owners and others can't have unjustifiable barriers to doing independent software audits.

There is a shorter-term fix to Harper's mistake:  The WIPO treaties never required Canada to enact legislation against "access control" technological measures, but instead required "use control" where the prohibition against circumvention had a direct tie to copyright infringing activities.  This is as it was written in the Liberal Bill C-60, and must be the direction Canada moves.  Unfortunately the TPP calls for "access control" technological measures, which must be rejected.  Canada needs to be actively working with our trade partners to move away from any support for "access control" technological measures, aggressively rejecting claims from extremists who are opposed to (or deliberately oblivious to) technology ownership, software transparency and software accountability.

The technological measures section of the TPP is in addition to article 14.17 which opposes basic software transparency and accountability, and which Stewart Baker (first Assistant Secretary for Policy at the USA's Department of Homeland Security) also suggests is "a bad topic for a trade deal"

The Harper government's promotion of the TPP was simplistic: Free trade is good, this is free trade, so therefore it is good.   The policies I oppose will reduce competition, increase barriers to trade, and reduce accountability for government procurement -- all policies which have no business being included in something alleging to be a "free trade" agreement.

I live in Ottawa South, and work on Wellington Street close to your parliamentary offices.  I can be made available to any minister, member of your caucus, or their staff, to discuss this issue further.

Russell McOrmond
[address removed]

Please share with your colleagues as this policy also has serious implications for other portfolios including Public Safety and Emergency Preparedness, Public Services and Procurement, Health, Transport, and National Defence.

Note: I quote Stewart Baker in the introduction page for the Petition to protect Information Technology property rights

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