ARCHIVED — Friesen

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

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Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

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Submission from Chris Friesen, received on July 24, 2001 10:53 PM via e-mail

Subject: Copyright reform comments

As far as I understand it, copyright law is designed to give the owner of the copyright some measure of control over what may be done with the copyrighted material. However, the government, in addition to protecting the rights of the copyright holders, is also responsible for ensuring that citizens retain their rights as well.

The short version of what I have to say is this: pass whatever laws that are deemed desirable, as long as it doesn’t interfere with my right to make use of the information for which I have paid in any way that I wish, and as long as it doesn’t interfere with my free speech.

There is no law that says it is illegal to own a crowbar, a set of lock picks, or a cutting torch. Yet all of these could be used in various forms of criminal activity. It is the particular act (assault, breaking and entering, etc.) that is forbidden, not the possession of tools that could conceivably be used in the act. Similarly, any laws that are passed must not render illegal the creation and dissemination of software that could conceivably be used to access copyrighted data. I mention this because this is exactly what the American Digital Millennium Copyright Act does.

The DMCA in the U.S. is a perfect example of the kind of law that should not be passed, as it both hinders the "air use" rights of the individual and also interferes with the individual’s rights to free speech. The DMCA serves only as a monetary protection to the corporations publishing digital materials. One side effect of the DMCA is that poorly engineered software - something that should be a liability to a corporation - is effectively certified as saleable by the government. As a parallel, imagine walking into a grocery store to purchase a steak for dinner. Imagine that all the beef for sale was in a pile on the floor, unwrapped, not refrigerated, next to the store’s loading dock and garbage chute. If the DMCA applied to this hypothetical situation, it would prevent you from telling anyone about the unsanitary conditions in which the beef was purchased, and you could only cook the meat exactly as the store instructs you, not because the DMCA says that you must use only the store’s recipe, but because the DMCA prohibits development and dissemination of the technology required to make fair use of the meat. If the store’s recipe called for pan-frying the steak, charcoal grills would be illegal circumvention devices.

This analogy describes what has occurred concerning the encryption system used by the Digital Versatile Disc (DVD) movie industry. DVDs are encrypted with the Content Scrambling System, which was promoted as a method of reducing piracy. The CSS encryption scheme was worthless from the beginning as a copy protection scheme, since it was always possible to make a copy of the encrypted data and still be able to play the copy on an authorized DVD player. The only purpose it served was as an access control device, forcing consumers to use a limited number of approved methods of viewing the data. Whether the intent was to steal the bad meat from the grocery store, to protect people from eating bad meat, or to showcase other meat recipes, DeCSS (which allowed users to decrypt the encoded video and audio streams, enabling alternative viewing methods) was released. DeCSS showed the world that the grocery store is not able to protect its meat from going bad, and that there were other ways to cook it. Under the DMCA, DeCSS is unlawful. Under previous US (and current Canadian) copyright law, DeCSS is lawful – it provides a method for you to eat steak tartar, steak and lobster, filet mignon, or charbroiled porterhouse. Like the various federal health departments, previous US (and current Canadian) copyright law already prohibits you from reselling your meat in a manner that is dangerous to public health. In its current form, the DMCA does no service to either the shareholders and investors of the grocery store, or to the citizens who shop there. The DMCA only protects the store’s secret about how the meat is handled and ensures that the consumer will use the store’s recipe for preparing the meat. Because of this, I am vehemently opposed to anything like the DMCA being enacted in Canada.

DeCSS is not the only challenger to the DMCA - last week saw the arrest of Russian programmer Dmitry Sklyarov by the FBI on behalf of Adobe Corporation in a case that is sure to put DMCA to the test. The company he works for (based in Russia) sells a product that takes advantage of poor encryption on Adobe eBook data (which is completely legal under Russian law). This product gives consumers back their fair use rights, but it has been labeled a circumvention device under the terms of the DMCA. This is a sad misnomer - neither DeCSS nor this other product circumvents any protection device, as it is always possible (and should always be allowable for private backup purposes) to make a digital copy, whether or not the contents are encrypted. These products merely use a non-approved method to decrypt the copyrighted data within. The only thing being circumvented in either case is the manufacturer’s intended use (the store’s recipe). In fact, in the case of DeCSS, significant advances have been made in the speed and reliability of the decryption - a fact that the Motion Picture Association of America (MPAA) and the DVD Copy Control Association (DVD CCA) would prefer to hide from consumers. Of course, this latest case regarding Adobe is also an "international incident". As a result of the DMCA and Sklyarov’s arrest, various groups and individuals have initiated a boycott of all Adobe products and a boycott against all international conferences held in the United States. The DMCA is actually hurting a large corporation " the free market is starting to reject corporations that support the DMCA.

Let us also not forget that criminals are criminals - they have no respect for the law. The DMCA is supposed to protect against piracy, but I would argue that piracy will continue with or without the DMCA, and piracy can be prosecuted under existing copyright law. In this light, the DMCA - already a bad law - is also extraneous.

Based on these arguments, I would suggest than any law similar in spirit to the American DMCA should be given no further consideration. It is unnecessary, it prohibits scholarly discussion about the method of protection of data (by simply making it illegal to try and circumvent that protection for any reason), and it interferes with the consumer’s right to make use of what he has paid for.

Chris Friesen