Wednesday, December 20, 2017

Does public transit "prove" private vehicle ownership and driving is inappropriate?

If you haven't already read it, please read my earlier article where I discuss a layered model for road transportation, and I try to clarify that "technological protection measures" (TPMs) are actually a restriction on who is allowed to drive (IE: author software for), or choose drivers for, communications technology.  I strongly believe there are conversations that wouldn't even happen if we were talking about cars rather than computers.

Once you have a similar understanding of the communications technology being discussed, and the most appropriate transportation technology analogy, you can begin to see just how inappropriate some of the statements made about communications technology sound.

When I was a witness in front of the C-32 committee I gave a version of my "I'm holding up four things" talk I had already given in multiple settings (See: Protecting property rights in a digital world).  The intention is to clarify that when discussing TPMs there are potentially 4 things that have owners (the media, the copyrighted work stored on media, the access device, and the authors of the software on the device), and that focusing only on one of them (the non-software copyright owner) risks inducing infringement or effectively abolishing the property and other rights of the other 3 owners.

I am an example of someone who has all 4 ownership interests: I own media, I am a copyright holder for non-software works, I own devices, and I author software.

One of the most vocal opponents of my attempt to protect the rights of all 4 classes of owners owners is John Degen (See: Making a living as an author vs. off of authors.)  When he was a witness in front of the Senate committee studying the renumbered C-11 he discussed technology as well, but in a way that sounds quite silly for those of us who understand the technology and the relationship to creators.

Mr. Degen: This morning Mr. Henderson referenced a couple of times real world situations and a lot of the panic that goes into extreme situations that might happen. This is a Kobo eReader — not a commercial for Kobo — and I have a bunch of books on it. Let us say I was studying these books in a university environment. I have Moby Dick, that great Canadian classic up here. Let us say I was studying Moby Dick. On this piece of technology, Moby Dick is locked. It is within the Kobo propriety locked system. It cannot be transferred to a Kindle, for instance. They do that for definition within the marketplace. There are fears out there that were I to be studying in a classroom environment, the lock would impede my fair-dealing rights to research and private study. I get around that completely legally, and without breaking any locks, by using paper and a pen. I read what is on the electronic device and I make my notes for research and private studying. I am, in effect, copying what is in the text and I do that perfectly legally. That is more likely what will be happening in classrooms. The extreme fears about digital locks locking students away from information are completely unfounded.

If I provide a transportation technology translation of this intervention, you will see why what Mr Degen said makes no sense.

Fictional person: This morning people expressed panic about what might happen if individuals are no longer allowed to have the keys to the locks on their cars, choose drivers, or drive vehicles themselves.   I came to this committee this morning by OCTranspo.  This is a locked system where the vehicles are owned by the city, and the city employs all drivers.  There are other privately run systems such as Greyhound Canada, a subsidiary of British transport company FirstGroup, that owns the vehicles and hires all the drivers.   There are fears that if individuals couldn't drive vehicles or choose who drives their vehicles, that it would restrict their travel. The fact I got here by OCTranspo is proof this is not the case.  In fact, if these private and public sector transportation systems didn't exist I could have walked to the committee hearings. The extreme fears about non-owner locks on vehicles or prohibitions against choosing drivers or driving ones own vehicle are completely unfounded.

There are many reasons to be dismissive of what Mr Degen claims.

While he makes his living elsewhere (staff at Professional Writers Association and later Writers Union, and at the Ontario Arts Council when he spoke to committee), he is focused near exclusively on textual literary works.  His suggestion he could read the text on screen and do fair dealing research using pen and paper sounds as silly as someone suggesting all witnesses to all committees could have walked there.   While I live within walking distance of the federal parliament, most Canadians (including Mr. Degen) do not -- and while some creative works are only text, others are not.   His words were dismissive of the rights and interests of the vast majority of Canadian creators.  The Copyright Act regulates activities for works which are nothing at all like text literary works, and it is for these other works that many of the worst controversies arise.

Rather than a reason to dismiss concerns about technological measures, his comments are actually a reason to dismiss claims about the alleged effectiveness of technological measures at reducing copyright infringement.  For the works in which fair dealings research doesn't require unlocking, copyright infringement also doesn't require unlocking.  Someone who actually wanted to infringe the copyright on a textual work only has to re-type it.

Mr. Degen doesn't have an interest in driving his technology, or having any say into who does the driving.  I personally don't have a drivers license, but I still care about who is doing the driving when it comes to transportation technology. I think there is a big difference between a privately run transit system where a private corporation decides all the policy, and a publicly managed transit system.  I believe all passenger transportation systems, public or private, should be government regulated.  The fact Mr. Degen held up a device with unaccountable and non-transparent private policy suggests he might not even care about these important distinctions.

While it is his right to not care who controls technology, it is not valid for him to claim his lack of personal interest is a reason to dismiss other peoples interests or seek to diminish or abolish their rights.

What Mr. Degen describes is different than the OCTranspo example because passengers haven't been mislead to believe they own the bus.  In the case of the Kobo people are being dishonestly lead to believe they are "purchasing" something, but where they are not given the keys or allowed to change the locks on what they have been told they "own".  If this was an honest business relationship where the vendor wanted to retain control then they would have retained ownership, and Mr Degen's Kobo would have been rented.  There would have been a transparent rental agreement laying out all the conditions. Whether it is the enforceability of the rental agreements for things you don't own, or the legal protection of digital locks you apply to things you do own, it is dishonest and possibly unconstitutional to claim this is a matter of federal copyright law rather than provincial contract and property law.  Without clearly understanding the relationship is closer to a rental than purchase, privacy and other rights aren't being appropriately protected.  Far from being the subject matter of copyright law, technological measures are being abused to bypass many other laws and regulations.

The communications technology we are discussing is the same technology used to create and disseminate works.  Revoking the ability of owners to independently control or have a say in who controls their technology doesn't only impact audiences, but greatly impacts creators.   If some unaccountable and non-transparent third party has the ability to disallow in software (what controls the devices) specific creative works to be distributed, or even created in the first place, this can have a critical impact on culture.

This is why I believe that protecting technology property rights is a prerequisite for protecting creators' rights, and also why I consider those who are opponents to technology property rights to be opponents of creators' rights.

We wouldn't even be having this conversation if we were talking about cars rather than computers.  If Mr. Degen were talking about transportation technology he would have been appropriately laughed out of the committee.

I am a long time creators' rights advocate, focused on technology property rights. I believe fellow creators need to take a closer look at how communications technology works so that they can tell who are allies and who are opponents to protecting their rights.

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