reader & writer & many more chat some more about Copyright

Author John Degen has posted some fictional conversations between a writer and a reader on his blog (June 9, June 10). I say it is fictional as it ignores how the relevant technology works, and thus not only the lack of clarity of the relationships between writers and readers but also the fact that there is a technology company as intermediary that separates there from being much of a relationship at all between writers and readers. It depicts some rare moment where all the parties involved have the same understanding of the relationship, likely because this is really just a case of John having a conversation with himself.

While I offered a serious response on the IT World Canada blog, I thought it might be amusing to offer a silly response here (using the same blogger he uses, so possibly might encourage some conversation here as well).

The scene... It is the year 2010. With any new form of communications technology in the last 30 years there have been people who have claimed that they have a technological measure that can be used to stop people from communicating things which other people don't want them to communicate. Countries like China has adopted these technical measures to target political dissidents, and western copyright holders have tried to use them to stop copyright infringement. We see the spectacle of alleged human rights activist Bono saying that the West should adopt the "great firewall" policies of China in order to keep citizens in check.


While these technologies have never been effective, and have in fact encouraged people to carry out the type of speech that the technologies were intended to reduce, the supporters of these technologies have not backed down. There have always been snake-oil salesmen willing to sell to less scientific public. In this case they are selling a Trojan horse which will (if successful) enrich these specific technology companies at the expense of all their customers (creative industries and audiences alike), their competitors, and the economy/society as a whole.

Entertainment industry: Nothing has changed in the last 20 years except that people are infringing our copyright. That must be enough proof that infringement alone is responsible for any lost sales.

Music and Movie fan: You only make content available for technology which I do not own, or a subset of technology that my friends own. I have other places my money is going such as cell phone plans, etc, etc. This is why I have not purchased your latest movie/music.

Entertainment industry: If you don't buy our stuff, it must mean you are a pirate. Piracy is the only thing that exists. (holding ears) La La La La

Business Software Alliance and Entertainment Software Alliance: Pay no attention to the men behind the curtain!

Entertainment Industry to Government: We have proof that copyright infringement is devastating our industry. Nothing has changed in the last 20 years except that people are infringing our copyright, and here is how much we claim we have lost. We must stop this at all costs.

Independent software authors, engineers, cryptographers, and mathematicians: The technologies the entertainment industry is looking for do not exist. You can protect messages such that a third party cannot intercept a decipher the message, but you can't protect a message such that it can both be readable and unreadable to the intended audience at the same time. And wait, didn't you just include brick-and-mortar retail in your alleged losses, something that you yourself are helping along when you offer legal downloads?

Montgomery "Scotty" Scott: You cannot change the laws of physics.

John Degen: Dammit Jim, I'm a sports writer, not a software author, engineer, cryptographer or mathematicisn. You claim that what I want can't exist, but there are these folks over here willing to sell it to me.

Business Software Alliance and Entertainment Software Alliance: Pay no attention to the men behind the curtain!

Russell McOrmond: Can you give me an example of online sharing of your work where you believe that these technologies, even if they could ever exist in the real world, could help you?


Folks associated with Access Copyright member organisations: You, all your engineering and math geek friends, and especially MG (who we are so afraid of we won't name), and anyone who doesn't blindly believe that we are being harmed must be pirates. You associate with pirates, thieves.. Oh, sorry, I meant to say you are terrorists -- ya, that's the ticket.

Russell McOrmond: Before copyright can help a software author, we need technology owners to have the right to make their own software choices so that they can choose our software. What you are asking for will, if successful, devistate my business and yet not enrich you at all in return. Why don't you respect the rights of fellow creators?

Access Copyright crowd: You aren't one of us, one of us, one of us. You're a geek not an artist. You go away and have your own copyright, and leave us alone. We don't understand how our abuse of software and technology, and laws which regulate software and technology, has anything to do with software and technology.


Business Software Alliance and Entertainment Software Alliance: Pay no attention to the men behind the curtain!

You get the idea...

I believe that misapplied and misunderstood technical measures have been a larger factor responsible for lost sales than non-commercial copyright infringement. The statistics used are largely bogus, and include in their alleged harm ongoing changes to the marketplace such as the transition to legal online retail. Some less technologically literate copyright holders (most non-software copyright holders?) have been more willing to trust the snake-oil Trojan-horse providers from the technology industry, rather than independent software authors, engineers, cryptographers, mathematicians or other people who they should be trusting. And at the end of the day, rather than trying to make money, these copyright holders are whining to the government to change laws in the very ways they are being warned to avoid for their own sake.

It is one thing that these copyright holders aren't interested in learning how to use technology to increase rather than decrease their bottom line, but it is another thing when they insist on taking me down with them.

Do people have anything they would like to add?

Comments to Bill C-32 Clause-by-clause notes

Please reply to this article with any comments you may have about the Bill C-32 Clause-by-clause notes I authored. My intention is to keep that document updated with whatever feedback I receive.

Status of my move away from legacy phone/cable companies

After the legacy phone companies effectively won at the CRTC with the Network Neutrality policy debate, and the nonsense of the Broadcasters vs. Broadcast undertakings in (Stop TV Tax/ Local TV matters), I decided to stop being a customer of any of these companies.

I haven't been a direct customer of the phone or cable companies for Internet access for nearly a decade now. I had an ISDN line from Bell for a few years in the 1990's, and had an early ADSL from Sympatico until DSL service was available from other providers. I have since been a customer of third party ISPs as I have found the service from native Internet companies to always be superior to old-economy phone or cable companies.

I'm still stuck with the connection from my ISP to my home being alleged to be "owned" by Bell. The CRTC has so far given Bell the ability to treat this wire as their property, even though the wires exist because of a right-of-way exception to property rights (to put the cables above and below public and private property).

I asked about Fiber, but it is still not viable for home users. Someone at Atria Networks gave me a ballpark figure of a $10000 build charge, $500/month for the endpoint, plus whatever Internet bandwidth I used. I have been told that third-party ISPs are increasingly being able to offer Internet over cable. If I can get a cable connection that is hands-off to the intermediary, then I'll likely switch from DSL. It would be ideal if Teksavvy were able to offer connections like this in Ottawa.



At the end of last year I switched my home phone service from Bell to Teksavvy. I consider this to be a stop-gap plan, and in this case it is just Teksavvy reselling the Bell service. I already have a cell phone, and my ideal is to switch my wife to also using a cell phone from POTS service. With some of the new competitors in the cellphone marketplace, cell will be cheaper than POTS anyway. We already use portable phones -- and even with an Ottawa-only cell phone plan it will be more portable than our current phones.

I subscribe to Fido just prior to the 2004 federal election as I had many customers who had election related websites, and they wanted to be able to contact me. I wanted a plan that was cheap, focused on the urban areas I worked in, and wasn't from an incumbent phone or cable company. Unfortunately Fido was bought by Rogers later in 2004. With the new entrants, and my new Nexus One smartphone, I switched to WIND mobile and added a data plan earlier this month. I'm now off of the incumbent providers again, and this time with a fully unlocked (network and OS software) mobile device.



Now the last component to come up with a plan for is Television. I am looking for options.

We pay nearly $140/month currently. My first thought a while back was to take 1/3 of this and upgrade my Internet connection, and the other 2/3'rds to paying directly to content copyright holders. The problem is that as much as I look, I don't see a way to pay directly for the "Television" content that I want.

I could wait until the many months after a season is over and the show is available on DVD. There are many problems with this, beyond the fact that I'd be waiting nearly 2 years after everyone else to watch the first episode. DVD sales do not count towards ratings, and it is quite likely that by the time I have the option to watch the first episodes the show has already been cancelled (IE: Defying Gravity, Bionic Woman 2007, The Sarah Connor Chronicles). It seems that DVDs will remain a way to keep at home shows that I already watched elsewhere, and that I know I'm going to want to watch many times again (IE: I just ordered Doctor Who: The Complete 1st Season - DVD Boxed Set, and already have Firefly and the Dollhouse season 1. Still waiting for the Dollhouse season 2 DVD to finally be out).


There are some shows that are available on the websites of various broadcasters. While this is fine for me when watching sitcoms, I don't think my wife will appreciate the much lower quality video that is available on these sites. I also want better screen resolutions for watching my Science Fiction.


So, what am I left with?

I suspect I'm going to slowly cut my cable down regardless of whether I have a replacement. I am looking into a more advanced PVR that will be able to record the new over-the-air digital stations. I suspect if I get access to good scheduling that I will be able to record and watch later enough television to be satisfied. This too is short term, as I expect with advertising going online that over-the-air television won't have the budgets to show very interesting programming.

I know I can find enough video content legally online to keep me happy. Like many families this is a negotiation with other people, so I can't just drop Cable TV based only on my own viewing habits (or desire to change those habits).

Note: I know all the programming I want is available online if I just ignore Copyright. I'm not interested in this model for my home. While I have no problem not paying any money for programming due to "not for sale" problems created by copyright holders themselves, I'm not going to use infringement to bypass the fact that these copyright holders don't want my money. I will leave fixing television such that Canadians involved in the production can get paid to insiders like Denis McGrath who claims to be interested in such issues. Unfortunately, he seems more interested in the anonymous (AKA: generally useless) comments on Michael Geist's blog than on engaging with people who want to help Canadian creators get paid.

Science vs Science fiction

Just tossing some ideas here, as I haven't solidified what I'm wanting to say. Please hit reply and join the discussion.

This morning I am trying to read a paper by Carys J. Craig which Michael Geist referenced on his blog.

Like many articles written by lawyers or journalists about "Digital Locks" or "technical measures" (TMs), it is a hard read as it seems to be talking about some science fiction Star Trek replicator stuff, while I am trying to map what they are talking about to real-world technology.

Whenever talking about communications technology I try to break what is being said into the 4 things (and potentially 4 different owners) from my Protecting property rights in a digital world talk.

I try to do the same thing when speaking with fellow creators-rights activists, such as what I wrote as comments on John Degen's blog on his article "weapons down, please".


Of the four things, they can each have locks put on them. The relevant questions to me are:

• Who owns the thing that is locked
  
• Who has the keys to the locks, and is it the owner or someone else.
  
• Are there legitimate limits on the rights of owners.
  
• What law protects the rights of the relevant owner, and what laws limit the rights of owners.
  

In those 4 things I believe Copyright has a legitimate roll when discussing the copyrighted content, and when discussing the software. Copyright clearly has limitations and exceptions which are there to not only benefit society as a whole, but also (and more often) to protect the interests of future creators building on the past.


I believe Copyright has no legitimate roll when discussing the physical media (if any), or when discussing devices. The ownership rights should be both protected and limited by provincial property law. In Canada I believe it should be clearly unconstitutional for the federal Copyright law to seek to limit (or in the case of non-owner locks on devices, effectively abolish) tangible property rights.


The paper by Mr. Craig has some interesting points relating to a reasonable interpretation of Article 11 of the WCT which reads:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Mr. Craig emphasised the phrase, "used by authors in connection with the exercise of their rights". When I first read the WIPO treaties they didn't concern me. Of the 4 things it would mean that a TM applied by a copyright holder to their copyrighted work to protect the copyright related interests would be protected, and a TM applied by a software author to their software to protect the copyright interests of that software would be protected.

The flip side of that would be that TMs applied by someone other than the owner of the media would not be protected, and TMs applied by someone other than the owner of a device would not be protected. It also suggested that TMs applied by software authors that alleged to protect the interests of some separate copyrighted works would not be protected.

The problem is that it is TMs applied by other than the owners to things not related to copyright that are the source of a vast majority of the controversies we run into.

Technical Measures applied to media

With more and more content moving towards digital downloads and other 'communications by telecommunications', the various TMs applied to physical media will become less of a concern.

We will need to educate people about the loss of property rights that were applied to the physical medium once that physical medium no longer exists. As an example, there are many things you can do as the owner of book that can be denied from you as someone who acquired an e-book. An e-book is more analogous to software (with all its complex licensing agreements, limits, etc) than it is to a physical book. Simple question: How many books do you own that are more than 30 years old, and how much software do you run that is more than 30 years old (Note: software updates or new editions don't count). This is the world people adopting e-books are moving to.


I spent a lot of time in the 1980's helping people whose hardware was being damaged by TMs applied to physical media. In the 80's there wasn't the collusion between copyright holders and device manufacturers, so nearly all "copy control" was accomplished through deliberate media defects. In the case of Commodore games they actually put laser holes into the floppy disks such that when the disk drive read that part of the disk it would get random information. This allowed the software that was previously loaded to detect if the floppy was an original or a copy onto an undamaged floppy.

The key problem was that the 1541 drives would try to reset themselves when it noticed these defects. That reset involved bringing the disk head back to a reset position and literally banging against a piece of metal. That metal constantly needed to be adjusted, and in some cases became hit so often it was beyond repair.

As a service to some of our best customers we would give people a unprotected copy of the software when they bought the box. They were instructed to use the unprotected copy and leave the original as proof of purchase. Technically this unprotected copy was an infringing copy, but most of us in the business considered there to be no moral issue with this. In fact, most of us considered it immoral of the software author to cause physical damage to hardware in their failed attempt to reduce infringement.

I observed nearly 30 years ago what I still observe today: "copy control" or what is now called DRM drives more people to infringe copyright than it discourages from infringement. This type of technical measure reduces sales, not increases.

Technical measures applied to devices

I know it upsets some people, but I consider this to be a simple matter of basic respect for tangible property rights. I believe that if a device is locked it should be the owner that controls the keys. I believe it must be legally protected for an owner to remove a non-owner lock, and to apply their own lock if they so choose.

I don't care if some copyright holders want to experiment with new business models. I don't believe that any business model built upon a form of theft should be legalised or legally protected. We have laws against theft for a good reason, and I see no reason to turn our backs on hundreds of years of legal thought just because some people are confused when you add the word "digital" in front of something.

I believe proponents of non-owner locks fall into one of the following categories:

• Immoral proponents of legalising theft
  
• Amoral apologists who don't see theft as a problem
  
• Dangerously inadequately informed people who don't understand the real-world technology enough to realise they are advocating/apologising for a form of theft
  

It is worth repeating that existing relationships fullfill all the legitimate needs of copyright holders. There are times when they want to offer content via a specific platform which they, or someone under contract with them, control. This can be accomplished simply by renting the relevant hardware, so that any TMs involved are there to protect the owner. I consider it extremely dishonest to claim that non-owner locks are required (and require legal protection) when existing rental arrangements could be used to avoid the conflict.

Technical measures applied to content

There are many legitimate uses of TMs by copyright holders, which we can discuss case by case if people wish.

One thing I don't consider to be legitimate is the use of TMs to encode content such that it is only interoperable with specific brands of end-user devices. Inevitably the only brands of devices these copyright holders "authorise" are those that have non-owner locks applied to them.

I consider those who apply non-owner locks to devices to be theives. I believe those who doesn't involve themself in the theft directly, but put people in a dangerous position, to have unclean hands.

In this case provincial property laws aren't the right place to deal with this conflict. I believe that federal competition law would be appropriate, and should prohibit the condition of a copyright license on the use of non-owner locked devices. If necessary, especially if we ratify the 1996 WIPO treaties, we may need to have clarification of this prohibition in the Copyright act for those who would not be aware of competition law.

Technical measures applied to software

This is similar to the content question, with additional limitations required. What we need to avoid is collusion between specific content copyright holders and specific software copyright holders to circumvent the balance of copyright, property or competition laws.

I believe the best book for understanding the roll of software as a regulatory force is still Lessig's Code: and other laws of cyberspace (v1 or v2). Since software has a regulatory aspect to it, there is a need to put additional limitations on software copyright holders that wouldn't apply to copyright holders of non-software works.

Nexus One unfortunately no longer sold directly from Google

I consider it unfortunate that Google won't be selling the phone directly. I can understand other people wanting to go retail, but I didn't. I found using their online store quite convenient.

Official Google Blog: Nexus One changes in availability

I will see what Canadian retailers end up carrying the phone, and what I hope to be future versions of this phone.

How comfortable are you with reading ideas you disagree with?

After posting a comment to the CBC Spark blog about an interview with Jaron Lanier, I looked up his book You are not a Gadget, and added it to my future reading list on eMusic.

I can tell from the CBC and other interviews that I'm not going to agree with this person on some pretty key things. Take what I've written publicly and what I think about the following quote:

Collectivists adore a computer operating system called LINUX, for instance, but it is really only one example of a descendant of a 1970s technology called UNIX. If it weren’t produced by a collective, there would be nothing remarkable about it at all.

Meanwhile, the truly remarkable designs that couldn’t have existed 30 years ago, like the iPhone, all come out of "closed" shops where individuals create something and polish it before it is released to the public. Collectivists confuse ideology with achievement.

In my mind, his first comment is like saying that democracy isn't remarkable because it is just a decision making mechanism just like Feudalism and other governance systems. I'm also entirely uninterested in the iPhone because it is closed, just as I wouldn't want to live in certain countries because of differences in political beliefs with the way it is governed. There are aspects of the structure of these societies that may be remarkably designed, and there is beauty everywhere in this world, but that doesn't mean I'm interested in living or even visiting there.

Wars have been fought against technologically superior people/countries that had incompatible ideologies, and I think far too many technologists confuse technology with achievement.


But that isn't the point for me. The point is that I'm curious to hear what this person has to say (hear in someone elses voice with the Audio Book, but close enough ;-) because I think I'm going to learn more from someone I disagree with than someone I agree with. I know I'll have moments where I'll be yelling at my mp3 player, but that is part of the process.

Thoughts?

Haiti and self-censorship.

This morning I started to draft an article where I was going to start talking about how the identical hardware is transformed in whether it would have a positive or negative influence in our lives, and end with a question about our longer-term policies towards Haiti and whether our friendship there has overall been a positive or negative influence. The article was intended to be posted to either the IT World Canada or digital-copyright.ca blogs. I decided against that, given it may cause grief without benefit. Rather than tossing the article I decided to publish on this personal blog what I had as an early draft in case anyone wanted to pursue the line of thinking.

I fundamentally believe that for many of the worlds issues, whether that be poverty, food security, or building of infrastructure better able to withstand natural disasters, that knowledge sharing forms an important part. Trying to work against those who believe that making knowledge artificially scarce is good for society, as opposed to one narrow business model among other, will have some small impact on these problems. See: Sharing: the way to Make Poverty History.

---cut---


Lets use as a starting point something I suggested in my last blog entry. I have come to believe that the two most important questions to ask about any digital technology are: is the device locked, and who holds the keys. I then went on to suggest that I would see the identical hardware as either something to promote or something to strongly oppose based on the software and who hold the keys to any digital locks.

The important take-away is the message of Lawrence Lessig's book Code and other laws of Cyberspace, which is that software can be seen as a form of regulation -- of policy, and that we need to pay attention to this policy.


(Was intending to insert commentary about the UK digital agenda and how they plan to give away computers to citizens to allow them access to government and other services online, while at the same mandating the technology and network have foreign locks and monitoring/filtering through "copyright" reforms. I was then going to bring up my critique of the One Laptop Per Child project which I am no longer enthusiastic about since they fully support Microsoft's proprietary platform -- upon which a new generation of "pirates" will be deliberately manufactured through policy.)

This brings us to Haiti. While some may be offended by what I have to say, I believe that it is not earthquakes that kill people but buildings falling on people that kill people. We need to ask ourselves if the policy we have had towards Haiti helped or hindered the building of infrastructure that would have protected people from the earthquakes. Many reports have suggested that we knew about the instability of the plates many years ago, but like other science that doesn't give us an exact date (or an exact temperature, or...) the threat was ignored.

I am not going to detail what I think the policy of the Friends of Haiti (Countries such as Canada, France, United States, Venezuela) is, but to suggest that the policy is important. A quick Google search of US policy Haiti will give you a quick glimpse.