ARCHIVED — John Stevenson

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 John Stevenson received on September 15, 2001 via e-mail

Subject: Comments - Government of Canada Copyright Reform

Intellectual Property Policy Directorate
Industry Canada
235 Queen Street
5th Floor West
Ottawa, Ontario K1A 0H5
Re: Comments - Government of Canada Copyright Reform

I am writing to comment briefly on the Consultation Paper on Digital Copyright Issues.

My name is John Harris Stevenson. I currently work as the Web Strategist for the International Development Research Centre, a federal Canadian crown corporation with an international presence. For eight years I worked at all levels of Canadian community radio, and for two of those years I was President of the National Campus and Community Radio Association. In 1992 and 1993 I had the privilege to represent community radio before the Copyright Review Board on the issue of music license fees. I hold a Masters degree in Media Studies from Concordia University.

I am writing today because I do not want to see the government of Canada repeat the mistakes of the American government in its treatment of copyright and new technologies. I believe that measures based on the American Digital Millennium Copyright Act (DMCA) destroy important rights of fair use long enjoyed by Canadians. Some of the proposals contained in the Government's Consultation Paper on Digital Copyright Issues serve only corporate copyright holders.

From open to proprietary media technologies Audio technology available to consumers has been changing, in fits and starts, for more than 100 years. An in-depth analysis of this is obviously beyond the scope of this submission, but it is useful to recognize what has been a slow transition from open to proprietary technologies.

When the long-playing record (LP) was introduced by Columbia in 1948, there were no basic patents on the technology. The format was not exactly an open standard; if a competing record company wanted to produce LPs, they had to reverse engineer the technology, which RCA did in 1950, and began releasing its own LPs.

Something very different happened with the development and introduction of the replacement of the LP, the compact disc (CD) in the 1980s. In 1980 Philips Electronics and Sony, two leading consumer electronic firms, proposed the creation of what became the CD-DA, or "Red Book" standard for creating CDs. As with the LP, the companies that developed the standard, in this case Sony and Philips, benefited from doing so, but at the same time, insured the standard was open. Anyone could make a CD using the Red Book as a guide.

The most important current consumer media format is the Digital Versatile Disc, or DVD. In 1995 a number of consumer electronic firms announced competing standards for putting broadcast-quality video on a CD, and agreed to on a new standard to be called DVD. They formed the DVD Consortium. Unlike the Red Book CD format, the DVD format requires a license to produce DVDs, and the "standard" is open only to those who can afford it.

DVDs, new media, and the end of fair use The DVD format also introduced two new technologies: regional encoding, which limits what DVDs can be played on what DVD players, and a copy protection technology called Contents Scrambling System (CSS).

DVD and CD differ significantly in what they allow the owner of the disc to do. If, for example, I wished to digitize a music CD that I own, and place a music file on my home and work computers in MP3 format, technically I can do it. I own the CD, and can only listen to one copy of the song at a time. I believe that, as a consumer, I can copy the CD for my own use, and that this is fair use. If I give away copies of the CD, or of the MP3 music files I have made, I am violating copyright.

This is impossible with a DVD; the CSS technology encrypts the video on the disc, and technically I cannot copy it.

Similarly, I can purchase a music CD anywhere in the world and play it on my home CD player. If I have an interest in an obscure jazz musician from Japan whose music is not available in North America, I can order the CD from Asia.

This is impossible with a DVD. Discs created for Japan do not function on a regionally encoded DVD player, so if I purchase a DVD movie from Japan, Europe, or South America, it will not work. That is not a very good situation for people with an interest in world cinema, obviously.

Both CSS and regional encoding technologies have been developed to combat DVD piracy, yet are not effective. While law-abiding consumers cannot backup their DVDs, it is possible for pirates to use DVD replication devices to mass produce pirate DVDs.

What we are seeing with the DVD, then, is something of an industry land-grab of what were once consumer rights. With the DVD, we have a very different approach to media technology then we found with either the LP or the CD. We have a technology that is controlled by what amounts to an industry consortium that actually takes rights away from the consumer.

There are no competing consumer digital video formats. They do not exist, and cannot exist the way the industry is currently structured; the people who make the DVDs and the people who produce the content are one in the same. The bulk of world popular media production is limited to only a very few, very large trans-national corporations. The creation of an alternative to DVD that was not supported by all large media producers is impossible to imagine.

Record labels are currently experimenting with CD copy protection. One technology allows CD to play on consumer CD players, but if the CD is digitized into MP3 files, audio artefacts and distortion are introduced.

Digital Millennium Copyright Act On top of industry-imposed limits on the rights of media consumers, the United States has specific legislation that deals with the encryption of media, called the Digital Millennium Copyright Act (DMCA). The DMCA directly limits consumer rights by making it illegal to even explain how to unencrypt a DVD in order to backup the media it contains.

Two years ago there was no DVD player that worked on the open source Linux operating system. Because of the nature of the community that supports the Linux platform, an informal group of programmers came together to reverse-engineer the technology in order to create a Linux DVD player. They created DeCSS, a Windows application that allows DVDs to be unencrypted. What they developed has little practical use for pirating DVDs, as such files are more than 4 gigs, and it is more expensive and time consuming to decrypt and then copy a DVD then it is to purchase it at a retail store.

The DVD encryption scheme is very poor, and was easily defeated by European computer hobbyists. Instead of recognizing that DVD encryption technology had failed, the DVD consortium attempted to paint DeCSS and the open-source DVD project as piracy.

As I wrote above, the long-playing record became popular because recording companies other than Columbia reverse engineered it. Today, the Digital Millennium Copyright Act makes reverse engineering of such technologies illegal. We have therefore lost our right to reverse engineer, as any media technology can now include some sort of encryption.

Real effects of DMCA

What are the real world impacts of legislation like the Digital Millennium Copyright Act? So far in the United States, we have seen academics fearful of publishing their research, software engineers from overseas arrested, and a general chilling of discussion around encryption, reverse engineering, and technological innovation. There are numerous examples of this, but I will briefly describe two below:

Dmitry Sklyarov is a Russian computer programmer and cryptographic researcher who helped create commercial software that decrypts the Adobe eBook format to bypass hampering restrictions that publishers may impose. The software only works on legitimately purchased eBooks, and has been used by blind people to read otherwise-inaccessible PDF user's manuals, and by people who want to move an eBook from one computer to another. While visiting the United States for a conference in July of this year he was arrested on charges of "trafficking in a product designed to circumvent copyright protection measures" in violation of the anti-circumvention provisions of the DMCA. Sklyarov and his employer contend that the software they developed is legal in Russia. Sklyarov is currently awaiting trial in US federal court.

In 2000, The Recording Industry Association of America (RIAA) and the Secure Digital Music Initiative (SDMI) issued a public challenge to researchers to attempt to break new security systems that were being developed to encrypt digital music. A team led by Princeton University professor Edward Felten accepted the challenge and successfully defeated the technologies. His team authored "Reading Between the Lines: Lessons from the SDMI Challenge" explaining their research findings, and the paper was accepted for publication at the 4th International Information Hiding Workshop Conference in April 2001. Just prior to the conference, the Felten received a letter from the RIAA and the SDMI that threatened a lawsuit against the professor, his team, their universities, and the workshop organizers if the paper was published. The RIAA is a trade group that represents the U.S. recording industry. Its members create, manufacture, and/or distribute approximately 90% of all sound recordings produced and sold in the Unite d States. Felten is suing the RIAA and the SDMI. In the guise of fighting media piracy, the DMCA has given commercial interests the ability to constrain academic freedom, limit consumer choice, and squash technological innovation.

What sort of future?

Imagine a world in which books are copy protected and encrypted. In order to create a book, one must licence technology to produce it, promise that it will only work in certain countries, and make it impossible for people to copy it for their own use, or distribute fragments. As well, it is also illegal to simply tell someone how to open and read a book without the publisher's authorization.

Now, replace the word "book" with the word "movie" (in the form of the DVD format) in the account above and we are considering not the future, but the present.

It is important to understand the implications of DMCA-like law in Canada. It would turn over to media producers the right of fair use, and eventually the right to free speech itself, rights that Canadians take for granted.

Recommendations

In section 4.2 of the Consultation Paper, Legal Protection of Technological Measures, the Government asks:

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

We must work to create a legal environment that balances the rights of producers and of consumers. Any amendments to the Copyright Act that prevent the circumvention of technologies used to protect copyright material should also include the rights to circumvent access-control measures for the following purposes:

reverse engineering,
security testing,
making works available to students and members of the public within an institutional context by libraries, archives, and educational institutions,
identifying and analysing flaws and vulnerabilities in encryption schemes,
determining if an access-control mechanism is divulging information about the consumer's use of a product,
determining what Web sites are being blocked by Internet filtering software,
determining if encrypted software has been designed to adversely affect a competitor's product or damage a computer, and,
making a backup copies of media, for limited personal use.

Canadian law should target pirates, not researchers, librarians, software developers, and consumers.

I am available to participate in the proposed consultation meetings, which may be held later this year.

Sincerely,

John Stevenson