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Gerard Kennedy on copyright, other issues

Thu 24 Jun 2010 by mskala Tags used: , ,

Last night I attended a meeting called the "Community Council on Federal Issues," hosted by Gerard Kennedy, Liberal Member of Parliament for Parkdale-High Park and my Federal elected representative. I didn't vote for him; never mind whether I would have, I was living in a different city at the time of the last election. Apparently he holds these meetings periodically as a way of keeping in touch with constituents; this one in particular was advertised as having a focus issue of "Locked out? New Federal copyright laws and you," which was what drew my interest. I didn't take notes and don't plan to report on the entire meeting, but will cover a few points of interest to me.

On the big issue, of Bill C-32, he presented a brief and pretty much accurate summary of the Bill and opposition to it, focusing on the DRM provisions (which people are calling "digital locks"; I prefer the older term). He seemed to have read the Bill, at least, though wasn't intimately familiar with its details. It's a good sign that he chose to advertise it as the focus of this meeting. His position generally seemed to be against DRM - which was also the unanimous opinion of those in the audience who expressed opinions. There were several who identified themselves as "artists" and expressed concern about protecting their creative work, but their view of DRM seemed to be curiosity rather than support. Most audience members, to be honest, didn't seem all that interested in copyright, and it didn't help that many of the audience members who did care chose to use very technical language that made it opaque why anyone not already a computer geek, should care. That's an important lesson for our side, kids: we must suit the message to the audience, and at a meeting like this one, the audience isn't just the Member, whom we can address in lots of other ways.

I got in one of the first questions on copyright (actually, the first in the part of the meeting designated for copyright, though copyright issues had come up a couple times earlier), and I asked Kennedy point-blank whether a Liberal government would remove protection (or not create it in the first place) for DRM. He made affirmative noises, but did not give a clear, definite yes or no. I pointed out that the Liberals did in fact attempt to protect DRM when they were the Government (in 2005, with Bill C-60, though I didn't have the details there in the meeting) and he acknowledged that that had happened.

I think what we're seeing there is party discipline: Kennedy can't make a promise binding on the Liberal Party, and it would be very difficult for him to promise even just for himself that he would oppose something that might turn out to be the party line he'd have to toe. That is the Faustian position of party-aligned MPs in Canada, and a strong argument for some reforms in our general system. I'm sure it's also a general politician's reflex not to ever say yes or no to anything if it's possible to say "maybe" and hope that all listeners will hear it as whichever of "yes" or "no" they would prefer.

I found some of the questions interesting. I had the impression there were a lot of poor, elderly, and/or disabled persons in attendance, and they were very interested in simple access issues. Internet access costs too much! Bandwidth caps mean we can't use it! And so on. One fellow started to bring up some fairly complicated issues of net neutrality, about which I'm of two minds: yes, net neutrality is important and we'd better face it some day soon, but no, it's not really in Bill C-32, and I was loath to get into a big discussion of what I think about net neutrality right there in the meeting where we could be making points about the immediate threat of C-32. However, there may be some percentage in pointing out the connections that may exist between the net neutrality issue and the DRM issue. Both are access issues; and ordinary non-techie people, at least the crowd I saw last night, have a pretty clear idea of why access issues really matter.

Oddly, even though there was a lot of griping about the price of Internet access, I didn't hear much griping about the price of recorded music and video (which, here on the Net, is often used as a justification for copying them). That may be a good sign: everyone there got that DRM is not about copying. The other side wants us all to think DRM is about copying, because their case looks stronger when stated in terms of copying, but DRM is (for ordinary people) about access, not copying, and we need to keep it framed that way. It's much harder to tell purchasers that they shouldn't have access to their property, than that they shouldn't copy it.

ETA: I meant to say this in the initial posting but forgot: In answer to my point about the previous rounds of consultation having been ignored, Kennedy offered the view that the previous rounds of copyright reform bills had been written to satisfy Quebec creators' groups (whether those groups know what's good for them or not, they at least know what they think they want). I think it's true (this was evident for instance in the discussions when I went to Ottawa circa 2001) that Quebec creators' groups have a strong voice and more inclination to demand draconian copyright expansion than English-speaking creators' groups. In Ottawa I heard people explicitly deny, in French, the idea that a balance of creators' and users' rights was appropriate at all, they wanted it to be about creators' rights alone; only Access Copyright dared to say such a thing in the English-language debates. I don't know if it was the Quebec creators' groups voices that tipped the balance, but it was interesting that that was what Kennedy put forward as a significant causal factor for the way things unfolded in previous rounds.

There were a number of questions put to Kennedy on his voting record. One fellow who claimed to be representing Amnesty International (an organization I used to support, but don't anymore because of their use of "clipboard kid" solicitation) pressed him pretty hard on voting for Bill C-2, about implementing a free trade agreement between Canada and Colombia while not using that agreement to demand human rights concessions from the Colombian government. I have mixed feelings about that: I generally think that Canada should pressure other governments around the world on human rights. However, I'm worried about using trade agreements to do that - as I said in the meeting (where it was acknowledged, but didn't become a big discussion) that's exactly how the USA is pressuring many countries including Canada to implement protection of DRM. Plenty of people on the other side will tell you that protection of DRM is a "human rights" issue. I didn't say it then, but plenty more will tell you that abortion is a "human right" too, and insist that that ought to be in trade agreements. I'm really worried about knowing where to draw the line on how far it's okay to use trade agreements to dictate terms to other countries; saying "human rights" is a good enough excuse just means that everybody will phrase their interests in terms of human rights.

The position Kennedy expressed was a fair bit less potentially inflammatory than what I just said: first, he claimed that he had not, in fact, voted for C-2 but abstained after getting permission to do so from his party. The Parliamentary Web site's voting record does bear that out. I'm not sure, though, that I'd agree with his characterization (repeated in his printed newsletter) of that as a vote "against" the Bill; no, it was an abstention, neither a vote for nor against. It highlights the party discipline thing again: he needed permission even to abstain, and it's pretty unlikely that he had any possibility of getting permission to vote against it for real. Anyway, he also described the view that it's better to make a free trade agreement with some human rights provisions, even if they are weak, and then have some power to change things in Colombia, than to walk away from the table entirely and have no power there at all. He put that forward for why his caucus had in general supported the Bill, even if he himself hadn't found it convincing.

Other issues: Kennedy mentioned that "of course" he supported the Government's Bill C-22, which creates an obligation on Internet providers to report suspected child pornography. Well, that shouldn't be an "of course" - we should be very suspicious of any cause so good that it's beyond question - but it's understandable why he would say it. For my part, I note that Bill C-22 covers fictional material. Bans on the mere possession of fictional material are unacceptable to me, period. But last night's meeting wasn't a context where we could have a nuanced discussion of those kinds of issues, so I saved that thought to post right here. How amusing would it be if C-22 passed and Strikethrough 2007 happened again right here?

Note that there are people - including friends-of-friends of mine - who would think that that scenario would be amusing enough that they would deliberately attempt to cause it just "4 teh lulz," while attempting to cloak their juvenile trolling in an air of "we're ridding the Net of potential predators!" respectability; and some of the people who've left Livejournal have fled to Canadian systems thinking that doing so would keep them safe. Note that Bill C-22 contains specific provisions saying that if someone reports you to an ISP as a suspected child pornographer, the ISP is not only required to forward the report upstream - and in some cases to semi-accountable private organizations rather than the actual police - but also not to tell you. Teh opportunities 4 lulz should be obvious.

Kennedy mentioned opposing the Government's initiative against Karla Homolka's eligibility to apply for a pardon, and good for him. I haven't been following the Homolka situation carefully but it sure looks like a classic example of hard cases making bad law: certain people would eviscerate the checks and balances of our legal system just because they're so anxious to be seen as showing a proper level of moral outrage at Homolka's crimes. (See also Sharpe.) Mentioned in the same segment were the current initiatives against "two-for-one sentencing"; that is, the longstanding rule that time already served while a person awaits trial should count double against their sentence once convicted. Kennedy spoke against those initiatives (that is, in favour of keeping the two-for-one rule) but a bit clumsily. He left the impression that the reasons for it were to save money, and because conditions in the Don Jail and places like it are worse than in other institutions.

I think by far the most important reason for the two-for-one rule is to give prosecutors an incentive to protect everyone's right to a speedy trial. A person incarcerated waiting for trial must be treated as innocent, both as a principle of the system and because many of them factually are innocent and will end up being acquitted. We don't have any real way to compensate the ones who were falsely accused and falsely imprisoned waiting for a trial that cleared them. We need to keep the system honest about not imprisoning people before trial any more than is really necessary, and the two-for-one rule is an important part of keeping the system honest on that point. This rule is not about protecting the guilty, it's about protecting the innocent, though I hasten to add that protecting the guilty is also something we must do.

One final thing to mention: someone asked Kennedy if there were truth to the rumours that he's a contender for leader of the Liberal Party. He first gave a disclaimer that this meeting was supposed to be non-partisan and he didn't want to go into internal affairs of the party, but he also gave a very typical politician's not-really-an-answer, saying that he and all his caucus were committed to making their leader Prime Minister of Canada and that their current leader was Michael Ignatieff, but conspicuously not saying anything about how long Ignatieff was or was not likely to remain leader nor anything about what he himself might do at such time as Ignatieff was no longer leader. I'm inclined not to read anything into that at all; it's pretty much what any politician would say.

So in summary: not a lot of hard content, and certainly no hard promises, but it's clear that this MP is at least aware of public opinion on Bill C-32. It remains to be seen how his party will treat the issues. So far I'm not really seeing the will on their part to make a big deal of it. Just this morning I got a paper-mail response from Michael Ignatieff's office to my earlier mail on C-32. It notably doesn't say much. The only specific thing said is that Canadians should have the right to transfer purchased content from CD or DVD to devices like iPods, provided it is for non-commercial purposes. That, of course, doesn't go nearly far enough to touch the DRM issues that we all care about, let alone the many other fair dealing points under discussion. I'm inclined to think that although we can probably count on Gerard Kennedy to take our concerns into his caucus, we can't really count on the Liberals to make a big deal of it against the Conservatives, nor on him to make a big deal of it against the Liberal consensus.

Beyond that my general impression of Kennedy is favourable, and although I probably won't be a constituent of his much longer simply because of a likely relocation, I think I could have done a lot worse in terms of who my representative for the moment might have been.

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Yeah I'm sick of the lawyer like response to this stuff. The Liberal party should either let their MP think for themselves and decide how they are going to vote, or they should actually have a position that their MPs can parrot back to you.

I think http://digital-tripwire.tumblr.com is a good website dedicated to giving concrete examples of why TPM protections in C-32 is bad. It is a shame that we can't argue on the basis on law but we have to deobfuscate both law, copyright and software just to show people how awful it is.

Here's some talking points:
* C-32 can make cheating in multiplayer video games illegal
* C-32 can make cheating in singleplayer video games illegal
* C-32 can make modifying a video games illegal
* C-32 can make creating a level for a video-game, which you didn't write, illegal.
* C-32 can make you a criminal if you don't run the latest software and it doesn't support some of the new TPM being used on your media
* C-32 can make you a criminal if you run the latest software which ignores TPM (but you didn't know)
* C-32 can make you a criminal if someone uses your computer to distribute software like linux distributions such as LINSPIRE (has DVD players in it)
* C-32 means you can't play most foreign DVDs
* C-32 means you cannot play DVDs in Linux or with opensource software
* C-32 means you cannot turn javascript off while reading webpages because you might be violating TPMs by not running them
* C-32 doesn't care too much if you intended to infringe or not, you can only get some damages reduced if it was unintentional (see this NO INTENT IS REQUIRED in order to be a criminal).
* C-32 will make image editting difficult - what if there was a watermark, if you accidentally remove it or stop machines from interpretting it are you liable? You don't know do you.
* C-32 allows people to make up arbitrary rules and you have to be vigilant to read and interpret these rules or ensure your software does otherwise you could be infringing on the copyright and TPM of others
* C-32 can used to enforce bundling, they can tell you that you need to have two programs installed just run one. Imagine needing Mario 1 just to play Mario 2, imagine purchasing MS Excel to be told you need to purchase MS Word.
* C-32 allows people to change rules and licenses out from under you on the fly.
* C-32 can allow companies to phone home about your usage of software and report home any detected violations.
* C-32 means that if a company TPM includes dangerous malware that you'll be violating the TPM to remove that dangerous software.
* C-32 means that jailbreaking your ipod or iphone is illegal (you can switch providers but not jailbreak).
* C-32 means that not using iTunes to administer your iphone or ipod is a violation of the ipod/iphone TPM.

So consumers should question C32. It has many concrete unintended consequences!
Anonymous - 2010-06-24 13:57
Well, if you start out with a talking point in which you say that "cheating" is okay, you lose. That word isn't a word it's good to apply to your own activities. The natural response is that cheating *should* be illegal, and the argument for why, on sober second thought, that's not really true, will go miles over the listeners' heads.

Near the bottom of the list you're using the word "jailbreaking" and making it clear that you think it's a good thing. I know what that word means in this context, but Joe and Mary Whitebread think that "jailbreaking" means an armed black man literally breaking out of jail and raping their daughter. Someone who clearly thinks that that's a good thing, is not someone they're going to support. I'm sorry that they think in those terms, but they really do. You don't want to put yourself in the position of having to argue it. Anybody who understands the language you're using already agrees with you anyway.

Your other points are very much too technical to convince the crowd I was in last night. What's "bundling"? What's "malware"? What's a "distribution"? Why should anyone care? Maybe we don't need those people, but if we decide we do, we're going to have to speak to them in their own language. I'd rather start from very basic principles of access - like one of my friends who's using the line that C-32 prevents him from watching movies with his kids. It's much more obvious why we all should care about that, and it invites the question "How is that possible?" which is a great opportunity to *slowly* introduce the technical reasons for why it's true.
Matt - 2010-06-24 14:20
And I should add: the media groups are ultimate Grand Master level experts in knowing how to talk to ignorant bigots, so we can't afford to do a bad job of it.
Matt - 2010-06-24 14:26
And, just so I don't end up with too much foot in mouth, no, I'm not saying my neighbours in Parkdale-High Park are ignorant bigots. What I'm saying is that ignorant bigots *exist* (without particularly saying where) and we must recognize the fact of their existence.
Matt - 2010-06-24 20:50
Steve C
Instead of the word "cheating" I like the example of "Free parking". Everyone automatically associates that with Monopoly. C-32 means if you play Monopoly on the computer and alter it so that Free Parking acts as a kitty then you are a felon under C-32.
Steve C - 2010-06-25 05:19
Rather enjoyed your rant about Gerard' s community meeting.
It looks like we have similar interests as I have never met anyone who is interes ted in both IEEE and poetry.
ega - 2010-06-25 14:52
Party discipline certainly is a drag. Among Westminster-style parliamentary governments, Canada is reputed to have the most uptight, restrictive party disipline. (See, e.g., articles by Stephen Sedley in the last few years of the London Review of Books.) I would love to start a movement for a no-party state but people would confuse it with a one-party state, which is an extremely different matter.
Axel - 2010-06-26 00:00

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