Tim Bartelsman

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Tim Bartelsman

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 Tim Bartelsman received on September 15, 2001 via e-mail

Subject: Re-Submission for Copyright Reform In Canada

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Copyright Reform In Canada

The following electronic document represents my comments an concerns with copyright reform in Canada and the following possible new amendments to copyright in Canada.

- Set out a new exclusive right in favour of copyright owners, including performers and record producers, to make their works available on-line to the public;

- Prevent the circumvention of technologies used to protect copyright material; and,

- Prohibit tampering with rights management information.

1. About the Author

As an IT consultant and software developer I deal with issues of copyright, digital information and fair dealings every day. I have been following the developments on copyright law in Canada and the US for some time and I am very concerned. It is this concern for the important of ensuring the future of the publics rights under copyright, freedom of speech, and the continued forward pace of innovation that I have put together this essay.

2. Modern Copyright

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature"

Thomas Jefferson in a Letter to Isaac McPherson http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html

Thomas Jefferson, like myself, was very concerned with copyright. The concern is that there must always be balance between encouraging the creation of new ideas, and the rights of the human race to benefit and improve upon those ideas.

Put another way, we need to protect the rights of the human race to gain access to information. This purpose is served by the two sides of copyright law.

1) That creators of new ideas be given a limited monopoly to their work. This helps to encourage the creator to produce more works by giving them creative and economic control over their works.

2) The public, who through the government, give creators a limited monopoly, are allowed to make fair use of those copyrighted works. This includes making limited copies for citation, parody, and archival purposes. It also includes the right to resell the original copy of the work(eg. Used Book Store). The public also CAIn requires that at a reasonable point in the future that the copyrighted work reverts to the public domain.

If we do not protect this balance then we risk our ability to progress and innovate.

The fact is there is no idea, no matter how novel and amazing, that does not owe its existence to previous ideas.

"If I have been able to see further, it was only because I stood on the shoulders of giants." Sir Isaac Newton

We have to make sure that any copyright law that we as Canadians choose to enact maintains the crucial balance between encouraging authors, programmers and artists to create, and allowing other Canadians to benefit, build and improve upon those ideas. If we do not we are not only not taking a step forward, I believe we will begin the slide backwards.

Copyright is a careful balancing act, and we must preserve that balance, more now than ever as we enter the digital age. An era when the public is not only consumers of information, but also creators of information. Never before in history have we been able to bring the creation of ideas, and those who wish to use and learn from them so close together.

To be clear, when I say sharing ideas, I do not mean the sharing of others ideas and information over the Internet(eg. Napster). I mean the sharing of ideas and knowledge that have led to the success of the Open Source operating systems like Linux. I mean the sharing of ideas and information that created the very Internet itself.

M 1991, Linux Torvalds, a Finnish university student, shared an idea with a few people on the Internet. Over the next 10 years that one idea flourished and grew into one of the most powerful operating systems available. An operating system that is used for everything, from serving up web pages, serving documents to corporate users, to crunching numbers at some of the largest scientific organizations in the world.

Unfortunately recent laws in the US such as the DMCA (Digital Millennium Copyright Act) and the newly introduced SSSCA(Security Systems Standards and Certification Act) are threatening the very foundation of the free exchange of ideas and innovation. Not only do these laws violate the public's rights under copyright, they also violate our fundamental human rights like free speech.

It is my hope that comments sent by myself and others to the Canadian government will promote the rights that the public deserves under copyright and to highlight the negative and far reaching affects of introducing legislation like the US DMCA.

3. The DMCA and the SSSCA in the US

While these laws are not directly applicable in Canada I include this section as examples of the effects of laws that tip the balance of copyright law too far on the side of powerful and rich corporations and by doing so abandon the publics rights..

It should also be noted that due to the US's continued application of its own laws to foreign nationals (eg. Helms-Burton Act) Canadians should be aware of the potential effects these laws may have on them if they plan to travel or do business with the US. RM

3a. Comments on the D(Digital Millennium Copyright ACt)

The DMCA was passed in the United States in 1998 with the stated intention to give protections to copyright holders in the Digital Age. The established media and entertainment conglomerates, fearful that people could easily exchange digital quality information, including potentially the information that they considered their "intellectual property", lobbied heavily for its introduction. Unfortunately the legislation was passed with little or no public discourse by a massive majority.

In addition to new limits on copyright (extensions of the term of copyright) the DOCS extended the power of publishers and media companies far beyond that of traditional copyright. In particular, section 1201, which deals with circumvention technology has been particularly criticize by free speech advocates and researchers. This section has been called "Para-Copyright" because it appears to have no real basis in copyright law at all.

Sec. 1201. Circumvention of copyright protection systems

(a) Violations Regarding Circumvention of Technological Measures. - (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.

http://www4.law.cornell.edu/uscode/17/1201.html

This section, probably the most objectionable of all parts of the DMCA is also the section most desired by the media and publishing industry. Section 1201 is not copyright in the traditional sense. It does not prevent anyone from making illegal copies of works. What this section attempts to restrict is the creation and distribution of devices or software to circumvent "effective" access controls. This protection technology is often called "Digital Rights Management" or D. DRM would be more accurately called Digital Use Management as it primarily restricts the use of copyrighted material, not copying.

One of the objections to section 1201 is that it directly contradicts one of the fundamental balances of copyright, Fair Dealings or Fair Use.

Digital Use Management in conjunction with section 1201 allows copyright holders and publishers to prevent the public from exercising their rights under copyright. For example making copies of a work for archival purpose and selecting portions of the work for citation or parody. These technologies also prevent first sale rights which allows the owner of a copyrighted work (eg a book) to sell that copyrighted work to another person once they are done with it.

Section 1201 is also not compatible with a balanced approach to copyright where copyrighted works are eventually released into the public domain. By combining Digital Use Management with the DMCA copyright holders can continue to restrict access to works even after they have moved into the public domain. They can do this because there is no incentive or requirement that they provide a mechanism to circumvent their own Digital Use Management scheme. Since under the DMCA the public cannot legally create and distribute technology to circumvent the Digital Use Management system for all practical purposes the DMCA and Digital Use Management software make copyright permanent.

To add extra bite to the DMCA the US congress also added criminal liabilities to Section 1201. Under the criminal provisions you can receive 5 years in prison and a $250,000 fine.

To provide an analogy, a criminal law like the DMCA applied to the automobile industry would allow for the criminal liability of not only the auto manufacturers, but also their employees if there even exists a possibility that the car could be used in a crime. This may sound far fetched, but it has already happened.

In July 2001 Dimitri Sklyarov was arrested in Las Vegas by the FBI for:

"violating the anti-trafficking provision in section 1201 (b)(1)(A) of 17 USC , which was made law by the 1998 Digital Millennium Copyright Act (the DMCA), and secondly, with "aiding and abetting" under 18 USC 2."

http://www.eff.org/IP/DMCA/US_v_Sklyarov/us_v_sklyarov_faq.html

In August he was indicted on 5 counts of violating the DMCA and faces a prison sentence of 25 years and 5 million dollars if convicted. A very harsh sentence for a man who did nothing more than publish his work on the quality of the eBook encryption and help his employer develop a piece of software that is legal in Russia.

So what did Dimitri Sklyarov do? He published a paper on the flaws in the Digital Use Management technology Adobe(tm) uses in their eBook format. Dimitri was performing a service that organizations like consumer reports perform all the time. Mr. Sklyarov then assisted his employer, Elcomsoft of Russia, to make a software program called the Advanced Ebook Processor. This software was designed to allow the legal purchaser, and only the legal purchaser of an eBook the ability exercise their fair use rights. The function of the software was to convert the file from Adobe(tm) eBook format to the more flexible PDF format. This is similar to the conversion of Microsoft Word(tm) to WordPerfect(Pm) formats. By allowing the conversion from eBook to regular PDF, owners of the eBook could then copy the book to their laptop, and backup the eBook in the event of a hard drive failure.

For his paper and his contribution to the Advanced eBook Processor Dimitri was arrested in Las Vegas after presenting at a conference. He was put in jail for three weeks before being released on $50,000 bond. He has since been indicted on 5 counts and faces up to 25 years in jail.

Without software like the Advanced eBook Processor, even something as common as a hard drive failure could render the book unreadable by the lawful owner and require the re-purchase the eBook. While certainly an attractive situation for the publisher, this extremely consumer unfriendly approach represents a gross violation of consumer rights and the publics rights under copyright.

As to the "exceptions" to liability under the DMCA. They have as yet proved useless to pretty much everyone who has been persecuted under this law. This includes not only Mr. Sklyarov but professors, security professionals, and animal rights groups.

In the last 12 months the negative affect of the DMCA on freedom of speech and innovation in the last year is evident.

There is the case of Professor Edward Felten of Princeton University being threatened with a lawsuit over publishing a paper critical of a new standard for digital music. http://www.eff.org/Legal/Cases/Felten_v_RIAA/

There is the case of the animal rights group had their web site removed based on a letter claiming they were in violation of the DMCA. This case also demonstrates the flaws in creating ISP liability in the event their customers commit copyright infringement. In this case it required nothing more than an e-mail from the offended company to take this group offline. The power the DMCA gives companies to suppress whistle blowers and critics is frightening. http://www.salon.com/tech/log/2001/08/31/dmca_animals/index.html

There is 2600 Magazine who was sued under the DMCA for creating a web link to the DeCSS code. The DeCSS code was developed to allow DVD owners to view DVD's on alternative operating systems like Linux and BSD. In this case 2600 magazine was prevented from linking to the DeCSS source code while the New York Times, who linked to the same code was not even questioned. http://www.eff.org/IP/Video/MPAA_DVD_cases/

Alan Cox, software developer and key figure in the Linux community resigns from Usenix. Refuses to travel to the US. http://www.newsforge.com/article.pl?sid=01/07/20/1228200

Noted Cryptographer and contributor to the advanced encryption standard(AES) to replace DES refused to publish his critical analysis of a digital use management technology from Intel. In this case Niels Ferguson is not even a US citizen, nor does he reside in the US. However because he must do business with the US he has been advised by legal counsel to not publish his work. http://www.macfergus.com/niels/dmca/cia.html

Even the Russian government has gone as far as to issue a travel warning to all its programmers and technologists not to travel to the US.

There are many more examples of the excessive use of the DMCA. It is obvious that this overly broad and constitutionally questionable law has had far reaching and detrimental affects on freedoms and innovation. It is my hope that the Canadian government considers these effects as it moves toward reform of our copyright Laws.

There is one additional issue under the DMCA that deserves mention. It is with regards to ISP liability. Under the DMCA ISP's are liable in the event that their customers distribute copyrighted material. As a result ISP's, either because they are afraid of costly litigation, or are simply owned by the same corporations that sponsored the DMCA, revoke customers Internet access arbitrarily. In most known cases to date the ISP has acted on on nothing more than an e-mail. In practice this provision of the DMCA serves to give corporations the power to silence critics and whistle blowers with little more than spurious claims of copyright infringement. This provision represents a gross misuse of injunctive style relief without even the chance for the accused to defend themselves before a judge.

The preceding represent only a few examples of the negative effects of the DMCA. For more information on the far reaching impact of the DMCA please visit http://www.eff.org

3b. Comments on the SSSCA(Security Systems Standards and Certification Act)

While not yet law, the SSSCA builds upon the foundation of DMCA. The SSSCA goes beyond simply restricting the creation of technologies which can be used to circumvent Digital Use Management systems. The SSSCA does nothing less than encode in law the requirement that all digital systems use Digital Use Management technology.

"(a) In General -- It is unlawful to manufacture, import, offer to the public, provide or otherwise traffic in any interactive digital device that does not include and utilize certified security technologies that adhere to the security system standards adopted under section 104."

http://www.politechbot.com/docs/hollings.090701.html

To say that this law is extreme is an understatement. In this one paragraph it effectively puts an end to freedom of choice and innovation in software industry.

As a citizen of the free and democratic nation of Canada I am shocked that the US, similar to Canada in ideals could even contemplate such a law. The SSSCA, if passed, would simultaneously remove rights to free speech, property. It would also instantly extinguish entire thriving software industries. In particular this would bring to an end to Open Source and Free Software. The SSSCA and Open Source Software are simply incompatible. Passage of the SSSCA would make criminals of the very people that develop and support the software that forms the foundation of the information age.

It is doubtful that any but the largest software and technology companies would be able to acquire the "certification" required in the law. In addition since the definition of "any interactive digital device" is so vague as to include any possible digital device from supercomputers to alarm clocks.

That I urge the Canadian government to not even consider such legislation is an understatement. Its negative affects on freedoms and innovations are incalculable. In addition I would ask that the Canadian government consider steps that could offer some protection for Canadian citizens from laws like the DMCA and the SSSCA. The United states has demonstrated again and again that they are willing to apply their laws to citizens of other countries often in clear in violation of International law.

4. Innovation

Innovation and technological advancement are a cornerstones of Canadian society. Through open discourse and the sharing of ideas and knowledge we have conquered diseases, developed new ways to grow food, brought fundamental knowledge about the universe within our grasp, and created a world in which we are proud to raise our children.

This innovation is possible because we learned long ago that by working together and sharing our ideas we could accomplish tasks far in excess of our individual abilities.

Changes to copyright, changes which tip the balance in favour of copyright owners, threaten the very ability for us to innovate and progress. Particular when those changes are designed almost exclusively to protect the rights of large multi-national media corporations to the detriment of the public and creators alike.

We need to recognize, in law if necessary, the right to innovate. We need to recognize the right to reverse engineer, create software and technologies without undue government interference. We need to allow the creation of devices that ensure the publics rights under copyright upheld. Failure to recognize the value of techniques like reverse engineering puts the advancement of society and technical innovation in jeopardy.

5. Freedom and Privacy

Richard M. Stallman, founder of the Free Software Foundation(FSF) wrote a fictional story in 1997 called "The Right to Read".

http://www.gnu.org/philosophy/right-to-read.html

In this story R.M.Stallman talks of a world where the main character, Dan Halbert, struggles with the risks associated with allowing his girlfriend, Lissa Lenz, borrow his computer. The source of his concern is that if he lends her his computer she might read his books. Dan's conflict stems from the government enacting legislation to limit the use of a book to only the original purchaser. In addition the computer has Digital Use Management technology that allows the publisher to track by who and when the book is accessed.

In 1997 I am sure this story seemed like a impossible fantasy. Since then we have seen the US passing of the DMCA in 1998 and the introduction of the SSSCA in 2001. If the SSSCA passes in the US congress this story will become prophetic.

The question I think that Canadians have to ask is do we want to live in the world that R.M.Stallman talks about. A world where even the reading of a book is controlled and logged.

One of the fundamental components to Digital Use Management is the identification and tracking of the owner of the copyrighted work. This is absolutely necessary to ensure the effectiveness of the Digital Use Management technology. Legislation that protects Digital Use Management, either by preventing the creation of circumvention technology, or by the mandated use of Digital Use Management is incompatible with the publics right to privacy. A right that we have established in law here in Canada.

5. Summary

I started this essay with three questions. I would like to speak directly to them.

- Set out a new exclusive right in favour of copyright owners, including performers and record producers, to make their works available on-line to the public;

I do not believe that any new exclusive right is required beyond that afforded under existing copyright legislation. Copyright law already provides remedies for copyright owners in the event their works are copied and distributed without permission.

For all the fear that Napster spread among traditional media I do not think that we can give too much weight to its effect. Especially considering there is little if any credible numbers to demonstrate it had any negative effect on record sales.

There are many success stories of Digital Distribution of copyrighted works in the digital age. In fact the Internet itself and its success is probably the best example of how creators can publish and thrive in an open free environment. Other excellent examples are;

The Baen Free Library at http://www.baen.com/library/ where you can download electronic copies of paperback published by Baen Books.

MP3.Com at http://www.mp3.com where to can listen to music that will probably never be heard on the radio.

Does the digital age redefine the role of publishers? Certainly it does. However every new age carries with it change. Perhaps publishers should examine how they can work and thrive in this new age rather than trying to keep us standing still. Instead of shattering the looms of change publishers should be embracing them and the opportunity they represent.

For all of the risks of digital publishing the opportunities are even greater. For the first time creators can really get in touch with their readers. This is not a theory. Search the Internet for Libraries. The amount of original work is astounding. The digital age opens opportunities for authors and artists who may never have been able to be read or heard if they had to rely on the existing publishing industry.

At the very least I urge the Canadian government to proceed slowly and cautiously. Take the time to examine in detail the true effect of the digital age on all creators and publishers, not just those that are rich and powerful. We may need legislation of some type eventually, but I urge caution. We have only just begun this digital revolution, let us not sacrifice the promise of the future for the short term goals of the present.

- Prevent the circumvention of technologies used to protect copyright material; and,

- Prohibit tampering with rights management information.

I have already provided several examples that demonstrate how legislation like this can be used to stifle human rights and the public's rights under copyright. Moreover what is preventing corporations from declaring any technology they create a rights management system. In effect all technology would be off limits for research, reverse engineering and improvement. We may as well call off the information revolution right now.

In addition to the negative effect on freedoms and fair use it is impossible to apply legislation like this fairly. An example is the case of Professor Felten of Princeton. Much of the work he has done with regards to his research into SDMI, a digital rights scheme, is also directly applicable to the sciences of geology and seismology. Should work in this area be suppressed merely because it could be used to circumvent rights management systems? Moreover should seismologists and geologist be concerned over their legal liability in the event their technology is used to violate copyright?

There no way to separate out "evil" software from "good" software for the same reason you cannot separate "evil" crowbars that will be used for crimes from the "good" crowbars at the crowbar factory. It is the use of technology that is lawful or unlawful, not the technology or its research.

Software is far too general to apply this type of legislation to. In an example of how ludicrous laws like the DMCA are there is a mathematician that has published a prime number that is mathematically identical to software that allows the decryption of DVDs.

http://www.utm.edu/research/primes/glossary/Illegal.html

Is the Canadian government suggesting that we make certain prime numbers and research into them illegal? Perhaps we should outlaw all research into prime numbers in the event they could produce equivalents that can be used to circumvent rights management schemes.

From what I understand in Canada we punish illegal acts, not the potential for illegal acts.

It is true that laws like the DMCA do afford thin protections for technology provided it have "substantial non-infringing uses". Unfortunately in the case of novel or new technology how do we establish this standard? If the Xerox(tm) method of copying documents was invented today instead of 50 years ago would we suppress it merely because we have not yet established "substantial non-infringing uses"? Certainly the capacity for copyright infringement using Xerox machines is substantial. Think of the loss to society and innovation had the government suppressed that technology.

It is already illegal to publish copyrighted material without the creators or publishers permission. Making circumvention technology illegal, or the act of circumventing digital rights schemes is an end run around copyright by publishers. For all intents and purposes legislation like this destroys all of the publics rights to fair use.

Moreover it is not clear if it is even possible to create digital rights schemes that can be effective. To quote respected cryptographer Bruce Schneier, digital rights technologies and their proponents are "Trying to make water not wet". Any attempts to legislate water to be not wet will only result in the oppression of the public and the elimination of their rights.

Canada is standing on the edge of the Digital Millennium. Never before in human history has the ability to bring creators of ideas so close to the public that uses them. We have an opportunity to ensure that the freedoms to create, innovate and use new ideas are available to all Canadians for all time. The Digital Age brings amazing new opportunities and also some great challenges. We must not sacrifice the future for the sake of the present.

Sincerely

Tim Bartelsman

All trademarks are the sole property of their owners.

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