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Don't start here if you are a newbie; instead, see my page of copyright reform links for extensive background on what this is all about. This report assumes the reader is already familiar with the material presented on that page.
On 11 April 2002, I attended the Industry Canada/Heritage Canada (IC/HC) copyright consultation meeting in Ottawa. This report describes what went on there, in basically the same style as my earlier report from the Toronto meeting of 26 March 2002. I'll start with a description of what went on in the actual meeting; then I'll give some notes on other issues I'd like to see covered, and talk briefly about aspects of my trip not relevant to copyright.
Just as in Toronto, they divided the day-long meeting into five sessions, theoretically with breaks in between although some of the breaks ended up being stomped on by sessions that ran overtime. Each session started with an introduction from one of the Industry or Heritage representatives, and then attendees took turns making speeches about it. The speeches were limited to five minutes each, and unlike Toronto, many people used the full five minutes and were stopped when they exceeded it. Generally, the list of speakers filled up at the start of the session, and the speeches definitely appeared to be pre-prepared. The situation in Toronto was more one of short comments being made on the fly.
We all sat at round tables in a large room at the Government Conference Centre, capacity roughly six people per table, with two microphones on each table. The people sitting at my table were myself, Tom Trottier and Chris Friesen (both computer geek types mostly representing themselves), a photographer named Paul Couvrette, and Bruce Couchman from Industry Canada. Malaka Hendela from Industry Canada's Intellectual Property Policy Directorate (IPPD) told me that the attendance was more than 100 people - about the same as in Toronto. She was responding to my very rough estimate of 60 people in Toronto, which shows that she and her organization are reading reports like these. I'm a mathematician, so don't expect me to be able to count.
One interesting wrinkle was that at this meeting, they provided simultaneous translation between English and French - everything that went over the PA was also broadcast in the other language, to infrared receivers that were distributed among the tables. (The meeting in Toronto was almost entirely in English, so it was less of an issue there.) The first time someone gave a speech in French at the Ottawa meeting, I refrained from using the translation device, hoping to see if I could follow it just with my own knowledge of the language - but I couldn't, so on later speeches I used the device and it worked pretty well. The only hitch was that because it would take me a few seconds to realise, oh, this person is speaking French, and then dig out the receiver and put it on, I would neatly miss the person introducing themselves, so I don't have attributions for the material I got in French. The quality of translation was pretty good, though - I didn't have the feeling of missing the nuances that I often get when listening to simultaneous translations.
At this meeting, partly because I was less active in speaking myself and partly because I was in a saner mental state than I was in Toronto, I generally did better about writing down who said what. However, getting the spellings right was still a problem, and I concentrated on getting organizational names in preference to individual names. As usual, I hope I'm not misquoting anybody, and if I do, I guess they can sue me. Ha, ha.
The first session of the day was theoretically on the "making available" privilege. In Toronto this session was used mostly as a chance for groups to introduce themselves and stake out rhetorical ground, and in Ottawa, with fewer "content industry" reps present, that was even most strongly the case. We didn't hear a lot of the nuances of "making available" that were discussed in Toronto. Just as well, from my point of view, because (although I know there are people who will disagree with this) it's probably the least important to me of the four topic areas.
A speaker from the Canadian Association of Research Libraries (CARL) began by speaking of what I think of as the usual library concerns - libraries need to make copies for interlibrary loans and want that to be both legal and possible, they are concerned about "standard form contracts" (which are a superset of what we've been calling "shrink-wrap license agreements"), and so on. This speaker also stressed the need for a balance between the concerns of privilege holders and users of copyright material. The next speaker, from the Association of Universities and Colleges in Canada (AUCC), echoed the call for balance, but suggested that now may also be a time to create new exceptions for libraries, on top of the existing ones.
The next speaker was from CANCOPY, who are the collective-licensing folks responsible for those posters you see next to photocopiers. In Toronto, the speakers from CANCOPY, especially their Legal Counsel, Suzanne Conway, really made the organization look silly. They ranted against "balance" as a bad thing, and said that consumers ought to be happy with whatever privilege holders were willing to sell them. I left Toronto thinking, gee, if they don't shorten Ms. Conway's leash, nobody's going to take them seriously. Well, in Ottawa, they presented more of the same - their representatives actually did speak with apparent seriousness against the abstract concept of "balance". I suppose I shouldn't be too upset because it's helping people like me make our arguments, but I have to wonder, who seriously thinks that that's a good tactic to use? You just don't argue against big, positive, abstract concepts like "balance". Just look at the abortion debate - one side calls itself "pro-Life", and one side calls itself "pro-Choice". The strategy in both cases is that "Life" and "Choice" are such obviously good things, that anyone who opposes them has to be evil or insane. The two sides in the abortion debate certainly do not call themselves "anti-Choice" or "anti-Life"; those terms are the insults they use against each other. Bringing this back to topic, an organization should not claim to be against "balance" unless it wants to be considered evil or insane; yet that's what I heard CANCOPY do in both Toronto and Ottawa. Are they secretly sympathetic to my views or something? Anyway, also mentioned in the CANCOPY speech at this point was the idea that even if libraries have some right to make copies, that does not mean they have a right to make copies at no charge - there should be licensing fees paid to CANCOPY to distribute to the privilege holders.
The next speaker was from the Council of [Provincial] Ministers of Education (CMEC), arguing that creation of a "making available" privilege for performers and producers would further complicate the already Byzantine rights clearing process educators must go through. Tom Trottier (independent geek-type activist) was next; he gave a carefully prepared speech about how attempts to limit digital technology were like King Canute ordering the tide to stop; and describing a possible future where copyright controls would be carried to an absurd extreme, with hammers that charge their users per nail driven and at different rate depending on the type of construction being done. Tom let me skim through his speech beforehand, and I have to say that it went off better in the actual meeting than I had feared it might - that kind of flowery style has the potential to backfire, but he carried it off quite well.
Howard Knopf, an intellectual property lawyer, spoke about issues of how the process was happening, and asked whether we in fact should ratify WIPO at all. Lots of people have been saying it's important that we must, but there hasn't been much support offered for why. Then a representative from the Canadian Teachers' Federation spoke, calling for protection of teachers' fair use [sic - I'd prefer to have people use the term "fair dealing", which is Canadian, except when explicitly referring to the different U.S. system], protection of Internet access to freely posted material, and addressing of existing copyright exceptions in the digital realm.
Something we've heard a lot from the educational groups is the concept of "protecting access to free material". I think that's really a red herring. The concern, as far as I can tell, is that if you download a Web page, without paying, that was posted on the Net by its author with the intention that people should be allowed to download it without paying, the educators think that that is technically a violation of the existing copyright law. They don't want to be punished for it. I think that fear is unfounded - if someone posts something on the Web and invites people to download it, then nobody is infringing the poster's rights by accepting the invitation. However, one way in which it might be a concern is that some people have argued that downloading a Web page to view it is not "reproduction" for the purposes of copyright, while printing it out, or saving it on disk, is "reproduction", and thus posting something on the Web does not implicitly create permission to print out or save it to disk. (That distinction may be the basis for the C-15A child pornography "access" offense.) I don't think these people realize that most Web browsers save things to disk before displaying them at all, even if you don't click "save". Anyway, although I agree that copying things with permission should be legal, I happen to think that it's already legal, it is not generally in danger of becoming illegal, and I'd rather spend energy on protecting the right people sometimes have to copy without permission, for purposes of things like critical review. There are situations when it is a good thing, and important and worthy of protection, for people to copy directly against the privilege holders' wishes, and that is where technological protection measures (TPMs) become a threat.
The Canadian Association of University Teachers (CAUT), another educational group, spoke next; their representative highlighted that academics are both creators and users, it is imperative to address the educational exceptions to copyright law, and especially such points as TPMs and shrinkwrap license. After that, the Alliance of Canadian Cinema, Television, and Radio Artists (ACTRA), spoke. They reacted to Tom Trottier's speech, accusing him of wanting a future where "you can just walk into a shop and take a hammer without paying for it". Nice confusion of gratis and libre there. They also demanded support for enforcement of contracts controlling use of creative material - I imagine they are most interested in artists' contracts with publishers, but it edges dangerously into TPM and shrinkwrap territory. They urged ratification of the WIPO Performances and Phonograms Treaty (WPPT), and the establishment of a "making available" privilege for actors. Finally, they made a general call for protection of the existing "moral" rights under copyright.
Russell McOrmond, independent, spoke next. He took a position against intellectual property in general, and spoke of a need to eliminate the middleman publishers - that "they're essentially the hired help". He was followed by a representative from the Canadian Library Association (CLA), who said that "making available" is the same thing as our existing concept of "publication". Consumer interests need to be addressed, and adding new privileges to copyright law will make things too complex. The next speaker was another independent, the spelling of whose name I didn't get, talking about the parameters of "time and place" relating to "making available" (that was one of the Government questions) - in particular, he expressed concern about whether we could control what goes on outside Canada.
A representative from the Canadian Media Guild spoke about the rights of freelancers (issues like those of the Tasini case); this speech was interesting because it mentioned that ideas cannot be copyrighted, although the speaker didn't take that concept very far. The next speaker was from the Canadian Motion Picture Distributors' Association (CMPDA), who said that in answer to the question of how "making available" would affect retransmission, the answer is "not at all!" - because retransmission as that organization sees it is at a scheduled time and place and so is not the "on demand" communication spoken of in the WIPO treaties. (Of course, we might debate that with things like Web radio stations that take requests...) I don't know if it's good form to mention this, but I thought it was amusing that this particular speaker had a noticeable American accent.
One of the photographers' representatives spoke, with what I've come to think of as the usual set of concerns from that quarter - demanding normalization of copyright privileges between photographers and other creators, and an elimination of outmoded technological references from the legislation. The current rules, for instance, talk a lot about the question of who owns the negative - what does that mean with a digital photograph that has no negative? Finally, we heard from a lawyer for the recording industry, who said that the talk we'd heard earlier about how "clearing" privileges is difficult, was off base. Actually, it's easy to get appropriate permissions, and he suggested that the educators who were concerned about the difficulty were actually concerned about having to pay for it. He also suggested that the technical folks could wave our magic wands and solve the problem of how to clear rights with payment of fees to the privilege holders.
The second session of the day was on technological protection measures (TPMs), and specifically, whether there should be legal protection of these. That's what most of us came for. If you buy a copy of some creative work, should you be allowed to break codes and otherwise "circumvent" the "protection measures", in order to make use of the work? Does it matter what kind of use you plan to make, whether it is to view the work under an alternative operating system, to study codebreaking, to do critical review, or to make commercial infringing copies? What about distributing "devices", including software, to "circumvent" protection measures, when you yourself aren't doing the "circumvention"? These are the kinds of issues raised by the DMCA, and I won't elaborate here why lots of people care about them. (See my written-comment-process submission, or any page found by searching "DMCA", for more information.)
Sandy Harris, an independent security consultant, started this session by speaking of the distinction between use and copying - TPMs control use, not copying, even though they're billed as anti-copying measures. He specifically used the word "liars" to describe the movie industry's position on this distinction. He also flagged restrictions against reading books aloud, and DVD region coding, and mentioned that TPM restrictions could be permanent, outliving the time limits in copyright law. TPMs are so destructive of the values embedded in copyright law, he said, that maybe we should instead be looking at legislation to protect or require the availability of circumvention measures.
As in Toronto, I was keeping a deck of Tarot cards on the table in front of me, and every so often I'd flip up a card and look at it and nod knowingly. I did that for several reasons, partly to "freak the mundanes" and allow impressionable people to frighten themselves with the idea that they might be up against some sort of witchcraft, and partly to keep myself on my toes with a little random input. In Toronto I didn't achieve any particularly exciting insights this way, but in Ottawa, at this point in the proceedings, I drew a card for the question "Where is the next speaker coming from?" and - honestly, I'm not making this up - I got major arcanum fifteen: The Devil, reversed. The next speakers were a group from DirecTV.
DirecTV said more or less the same things they had said in their written submission - railing against the "pirates" who "steal" their signals, and warning that Canada may become "a haven for pirates". They had some cardboard pie charts which they displayed, showing the outcomes of DMCA notices they had filed against U.S. "pirate" Web sites. Lots of U.S. Internet Service Providers had complied with the takedown notices (as required under U.S. law), but only 3% of Canadian ISPs had complied. Of pirate web sites that responded to their takedowns by moving to a new ISP, twice as many moved to Canada as moved within the U.S.A. I almost felt sorry for DirecTV, because I could see what they were setting themselves up for.
Someone whose name and affiliation I didn't catch, probably one of the independents or maybe a library representative, spoke about the need to support fair dealing, preservation of material that may be in obsolete formats, and access for the perceptually disabled. Then the rep from the AUCC spoke, saying that it was important to allow devices for circumvention if not acts of circumvention, discussing the "first sale" doctrine" and limitations of physical analogies, and saying that we are already compliant with the Berne Convention. The Berne Convention is interesting in that it allows member states to make exceptions to copyright, whereas the WIPO treaty is much less permissive and much less universally accepted; privilege holders may be trying to pull a fast one on us when saying we need to support WIPO ratification in order to keep up with the international community, while most of the international community is, like us, only part of Berne. Furthermore, if we did join the WIPO treaties, we could then be used as a lever to tighten up Berne and set up for another cycle of even stricter copyright restriction, playing the two treaties against each other. This speaker also commented on term extension, saying that if anything we should be shortening the term of copyright, and cited some of Dr. Lawrence Lessig's comments on where copyright comes from.
The next speaker was from America Online/Time-Warner (AOL/TW) and presented what could be called the "corporate" party line. She said we should use TPMs to bring the existing restrictions of the physical world into the online realm, we need prohibition on devices, not just acts, and that we ought to trust corporations like hers to have the best interests of consumers at heart. She used the words "hack" and "hackers". Then a speaker from the Canadian Conference on the Arts argued in favour of WIPO implementation, demanded that we extend the statute of limitations on copyright violation, and said that "the public has a rapacious appetite" for infringing material. I have the phrase "educational amendment" in my notes for this speech, but don't remember whether this speaker was speaking for or against such an amendment.
Dr. Michael Geist, from the University of Ottawa, spoke about the Théberge case, which see; it dealt with format conversion and copyright in a situation where paper posters were transferred to canvas backing against the artist's wishes. One interesting wrinkle in that case was that the transfer process was inherently destructive - they started with a blank piece of canvas and a paper poster, and ended up with a canvas poster and some soggy shreds of paper fibre. Computerized format conversion is inherently a non-destructive copying process, which may have different consequences. One of the Industry Canada representatives asked me during lunch whether there could be any way that computer format conversion could be made similarly destructive, and I told him that although it was an interesting idea, the answer was basically no, because computers fundamentally operate by copying information. Even if you want to move a file without converting it, the natural way to do that is to copy the file and then delete the original. Of course we could build a format converter that would automatically also delete the original, but that would be a definite separate step added on for policy reasons, quite different from the situation with the poster conversion where the destruction of the original is a side-effect of doing the conversion at all.
Dr. Geist then went on to respond to DirecTV's presentation. They had said they were concerned that only three percent of Canadian ISPs had complied with DMCA takedown orders. He agreed - it was definitely a concern that three percent of Canadian ISPs had complied with DMCA takedown orders which have no legal validity in Canada! Aren't we a sovereign nation? That got a round of applause; I don't think the DirecTV delegates were too happy, but they had really set themselves up for it.
A speaker from the Canadian School Boards' Association (CSBA) spoke in favour of circumvention under some circumstances - in particular, describing how important it was to allow the use of Internet content filtering software. Let me be clear on this - the argument wasn't in favour of circumventing censorware (my own interest) but rather that because the filters interpose themselves between viewers and content, filtering software itself could be seen as a "circumvention device" and so a law against circumvention devices could be a threat to the tender tots. We haven't heard much about this, but the DMCA actually has an exception for censorware, saying that it is allowed to circumvent TPMs. One interesting aspect, though, is that the DMCA exception for censorware applies to software designed to limit "minors", whereas the CIPA requirement for censorware requires that it limit everyone. It might be fun to see someone argue that CIPA requires the use of software (specifically, censorware applied to adults) that the DMCA forbids.
The next speaker was from a university library organization, and covered the need for librarians to be allowed to convert formats in preserving documents. Digital formats go obsolete very quickly; we now have documents that are only twenty or thirty years old, but unreadable, while we can still read clay tablets from five thousand years ago. In particular, this speaker mentioned a digital copy that was made quite recently, on laser disc, in an effort to preserve the "Domesday Book" from 1086. The digital version is now unreadable; the original is still fine; and here we are talking about a copy that was made for the specific purpose of being easily readable in the future. How much worse could the situation be with documents that are encrypted for the purpose of preventing easy access?
Alan DeKok, an independent, spoke of the need to protect security reviewers who may have good reasons to break security in the course of their work. Then someone from an emulator company (whose name I didn't get) talked about their efforts to make Windows software run under other operating systems. In order to build emulators capable of enforcing the TPMs on Microsoft documents, they often must do background research that includes breaking the TPMs. Then Howard Knopf said that these kinds of laws could also be used to suppress audio cassette recorders, VCRs, and so on; we don't need criminal sanctions against circumvention; and that because it contributes to technical progress and so many other valuable things, we should actually be encouraging circumvention.
The representative from the Canadian Library Associations spoke to the point that copyright is not and should not be absolute; then someone from the Bureau of Canadian Archivists spoke in favour of balance between privilege holders and users, and highlighted the same preservation issues other library speakers had been talking about. Next was an independent speaker whose name I don't know how to spell, saying that he had come around to the idea that it was okay to allow encryption of ephemeral copyrighted transmissions, but any permanent stored data should not be subject to TPMs because of the need to preserve personal use copying and "space shifting". Then Ms. Conway from CANCOPY gave a speech the point of which appeared to be that if we allow exceptions to the copyright law, then we'll be allowing exceptions to the copyright law. (I'm not making this up.)
Another person whose name and affiliation I didn't get, spoke about the purpose of copyright - that it exists for the public interest. Then three independents from my table spoke in succession. First, Chris Friesen said that protection of TPMs is dangerous because it interferes with fair dealing. Fair dealing is so important, he said, that it's not enough to allow circumvention by users, nor even to force privilege holders to provide circumvention devices. Instead, any privilege holder using TPMs should be required to put an unprotected copy of the work in escrow, to be provided on demand to anyone wishing to apply fair dealing to the work. (In fairness to CANCOPY, I suppose I should note that I'm not making this up either - we've had discussions about whether to take an extreme or a moderate position, and I tend to think that it's important to do both, but I'd certainly class the Friesen speech as "extreme".) He was followed by Tom Trottier, who asked why we tolerate the concept of intellectual property at all. The time limit on copyright is fundamental to its purpose, and so technological protection measures (which are designed by the privilege holders) conflict with the reasons we allow people to claim copyright in the first place. Privilege holders should choose between using TPMs, and being allowed to claim copyright. He also suggested that if libraries have to break TPMs in order to pursue their legitimate activities, even if that's legal it may be too expensive; that (and this is a point I'd like to hear more of) researchers may need special access other users don't need, for instance to run textual analyses on content; and he described some of the privacy concerns raised by TPMs. Then my turn to speak arrived.
I started by saying I was glad DirecTV were here today, because I'd written a seven-page response comment specifically directed at their concerns. I would try not to repeat myself here in the meeting, but I'd encourage everyone to find my response on the Web. I said I did want to highlight what I'd already said about their "Canada will become a haven for pirates" fearmongering. I'd like to suggest that actually, what will happen if Canada retains permissive rules on TPM circumvention in the face of the US restrictions, is that <sound bite> Canada will become a haven for scientists and students. </sound bite> In particular, I wanted to talk about my own case, as a computer science graduate student. The representative from CSBA had already described content filtering software, used by many schools as part of an attempt to control students' Internet use. I outlined some of my concerns about that kind of software, in particular the fact that the lists of forbidden Web sites are routinely kept secret. Then I briefly summarized my own experience in the Cyber Patrol break, emphasizing that Eddy Jansson and I had needed to "circumvent" the protection of the blocking list in order to write our review. (I didn't mention, but possibly should have, the Register of Copyrights rulemaking in which they essentially created a special copyright exception for people like me, apparently influenced by my writings on the subject.)
I then described how rules like the DMCA had contributed to my decision to do my PhD at a Canadian school, and how many others in my field were avoiding travel to the U.S.A. entirely for fear of DMCA prosecution. Then I said that really, the whole TPM discussion was moot anyway, because TPMs are impossible. I have a sound bite for that, too: "If I can see it, then I can record it, and if I can hear it, then I can record it." Of course there are some subtleties of computer science behind those statements, but there's nothing in the theory that can override the simple common sense; any measure aimed at blocking copying is doomed to fail. When we debate whether TPMs should or should not be protected, we are debating the legality of something that actually doesn't exist. One final point I said I'd like to note was that even if we pretended that TPMs could work, we would have to acknowledge that they would be designed to enforce the wishes of the privilege holders, not the law. The privilege holders might very well want to enforce rules that go far beyond the law. For instance, people like the publishers of Cyber Patrol surely wanted to prevent critical review of their products, even though copyright law is supposed to enshrine criticism as an activity important to the democratic process.
Next we heard from CMEC, with a speech against the physical analogies people had been using all day - the claim being that such analogies are misleading and attempts to make the digital world work like the physical world work against technological progress. This speaker also spoke against standard form contracts, and in favour of educational exceptions to TPM protection. Then David Skoll (an independent) spoke, highlighting the recent situation in which the Church of Scientology issued a DMCA takedown order to Google as part of an effort to silence its critics. He also told the story of how someone had recently sent him a PDF file of a form he was supposed to print out and sign. Upon converting it to Postscript for printing, he found that his printer could not process the resulting file. He examined (arguably, "reverse engineered") the file and discovered that he could get it to print by removing a few lines of code. However, those lines of code were clearly marked with a comment saying "removal of these lines of code constitutes a breach of the DMCA". Now, here we are talking about a file whose author (and privilege holder) sent it to him for the express purpose of having him print it out... but to do so, he had to do something that someone somewhere clearly wanted to claim was a DMCA violation. Three more significant points in this speech: if TPMs work, then circumvention should be impossible and so there'd be no need to make it illegal - arguing in favour of TPM protection seems like an admission that TPMs don't work; the term limit on copyright is important and needs to be preserved; and TPMs and copyright protection should be mutually exclusive, with privilege holders having to choose one or the other.
Russell McOrmond spoke next, stating that as history has shown, consumers will not buy TPM-encumbered work if they have any other choices. Also, it is important to protect the possibility for interoperability, and private copying can just as easily be seen as "free advertising" rather than "theft". He was followed by Rob Ewaschuk, another independent (and a U of Waterloo student, like me). He echoed some of the previous comments, and said that he liked the idea suggested by Chris Friesen, of requiring that privilege holders put unprotected copies of their works in escrow for fair dealing purposes, but he was concerned about the privacy issues. People should be able to exercise fair dealing towards a work without having to reveal their identities to the central escrow authority. I'd like to add (I don't think this was in Rob's speech) that the escrow system also raises issues of privacy for the privilege holders - anonymous publishing is a moral right under existing copyright law, and it might be tricky to provide an escrow system where privilege holders can submit their work anonymously.
Andrew Belfour, a photographer, spoke next, presenting what I think of as the usual set of photographic concerns: who holds the privileges on a digital photograph, and why should photographs be treated differently from other images, especially in this day and age when it is difficult to define what actually constitutes a photograph anyway? Then someone from the Quebec performers' organization (sorry, I don't have the precise name) raised several concerns. She insisted that we must implement WIPO, although did not present specific reasons why. She said we need more studies of policy options, in order to find a middle ground. Technological protection measures are necessary in order to allow the creators, and nobody else, to decide what file format a work should exist in, and whether it may be distributed on the net. (That would appear to directly contradict the claim by people like Russell McOrmond and the librarians that it is the right of the purchaser to choose and convert file formats.) She was in favour of a prohibition on [TPM circumvention] "devices", but only where infringement is the primary purpose of the device. Finally, she commented on the Théberge case, against the majority opinion; as with file formats, her claim was that the artist had the right (under "moral rights") to specify that the work could appear on paper and not canvas.
Ben Zanin, an independent, said that from a technological point of view, display is the same thing as copying. In particular, a server cannot make a distinction between whether a client is downloading something to view it just once and then delete it, or to save it on disk for repeated viewing. Also, serious attempts at TPMs would destroy the Internet, because the Internet's basis is that systems transferring packets are blind to the packets' contents. He was followed by Paul Couvrette, a photographer, who repeated the concern of photographers that they should have the same copyright privileges as other creators of images, then amplified that by saying that injunctive relief (i.e. a requirement from the court for the infringer to stop distributing the file without permission) is not enough; he wants compensatory and/or statutory damages, i.e. money.
Susan Crean, a representative from the Writers' Union, wrapped up the session with an impassioned speech about the poor starving writers oppressed by evil corporate publishers. Her speech seemed to be aimed primarily at producing an emotional response, and although it was effectively put together, I had a bit of a hard time figuring out exactly what her points were. I think the main one was that she objected to exploitation of creative workers by corporate interests. That much I certainly agree with. She asked for a show of hands of people who made their living by producing creative work, and I think she was a little taken aback by the number of techies and academics who put up their hands in response to that. That may show a gap in our presentation - we need to make clear that we are creative workers too, and we're talking about use of work with the full understanding and intention that we're okay with having the same rules applied to our own work that we want applied to the work of others.
Anyway, Ms. Crean went on to claim that "making available" is or should be counted among copyright's "moral" rights, and that that and other "moral" rights are protected by the Charter of Rights and Freedoms. I'm certainly in favour of dragging in the Charter as often as possible in the context of these discussions. She said she objected to the word "copyright" because it sounds like the "right" to "copy", when actually, people don't have any right to copy work except at the sufferance of the authors, and anyway it's something that is all about publishers and consumers, and she would prefer that we use a more literal translation of the French term "droite d'auteur" - the "right of the author". The phrase "sick and tired" was used several times in her speech. I disagree about the origin of the term "copyright"; as described in my written submission from August 2001, I think it originally referred to the privileges attached to an entry in an official register - that entry being referred to as the "copy". That usage predates the modern meaning of the word "copy", as an actual duplicate of the work, or as a verb, to make such a duplicate.
The third session was on "rights management information" (RMI): tags attached to files to indicate who owns the privileges, the identity of the files, and the rules for how the files may be distributed. The WIPO treaties contain some requirements for "protection" of this information, in other words, penalties against people who change or remove it. In Toronto, this session was short, and narrowly focused on the idea of attaching ID codes to works with the other data to be looked up in a database. I think that was partly because in Toronto, there was a strong contingent from the movie and music industries, and the ID code thing is their agenda. In Ottawa, with fewer industry representatives, this session became more broad-ranging, like the "making available" session. I don't have a strong opinion on RMI as long as it is clearly separated from TPMs; in Toronto, I thought that my speech on RMI was weak and might have been better not made, so I kept my mouth shut during this session in Ottawa and just took notes.
The representative from CMEC began by saying that we should think about what should go on the list of exceptions to any RMI rules, and she had three suggestions: it should be allowed to remove inaccurate RMI; it should be allowed to remove RMI in order to access public domain work; and archivists should be allowed to remove RMI for the purpose of "preservation copying". The next speaker was from ACTRA, and spoke against the confusion of TPMs and RMI, calling for a clear definition of RMI as separate from TPMs. Then someone from AUCC spoke, saying that RMI should exist only to identify the work, and that RMI-covered works should include disclaimers advising users that the tags may not be valid.
There was a slight moderation mix-up at this point, because the moderator was calling on people by first name, intended to call Tom Trottier, and instead was answered by another speaker named Tom whose last name and affiliation I didn't get; he represented some organization of university libraries. This speaker said that whether something is or is not RMI should be defined by its purpose rather than by its contents, and gave some background on problems caused by protection of RMI - for instance, that it is dangerously close to protection of TPMs, the RMI may be accidentally or deliberately inaccurate, and so on. The moderator then called Tom Trottier specifically. He said that he opposed the lookup of RMI in a central database in the case of household use, for privacy reasons - nobody has the right to collect statistics on what works his household is listening to or viewing; however, he thought that that concern was not an issue in cases of public performance or Web posting, where the activity was public anyway. Only what he called "tombstone information" should be protected as RMI - that is, the name of the author and work and date of creation. Any protection of RMI implies a kind of protection of TPMs, and so it must be possible to remove the RMI for legitimate reasons relating to the legitimate reasons for circumventing TPMs, even if removal or alteration of RMI is forbidden for other purposes.
A speaker from the Audio-Visual Preservation Trust then covered the need for preservation copying, and said that the fundamental problem for RMI is that we need "good, reliable databases" of works and their permissions, and that problem is made more difficult by ownership changes during the lifetime of a work. This speaker mentioned the ISAVN proposal that was discussed at length in Toronto, and said that with RMI limited to ID information to be looked up in a database, deliberate tampering was "unlikely to be a frequent phenomenon". Then Suzanne Conway from CANCOPY spoke. She said that the definition of RMI should be broad, and catch as many kinds of information as possible, in order to protect the investment privilege holders have already made in systems like CANCOPY. The privacy concerns others had raised could be "dealt with by legislation".
Alan DeKok said that RMI is very hard to separate from TPMs, and objected to the complaints previous speakers had made against "unauthorized" use of work or removal of RMI. It is important to remember that "unauthorized" activities are not always illegal - for instance, critical review has to be protected - and we should only be working to eliminate illegal activities. (This seems similar to my point about enforcing the privilege holders' wishes as opposed to enforcing the law.) Then Ken Field, who I think was another independent, said that we have had labels on books stating the author and title, and bylines on newspaper articles, and so on, for a long time. This "RMI" does not seem to be any different from those things, so why do we need new laws for it? Its protection appears to already be contained in the moral rights provisions of existing copyright.
An independent speaker whose name I didn't get said that it was important to distinguish between commercial and personal uses of a work, and that the database proposal was not a privacy threat as long as it was checked only at the user's demand. He suggested a scheme in which works would be labelled with identifying information, and a database of permissions on works would be available, but there would be no automatic lookup that could invade privacy. The database would be merely available for the edification of any users who wanted to consult it. He also said that the rights of a user towards a work should be "set in stone" at the time of purchase; even if the permissions for new buyers were to change, when he paid for a work he was agreeing to a contract, and if the permissions holders wanted to bind him to his side of that contract, then they could not be free to change the terms of the contract on their side. (Tom Trottier asked me at this point, and I think it's worth thinking about, "What if the original contract says it can change without notice?". Many existing "standard form contracts" do indeed contain such a provision.) Finally, the speaker questioned the possibility of automatic enforcement of geographic restrictions - how can the machine know what country he is in when he views a file?
Chris Friesen was next. He said that watermarking - that is, attaching codes to a file that are technologically unremovable - is impossible, or at least, impossible with current technology. My own opinion on that is that some approximation of watermarking is basically possible and will continue to be, but it can never work very well, for information theoretic reasons. Lossy compression technology will automatically tend to remove watermarks; there is an ongoing race between people who design watermarks to survive lossy compression, and people who design lossy compression (which will, over time, become better and better at removing watermarks even if it isn't designed to do that deliberately); those two technologies draw on the same body of knowledge and so neither will ever get far ahead of the other; and lossy compression is an easier problem, and its technology is used by people with a greater tolerance for imperfect performance, and so watermark removal will always tend to be ahead of watermark addition. Anyway, Chris then went on to say that he liked the idea of limiting RMI protection to tombstone information, but it was important that there be no link to TPMs.
Someone from the Bureau of Archivists said that there should be no RMI protection for tags on public domain material, and that easy clearance was important. This speaker also raised the point that much of the material deposited in archives is unpublished from a copyright perspective, and so it may raise a lot of unique concerns. Rob Ewaschuk was next; his main point was that digital signatures are possible. Despite Chris Friesen's statement that watermarking (i.e. unremovable tags) is impossible, it is nonetheless easy to create tags that can be removed, but cannot be altered in any other way. I would agree with that statement, and I think it may be an important point. Most of the people who want to remove RMI want to do exactly that, not alter it; and most of the people in favour of RMI seem most concerned about it being changed, instead of removed entirely. I do have some concerns about how we could keep these unchangeable-but-removable tags truthful in the first place short of a huge expensive centralized keysigning bureaucracy, but as long as it remains legal to remove them, that doesn't worry me too much. Building an infrastructure of cryptographically signed work might be worthwhile in other ways - for instance, it could go a long way towards protecting moral rights of creators, because any alteration of the work would render the signature invalid.
Then Sandy Harris spoke, giving some additional description of the limits of the technology. He said that it is easy to attach RMI to a work; what is hard (or impossible) is preventing its removal, or enforcing any limits included in the RMI. We can attach a tag saying "you are not allowed to copy this", and as the previous speaker said, we can even make it so that someone cannot change what the tag says. However, we cannot prevent anyone from removing the tag, and we cannot technologically force anyone to obey the writing on the tag. Furthermore, should we trust machines to make distinctions about what is and is not allowed? As someone who programs the darn things, he said he had a pretty good idea of how trustworthy they are...
The next speaker represented some kind of collective society (similar in nature to CANCOPY), and spoke in French. I tried to follow her speech without the translation, but was not able to determine what position she was taking, and didn't figure out that it would be a good idea to switch to the translated version until it was too late to catch any significant part of her comments. She was followed by an independent speaker named David (I didn't get his last name) who argued briefly against DVD region coding. The session wrapped up with a speech from someone from the Canadian Publisher's Council, who claimed (despite the many reasons presented by earlier speakers) that there was no legitimate reason or excuse for removal of RMI, and that there ought to be both civil and criminal penalties for anyone who tried it.
The last fixed-topic session was on Internet Service Provider (ISP) liability. When there is allegedly infringing material posted on a server, who is liable for infringement, the person who posted it or the person who owns the server and may be unaware of what is posted? What must a person claiming to be a privilege holder do to force removal of the material from the Web - complain to the server administrator, or seek a court order? Much of that latter debate has focused on a choice between a "notice and takedown" system, where persons claiming to be privilege holders complain to the ISP and the ISP is forced to remove the material, versus a "notice and notice" system, where the complaint goes to the ISP, the ISP forwards it to the poster, and then if the poster does not take down the material, there can be a court hearing on whether it should be forced off the Net.
The first speaker was from AOL/TW, saying that we have to figure out how to control the many Web sites that distribute infringing material, and the way to do that is with a partnership between privilege holders and ISPs; AOL/TW has a unique perspective on that because they are in both categories. This speaker said that injunctive relief was appropriate, to stop the distribution of infringing material, but that monetary damages were not necessarily appropriate. Then a speaker from the AUCC asked how we would determine who qualifies as an ISP, and said that a "strict liability" standard would be inappropriate because ISPs (especially universities that provide Internet service for their people) cannot police the content provided by their users. This speaker supported a "notice and notice" system.
The representative from the CSBA amplified the previous speaker's claim that we need a precise definition of "ISP", and added that educational institutions should be exempted, in the same way that they currently enjoy an exemption for copying done on public photocopiers. Ben Zanin then spoke, saying that anonymity is possible by way of systems like Freenet; and the CMEC representative said, again, that educational institutions should be exempt from liability, and spoke in favour of a "notice and notice" system.
Sandy Harris gave a speech demanding "due process" for claims of copyright infringement, and said that if his site were taken down unjustly, someone should have to pay - either the ISP, or whoever issued the takedown order. Chris Friesen followed, with further comments in favour of due process; then another independent speaker said that it was important to determine who was the "ISP", because a user would connect to one system, their packets would be transferred through several others, and then eventually arrive at a server that was storing the posted material. All the systems providing "transit" should have a common carrier exemption.
A representative from Bell Canada said that her company had been implementing "notice and notice" as a matter of internal policy for a long time already, and it worked just fine; in response to organizations elsewhere that had asked "How can it work in Canada, is it because Canadians are more polite and actually comply with the takedown requests?" their position was that it had not been properly tried elsewhere. Then someone from the Canadian Cable Television Association (CCTA) spoke supporting the Tariff 22 decision, and said that ISPs are not liable because what they provide does not meet the technical definition of "communication to the public" in the Copyright Act. (I think he may be right about that, but isn't it bizarre that what an ISP does might not legally be "communication"?)
Dr. Michael Geist said that although some groups have claimed that the DMCA is working well in the U.S.A., that in fact is not the case: situations like the Google/Scientology takedown show that the takedown mechanism is open to a lot of abuse. He then raised the point I'd been preparing (and a good thing, too, since I didn't get a chance to speak): Bill C-15A creates a "notice and notice" regime for removal of alleged child pornography from the Web, and if we require a court order for that, how can we claim that copyright infringement is so evil as to require takedown without a court order?
A representative from the Canadian Association of Internet Providers then spoke in favour of the Tariff 22 decision, asking for common carrier status for ISPs and a "notice and notice" system. Then someone from a collective organization spoke in French; I didn't get her name and exact affiliation. Her speech appeared to be against the "innocent until proven guilty" principle put forward by earlier speakers; I hope I can ascribe that to mistranslation.
I think I may have a gap in my notes here, because I have a pretty clear memory that there were a couple more independent speakers who repeated the point about child pornography. However, there's no gap in my page numbering, so I don't know how I could have missed any notes. It's possible that I was distracted and forgot to note a couple of speakers, because I was shuffling papers to prepare my comments for the extra session, wondering whether I would get a chance to speak in this one, and when it became apparent that I wouldn't, I was looking for the moderator to try to sort that out. Anyway, if I am missing a few speakers at this juncture, I don't think I'm missing too many, or any major new points.
The procedure for the extra session, at the end of the day, was a bit different from what was followed for earlier sessions, and for the extra session in Toronto. In Ottawa, the moderators had been taking down a list of items that speakers suggested for inclusion in the extra session, and then they called on the proposer of each item to speak about it, followed by a chance for extremely brief comments from other delegates. I'll only briefly report the issues that were presented, generally without attribution, because that's all I wrote down.
I had wanted to speak in the previous session, on ISP liability, and I thought I had signalled the moderator for that session and been acknowledged, but he didn't call on me; so I approached him during the break before the extra session and got my main concern that hadn't already been addressed (namely, liability for linking) added to the "extra" list. That may have been better in terms of presenting that particular item, although I was sorry I lost the chance to speak on the child porn notice and notice point - I would have been even more vehement about that than the people who did speak to it.
The first issue was copyright board procedures; the speaker said that although the existing system for collecting public comments on (for instance) the blank media levy is supposed to make it easier for people to be heard, it actually has the opposite effect. Submitting a formal objection is so complicated and expensive that it's worse than participating in a court case, and as a result, only well-funded organizations can participate.
Copyright for photographers was next on the list, and we heard again the usual points on that issue. The next issue was the distinction between moral and economic rights, and the point that copyright (in particular, things like term length) should depend on the type of the work. Then the representative from the Bureau of Archivists spoke on the need for ongoing study of the policy implications of copyright. In particular, she wondered how long something could be on the Net before the posting constituted "publication". Also, more attention should be paid to Crown copyright, which is currently perpetual, and how copyright should be applied to audiovisual works - it is impossible to implement new rules for these because we don't know the consequences. (I'm not sure that is true, since video has existed for a long time, but it's what I have in my notes as what was said during the meeting.)
One of the educators' groups spoke in favour of an "education amendment", to legalize their existing practice of using freely available material. As mentioned before, I think it's already legal; but I would agree that it's important for it to remain legal. The next issue was similar: a call for performances in an educational context to be exempt from additional licensing requirements. The claim was made that this already exists in the U.S.A.; the general idea of the exemption is that a teacher should be able to go rent a video (not normally licensed for "public performance") and show it to their class.
The blank media levy came up, and we heard several views on that. First, that there should be an educational exemption to it; also, that it was generally unfair to everyone, since it applies across the board whether the media is used for reproducing copyrighted material or not; the photographers were concerned about that because they use CD-R media to ship their work to clients, and have to pay the levy and don't benefit from copying of their work onto other CD-Rs.
My linking liability issue was next, and some other people spoke to it, basically supporting my position that publishing a link should not cause someone to become liable for possibly-infringing material at the end of the link, and that no useful distinction can be drawn between "direct" and "indirect" links. Then the final topic of the day was "standard form contracts"; the main point made was that they should not have the power to make restrictions (for instance, against critical review) beyond those permitted by copyright law.
Here are a few points I think could stand to be explored further. Some of them I plan to include in a written comment; others are more in the category of "brainstorms", included here because they might be of interest in future discussions.
There is still a lot of confusion going around concerning the theoretical and practical limits of technology. I don't know what the solution is. Obviously those of us with the skills need to be writing a lot more about these issues, and during the breaks I was approached by people from Industry and from UOttawa with the idea of opening a dialogue for further exploration of these issues. I think it's important for us all to be as careful as possible to seek technical precision in our comments. It's sometimes tempting to be deliberately obfuscatory and say, "Well, you should just believe us, we know," but that's counter-productive in the long run. I think it's better to educate.
One thing I'd like to see better understood is that "viewing" a document over the Net, "copying" it over the Net, or "downloading" it over the Net, are all exactly the same thing. When you click a link in a browser, the browser talks to the server and makes a copy of the entire document directly on your computer - usually on the hard disk, although sometimes in RAM. That copy remains on your computer indefinitely. If you do not take steps to "save" it, then it will eventually be overwritten by something else; but as soon as it appears on your screen, that means that a potentially permanent copy has already been made. Furthermore, whether you do or do not erase the copy is ultimately up to you. The server that sent you the copy cannot force you to delete it, and it cannot check to see whether you deleted it. The bottom line is that if someone wants to enforce different rules or charges on you for "viewing" and "saving", (or for "possession" and "access", if the document is something you're not supposed to have at all), no technology can support the effort to make that distinction.
I talked above about the basic impossibility of forcing a format conversion to be destructive, and that ties into the same concept: computers do not "move" data around, they copy it and then (possibly) delete the original. It is difficult or impossible to force a machine to delete the original, or to check whether the machine has deleted the original, if the owner of the machine wants to interfere with the deletion. That is why anti-copying measures are doomed to failure: to use data at all it has to be copyable, and so at best we could allow it to be copied and then insist that one copy be deleted, but we can't insist that one copy be deleted. (At least, not in a technical sense.)
Just to make things more confusing, although we cannot stop copying, or force deletion along with copying, there are some things we can enforce that superficially seem similar. Watermarking is sort of possible - we can embed data into a media file in such a way that it's tricky to remove. However, we can only make it "tricky"; not "impossible". The fundamental problem with watermarking is that a watermark is supposed to be imperceptible; but lossy compression schemes work by attempting to determine what parts of the signal are perceptible and transmitting only those, discarding everything else. So a good watermark will be in the discarded imperceptible component, and the uncompressed file will automatically have the watermark removed. Watermarks and lossy compression can only co-exist to the extent that they're imperfect - either the watermark is degrading the visible or audible quality of the signal, or else the lossy compression is transmitting some data it doesn't need to transmit. In practice, users of lossy compression are more tolerant of signal degradation than are users of watermarks, and so someone who wants to remove a watermark will generally be able to do so, at the cost of some quality.
Rob Ewaschuk brought up a point that we should maybe talk about some more, which is the possibility of cryptographic signatures on media files. That is a technology that really does work - we can place unforgeable tags on files and verify that they are real, with a high degree of confidence. For instance, we could place a tag on a video file saying, "Mickey Mouse says you are not allowed to copy this file."; and then nobody would be able to change it to a tag reading "Mickey Mouse says you are allowed to copy this file freely." However, there are several gotchas. The biggest one is that just because the tag exists, doesn't mean anyone is compelled to follow it. Someone can very easily copy the file, tag and all. Another gotcha is that although the tag cannot be altered, it can easily be removed; nothing stops someone from snipping off the tag and having a file with no tag. Then they could even affix a fresh tag of their own, perhaps reading "The Lake Ontario Society of Privateers says you are allowed to copy this file freely." The only thing the LOSP could not do would be to put words in Mickey's mouth, either by changing the tag or by moving it to a different file. The cryptographic mathematics guarantee that the Mickey Mouse tag cannot be forged. That's clearly a useful property, but also, clearly not a complete solution to the extremely complicated problems we're discussing.
I said it already, but I'd just like to amplify: technology can do many wonderful things, but it absolutely cannot force anyone to obey instructions. If I write "Give me all your money!" on a piece of paper and hand the paper to you, that does not automatically cause you to give me all your money. If I write "Do not copy this sentence!" on a piece of paper and give it to you, that does not prevent you from creating a duplicate piece of paper with the same words on it. Computers work in just the same way. As programmers, we can write whatever instructions we want, in a selection of powerful and subtle languages, and we can attach the instructions to files in a number of interesting ways, but we cannot compel any computer to obey instructions if its owner has other intentions.
Steve Shack brought this point up in Vancouver at my urging, I brought it up in Toronto, Dr. Michael Geist did in Ottawa, and I recently discovered it in the CAIP reply submission from 22 October 2001 - the earliest reference I know of. I'm in favour of repeating this until everyone is sick of hearing about it. The point is very simple: Parliament implemented "notice and notice" for child pornography; privilege holders say "notice and notice" is not enough, they want "notice and takedown" for copyright infringement; they're saying that copyright infringement is worse than child pornography; that's absurd.
Tom Trottier brought this up in Ottawa and I don't remember having heard much about it, but it's important. Researchers may need special access to creative work, on a more intimate and technical level than other users, in order to pursue their legitimate goals. For instance, a literary critic may want to run a sophisticated textual analysis on a novel. That requires having the text in unencumbered machine-readable form; even though an ordinary reader would be content to simply view it on the screen, which may require less format conversion. Privilege holder groups have suggested that legitimate fair dealing can be pursued with impaired copies of a work - for instance, with a deliberately degraded analog version of a movie that was originally in high-quality digital form. Actually, the reverse is true: researchers need better access than ordinary users.
I've been saying this all along, but it's another point that is hard to overemphasize: To the extent that they work at all (which is, as mentioned above, not actually very far), technological protection measures protect the wishes of the people who implemented them, not the law. Alan DeKok raised a similar point when he spoke about the different between "unauthorized" and "illegal" access. If we spend a lot of time figuring out the appropriate balance for what should and should not be illegal, we throw all that work away if we then turn around and protect TPMs - protection of TPMs constitutes giving privilege holders a license to write their own laws. Rules against "circumvention" potentially prevent the users affected by the TPMs from even finding out what rules are being enforced (see cp4break); even if we decided that privilege holders should be allowed to write the laws in this area, forbidding users from knowing those laws would violate fundamental principles. It's just an insane suggestion.
It's been suggested on one of the mailing lists that we should say, "Okay, fine, TPMs are allowed and protected, but it has to be written into the law that it's an offense to implement a TPM that blocks any permitted uses of the material." I would of course prefer that TPMs not be protected ever, but it might be interesting to hear the copyright industry reaction to that proposal. I think they wouldn't like it, but they'd be hard pressed to oppose it without admitting that they want to use TPMs inappropriately.
The submission of Eric R. Smith, PhD claimed, and I highlighted it in one of my replies, that works released under TPMs should be ineligible for compensation under the blank media levy. In the Ottawa meeting, some speakers went even further, to claim that if a work is released under a TPM, then it should be ineligible for copyright at all. I don't have a lot of hope for seeing that legislated, but I'd be in favour of it.
This is actually not such a wacky idea as it may at first sound, because patents already work the same way. Someone who invents a new widget has a choice: they can keep the invention secret and profit from it as best they can for as long as they can, in which case they have the minimal legal protection afforded to "trade secrets"; or else they can apply for a patent, and get a legal monopoly on it, but then they are required to disclose it and the monopoly is for a limited time and becomes completely null at the end of the term. Copyright and TPMs could be the same way: privilege holders could choose to depend on copyright law, in which case they would forgo TPMs, and face eventual expiry of the copyright, but enjoy legal protection of their monopolies during the copyright term; or they could choose to make whatever protection they could for themselves by way of TPMs, for as long as they could (potentially much longer than copyright), but they would have to accept that they had no recourse whatsoever when the work eventually did get circumvented. It works for trade secrets.
In Toronto, we heard people argue in favour of term extension and relatively little opposition, because there were a bunch of industry groups present and they saved it for the end of the session. In Ottawa, we heard people argue against term extension and relatively little opposition to that, because there were a lot of people like myself and we had been warned. I don't know how much more chance there'll be for these two sides to face each other directly, but it would be interesting to see. I'm sure copyright term extension will be showing up in written comments.
I, of course, am against further term extension - life+50 is more than plenty already, especially for computer software where it might as well be forever. Nobody from IC/HC has mentioned term extension as being on the table this time around as far as I know, but it's something we should watch out for, because others are trying to slip it in. I am especially concerned about retroactive term extension, which has fallout on people like orchestral musicians, who depend upon the availability of recently public-domain work. See Golan v. Ashcroft. I especially liked the comment that came up in Ottawa about how the user's rights should be "set in stone" at the time of purchase - if I buy a book today on the understanding that it will be out of copyright in 2038, then my copy had better go out of copyright in 2038 if not sooner, no matter what term extensions may have been legislated between now and that time. That's part of what I paid for.
I spoke about this in Toronto and Ottawa; some people spoke in support of my position in Ottawa and David Basskin of the Canadian Music Publisher's Association spoke against my position in Toronto. It's a question I think needs more press: what are the liability consequences of linking to allegedly illegal material? I think that linking should be free for all. Publishing a link is no different from publishing the exact title and publisher of a book - even if the book is later found to be obscene, someone who cited it is not automatically guilty of anything. The Web makes it very easy to look up a cited document, but that still does not mean the person who published a citation is liable. I am especially concerned about the suggestion I heard in Toronto that linking is worse if it "causes an immediate download". As described above, there is no meaningful difference between viewing a document and downloading it, and furthermore, the decision on whether a downloaded file should be saved permanently rests with the user, not the person who posted the link. I am also concerned about Bill C-15A's application to "information that makes child pornography available", which I suspect may have been intended to cover links; that application hasn't come before a court yet, though, and I'm dubious about whether it would fly.
A further issue is that the way the term "deep linking" was used in Toronto was not at all its standard meaning - I think "deep linking" usually means linking to a page within a site instead of the site poster's intended "entry" page; that has been claimed to be a violation of the site poster's rights. (Normally in such a situation there's no question of the page itself being illegal, the only concern is whether someone has or needs permission to link to it.) I'm really worried about a suggestion that site posters have any claim on who may or may not link to their site, or where on the site people may link to. As far as I'm concerned, documents on the Web are published, and linking to individual pages is no different from citing "page so-and-so of such-and-such book". Authors of books most certainly do not have the power to say who is allowed to cite them.
We've talked a lot about the privacy rights of users, but let's not forget that creators have privacy rights too, in particular (under Subsection 14.1 (1) of the Copyright Act) "the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous." Overzealously protected RMI could threaten that; I'm especially concerned about things like the Microsoft Office GUID scandal, which was mentioned in my August 2001 submission. Just because I have the moral right to have my name attached to the work I produce doesn't mean I will always want to exercise that; sometimes I want quite the opposite, and that is an important right to protect too.
ISP liability notice schemes threaten anonymity; there should be no way, if I post something on the Net anonymously, that someone can use an infringement claim as a way of discovering my identity. In situations like the Scientology cases, such a tactic could easily become a tool for applying further harassment. Notice and notice or even notice and takedown could be implemented in such a way as to protect poster anonymity; the ISP need not be anonymous, and it can pass on the notices to its client without revealing the client's identity to the complainant. We should be watching carefully to make sure that nobody adds an "and reveal the identity" requirement to the rules for what ISPs must do. At the very least there should be a court order before the poster's identity can be revealed to the complainant, but I would like for it to require a specific court order to reveal the identity, over and above the court order needed to take down the site.
If the goal is to get infringing material off the Net, there is no legitimate reason for that to require an anonymity violation. We can take postings down perfectly well without knowing who put them up. Of course posters of infringing material don't have a moral right to anonymity, but if the material is not infringing then it has to be original, and in that case the poster does have a moral anonymity right, and if their identity has already been revealed when the material is found non-infringing, it will be too late at that point to compensate them in any meaningful way for the violation.
We had an interesting discussion on the DMCA Opponents mailing list about trying to close the gap between academics and technical workers, and other "creator" communities such as natural-language writers and photographers. To someone like myself who has worked as a computer programmer it's obvious that that's a creative profession; but some of the representatives we heard in Ottawa didn't appear to recognize the connection. I was especially concerned by Susan Crean's speech at the end of the TPM session; it was mostly directed against corporate "publishing" interests, but she was obviously surprised and skeptical when people like myself and Russell McOrmond raised our hands to "Who here lives on the proceeds of creative work they produce themselves?" Here are some comments of mine from the mailing list discussion:
I certainly don't want to hold [Ms. Crean] up as an example of someone on "the other side" - trying to break this debate down into just two sides is probably a very bad idea, and her speech was mostly directed against corporate publishers, substantially the same people I oppose. But I do find it hard to agree completely with someone whose entire world view seems to be founded on the concept that control of work by authors is the number one priority and nobody else has any basis whatsoever to talk about having any rights at all with respect to creative work; and that's the message she conveyed to me.
I'm definitely in favour of our taking to the Writers' Union the messages that we are creative workers too, that all creation is aided by an environment where previous work is plentifully available, and that all creative workers should be working together.
I don't know just what we need to do to form a link with the other creative workers, but I think it's an important goal. I know some of the people from the mailing list are making efforts in that direction. Some things we should be publicising more are that we are living on the proceeds of our own creative work, and that we want and expect to continue doing that without needing insanely strict copyright "protection" of our work. Maybe other creator communities could do the same; at the moment, I think some of them are bogged down in thinking that their current heavily copyright-dependent approaches are The Only Way.
Let me describe my own situation. I make my living as an academic researcher. The product I produce is creative work, and happens to be covered by copyright: namely, research papers in theoretical computer science. However, when people copy my papers, I don't normally get royalties. I don't get paid per copy. Sure, I can write a book and get royalties that way, but I haven't done so yet. On the other hand, my pay isn't guaranteed - I do have to write and publish papers, or else when my grant runs out, I won't get a new one, or won't get as big a one. My ability to get grants is largely determined by the quality and quantity of the work I publish.
The interesting thing is that because the reputation of my work affects my pay, it is therefore in my interest to see that as many of my colleagues read it as possible - even for free. If you go check out a copy of a journal with one of my papers from the library, instead of buying it, that's okay with me. If the library copies it for the purposes of preservation or interlibrary loan, that's fine too. If you quote from one of my papers in your own work, even quite extensively, I'm happy as long as it's clear where you got the quotes - because all those activities increase the reputation of my work and add to my ability to get grant money. I post some of my work on my Web page and encourage everybody to download it without paying. (When I don't, it's usually because of interference by other people's copyright claims.) Although I can't afford to do this on a huge scale, I'm sometimes even willing to send people copies of my work and pay the cost of duplication and postage myself, because I can use the goodwill.
I have no desire to place TPMs on my work to make it harder to copy; that would run strongly against my economic interests. Every time someone copies my work (or at least, my formally academic work, which is the kind that actually pays my salary), that's money in my pocket. I realise other creative workers have different business models, but it sure would be nice if more creative workers could operate the way I do, and if the ones who don't could at least respect the fact that I am a creative worker too and my business model is sane and does work. When I call for extensive rights for users of creative work, I am not demanding the right to "rip off" others - I am speaking with the full understanding and intention that the same rules should be applied to my own work, and I'm (if I may use this phrase) "sick and tired" of privilege holder groups devaluing my work just because I am willing to give it away.
In Toronto, I heard the phrase "Information wants to be free!" bandied about - interestingly, only by people who wanted to express disapproval of it. I wouldn't bring this up except in a context where the other side had done so first, but in such a context I would want to say that they're misunderstanding what that slogan means. It's not about getting things without paying for them, gratis, or "free as in beer" - I prefer calling it gratis as that sounds more dignified. Rather, the slogan is a claim that information wants to be libre, unrestricted, or "free as in speech". That does not mean you don't have to pay for it. Just a small tactical point that shouldn't be forgotten; I wasn't organized enough to bring it up in Toronto, and would have if I'd thought of it.
Russell McOrmond pointed this out on the DMCA Opponents list, and it's something I had on my list of points to bring up also. We've heard a lot of talk about the need for exemptions to proposed rules, to cover the special needs of educational institutions. At least some of those proposals have included comments that "of course, this would be limited to [circumvention, copying, or whatever] performed at a legitimate educational institution". That worries me because education happens at places other than "legitimate educational institutions"; in particular, homeschooling parents should have access to the same exemptions as school-based educators. I'm especially conscious of the needs of homeschoolers because I was a homeschooled student myself.
Tom Trottier asked me offline, in reference to DirecTV's presentation, (paraphrase) "How exactly would someone pirate DirecTV's signal over the Net anyway?", and I think that's an interesting question. Of course, it's possible that someone could record a TV show, convert it to a video file, and post that on the Web; and I'm aware of people who do do that. But I don't think that's really what DirecTV is upset about. Between bandwidth and time costs, someone who wanted to amass a collection of recorded TV shows would usually find it cheaper to just pay for satellite TV, and use a VCR. Neither are they talking about situations like JumpTV, where television was being streamed over the Net. One might suppose from their presentation that they were upset about "circumvention devices" - i.e., software that helps people watch the signal without paying. I'm aware that some software like that exists; it's used, for instance, by people who want to use a PC to emulate a set-top box.
But here's the thing: I don't think DirecTV is actually afraid of software either. I think they're trying to engage our sympathy by talking about "piracy" and conjuring an image of actual television shows being downloaded, when the actual threat is something far more abstract. Because of my response to them being on the Web, my Web site gets a fair bit of traffic from people who are looking for information on how to watch satellite television without paying. I routinely read my referrer logs, and I see the search engine queries from such people. Of course this is slightly skewed by the selection of words that do or do not appear in my document, but as far as I can tell, nobody is looking for actual video files when they hit my site, and almost nobody is looking for software to aid infringement. Instead, people are looking for "keys" - the short codes that are typed into the "circumvention devices" to allow them to decrypt satellite transmissions. It makes a certain amount of sense that that's what people would be looking for, because if you're going to set up to watch satellite TV without paying, you only need to replace your software when the standards change (rarely), whereas the keys have to be replaced relatively frequently. There's much more demand for keys, and much more demand to disseminate them quickly.
Now, a DirecTV "key" is just a short code. If DirecTV employs halfway decent engineers, then they'll be generating those codes with a random number generator. That has an important consequence: I think one could strongly argue that a DirecTV "key" has no creative component, and thus is not covered by copyright. Dr. Geist pointed out that DMCA takedown orders have no force in Canada... but if DirecTV is issuing takedown orders against distributors of keys, then I think it may be the case that those orders have no force even in the U.S.A.. One problem is that the DMCA's anti-circumvention rules in section 103 apply to "any technology, product, service, device, component, or part thereof", and don't claim to be limited to copyrighted material. However, the notice-and-takedown provisions of section 202 talk about "infringement of copyright", not infringement of the anti-circumvention rules. Someone could argue that DirecTV keys are pure information, not "works"; therefore, DirecTV keys are not subject to copyright; therefore, distribution of DirecTV keys may be "trafficking in devices" but is not "infringement of copyright"; and so a DMCA takedown order cannot be applied to distributors of DirecTV keys even in the U.S.A. I don't know enough U.S. law to know if that line of thinking really works, but it's something I hope we can hear about from the people who do know more about U.S. law. If there's been litigation over "piracy" cases (as I would think there surely must have been) since the DMCA came into force, then maybe this argument was heard there.
This probably wouldn't hold water, but it's an interesting point I observed that might be of interest to the anti-CIPA folks: the DMCA has an exemption for censorware applied against minors, suggesting that it might otherwise be considered a "circumvention device". I think that's spurious and censorware is obviously not a "circumvention device", but the CSBA was arguing for the same kind of exemption in Ottawa. So, those of us who don't like censorware could possibly attempt to use anti-circumvention provisions against it. In particular, CIPA requires use of censorware in libraries applied against all users, not just minors; the difference being that it may be disabled for non-minors on request (not by default) and at the discretion of the library. The DMCA exception only applies to censorware when applied against minors. So... CIPA is requiring the use of some software (namely, censorware against non-minors) that the DMCA suggests may be illegal as a "circumvention device". It would be interesting if someone who operated a Web site that was blocked by censorware in a library, could sue the censorware manufacturer for DMCA "circumvention" violation.
I've tried to move all the comments that are about my trip but not about copyright, into this section. Here they are, for anyone who's interested.
First of all, many thanks to Tom Trottier for putting me up slash putting up with me Wednesday through Friday, organizing the group breakfast, giving me a walking tour of Ottawa and finding things to do during my slack time, etc.; his participation made my trip a lot pleasanter. When I got to Tom's place on Wednesday I found it full of political volunteers, who were stuffing envelopes, eating take-out Indian, and heckling the television. The scene reminded me of more than a few episodes in my student government days at Camosun College; I felt right at home.
I missed the bus I had hoped to be on to Ottawa, and had to take the next one. Nonetheless, I enjoyed the ride. It was amazing the variety of kinds of landscape I went through in just a few hours - from downtown Toronto to rural farmland and back as we arrived in Ottawa. By the end of the trip I was in a state of almost information overload, realising just what a big place the world really is. Although I've been from Victoria to Charlottetown and back in a plane, it feels different from a bus because the scenery is right there in your face. My sister has actually gone across Canada by bus, and I'm sure she got a much bigger dose of that. I had intended to meet Rob Ewaschuk at the Kitchener bus depot, but we didn't realise that we had both missed that bus, and so didn't recognize that we were on the same bus until two hours before Ottawa.
Although English and French were the only translation choices available at this particular meeting, I noticed that the signage in the room indicated they could set up for Russian and Portuguese as well. I don't know whether those just happened to be the four languages in use last time they had a large meeting, or if those are the standard languages of discourse at the Government Conference Centre, or what - but it seemed like an interesting selection. In Victoria where I'm from, the four languages I'd pick first would be English, French, Cantonese, and Punjabi - not necessarily the most popular languages, but the best compromise set. Here in Waterloo, German would be a good choice too.
Just for interest, the time scale of producing this report was that Thursday was the meeting, Friday I was travelling back, then I wrote roughly 5000 words each of Saturday, Sunday, and Monday, and now here I am with it done. I shot a couple of photos at the meeting, and we had the waitress take a group shot at the pre-meeting breakfast. Because I'm using a film camera, those shots won't be available until I've finished the roll and had them developed and scanned; whenever they are ready, I'll add them in here as illustrations. I didn't set out to make a detailed photographic record of the meeting because I had too many other higher-priority things to do; but I'm hoping that having a few pictures will spice it up.
You know this part by now: This document is released to the public domain; hail Pele, fire of creation.
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