ARCHIVED — Salomons

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 Stephen Salomons received on September 06, 2001 12:46 PM via e-mail

Subject: Response to Digital Copyrights

to: copyright-droitdauteur@ic.gc.ca
to: copyright@canadianheritage.gc.ca

August 28, 2001

Stephen Salomons
[e-mail address removed]

Response to: CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES
June 22, 2001
Issued by:
Intellectual Property Policy Directorate, Industry Canada
Copyright Policy Branch, Canadian Heritage
http://strategis.ic.gc.ca/SSG/rp01100e.html

Executive Summary:

Thank you for allowing me the opportunity to express my opinion on this matter in a public forum. My name is Stephen Salomons. I am a graduate student in Chemical Engineering. I am writing as a private citizen of Canada.

I consider the issues surrounding copyrights, technological measures and rights management to be very important issues for the future of Canada. In the short term, it affects the legality of such things as Napster, file-sharing, DeCSS, and others. In the long term, it affects the balance of power between publishers, content-producers (artists, writers, and researchers) and the public. The long-term survival of Canadian culture, the historical record, the role of libraries, the ability to research and the citizen's access to information are very much at stake here.

The discussion of tools, digital or mechanical, should not be restricted. Restriction of the discussion of the tools will restrict legitimate research, will not solve any issues of copyright infringement, and will only lead to a lower quality of available tools, and will destroy my trust in that tool.

The use of a tool is irrelevant. The crime is in the act committed. Punish the crime, not the tool. If I kill someone with a knife, it is murder. If I kill someone with a ball-point pen, it is murder. If I kill someone with a gun, it is murder. The crime is murder and the tool is irrelevant.

Any laws made in this area MUST consider the impact on students, legitimate research, and fair use by citizens. If content is protected by rights management, and rights management is protected by technological and legal measures, then students and researchers will be unable to fairly access material for such fair uses as school projects and critical reviews. Content that is 'protected' may not necessarily expire and enter the public domain as it does now. Rights management has the potential to move the issue from copyright law to contract law, and artificially deny valid rights and freedoms that have existed for many years. Such abuses must not be allowed. This will severely inhibit the effectiveness of librariesin the long-term record of history. Fair use must be allowed, and public information must not be locked away in a private database. The long term viability of a Canadian identity depends on Canadians being able to access cultural records of their past and present. Without being able to understand and appreciate our culture, we will loose our identity.

It may be worth considering significantly reducing the term of copyright, as well as granting academic, scholastic and fair use exemptions from rights management restrictions.

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I am concerned about the long-term preservation of Canadian culture. Current restrictions in the American DMCA on circumvention and distribution only serve short-term interests. In 100 years from now, where will Canadian culture be? If material is not available in an unprotected and freely distributable format, then Canada will lose its history. Without making material available to citizens, history will not be properly recorded. We will have locked up our history, and thrown away the key. All in the short-term interests of corporate profits, and the long-term loss of Canadian culture and a Canadian identity.

Material must be available in an unlocked, easily distributable format (after the above mentioned limited time period) or it will never be assessable by future generations. I refer you to the CNET News.com article "Limited Editions", July 12, 2001 < http://news.cnet.com/news/0-1005-201-6545588-0.html?tag=prntfr >

Without access to information in such places as public libraries, cultural materials will be lost to future generations. If Canadians are to be able to learn about our history and retain an identity in the future, then we must ensure that future generations may freely access that information. Any other way, any artificial restrictions on its distribution, and that information is lost. We cannot allow gaps in our cultural and historical records. A Canadian identity depends on a knowledge of Canadian history, and a knowledge of Canadian history depends on open access to its records. To quote the consultation paper I am answering, "Only by continuing to ensure a sharing through communication can the cultural fabric of Canada be strengthened" (http://strategis.ic.gc.ca/SSG/rp01100e.html).

I will be finishing my M.Sc. thesis soon. I would like to make that document freely available on the internet. However current copyright laws make it difficult for me to do so, even though I am the author. Current laws are skewed to favor the publisher, and do not properly recognize the author, citizen and academic.

4.2 Legal Protection of Technological Measures

The American DMCA is far too draconian in its restriction of discussion of circumvention devices. Healthy discussion of circumvention measures ensures that proper technical measures are used, and avoids the use of useless methods.

Adequate encryption (e.g. OpenSSL, PGP) and proper research is essential for the continuation of secure e-commerce methods and public trust in those methods. The same algorithms that may be used to impose rights management may be used in e-commerce applications. A restriction of the discussion will only lead to the spread of technically inept methods, and will not encourage trust in methods used in e-commerce.

Restriction of the discussion of the workings of a device should not be made. Many of these devices have multiple uses, some good and some bad, but the device is just a tool. Only the use of a tool to commit a separate offense should be restricted, and that is already in place.

An example is cars. Many cars are capable of traveling in excess of 200 kph. However, there are speed limits that drivers must follow. Some cars can achieve high speeds on a stock setup, and other require modifications. There is an entire industry dedicated to hobbyists and professionals who are dedicated to learning about and modifying their cars. Many of the skilled hobbyists are also valuable skilled mechanics, who hone their skills in their spare time. Also, most of the technology in cars today is tested and proven on the race-track. Restricting the discussion of motor-vehicle modifications and limiting the use of tools and modifications would severely hinder further advances in automotive technology. These discussions are simply not done. Discussion and development of the tools and techniques are not hindered in Canada and the rest of the free world. Improper use of the tools (e.g. speeding on a public road) is an offense, and punishable. Possession of a car capable of speeding is not an offense, and should not be. Speeding is an offense, regardless of whether I am using a car or truck or motorcycle. So it should be with encryption devices. The offense is not in the possession but in the improper use.

Discussion of motor vehicle technology is not currently restricted, and should not be. Because of this free discussion, I believe that we have better cars. Products that are controversial, and potentially flawed, may be discussed. In the criticism, be it research into impact safety, roll-over safety, airbags or tires, improvements may be made to improve the overall safety of motor vehicles. Major manufacturers may not like the fact that their products have flaws in them, but in the interest of public safety, these flaws are allowed to be exposed so that they we may learn from them and they are not repeated.

Encryption and circumvention devices are just tools. They have many uses. Using encryption, I can hide data. I can also digitally sign a document, like I have signed this one using PGP encryption. Validating my digital signature on this document is your assurance that it is an authentic document and has not been tampered with. Ultra-strong encryption allows me to hide data very well, and it also allows greater trust in my signature on a document. The same technology may also be used for e-commerce (e.g. SSL) and other fair uses (like securely checking my work email from home over SSH, for remote administration of servers, and for securing using remote research facilities). My ability to conduct unrelated engineering research would be affect by not having trusted tools at my disposal. The tools and mathematical algorithms used to protect and authenticate data are one and the same. Restricting the strength of my encryption (by hindering its discussion and development) also reduces the trust that someone can place in my digital signature. If I cannot trust the integrity of SSL encryption, I would never conduct any business on the web or make any purchases.

Draconian legislation in this area will only lead to suppression of valid research and discussion. I refer you to three recent cases involving the overly suppressive American DMCA:

Dmitry Sklyarov was arrested after presenting a paper in Las Vegas at a security convention: <http://news.bbc.co.uk/low/english/sci/tech/newsid_1454000/1454489.stm >

Dr. Edward Felten has been threatened with legal action if his results are published:< http://news6.thdo.bbc.co.uk/hi/english/sci/tech/newsid%5F1296000/1296384.stm >

Respected cryptographer Niels Ferguson is afraid of legal actions against him in the US if he publishes his work: <http://www.macfergus.com/niels/dmca/index.html>

All three individuals are experts in their field. All appear to have valid criticisms of poor security procedures. All their research is threatened to be suppressed by the American DMCA. What if it were illegal for the medical community to publish research in the side-effects of pharmaceuticals? Restricting criticism of pharmaceutical products would greatly reduce the long-term quality of available medical care. Restricting research into computer technology would be just as detrimental to the long-term quality of the technology industry. After all, the personal computer revolution may never have happened, had Compaq not reversed-engineered the IBM BIOS in the 1980's. <http://www.z dnet.com/zdnn/stories/news/0,4586,2409951,00.html>

Summary: The discussion of tools, digital or mechanical, should not be restricted. Restriction of the discussion of the tools will restrict legitimate research, will not solve any issues of copyright infringement, and will only lead to a lower quality of available tools. Reverse engineering should not be restricted. Restricting reverse engineering will hamper innovation (and remember that copyrights are a human concession made to encourage innovation).

The use of a tool is irrelevant. The crime is in the act committed. Punish the crime, not the tool. If I kill someone with a knife, it is murder. If I kill someone with a ball-point pen, it is murder. If I kill someone with a gun, it is murder. The crime is murder and the tool is irrelevant.

4.3 Legal Protection of Rights Management Information

When I speak of "Rights Management" here, I am referring to information that restricts the portability of a digital file, and not information that is used to identify and authenticate the original author of a work.

Rights Management schemes have the potential to restrict freedoms that are currently enjoyed and are completely legal, while restriciting usability and productivity.

Fair use must be protected for the purposes of education. Students in grade school (K-12) and college frequently criticize artistic works in their studies. Artistic works need to be accessible for school projects to be possible. It is unreasonable to ask a student to write about a musical work, and then be unable to present any of the original work to explain his/her point because the original work is only licensed to a single audio player. Can we ask students to prepare critical reviews and essays, but make it illegal for them to include portions of the text, audio clips, pictures, or video clips of the work that they are reviewing? No, that would not be fair to the students, as it would make it difficult or impossible to properly write a report or presentation. Can you imagine an art student writing a paper studying the colors used by a particular author, but make it illegal for the student to obtain a copy of the artwork being reviewed? The paper would be useless, as essential examples would have to be omitted. Can we reasonably expect students to be required to use special 'unprotected' versions? Not if they are also expected take homework home with them. All that should be required is for the student to properly credit the original author with work originally done by that author. Requiring students to access special unprotected 'school' versions is also unreasonable. Requiring students and researchers to obtain the permission of a copyright holder before critiquing a work is also unreasonable. This would even lead to content owners being able to refuse to allow people who will give them an unflattering review access to materials. Any laws that are made in this area must account for fair use by students in an educational setting.

Adobe recently demonstrated its new eBook product using the text "Alice in Wonderland" (see the column by Stanford Law Professor Lawrence Lessig at <http://www.thestandard.com/article/0,1902,22914,00.html >, and the Australian Broadcasting Corporations 12/08/01 Background Briefing "Knowledge Indignation: Road Rage on the Information Superhighway " at <http://www.abc.net.au/rn/talks/bbing/stories/s345514.htm > I HIGHLY recommend anyone interested to look at both articles). As you may know, "Alice in Wonderland" is a public domain book. However, in the Adobe demonstration, users were denied many rights. Users were not allowed to copy any text from the public domain book. They were not allowed to print any of it. They were not allowed to lend the book out, or give it to someone else, or ever read the book aloud. This is despicable. "Alice in Wonderland" is a public domain book, and readers of a paperback copy of it can do whatever they want to with their copy. Why is it that these rights are lost when the book is suddenly in a digital format? How can we expect a student to write a report on a book when it is illegal for the student to access the content in a usable form? Rights management has the potential to move the issue from copyright law to contract law, and artificially deny valid rights that have existed for many years. Such abuses must not be allowed.

The ability of a research to access information is being inhibited by digital rights management. Currently, peer-reviewed print journals are published in paper form and distributed to subscribers. I can go to my university's library and get a journal, read it, photocopy it, learn from it and reference it in my research. However, paper subscriptions are getting much more expensive, and fewer libraries are able to afford to subscribe to all the journals that their researchers require. Some journals are available on the web, but the utility of this has been intentionally handicapped by publishers. Articles are only available online for a few weeks at a time, or only abstracts are released, or only certain years. Articles that include a form of rights management are more difficult and inconvenient to use than their paper counterparts. Because of the much low marginal cost associated with distributing works in digital form compared to a paper form, these articles should be much easier and cheaper to distribute on a large-scale basis. Many researchers and academics are up-in-arms at this, and want to see information made more accessible with digital tools, and not less accessible. Approximately twenty-six thousand researchers are planning a protest on September 1st, 2001, because the publishers are locking away their research, much of it done with public money, so that it cannot be easily and freely shared.

<http://www.publiclibraryofscience.org/ ><http://www.arl.org/sparc/> As the print journals are slowly disappearing, we are being left with an electronic archive that belongs to a private company but contains a lot of information that is of public interest. <http://www.abc.net.au/rn/talks/bbing/stories/s345514.htm>

The same is happening to newspapers, which are important in maintaining a public record of a community. While paper back issues may be available in a library, I am concerned about digital versions being offered for a limited time only. This is critical when content becomes available in a digital-only form.

Non-commercial, fair-use of materials by citizens must be preserved. If I paid $20+ for an audio CD, I believe that I should be able to listen to that music on any player of my choosing. And if my player of choice happens to be an MP3 player in my car, why should artificial restrictions be placed on that? Why should I be restricted in only being able to listen to my audio CD on "approved and licensed players"? I already pay a levy on blank CD's (regardless of whether I use the blank CDs for music of my own personal data) in case I make a copy. I think that the current levy system is adequate as it currently stands.

I see no reason why sharing a file/CD with my brother or sister or friend down the road should be limited. In fact, this is the primary reason why I have purchased several CD's, I heard something new and different and went and bought the latest album or went to the concert. Private copying for non-commercial use is currently a completely legal activity, and I see no reason why this should not continue. Of the last 12 CD's I have purchased, half of those CD's I heard ~ 25-50% of the songs before (whether from a borrowed CD, a downloaded MP3, or otherwise), and the other half I heard ~ 75%-100% of the songs through similar means BEFORE the purchase. Being able to access music before the purchase influenced my decision of what to buy. The actual dollar amount I have spent on music has only gone up with increased access.

Overly restrictive rights-management may inhibit the ability of libraries to hold and distribute information, as well as make long-term archival impossible or illegal. Public libraries are currently underfunded as they are today. Who will pay for them to have access to 'unprotected' content? And if 'unprotected' content is not available, who will pay for cryptographers to write programs that decrypt data for the libraries to access, when all the research has been ruled illegal and all devices to do so illegal?

Summary: Rights management has the potential to artificially deny valid rights to citizens that have existed for many years, and to remove public information from the public sphere. Such abuses must not be allowed. Any legislation in this area must account for the impact of rights management on a citizens ability to conduct academic research. Fair use must be allowed, and information vital to the public and the public record must be allowed to be preserved in libraries, free from artificial digital restrictions. Fair use is essential in the academic and educational realms.

It may be worth considering significantly reducing the term of copyright, as well as granting academic, scholastic and fair use exemptions from rights management restrictions.

4.4 Liability of Network Intermediaries, such as Internet Service Providers, in Relation to Copyright

ISPs should have similar responsibilities in policing and dealing with infringement issues on their networks that phone companies have with regards to crimes planned over the telephone. If a complaint is made, the ISPs have the responsibility to cooperate with the RCMP (or local police). They should not actively monitor their customer?s data unless they are doing it in cooperation with an RCMP investigation.

For example, if I connect to the internet via a dial-up modem to an ISP (who happens to be a different company than the local phone company), I am actually using my accounts with both service-providers to connect to the internet. The information travels on the networks of both the ISP and the telephone company. Suggesting that the ISP should be liable for misuse, but not the telephone company is not correct. I sent the same signal over both networks, why is only the ISP liable?

If I am using the hosting services of the ISP (i.e. if they are hosting my web page on their servers), then I do feel that the ISP has a responsibility to respond to a valid complaint. The files are being stored on the ISP's hard drive in their building. It is unreasonable to expect them to actively evaluate every file hosted on their servers, especially with the rapid rate that content may change. However, if complaints by citizens were received by an ISP, I would think that they should evaluate their relationship with the offending customer.

The process by which a complaint (for copyright issues) is dealt with must be fair to the customer, access must not be denied until the customer has had a chance to defend him/herself. With people depending on email and internet access for day-to-day business, they must be involved in a dispute before service termination.

The liability of ISP's in relation to security issues (unauthorized access to computers/break and enter, defacing web pages/graffiti, denial of service attacks, etc.) and decency issues (pornography and hate material) are completely separate issues. Thank you for recognizing that fact.

Summary: ISP's should be liable for content (with regards to copyright) hosted on their servers, but not for information that passes through their networks. ISP's should fully cooperate with any RCMP investigation that involves them. A fair review/notification process must be followed when dealing with a complaint.

Thank you for taking the time to read my comments. If you have any questions, feel free to contact me. Feel free to share this letter with anyone interested in a discussion of copyrights and digital rights.

Stephen Salomons

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