ARCHIVED — Bartram

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 Steve Bartram received on August 1, 2001 4:29 AM via e-mail

Subject: The technology of copying

To whom it may concern:

There is a web page that essentially asks for input from 'stakeholders' that would be affected by changes in copyright laws especially as applied to electronic media.

As both a consumer of copyrighted materials, and as a programmer involved both in the safekeeping of materials purchased by myself and others as consumers and in the development of commercial secure communications, I feel that I cannot be excluded from the list of stakeholders in these changes.

I am extremely worried about this proposed change.

The subjects in specific (from the webpage):

• prevent the circumvention of technologies used to protect copyright material; and,
• prohibit tampering with rights management information.

These are the same items that are currently addressed by the Digital Millenium Copyright Act, or DMCA, in the United States. This law was passed with very much the same intention, (and probably with the support of the same corporations that support it,) but has already been proven to be capable of gross misapplication.

In specifics, I worry about the problem of making it illegal to make or posses general decryption tools, rather than the use of those tools for illegal copying.

Much ado has been made about the DECSS program, which is noted for it's ability to allow a legally purchased DVD disk to be decrypted and viewed on a computer, rather than purchasing an 'approved and licensed' decryption device or program.

What is almost always ignored is that to produce an illegal copy of such a DVD disk, it is totally unnecessary to decrypt it! The copying can be done without any decryption device whatsoever, a simple bit-for-bit copy will suffice.

And unfortunately, the definition of 'device' can easily be made to include general purpose software and general purpose computers. If, as a side effect of creating a program to perform a legal operation, such as decrypting secure communications intended to be recieved for the user, said program can be used to decrypt or otherwise remove the 'protection' from some copyrighted material, it could be labeled a 'decryption device' and the author could be prosecuted - even if the author was totally unaware of the other use.

Furthermore, such a law - as the U.S. DMCA has turned out to be - can be used as a tool to intimidate legitimate criticism. I am certain that someone else will provide details of both the SDMI challenge results and the attempted suppression of research into this technology, or even more, the recent arrest of Dmitri Skylarov in the U.S. for a program that is not only legal in his homeland, but a necessity for the primary complainant to legally sell their wares in his homeland.

None of these cases are about piracy or even have any provable damages due to the complaints, they are essentially trying to suppress intrinsic faults with both technology, and the attempts of various media providers to unilaterally extend their legal copyright protections indefinitely in both time and application.

Copyright has traditionally been the legal basis by which a publisher could make works available to the public, without the danger that another publisher could make a profit from that work without the effort involved in their production. It never prevented loaning, sharing, or joint ownership of the works for a single user at a time - otherwise, libraries could not have existed. But now, various publishers are getting, for want of a better term, unscrupulously greedy. They want control not only of the 'published work' such as a DVD, but to set conditions of what device and under what conditions it would be used. I submit that such a work as this is no longer a published work - it is no longer available to the public, and can no longer be shared.

It has long been established (and is even law in some countries) that once you have purchased a copyrighted work from a publisher, they no longer have a say in the sale of that work, nor in the conditions and price for which it is sold, save that it still cannot be duplicated, performed, or otherwise given to multiple users.

And despite the existence of photocopiers (and even machines which can create an entire book - pages, binding, and illustrated cover - under control of a computer) there is not a thriving market in counterfeit books - this is mostly because there is not a hugely exploitive margin between the cost of producing a book and the cost at which it is sold.

Such an exploitive margin, however, is almost always the result either of rarity (which cannot be a rational explanation in mass media items) or a monopolistic structure. If there is a significant danger of piracy of goods, i.e. sufficient margin to act as an incentive despite the disincentives of prosecution for copyright infringement, then not only are the prices higher than can be justified, but there is sufficient margin of profit that at least even single pirate circumventing the technology is inevitable - and once even a single unprotected copy of digital media exists in this day and age, then the pirates have an unprotected copy which will become globally accessible to thos who wish to have it.

So the arguments that these lawas are needed to prevent large-scale piracy can be seen as either a means to keep prices artificially high by either limiting supply, or by monopolizing the supply of the devices needed to 'legally' decrypt their media.

As a further example - videoutapes can be made of movies from pay-per-view, cable, or off-the-air distribution. 20 years ago when the VCR was first introduced, a videotape of a movie was about $80 (in 1980 dollars) and even then the media companies complained of the VCR - but now with the price about 10% of the original value, most people buy the videotapes directly (or rent them) simply for the convenience - and the vaunted 'large scale copyright infringement' that the VCR was accused of never happened. Yes, there are piracy cases involving VCR tapes - but even these are deterred by prosecutions under existing law.

The $80 price was a very significant margin above the cost of producing the videaotape, and at that price, the result was actully very few buyers (except for rental stores - which were also fought against). Yet now the media corporations now make a significant portion of their income from a device which they once sought to ban.

Obviously, the basic preservation of fair uses of copyright material has been appreciated: From the paper

"The departments acknowledge the concerns of these copyright stakeholders, but must consider these concerns within the framework of Canadian copyright law, where certain uses of works and limitations on copyright protection are recognized as serving legitimate and important public policy objectives. Such limitations are evidenced by the finite term of copyright protection, the fair dealing provisions and the exception provisions. These elements of our copyright law have been the outcome of extensive debate, consultation, jurisprudence and legal obligation, both domestically and internationally. Any attempt to affect that balance may require a reconsideration of the current extent of the exceptions provisions."

By all means, possesion of tools and devices WITH INTENT to commit a copyright violation can be criminalized - if you use a screwdriver with intent to break into a house, then the screwdriver becomes a burglary tool, and, in the presence of such intent, it's possesion becomes a crime. But making screwdrivers illegal would be nonsensical. This same logic needs to be applied to the devices for playing copyrighted works.

And in this context, a legal - even by the standards of the U.S. DMCA - DVD player could be used to decode a DVD disc, and the output intercepted and used to drive a video tape recorder for the purpos of creating saleable copies of the media on video tapes in contravention of even existing copyright law. Does the fact that the DVD player is legal excuse the act? Again, the law must allow for the establishment of intent - and given that intent, the otherwise legal device becomes illegal.

In summary: To make a physical device, or even worse, an algorithm or research illegal simply because it is possible to use it to make a copy of a copyrighted work - That would be a crime.

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Respectfully,
Steve Bartram (a.k.a. Liquor)
Oshawa, Ontario, Canada
01 Aug 2001

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