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Hollbach

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

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.

Submission from Andy Hollbach received on September 4, 2001 10:12 AM via e-mail

Subject: Comment on Copyright

Hello,

As you know, The Government of Canada has begun a process for reforming Canadian copyright legislation, potentially changing The Copyright Act or introducing other legislation.

Attached is a commentary, which is intended to provide input to the consultation process. Specifically, it presents a view point on the issues raised in the Consultation Paper on Digital Copyright Issues section 4.2 - Legal Protection of Technological Measures. It argues that legal protection of technological measures would significantly impair freedoms Canadians enjoy today, far outweighing any potential benefit to copyright holders.

The attachments are in two formats: HTML 3.2 and PDF

They are also available on-line at http://www.cyberus.ca/~andyh

I would appreciate confirmation that this email has been received and the contents submitted to the process. As a Canadian citizen, temporarily residing abroad, I am providing my personal perspective on this issue because of its importance to our freedoms.

Hope this is helpful ...

Andy

Comments on Potential Changes to the Canadian Copyright Act

Andy Hollbach

2001/9/2

Introduction

The Government of Canada has begun a process for reforming Canadian copyright legislation, potentially changing The Copyright Act or introducing other legislation. As part of this process, a number of documents have been released, including A Framework for Copyright Reform and Consultation Paper on Digital Copyright Issues.

This commentary is intended to provide input to the consultation process, and presents a view point on the issues raised in the Consultation Paper on Digital Copyright Issues section 4.2 - Legal Protection of Technological Measures. It argues that legal protection of technological measures would significantly impair freedoms Canadians enjoy today, far outweighing any potential benefit to copyright holders.

Background

Quoting from the Consultation Paper on Digital Copyright Issues section 4.2:

In the digitally networked world, different technologies (referred to in this paper as technological measures) for retaining control over material available on-line may become increasingly prevalent. Such measures allow for varying degrees of control: access restrictions such as passwords, confirmation measures such as signatures and watermarks, to complete controls such as encryption.

Section 4.2 discusses options to provide legal protection of such technological measures. This apparently has come to the forefront as a result of Canada's signature on two 1996 World Intellectual Property Organization (WIPO) treaties, which contain certain provisions:

WCT Article 11

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict Acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Article 18 of the WPPT contains essentially the same provision, referencing ''performers or producers of phonograms'' instead of ''authors''.

Technological Measures

Compliance with these two WIPO treaties requires ''effective legal remedies against the circumvention of effective technological measures''. Surely, if such ''technological measures'' can be circumvented, they aren't particularly effective; the statement is self-contradictory. Terminology aside, the intent seems clear: to eliminate the ability of readers and listeners to access content free of restrictions imposed by publishers.

The WCT Article 11 reference to the rights of ''authors'' is highly misleading. The key lobbyists for such laws are not authors, but rather publishers and especially software companies promoting proprietary software tools and document formats.

The United States (US) was one of the first national governments to enact provisions in accordance with these two WIPO treaties, with their Digital Millennium Copyright Act (DMCA). It is useful to examine some of the issues surrounding the DMCA and problems arising from its application.

US Digital Millennium Copyright Act

The US has prohibited the circumvention of technological measures in section 1200 of the DMCA. The law, and the provisions of that section in particular, has increasingly aroused controversy and outright hostility. A number of legal actions against individuals have stimulated the most outcry.

Assessments of a law may be based on the particulars of its application, the effect that has on society, and the resulting public reaction. On all of these counts, the DMCA is an unmitigated disaster.

Sklyarov

The arrest in July 2001 of a Russian citizen and computer programmer named Dmitry Sklyarov is one case in point. Mr. Sklyarov was jailed and held without bail for a month. In August, he was released on bail, although his passport was been withheld and his movement restricted.

The Washington Post published an editorial of 2001/8/21, headlined ''Jailed Under a Bad Law''¹. To quote:

THE ARREST by federal authorities of a Russian computer programmer named Dmitry Sklyarov is not the first time the so-called Digital Millennium Copyright Act has led to mischief. It is, however, one of the most oppressive uses of the law to date...

Protecting intellectual property is a compelling government interest, but so is protecting academic inquiry, intellectual exchange and free speech. A better balance must be sought.

DeCSS

Another example concerns technological measures known as CSS, specified by a consortium of global companies in order to restrict access to materials published on Digital Video Disc (DVD). This consortium would not make details of CSS available under reasonable terms so that a DVD player could be written for the Linux operating system. As a result, a programmer figured out the system and wrote a program, commonly called DeCSS, which enables DVD discs to be played under Linux. Others have contributed programs which use an astonishing variety of methods to accomplish the same thing: decode CSS.

The authors of these programs have been pursued in a global legal vendetta, under a number of laws - most recently the DMCA. This legal persecution of certain individuals has led to a number of counter efforts on behalf of individual freedoms. A professor at Carnegie Mellon University has created a web site²that lists many different ways to circumvent the technological measures known as CSS. One amusing quote:

The source code for css_descramble.c is available on the back of this t-shirt from CopyLeft. Copyleft has been sued for their trouble. Also offered: "I am a circumvention device" t-shirt with the qrpff Perl code on the front. Are sales of these shirts banned under the DMCA? Would merely wearing such a shirt in public constitute "trafficking in a circumvention device" as defined in section 1201 of the DMCA?

The main rationale behind DeCSS is to view legally purchased DVDs using Linux. The targets of the DeCSS prosecutions - and most people protesting them - are computer geeks concerned about freedom, not shady businessmen out to mass copy DVDs for profit.

It is worthwhile to consider why so many people are incensed by the DeCSS prosecutions. To understand some of the reasons, this document will briefly discuss the importance of open standards and free software. But first, an analysis of some ways in which digital technology is exploited by commercial software vendors.

Commercial Software and Monopoly

Standard versus Proprietary Document Formats

Obviously, most software programs read, process or output digital information. Digital information may be transmitted in transitory streams over communications channels, in formats called communications protocols. Information may also be be kept on stable long term storage media such as disk, tape, CD or DVD. Information recorded on such media also uses well-known formats, herein called document formats.

Communications protocols and document formats both greatly benefit society when they are open standards, as opposed to proprietary formats. This document attempts to explain some reasons why this is so. It will become even more important as our societal dependence on digital technologies increases.

Proprietary Document Formats and Monopolistic Behaviour

A fundamental result of basic economics is that economic incentives favour monopoly. A company that establishes a monopoly, either de jure or de facto, may enjoy resulting monopoly rents. This has typically been deemed to be socially as well as economically undesirable; Many countries have implemented legislation to restrict monopolistic behaviour.

Digital media and software have certain properties that make it easier for companies to establish monopolies, even over very narrow market sectors. One such property is the requirement that well-known formats be used for information interchange between different computer programs, systems and users. The following comments focus on the strategic use of proprietary document formats by would-be monopolists.

Most commercial software vendors choose to keep their document formats secret. Many vendors strategically use their formats to lock-in customers to continued use of their software products. Proprietary formats are used to encourage users to periodically upgrade (and pay more money). Finally, they are used to discourage use of alternative or competitive software. This last point is classic anti-competitive behaviour.

Consider the example of Microsoft Word. Word is already used in many places as a de facto standard document format. One issue with this practice is that Word programs require Windows (or MacOS) to run and are not generally available on other operating systems.

The format of Word documents has a peculiar history of changing upon each software release. The default format typically changes in such a way as to make backward compatibility with previous releases possible, but difficult enough to encourage users to upgrade.

Because of the ubiquity and de facto standard status of Word formatted documents, other software programs attempt to read and write documents in Word format. Since Word format details are not published, reverse engineering is required to accomplish this. The secrecy and frequent format changes make it very difficult for other programs to consistently and reliably handle Word formatted documents.

These side effects of document format secrecy and changes may be mere coincidence, or may result from a deliberate policy. Either way, they serve to restrict competitive alternatives, interoperation and the communication of information. Many users find the path of least resistance is to adopt Word software themselves.³

Microsoft Corporation has been found, in a US Court of law, to have ''been committed to protecting and enhancing the applications barrier to entry'' and engaged in other anti-competitive behaviour. Microsoft is currently engaged in a very expensive, multi-year legal action with the US Justice department.

One of the largest and most powerful software companies has an established pattern of using proprietary document formats to lock-in users in an attempt to establish de facto monopolies. It should be no surprise that ''technological measures'', ostensibly used to protect copyrighted material, provide additional mechanisms to promote and and protect proprietary document formats and pursue the promise of monopoly rents.

Document formats and Technological Measures

Based on observations of past behaviour, many commercial software publishers may be expected to deploy technological measures which are tightly bound with proprietary document formats. Separating those features which ''protect copyright'' from those used to promote proprietary document formats will typically be technically infeasible. This will be the case, whether the mechanisms are intertwined accidentally or as a deliberate commercial strategy.

Microsoft Corporation is promoting electronic book (e-book) reader software called Microsoft Reader. This software contains various technological measures controlling access, modification and copying of works. It runs only on Windows operating systems. It uses a proprietary file format. Imagine a future in which Microsoft Reader becomes as ubiquitous as Microsoft Word.

Proprietary document formats can make it very difficult for users of free software to pursue their legitimate aims in the digital environment. One recourse is the use of programs, or tools, that translate from proprietary formats to open standards, e.g. MS Word to ASCII text. Such tools exist (and are currently legal in Canada). They can be useful to users of free and other software, who continue to employ the software of their choice.

If such a program were written to enable users of free software to use MS Reader documents, should that program be illegal? Should it's distribution be unlawful? Should the author be criminalized? Definitely not.

Yet, we are considering enacting a Canadian law ''protecting technological measures'' that could prevent Canadian citizens from using information to which they have legitimate rights. Such a law would likely impair rights that Canadians enjoy today. The only sure beneficiaries would be companies such as Microsoft. This seems to be a highly undesirable tradeoff from the point of view of Canadians.

Under such a law, users of free software would not only be inconvenienced by proprietary formats, but also may be criminalized for attempting to use their software of preference - a sickening prospect.

Open Standards and Free Software

There is a significant and growing global community, linked by the Internet, who chose to use free software. For the purposes of this document, free software is defined as software whose source code is available for inspection, modification and sharing with others. Another commonly used term is open source software.⁴

Free software has resulted in programs such as the Linux operating system, GNU tools, and the Apache web server to name just a few. Free software is not just a quixotic crusade of some computer geeks. Large companies have started to understand the benefits and invest accordingly. For example, IBM Corporation has announced the investment of one billion dollars (US) in Linux and related software technologies.

The basic workings of the Internet, including the Internet Protocol, were thankfully developed in a quasi-academic environment prior to the explosion of commercial interest in the Internet. The resulting open standards are what enable computers with different hardware, operating systems and applications software to communicate quite effectively using the Internet Protocol suite. That suite of open standards is the technical essence of the Internet, which otherwise would not exist.

Open document formats are just as important for information interchange as open communications protocols. Unfortunately, many users have yet to appreciate this. They continue to accept and use proprietary document formats without much thought about the issues and implications.

Rights and Freedoms

Canadian Charter of Rights and Freedoms

Fundamental Freedoms 
2. Everyone has the following fundamental freedoms: 
    a) freedom of conscience and religion; 
    b) freedom of thought, belief, opinion and expression, including
        freedom of the press and other media of communication;
    c) freedom of peaceful assembly; and
    d) freedom of association.

Any technological measure which can be applied to copyrighted material may equally well be applied to non-copyrighted published information. Making a program illegal simply because it might possibly be used to decode copyrighted material would contravene my rights as a Canadian citizen under section 2b of the Charter.⁵

Other Existing Rights

When one purchases a printed-on-paper book today, one effectively has certain existing rights, which may not be fully appreciated. These include the right to:

read multiple times
lend to a friend
make available in a public library
read in privacy and anonymity

Paper books may, one day, be largely superseded by electronic books. Software vendors are already promoting e-book document formats and software. Many of these document formats are both proprietary and coupled with technological measures, as is the case with MS Reader.

Technological measures, ostensibly created to protect copyrighted information, may act to impede rightful use of digital books, articles, audio, etc. One case in point is the DeCSS controversy discussed above. Such technological measures may also have intended or accidental side effects which impact privacy, anonymity and other rights which we simply take for granted today.

If technological measures act to remove or impair rights to which we are all accustomed today, as well as claim to ''protect'' copyright material, what options will Canadian citizens have? Will we risk legal action and possible imprisonment for working to defeat these measures?

Digital Futures

The grandiosely titled Digital Millennium Copyright Act carries the connotation of a law to apply for the next millennium, which is rather funny. The DMCA has been so widely reviled that it is unlikely to survive intact for anything near that long.

But, think for a minute about what is likely to happen to our digital technological infrastructure in only the next ten to twenty years...

Evolution of computing devices will continue along the trend line of the recent past (often called Moore´s Law) for at least another decade. This trend line results in increased amounts of electronic memory and computational power at ever lower costs.

Concomitantly with computing devices becoming progressively smaller and more powerful, they are becoming more ubiquitous. Networked together in meshes, they will often be linked to the global Internet. Networked computing power will be there in abundance, much more so than today. What will it be used for?

On the one hand, it creates an exciting new potential for individuals to access information, communicate their ideas and interact with others in global online communities. We can see this today with the global Internet.

On the other hand, it also creates a frightening potential for systematic surveillance and monitoring of individuals: unprecedented data gathering and correlation of their habits, spending patterns, reading preferences, etc. We also see the start of some of these activities on the Internet today.

The open source code of free software allows users to assure themselves of appropriate and correct functionality. Proprietary software programs, available only in compiled form, may easily contain hidden traps, worms and viruses. They may also contain hidden ''features'' which monitor, log, and report usage, unbeknownst to users. Together with it's many other advantages, free software provides one way for users to avoid some of these threats to our freedoms.

There is tension between companies that are promoting proprietary software and document formats and those of us who feel that open standards and free software provide benefits and freedoms worth defending. The former group tends to have more money for lobbying governments, which may partly explain a fiasco like the DMCA.

Summary

We are still engaged in a battle for equilibrium regarding the uses to which digital technology may be put and the interests of various parties. It would be simplistic to paint the picture in black and white. But anything that tips the balance towards centralized control and away from individual freedoms demands very careful assessment. This is such an issue.

My main concerns in this area can be summarized:

proprietary software companies have strong economic incentives to pursue de facto monopolies. Proprietary document formats are a major mechanism used in this pursuit
technological measures will often be tightly bound with, and used to promote, proprietary document formats to the detriment of open standards
free software and open standards are important ways for all Canadians to safeguard their freedoms and resist attempts to monopolize computing or information markets
technological measures, claimed to protect materials under copyright, often have the effect of directly harming users of free software
technological measures may prevent large classes of users from exercising rights which they previously enjoyed

The Washington Post called the DMCA a bad law. I think WCT clause 11 and WPPT clause 18 contain a harmful idea. The worst form of harm will come from any legislation that attempts to outlaw devices, mechanisms or programs which circumvent technological measures. Such laws are likely to have evil consequences.

It could be argued that legislation which prohibits specific acts, such as ''circumventing technological measures for commercial gain'', might be less injurious than restriction of the programs themselves. However, actions infringing copyrighted materials are already covered under the existing Copyright Act. There is certainly no need for additional rules.

The only reason for Canada to prohibit the act of circumvention would be in order to claim compliance with the WIPO treaties. But, the WIPO provisions are poorly worded, misguided and plain wrong. Consider the fact that, to date, every national jurisdiction that has implemented the WIPO treaty provisions has opted for the most harmful form of law. It behooves Canada to admit that WCT clause 11 and WPPT clause 18 are wrong and to argue against them in the international arena.

Section 4.2 of the Consultation Paper on Digital Copyright Issues closes with a number of questions. They are repeated here, together with some answers suggested by the discussion in this document:

1. Given the rapid evolution of technology and the limited information currently available regarding the impact of technological measures on control over and access to copyright protected material, what factors suggest legislative intervention at this time?

All factors examined in this paper argue against legislative intervention at this time and for the foreseeable future.

2. Technological devices can be used for both copyrighted and non-copyrighted material. Given this, what factors should be considered determinative in deciding whether circumvention and/or related activities (such as the manufacture or distribution of circumvention devices) ought to be dealt with in the context of the Copyright Act, as opposed to other legislation?

Restricting circumvention devices is harmful to individual freedoms and should not be enacted in any form of legislation.

3. If the government were to adopt provisions relating to technological measures, in which respects should such provisions be subject to exceptions of other limitations?

The government should not adopt any provisions related to technological measures or the circumvention thereof.

4. Are there non-copyright issues, e.g. privacy, that need to be taken into account when addressing technological measures?

Yes, an analysis of some of those issues is the main purpose of this document.

Conclusion

This document argues that open standards for information interchange are of fundamental importance to individual rights and freedoms in the digital future. These open standards necessarily apply to both communications protocols, such as the Internet Protocols, and to document formats used for information exchange. Open standards and free software are key elements in assuring ourselves that information technology is not co-opted against our wishes to diminish our individual freedoms and rights.

In practice, technological measures are often used in ways that are contrary or hostile to open standards. As a corollary, computer programs and other mechanisms to defeat such technological measures are often created to further open standards. The ''circumvention of technological measures'' in recent years has therefore been a far greater good than any harm coincidentally done to copyright holders. There is every reason to expect that this will continue to be true in future.

Legislative restrictions on circumventing technological measures would significantly impair fundamental individual freedoms, far outweighing any potential benefit to copyright holders.

Acronyms

ASCII - American Standard Code for Information Interchange
CD - Compact Disc
CSS - Content Scrambling System
DMCA - Digital Millennium Copyright Act
DVD - Digital Video Disc
WCT - WIPO Copyright Treaty
WIPO - World Intellectual Property Organization
WPPT - WIPO Performances and Phonograms Treaty

IP

Any trademarks are the property of their respective owners.

copyright 2001 Andy Hollbach.

Verbatim copying and redistribution of this entire document are permitted
in any medium provided the copyright notice and this notice are preserved.