Redelmeier, D. Hugh

Submission to the Canadian Copyright Consultation

D. Hugh Redelmeier, PhD

2009 September 13

I'm a Canadian, a computer scientist, and a consultant.

I create copyrighted works (primarily technical documents and computer programs). I use copyrighted works. In fact, I am often a user and one of the creators of the very same work.

Copyright has a large effect on my world. The copyright framework being put in place now will have a very large effect on the very architecture of our world.

Process

I am happy that the government has decided to consult about copyright reform.

Copyright is a kind of social contract between creators and the public. Too much of the policy-forming process seems to have been one sided.

The current consultation period is too short. Two or three months isn't long enough. I hope and trust that the public will be consulted as this legislative process progresses.

The process would be better if there were a whitepaper. This could help focus and structure responses.

I hope that the government's starting point isn't the previous Bill C-61. That one was deeply flawed. If it were the starting point, that certainly should have been made explicit in the consultation.

The local "Town Hall" (in Toronto) did not have space for me and seemed to be dominated by record labels and other intermediaries. Few creators were able to present and even fewer users.

The Town Hall didn't give much in the way of legislative direction. Perhaps that is just as well since the voices did not represent my viewpoint.

The justification for copyright is to encourage the creation of works for the benefit of society. In particular, the benefits of users are primary, but creators must benefit too to encourage their work. Unfortunately, users don't seem to be well represented in this process.

Intermediaries (neither creators nor users) should have no a priori tenure. In particular, there should be no protection of existing business models of intermediaries. If they have a role in the evolving ecosystem, they should earn it by adding value. Of course their insights should be welcomed.

DRM

DRM stands for Digital Rights Management. This is a euphemism that obscures the meaning: DRM encompasses technical methods that attempt to limit how a work can be used. It does not manage rights: code knows nothing about rights. Some people have taken to using the expansion Digital Restrictions Management as it is more accurate.

DRM can only be implemented by the platform used to play the work. This means that the platform provider becomes an important intermediary. This intermediary tends to gain monopoly power since they control a bottleneck in the distribution system. There are only a few platforms that achieve scale and those that control them get tremendous power. This naturally has bad effects. This in itself is a sufficient reason to make DRM bad public policy.

The DRM platform providers, not the creators or users, have the power to decide what users can do with the works. They have arbitrarily fine-grained control, well beyond what is contemplated by conventional copyright.

If the DRM applied to a work overreaches, that work should lose copyright protection. After all, the copyright system is a analogous to a contract, and such DRM would be violating that contract. Clearly this requires that the creator of the work has consented before DRM is applied to the work.

Within that context, DRM need not be protected by copyright law. Copyright law already protects the work and that should be sufficient. Of course bypassing DRM in the process of infringement could be evidence of intent.

Examples of DRM overreaching:

• The DVD CSS system is DRM. It provides no protection against copying. It only enables price differentiation between geographic markets. This is not a copyright issue and should certainly not be enforced by legislation ostensibly about copyright. As a side-effect, this would forbid me from playing DVDs that I own on my Linux systems (including my Home Theatre PC).
• A DRM'ed video from iTunes requires that I use Apple appliances to play it. I cannot play it on my computer (running Linux). Similarly, Microsoft's Zune platform locks out Linux, MacOS/X, and any of the stand-alone music players that I have.
• Microsoft created a DRM-based infrastructure called PlaysForSure^TM. In order to become licensed for this program, hardware player manufacturers were forced by Microsoft to drop support for open codecs (ones not encumbered by patents). This appears to have targeted the Ogg Vorbis codec. A couple of the players I own had support for Ogg Vorbis but dropped it for North American firmware (so I use firmware release for another locale). Subsequently Microsoft has abandoned this platform. This shows the kind of anti-competitive power facilitated by DRM.
• DRM'ed music from Wal-Mart stopped being playable since their server was shut down in 2008. DRM servers shutting down is likely to be a frequent event in the timescale that we keep music (I just got rid of my grandmother's 78 RPM records, some over 100 years old).
• DRM'ed music will likely remain encumbered when the copyright expires. This is very wrong.
• DRM empowers intermediaries (like Apple and Microsoft) allowing them to create a bottleneck (monopoly) in the free market. This is exactly what many had hoped the internet would free us from. These monopoly holders are unlikely to be Canadian or add value in Canada. These monopolies will add no value to the works. As a result, these new monopolies will be even worse than the old intermediaries which did add some value.
• Many sins can be covered by the cloak of DRM. The Sony RootKit and Lexmark printer cartridges come immediately to mind.
• DRM prevents format shifting (unless it is mandated to allow this). Many legitimate uses of works require format shifting. What is the expected lifetime of a format (think of LPs, 8-track tapes, cassette tapes, CDs)?
• Technical protection measures (including DRM) prevent me fixing bugs in various devices I own. For example, I bought a Linksys WRV200 wireless router. I wrote and hold the copyright on a significant portion of the firmware. If the device used DRM I could not fix the bugs that make the device useless to me and many others. (As a practical matter, warranties don't seem to work with firmware bugs.) Things would be even worse if copyright law backstopped DRM.
• I recently detected the infringing use of copyrighted software in the firmware of a commercial device. When I reported this to the manufacturer (the violator), I was threatened with a law suit for violating a shrinkwrapped software license by examining the firmware. It turns out that I had not done so (whether or not such a license was enforceable). I then notified the copyright holder who took action and a settlement was reached. Imagine if that firmware were protected by DRM and that DRM were protected by legislation: copyright would be thwarted. This is a real case that I was involved with, not just a hypothetical situation.
• Rogers cable system's use of encryption (part of their DRM) forces me to use their set-top boxes for digital TV broadcasts. This was not the case for analogue transmissions. They are even encrypting signals that are locally available unencrypted from the originating terrestrial broadcaster. The result is that I must replace my home-made PVR with one purchased from Rogers. This extends their monopoly. No PVR other than theirs will function. Even though they didn't create the works involved. Their PVR is markedly inferior to the one I built and more expensive, the predictable outcome of the extension of a monopoly.

Joseph Potvin's submission explains some of these problems more precisely: http://www.ic.gc.ca/eic/site/008.nsf/eng/00450.html

As a computer owner, I want to have control over my property. DRM requires that this be taken away from me. This is exacerbated by the trend towards embedding computers in more and more everyday objects.

As a creator, I depend on copyright for protection. Yet I cannot think of a case where DRM would have been useful to me for any of the works I have created. Far from it: works I have created have been locked by others (without consulting me).

Principles

More and more of our environment is built of ideas and data as opposed to physical objects. Copyright in general and DRM in particular will have a profound effect on the architecture of our world. It is important that we carefully design the architecture looking forward.

The effects of provisions of copyright may well not match the intent. A careful, realistic, and unbiased forecast of effects of changes must underpin any changes.

Copyright was not intended to protect the design of gadgets such as cell phones, computer printers, and GPS units. Great care must be taken in extending it into this area. Up to now this has happened opportunistically. DRM magnifies this effect and should not be tacked on without significant analysis and consideration. The example of the US DMCA shows some of the dangers.

We certainly don't want to fossilize and give tenure to old business models.

This is not a zero sum game: good provisions will be good for creators and users. See, for example, David Collier-Brown's submission wherein he explains how weaker protection of his book has given him more returns as an author. This is not an exception: I've seen it happen in many analogous situations.

Care must be taken to realize that the world is not and should not be strictly divided into creators and users. Some of the most exciting prospects involve a combination of these roles. Copyright should facilitate rather than block this.

It is important that users and creators understand and accept copyright duties and responsibilities. That is the only reasonable way to get observance. DRM is an attempt to avoid that by putting a policeman in every box and that is not good for a free society. No, not a policeman, a security guard working for the DRM producer (neither the creator, nor the user, nor society in general).

To enable understanding and acceptance, copyright must be radically simplified. It must be fair too.

Legislation must attempt to be robust in the face of societal and technical changes.

For simplicity and fairness, exceptions must be minimized. If there is a good reason for an exception, it should be drafted in the most general way possible.

We must come to a reasonable understanding of what a user may do without the addition of an explicit license. For example, purchasing a copy of a work must allow reasonable use of that work without explicit licensing. The notion that one could own a copy of a program without having the right to run it is unreasonable, yet that is what software lawyers seem to argue as being the case unless changed by an explicit license.

If DRM is sanctioned by copyright legislation, the legislation must circumscribe what that DRM may do. Such DRM should not do anything other than enforce copyright restrictions. It must not violate the user's privacy. It must not enforce licensing restrictions. It must be possible to verify that it is not overreaching.

Other Comments that I support

I strongly commend Cory Doctorow's submission: http://craphound.com/CanadianCopyrightConsultation.html

I strongly recommend Michael Geist's many comments. His submission is excellent: http://www.speakoutoncopyright.ca/copyright-consultation-my-submission

If the new legislation is to be based on Bill C61, this sequence is particularly relevant: http://www.michaelgeist.ca/content/view/3117/350/

Russell McOrmand's submission is very good: http://www.flora.ca/copyright2009/

So too is David Collier-Brown's: http://broadcast.oreilly.com/2009/08/my-canadian-copyright-consulta.html

I stand by the comments I made in the last round of consultation about copyright reform eight years ago: http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/rp00616.html