ARCHIVED — Kevin Hartmann

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 Kevin Hartmann received on September , 2001 via e-mail

Subject: Copyright Comments

Hello.

My name is Kevin Hartmann.

I'm a computer programmer by profession. I produce copyrighted works, in the form of computer code, for a living. That's how I've made my living for the past ten years. As you may guess, copyright law matters a great deal to me.

I am very concerned about copyright, and the direction that it's about to take in Canada. I see a lot of talk about commerce, and business, and money to be made. I don't see a lot of talk about basic fairness, and the rights of Canadians. That worries me.

I've seen a lot of bad things happening in the United States, where many of the proposed changes in the article have been implemented, badly. I don't want to see my country make those mistakes.

I'd like to address the following topics: Digital Rights Management Liabilites of Internet Service Providers Database Protection Terms of Protection Folklore The Tax on Blank Media: Tapes and CDs

In cases, I'll cite examples of what I've seen happening in other countries, and say what I think is good or bad about it. I've thought a lot about copyright; it impacts my life greatly.

Digital rights management

I'd like to talk first about "digital rights management". It's the most important topic, because it has the most potential for abuse.

This is the issue that has a large portion of the computer industry worried.

I don't think Canada needs any laws protecting "digital rights management". One need only look at the abuses caused by the such a law in the United States of America to see that they've made a horrible mistake, one that I'd hate to see happen in my country. I'm going to explain what I feel are the problem with the Digital Millenium Copyright Act of the United States (the DMCA). I don't think we want anything like it here.

Noted computer professionals from Europe have publically stated that they're cancelling their trips to speak in the United States, due to the DCMA.

"Digital rights" may sound like a good idea. The words sound good. And protecting these "rights" may seem just like real world laws against tampering with physical locks, and other such safeguards. All "Digital rights management" laws share onone fatal f law: it places the digital lock designer's rights to his secret lock design above the lock owner's rights to use his own property.

Let me give a nice, concrete, real world example. I'll then relate it to the issue of digital rights management.

Last year, I was riding my bicycle, and I locked it up outside the University of Waterloo. I had bought the lock myself, and I owned it. But when I went outside in the cold (it was late in the year), the key I had to my lock broke off. My nice bicycle was locked to the University rack. What could I do?

I decided to try to force the lock open. Before I did so, I walked up to the University Police Services desk, and told them who I was, and where I would be, and what I would be doing.

I cut through my lock in under thirty seconds.

I was both impressed, and dismayed. I knew that if I could cut my bike free in 20 seconds, so could a criminal. A criminal with a power saw, and the right blade, could slice through in an instant. I had expected better of the lock makers than what I got.

What should I do now?

Should I tell anyone? Should I be allowed to tell anyone?

I think the answer is: "yes". I should be allowed to tell anyone I want that my lock was built badly, and the name of the company that built it. I should even be able to sue them if the lock didn't do what was promised -- if I didn't get what I paid for.

It's possible that the criminal element of society might not already know of the weaknesses of this particular lock, and use my disclosure of this flaw to target people who own bad locks. But the fault in the lock lies with the lockmaker, not with me for telling people about their shoddy product.

In the long run, I think telling people the truth about the problem is probably a better choice for society. That way, the problem with security can be understood, and fixed. This is the view that the majority of computer security professionals take: the ideal is a system of safeguards that still work when you understand all the weak points, not just something that looks good at first glance. A good safe is one that the designer himself can't open.

Certainly, the lockmaker will look bad as a result of their poor workmanship, as well they should. They may even get a few lawsuits, if they claimed thier product worked better than it actually does.

It's a ludicrous idea that the locksmith should have a right to sue me for telling the world what's wrong with their lock. But in the United States, the digital lockmakers are suing those who find flaws in their products. They're even callin g in the US secret police to throw them in jail. I don't want to Canada to be a place where people get thrown in jail for writing programs.

I'll cite four examples, where people, acting in good faith, have been proscecuted under the DMCA. In one, a university professor is sued for presenting a math paper! In another, a man is in jail for writing software that exposes the flaws in Adobe's popular E-book format. . In the third case, a man is procecuted for having a program, written by someone else, with legal and practical uses, on his web page. He's furthermore been expressly forbidden, by the judge who oversaw the case, to even mention where on the internet such a program can be found. Lastly, there's an example of the chilling power over expressions wealthy corporations have today, in Canada, and the additional strength digitial rights management systems can give them to abuse the public good.

In the United States, a university professor, Professor Felten, was threatened with a lawsuit if he presented his paper on flaws in a proposed standard for "digital watermarking".

Let me say that again: a university professor was prevented from presenting a mathematical paper to his peers because of a badly written copyright law! He did eventually present his paper, after a great deal of public outcry lead the complaintant to drop the suit.

In another, more frightening case, of lockmaker's suing to conceal bad designs, Adobe Systems pressured the FBI into arresting Dmitry Skylarov, a russian citizen who had come the US to present a talk on flaws in Adobe's so called secure "E-book" format.

I've cancelled my travel plans to the USA -- I just don't know their laws well enough to feel safe there. So has Alan Cox, a noted British programmer, who draws crowds of listeners when he comes to speak in the Canada and the US.

I don't think we want that in Canada.

This underscores another important point. The DMCA prevents people from tampering with "digitial encryption systems", or creating tools with which to do so. But tools are what people use to create things with, and even crowbars, clearly destructive tools, have valid, legal uses in the real world. Our law is based in general upon the principal that it's not the tool, but the use to which it is put, that is the issue. Clearly, a just society would judge on that basis. But in the US, it isn't.

A person running a web site in the US is facing legal action for publishing the code to a program developed in Denmark. The program decodes the scrambling codes on a DVD placed in a DVD drive, and produces a viewable output, just like a DVD player does. I t was, in fact, the first step by a group of dedicated volunteer programmers, in producing a free DVD viewer program for the masses. Hardly an unethical goal.

In court, the opposing side argued that the DVD descrambler made copying easier, and forced the person hosting the code to take it down. The judge was forced to try to come to terms with computer technology he didn't understand, and rule based upon it, in a situation where the legislation for digital locks was different from t he real world counterparts.

He botched the case.

The proscecution claimed the program was useful for copying DVDs, and would lead to widespread DVD programs across the internet. This wasn't true, but it was easy to mislead the judge. After all, his background was law, not computer programming. The defen se was unable to make him understand that the program was just a translator, and that both the scrambled and unscrambled versions could be illegally copied, and played by anyone with a DVD viewer program.

It's not surprising the judge botched the case. Digital rights laws don't make any sense. The rule of laws, that tools are legal for citizens to use on their own property, and that when you buy a product, you own that copy of the product, have been washed away by the DCMA.

Digital rights laws took away citizen's rights, in the US. Canada needs to pass legislation clarifying that notwithstanding other rights, Canadian citizens should have the right to reverse-engineer, decrypt, decipher, enhance, critique, study, understand and use their own digital property, no matter what copyrights would otherwise apply. In short, we need to pass legislation that ensures that the digital lockmaker's rights are known not to supercede those of citizens.

In Canada, there was a case that was recently settled out of court. In the US, it probably would have been a complete loss, instead.

A Canadian graduate student at UBC took a look at a content blocking program, called "Surf Watch", made by CyberPatrol, a company that was aquired by Mattel. He found that the list of sites that it blocked were scrambled, but he wanted to do an analysis of how good the program was. He wrote a program that descrambled the list, and then wrote a paper on how well (or in this case, poorly) the program worked. He did a spot check, and found that about one entry in fifty was wrong: that is, about one site in fifty was blocked, as though it contained content that it didn't.

CyberPatrol sued him, in the US, under US law, for actions performed entirely in Canada. ( That insult to Canadian sovreignty went completely unanswered by Canada. ) He didn't go to the US court hearing, since he's a Canadian citizen. He did answer the parallel UBC court case, and, not wanting to spend his life in litigation, agreed t o sell all copies of the program to Matell/CyberPatrol for $1.

Under the DMCA, Mathew Skala wouldn't have a case. He did build a program to de-encrypt data, in a compilation list that the company claimed was intellectual property. He also exposed their program's flaws, to consumers who have every right to be concerned. Among the sites blocked were political sites. At one point, CyberPatrol had updated their lists to block Mathew Skala's site under all categories, including XXX pornography. Fraud? Probably not. Misrepresentation to the end consumer? Most certainly!

I hope I've highlighted some of the concerns with the US government's implementation of "digital property rights" management. I hope I've given some pause to a blind implementation of the same problems here in Canada.

Liabilites of internet service providers.

I worked at an Internet Service provider for over two years. I understand the copyright issues that can arise. I also appreciate that it's simply not the place for a service provider to judge issues of copyright law. It's unfair to ask them to.

It's a serious problem for freedom of expression if an ISP can be threatened with a lawsuit for it's member's content. It's just not in an ISP's financial interest to get involved in it's client's legal battles, so the most likely result of a "notice and takedown" system is just a "takedown", regardless of whether the content is legal or not.

It's also unfair to the ISP: either they are forced to terminate a contract with one of their clients, or they risk damages based upon someone else's legal battle. Either way, they stand to lose money, regardless whether the content is infringing or not.

If an person, or corporation, feels that copyright is being infringed, they should go to a judge, have a trial, and sue the individual responsible for such actions. If the judge rules that the material is infringing, he can force the individual who put it up to take it back down, and to pay damages to the plaintif.

I see no need for special provisions.

In order to make a suit possible, a ISP should be obligated to give the name of the person responsible for the account to the plaintif. From that point on, the person making the complaint should be free to sue the alleged copyright violator, and, if infringement is provide, provide the ISP with proof of infringement. The ISP would then have to take the material down, after it had been ruled illegal by a judge. The plaintiff would be free to sue the defendant for damages incurred during the litagation process, if the case is won.

There should be some futher disincentive under the law to discourage privacy abuse, so that an individual or corporation can't pretend to sue in order to track down someone's identity. Perhaps a financial penalty for not proceeding with a lawsuit after the obtaining the defendant's identity would be in order.

Database Protection

Computer databases differ little from any other form of data storage. I disagree with the principle that a collection of facts can become someone's private property due simply to an index on it. This has the feel of stealing from the public domain, and locking it down again. I don't like that.

If anything, computer databases should be less protected. It does take an appreciable amount of work to keep, say, a card catalog in order. It takes far less work to keep a computer database of the same size in order, and reorganizing data using a computer is millions of times faster than doing the same work by hand. I don't support the notion of allowing someone several years of special protection for the "creative work" of a few minutes of manipulation of publicly available data.

Certainly, even if this notion that known facts may be copyrighted by such a organizing them, in the interests of basic fairness, the right to make an identical index, by first independantly obtaining the same collection of facts, should be preserved. Using known techniques on publicly controlled data shouldn't grant an auotmatic monopoly on the contents, after all!

Terms of Protection

The terms of copyright should be reduced, not extended.

Patents last a reasonable amount of time: 17 years, and they protect new, innovative ideas. Even they are becoming a stumbling block in the computer industry, where the pace of innovation is so great that yesterdays brilliant technique is routine today, and even an average programmer risks inadvertently infriging on an idea he didn't know someone had already staked a claim to.

Many people in the computer industry are truely finding the 17 year term of patents too long, too cumbersome, and a real barrier to innovation. Patents last 17 years, and the computer industry simply learns and grows faster than that. Compare the computers of 1983 to the ones of today, and you'll get the idea.

What then shall we say about the term of copyright, where an author in his twenties, who lives to be 70, can deprive the public domain of his works for one hundred years, more if he lives longer?

An author, who has children to raise, can rightly expect a reasonable term for recompense for his works. But surely, by the time his children are grown, he should be ready to move on, and try something new? Perhaps even write a second book? I propose that a single generation, 20 years, be the new standard for copyrighted works.

A man who writes a book at 20, and dies at 70, holds copyright for 100 years. Let's put that vast stretch of time into human perspective.

In that time, assuming 20 years between generations, the original author, if he had an infant son, could look up from his grave, and smile on the birth of his grandson's grandson. That's six generations. If copyright is extended for twenty years, it's seven generations before the public can benefit from this man's writings. That's too long.

In twenty years, an entire industry can spring to life. Personal computers, considered toys in the 80s, are considered necessities twenty years later. Twenty years of profit on a written work or musical performance seems more than fair. Even though I make my living through copyright law, I'd support such a measure whole heartedly.

To be exceedingly generous to my detractors, I would even support a further 20 year 'exclusive corporate use' rights, for which the author could generate further revenues. Non-profit distribution of works after 20 years seems reasonable; let the kids copy their parents' 20 year old beetles albums. If they want the nice versions with the autographed liner notes, they can still buy those for the next twenty years from the aging rockstars.

Folklore

European folklore is in the public domain. So is Asian. So is African. So is Australian. Why should North American folklore, or South American, be an exception?

Our history and heritage belongs to all our people. I see no reason for Native Canadian folklore to be treated differently. The principal of basic equality answers this question. I'm surprised it's listed on the agenda.

The Tax on Blank Media: Tapes and CDs

And lastly, while you're reforming the Act, please consider some basic fairness. The tax on blank CDs is not fair! Blank computer writeable CDs were developed specifically by the computer industry, for use with computers. To assume that the music i ndustry should get the tax money because people are making illegal copies is to presume guilt instead of innocence, and punish the innocent with the guilty. Our laws should be more fair than that!

Copyright violations happen at least as much with computer programs as with music. Yet I've never heard a proposal to pay programmers for every hard drive sold. I wouldn't support such a proposal, either -- I'm trying to make a point about basic fairnes s.

The fact blank CDs can be used to copy music doesn't mean that Canadians suddenly owe the music industry a free handout!

Please remove the tax. Let the Canadian music industry live or die on it's own merits. It's the only fair choice!

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