ARCHIVED — Michael Small

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 Michael Small received on September 9, 2001 via e-mail

Subject: Copyright act changes

re. Copyright Reform Process, specifically anti-circumvention measures.

Having followed some of the DMCA cases in the United States I have grave concerns regarding the legislative changes Parliament is considering.

One of my better high school teachers dug up an 18th century law in England or Scotland, that made stealing a sheep punishable by 10 years in prison, or death, or some outrageous penalty. I forget the details. Her point was that a country's laws are a good indicator of which groups in that country have the most sway (presumably landowners who raise sheep, in her example), and that even within a democratic framework unjust laws can be passed. So firstly, I'd ask the MP's who are considering this legislation to consider carefully what they are doing, for whom they are doing it, and how they will be viewed by future history students.

The _Consultation Paper on Digital Copyright Issues_ on your web sight at http://strategis.ic.gc.ca/SSG/rp01100e.html makes a good distinction between the act of circumventing a measure and the act of producing a tool to allow said circumvention. In my opinion, prohibiting the act of circumvention doesn't carry a lot of problems. The intention of the act and the amount of harm to the copyright holder (and value of pursuing a conviction or suit) could presumably easily be determined from the circumstances of the violation. For instance, someone who buys a cd that has digital copy protection of some sort and uses a program they got from the internet to circumvent the protection to allow them to play it using an older cd player that isn't compatible with the new protection would probably not be the target of any company's legislative ire, since they aren't overly visible or harmful. If the person then takes their newly protection-free music collection and distributes it over the internet using a napster-like service, then they will likely get the company's attention and be subject to a suit. The visibility is commensurate to the harm and the likelihood of legal proceedings to the visibility.

But the approach for U.S. legislatures and WIPO is to pursue the makers of the circumvention tools. No doubt this is a more effective strategy from the copyright holder's perspective, since nailing one tool-maker in time may "take out" thousands of potential violators. Perhaps with your references to the value to the Canadian economy of IP and your concern about holder's wariness of publishing works using new distribution schemes you'll make your decision using this kind of results-oriented approach to legislation. But is this "21st century" thinking really modern, or is it just another reincarnation of the thinking that led to the sheep law cited above? Is law simply a means to push the economy in hopeful directions, or do principles of truth, rights, and justice come into play?

If you convict someone for making a tool (or discussing how a tool could be made) that might be used to violate copyright you run a much greater risk of convicting someone with no intent to do wrong. It's much less clear what the intent is when there are legitimate reasons to create such tools: eg fair use, research, intellectual curiosity, using material you have rights to on equipment that doesn't understand the protection scheme involved... So you make list of exceptions. Did you think of everything? Even if you did, will innocent people be required to demonstrate their reason is acceptable to a judge? Will uncertainty of the fairness of that exercise discourage individuals from perfectly acceptable behaviour, out of fear? Is that person a free person when they've limited their actions out of fear of their country's laws. Gun manufacturers are free of such fear, why shouldn't programmers and electrical engineers be, when the potential harm caused by abuse of their creations is so much less?

A Russian programmer now faces a severe sentence for violating the DMCA. He wrote a program that allows Adobe's electronic documents to be read without using their software. Did he ever actually perform the act of violating a copyright? No. Or at least that's not the subject of the conviction. Are there uses for such software other than piracy? Yes.

A researcher in Holland claims to have found a weakness in a recent technology Intel intends to use in the future to protect digital video. Out of fear of the DMCA he will not publish his paper regarding the weakness. The state of cyptography research suffers for it. As an individual, his ability to partake in the normal activies of his chosen profession as a scientist are hampered.

I want you to consider a Canadian I admire because of his work in my field. I am a fledgling software developer who moved to the U.S. to get paid well to do mediocre work, whereas he is a highly talented developer who stayed in Canada and gets paid little to do high quality work. His name is Theo De Raadt and you can see the results of his efforts at www.openbsd.org. In thoses pages you will find the following statements:

Why do we ship cryptography?

In three words: because we can.

The OpenBSD project is based in Canada.

The Export Control List of Canada places no significant restriction on the export of cryptographic software, and is even more explicit about the free export of freely-available cryptographic software. ...

It sounds like there is some pride here - I know I felt proud, even as an expatriot - when I read it. So the MPs got it right with the export control laws. Will they get it right with the Copyright Anti-Circumvention laws, or will they pass something that prohibits someone like the Dutch scientist or Theo from doing the work they love and are admired for, when, all the while, their intent is not to take someone else's property, but only to discover or to create. If only one hard-working, intelligent person were stopped from practicing the pursuit they love by such a law and 10 million thieving music lovers were forced to pay for their music adding millions to Canada's GDP, don't you see that such a law is still gravely wrong?

-- Michael Small
(Canadian Citizen, Temporary American Resident, 1 Canadian vote)
(address removed)