Wednesday, November 23, 2016

Heritage Minister and Department must reduce barriers between creators and audiences

While many participants in the "Canadian Content in a Digital World" consultations are focused on funding issues, real support is needed from the Minister of Canadian Heritage and the Department of Canadian Heritage to reduce barriers that exist between Canadian creators and their potential audiences.

While some people would prefer we all sit down and watched broadcast television like we did in the old days, the industry is moving forward in ways I discussed earlier in Canadian Content Creators harmed when Netflix claimed to be a "broadcaster". I noted how people are moving to online content libraries away from broadcasting. While this is a major improvement over broadcasting, there are still barriers between creators and their potential audiences.

While I can hope the Minister and Department will help, I also ask that they do no further harm. A number of policies that have been proposed previously, as well as some brought up during the consultations, put up more barriers rather than reducing them.

On Monday I had a short twitter exchange with Christopher White, writer and director of I Fall Down (2013), that is typical of the types of problems I see.

Lets pause here for a moment before we go down the rabbit hole.

This is a great-news story that this movie has been made available to a wide audience, without costing the creators anything for the additional publishing, and without needing to ask someone else's permission.  At this level of the conversation there really are no barriers, and I hope more creators will follow Mr. White in trying to make their content easily available.

I have heard great things about Amazon Prime video as far as ease of use and device compatibility. On the link Mr. White provided is a large list of devices which the video can be accessed with. While it didn't list all my devices, it is available on enough that I could access.

Well.. If only I didn't live in Canada that is.

While Amazon Video is available in the US, UK, Germany, Austria, India (soon) and Japan, it isn't available in Canada.

Except, of course, when you search for "Amazon Prime video Canada" you will get a good list of VPN services that will give you a US based Internet address to then access the service as if you lived in the United States.

This is another level of inconvenience which some users are willing to put up with, although because of pressure primarily from exclusive regional distributors (that's primarily Bell for Canadians) there has been a lot of attempts to block VPNs from Canadians trying to access services like US Netflix.

I don't for a moment believe this is a technical limitation, as Amazon adding the number of users that Canada represents to their service wouldn't be noticed as far as the increased load is concerned.

All I can believe is that there are regulatory barriers or other red-tape with dealing with Canadian governments, most likely policy under the jurisdiction of the Department of Canadian Heritage, that is in the way of this service being launched in Canada. Amazon has a Canadian subsidiary that provides many of the other retail and product shipping services that US Amazon does, but Amazon Prime for Canadians is currently a fixed fee service for faster shipping (I am a member, and much of what I buy is DVD video content).

Unfortunately, instead of working with Amazon to eradicate any barriers to allowing Canadians to easily purchase access to Mr. White's movie, DigiCanCon conversations have been in the opposite direction. There are those who want to put up barriers to anything they don't deem "Canadian" enough on the distribution side, ignoring the fact that the existing "Canadian" content distribution companies (largely owned by BDUs) have shown no interest in entering or competing in this marketplace.  The "Canadian" companies want to drive people backward to Cable, not offer services people (creators and their fans) want.

These people are fine using computers produced by companies not headquartered in Canada, and a host of other products and services with our Free Trade partners, and yet they expect content distribution platforms to be treated special.

Department of Heritage officials suggested that making the use of VPNs to cross-boarder shop for legal content should be made illegal.   This is the opposite to the types of policies Canadians need. Canada should be enacting and enforcing laws to ensure that online video distribution services are not allowed to region block any more than was previously done with DVDs.  Using VPNs to access US content delivery services should be made redundant by ensuring the same content is available equally on these services in both countries.

Back to Mr. White.  I mentioned that Amazon's video service isn't available in Canada, and asked if he considered Google Movies and TV (A service I now regularly use) as an alternative which does work in Canada:

Just as Mr. White has to choose between different services to make his movie available on, there is a limit to the number of devices someone can own in their home to access content.   While I own many devices, none of them are compatible with iTunes.

While most video distribution services aren't owned by a hardware manufacturer, iTunes is and they have a tendency to try to tie the use of one of their products or services to another of their own products and services.  This means that the number of compatible devices is the lowest of any of the popular content distribution systems.

This should be my own business which devices I own, as long as I have one of the popular ones supported by the vast majority of services.  I do own a number of popular devices, and there are few video services that don't work on at least one of the devices I own, with services like YouTube and Netflix working on the most.

Since Apple is a popular brand within the arts community in North America, you sometimes get the surprised answer when they meet someone who isn't an Apple customer.

I am someone active in technology law. I see software as the rules that a computer obeys, much like laws are the rules that humans obey. I believe that for the general public to understand software and software authors they need to make analogies between to policy and policy makers. It is not the field of engineering that is the closest example for understanding the impact of software on society, but political science.

For more, please read Lawrence Lessig's "Code and Other Laws of Cyberspace."

I tried to shortcut this conversation on twitter by suggesting that saying "All I have to do is become an Apple customer" to access content comparable to saying "All I have to do is join CPC".

To which Mr. White replied:

And further down the rabbit hole we go :-)

To understand how to apply the Betamax example to technology used to access content distribution services we need to discuss the computer marketplace more closely.

Betamax was a proprietary format offered only by Sony, while the VHS technology was widely licensed to multiple vendors to create VHS recording, editing and playback devices.  Standard market forces applied, and it should be obvious when a single company tries to compete with a multi-vendor economy that the economy will win.

With computer technology the situation is more complex as there are a number of different markets involved.

The desktop computer market has stayed relatively stagnant between the late 1990's and now. Depending on how you count (and there are wide discrepancies) and if you broadly look over the entire period, you find about 70% run on Microsoft Windows (of a variety of flavors), about 10-15% on MacOS (a variety of flavors, older versions incompatible with new), and the remaining being "other" that included things like IBM's OS/2 in the 1990's and later some small inroads with a variety of Linux and Unix desktops.

In the Internet server space things are quite different.  What started as mostly the domain of Unix saw some growth of Microsoft Windows on the server, but the largest force became Linux which took over the vast majority of Unix and left Microsoft as a distant second rounded to around 10% with only a small fraction of "other".  As Microsoft is a big player in the server space with Microsoft Azure cloud services, this month they joined the Linux Foundation.

In the mobile space Apple took the early lead, but like Sony they didn't license their technology. Google built an operating system based on the Linux kernel called Android which it released fully Open Source.   While Google still leads the development of their version of Android, any company (or group of individuals) is able to build their own compatible version of Android, build their own applications and distribute without anyone's permission, as well as build any devices.

This is what Amazon did with the Amazon Fire product line, which is a stack built on Android that includes tablets and Amazon's own Appstore for Android that competes with Google Play's App store.

Set-top devices have taken a similar route as mobile, where Linux dominates and other environments are fighting for small percentages.  There is also a growing number of manufacturers building Netbooks that run ChromeOS.  While these devices are replacing desktops and laptops for some people, they fit more into the mobile space than the desktop/laptop space.

While some people still use desktops and laptops to access content, most will use mobile platforms to control streaming to things like a Chromecast (or a growing variety of similar devices), or set-top devices, connected to their television.

Applying the Betamax example it is clear that Apple is similar to Sony as Apple doesn't license their technology to third parties. The most openly licensed platforms are the Linux-based marketplaces.  While there are some niche markets where Apple is still the most visible, the global marketshare has Android above 80% with Apple's iOS retaining about 13%.  As this market matures many people are assuming that Apple's iOS will go the way of Betamax.

So, as far as Betamax vs VHS is concerned Mr. White got which-is-which backwards.

This is a level of detail of computer history, current marketplace analysis, and always uncertain marketplace predictions that Canadian content creators should never be expected to think about.  They should never be forced to choose between which audiences will be able to access their content, or have the risk of making the wrong choices between competing technologies/businesses/etc.

Can't all content delivery platforms be available on all devices?

We didn't pursue the conversation this far on Monday evening, but it is the next logical question.  Why does it matter what brand of device I purchased when accessing a content delivery platform?  It didn't matter what brand of TV I bought to watch TV, or what brand of radio.  What makes digital content delivery so different?

For this you need to know the history behind "encrypted media".

With the digital transition on the (some wished distant) horizon in the late 1980s and early 1990's the larger content industry players went to the larger technology companies and asked if they could do some technical thing to digitally encoded content such that it could be accessed by audiences who paid for it, but that it couldn't be copied.

Anyone with adequate technical knowledge knows this isn't possible, as a computer being able to access something means it is making copies in memory and other places -- accessing and making copies are the same thing, and if the computer owner decided to save a copy this was a legal and not a technical issue.

Unfortunately a few technology companies with ulterior motives offered what they convinced the content industries was an answer to their question. Two of the three most visible are familiar names: Apple, Macrovision and Sony.

What they proposed is that content would be encrypted such that you needed a decryption key to access the content, and then the key would be embedded within hardware and software where the manufacturer rather than the device owner was in control.  This was seen as a powerful business model by Apple and Sony who would not be selling general purpose computers which obeyed the commands of their owners, but "selling" devices that obeyed the manufacturers commands. (See:  Another meaning for DRM: Dishonest Relationship Misinformation) There is considerable benefit to the vendors to be able to do this, restricting features that would normally already exist and have the ability to sell those features back to the "owners". (See also: Perspectives on computer security and encryption from Apple, the FBI and I : Apple)

While there has yet to be any evidence that "encrypted media" reduces infringement, and considerable anecdotal evidence that it increases infringement, the proposal worked.  Many non-technical people don't even recognize that what the content industry likes to call "copy control" is actually "computer control" (IE: a question of whether the vendor or owner controls the computer).

Some people believe that content alone can make decisions, and don't understand how encrypted media impacts the computer control question. Digitally encoded content cannot make decisions any more than a paperback book can come alive and chase the reader around the room (I call this the "Harry Potter" understanding of encrypted media).

Many governments around the world have passed laws to legally protect what they call "technological measures", allowing Apple and Sony to point fingers at copyright holders and the law whenever someone complains about anti-owner restrictions on devices.   At the moment most copyright holders demand "encrypted media" be used for all content distribution services, forcing this on all content delivery platforms as well as all the devices that are legally allowed to access those services.

It is this encryption, and the requirement that the correct decryption keys be embedded in the device (hardware or software), that ties specific content delivery platforms to specific brands of devices. These are not technical limitations, but business model and legal limitations.   Nearly all audio and video these services distribute are in well understood common audio and video file formats which all devices can understand.

If not for this encryption, and the harmful laws that seemingly protect it, third party applications could be authored to make every popular content delivery platform compatible with every popular device.  It would only be the obscure platforms or obscure devices where authoring applications would be up to the device manufacturer or content delivery platform provider.

As a software author, my ability make a living is dependent on computer owners being able to make their own software choices in order for them to be able to choose my software.  If hardware manufacturers, rather than owners, make those choices then my livelihood is put at risk -- to a greater extent than any imaginable amount of copyright infringement could.  While this is obvious to me, the same risk exists for cultural creators as powerful hardware manufacturers and content delivery platforms may also dictate things to them (what their content can be about, how much they can charge, what audiences they are allowed to reach).

If you are concerned by these things, including believing that all content delivery platforms should work on all devices, you might do some of the things I have done including:

  • I spent more than a decade starting from the summer of 2001 until the passage of Bill C-11 actively engaged in the Copyright revision process to ensure that politicians, other policy makers, and fellow creators know about policies threatening technology property rights
  • I boycott the products and services of some of the most visible companies that sparked this problem, including Apple and Sony. Macrovision keeps changing their name to hide, likely because they are controversial even within the content industry.  This was no change for me when it comes to Apple which I had already been boycotting for other political and legal conflicts, but it was the end of my being a Sony customer.

I recognize my earlier analogy between Apple and a specific political party isn't a good one.  I've met many MPs in person, largely because of this area of policy, and they work together and have far more in common than the public political theater would suggest.  I believe MPs sitting in the House of Common across all political parties have far more political views in common than I have with Apple.

All of this is a legal and political controversy that Canadian content creators should not need to be aware of.  The Minister and Department of Canadian Heritage should be aware, and should be looking at all these issues to (wherever possible) reduce barriers to creators maximizing their potential audiences.

If any Liberal MPs are reading this, the policy change to avoid the "encrypted media" problem is to tie anti-circumvention legislation to actual infringement, as well as only protecting "use controls" (as discussed in the WIPO treaties) and not "access controls".

This was the Liberal party position during the C-32/C-11 hearings.

If implemented correctly it would allow Canadian App developers to author compatibility applications, which along with laws to protect us from inappropriate region controls would go a long way to solving critical barriers Canadian content creators have in reaching Canadian and foreign audiences.

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