ARCHIVED — Austin Hook

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 Austin Hook received on September 17, 2001 via e-mail

Subject: Comment on the Framework for Copyright Reform

I am writing from Calgary, where I manage the world's longest standing computer store. I have been involved with computing since 1959, back when I used a computer based on vacuum tubes, punch cards, a drum memory, and a bi-quinary front panel to key in the boot code.

It's mostly been a fascinating journey, but now I feel a chill in the air. I have little faith in this process of public submissions to comment on the so-call "intellectual property" steamroller. It has been set in motion by the mega-media giants, seeking to expand their territory of control. I believe that the decision to proceed with legislation along the lines of the US's DMCA has already been made, and that it is easy for those in charge of evaluation of these submissions to proceed with implementing their prejudices, and to dismiss, out of hand, the objections of those who have pioneered in the computing field.

The next level up, will not able to fathom the subtleties, so if the fix is in, there will be no way to get a fair evaluation. The evaluators merely have to say: "See, we got a range of opinions, and we pick these and not those." No one will take into account that the writers of opinions against a Canadian DMCA are not paid for their time, while high paid lawyers and lobbiests can afford the time and effort to favor it, since they are paid for it. They can spin and spin plausible sounding "technical" arguments, and not have to cut short and go back to making another living. After all this public submission process is supposed to be on the technical merits, right? Of course the real problem, and the real need for input, is from a political perspective.

I noticed a similar process in a recent European request for public comment where 90 percent of the respondents were against the adoption of software patenting, but the 10 percent of the respondents, who often represented large industry organizations, were felt to out weigh the considered opinions of individuals. It seems that the balance is made on a sense of economic weight of the organizations versus the individuals -- not even considering that the individuals within those industrial organizations, their employees, might not have the same opinion as the employers. Even stockholders, consulted directly, not through their proxy financial representatives, might not have favored such a thing -- it was just a measure of economic weight of the industries involved. Government should not be driven by proxy holders. It should seek the consensus of the public.

The problem, as I see it, is that the political cost of not proceeding with legislation along these lines is high in terms of risk of reducing donations to political parties from the large corporate lobbying groups, and the subject is sufficiently obscure to the general public so as not to risk backlash in the near future. Hence it boils down to mere political Machiavellian calculation.

Nevertheless I will review my deep felt concerns that the proposed changes in legislation to comply with WIPO requirements represent a significant step in the ongoing assault on freedom of communication. This is a road that Canada has traveling with increasing frequency since I immigrated here in 1968, but especially in recent years where the tools and potential of communication have been so much improved.

Lets spend a moment looking at constraints on communication that have arisen in the time of the baby boomers:

1) Although coming to an end in the sixties, I recall the Indian residential schools where use of native languages were forbidden to the forced students. I don't think I have to comment further on how evil was that.

2) In Quebec, look at the legislation to limit and control English commercial signage; and to restrict the use of English in the workplace. Of course there is a large overlap between "commercial" expression and personal expression. Everyone has to make a living, and it is a false distinction to try to legislate a difference between commercial and personal expression, at least at the level of small business and individuals making a living. At the low end, of course, is where that kind of linguistic racism is most harmful. As we have seen, it's the small businesses and proprietorships that really get hurt by linguistic intolerance. These are really individuals, not just "businesses".

3) The legislation to control so-called "hate speech", which by trying to bury the most extreme expression of racism and similar prejudice, lulls us in to forgetting how much is present in daily life, and how much it needs to be ridiculed in order to keep it from quietly spreading.

4) And remember the subject of prostitution? Where we are such wimps that we can't ban it outright, we can't even pass a zoning law, but instead, pass legislation to ban "communication for the purposes of prostitution". Clearly respect for the idea and the preciousness of the freedom to communicate comes last in the Canadian political mind when it is the first thing we consider interfering with to effect some other expediency. You could pass a lady on the street, and be merely asking "how much to you charge? and is that reason enough to give up a proper life?" But a judge will never believe the second part of the question was what you were driving at, so you will never even reach out to one of these unfortunate people. You will be afraid, just like in a dictatorship where you are afraid to criticize the generals. Sure, you could establish your credentials as a street social worker, long in advance, and be known to the cops, or get off in court due to the special circumstances, but the law has driven even normal, possibly beneficial, social contact away from these people. Suppose your weren't allowed to talk directly to your friends without a social worker to do it for you. Do you really think your friends would get the full benefit of knowing you?
The real "Johns", well they probably just change their language, invite the lady out for a "date" or to see a home video, or something, and the law to interfere with prostitution become pointless, and just prevents normal communications.

5) Remember also the attempts to restrict privacy of in attempting to ban the use of cryptographic methods in communication? Canada is signatory to the Wassenaar agreement which declares programs that encrypt data may in many cases be redefined as "armaments", and hence restricted from export. Since programs are information, that method of preventing access to privacy was, in itself, a restriction of freedom to communicate. Happily Canada's implementation of this agreement was both so lax, and so narrow as to be ineffective. Now that the US has largely given up on the Wassenaar understanding, it is unlikely Canada will act further. The only remaining purposes of this kind of legislation, like so many other un-enforced laws and regulations, is as part of the standby tool chest of clubs to beat down someone who happens to someday challenge some egos in authority. The question is: why should we always build up more and more legislative baggage like this?

6) In Calgary, we recently learned that it is an offense to communicate to another motorist that a radar speed trap is upcoming. Now there is a rather ambiguous law against "stunting". We know that is meant to stop people from doing dangerous things like riding unsecured on the top of a car, or taking corners on two wheels or such. With the usual slight of hand of hurt authoritarian ego, this communication of an upcoming speed trap is now redefined as "stunting". The problem with creating new classes of "criminal" offenses is that it also creates opportunities for misguided abuse of the law by authorities who enforce them, and whose notions of what their meaning was supposed to be, is different from that of those who put the legislation in place. Enforcement actions are often more mediated by expediency of satisfying the frustrations of the enforcers than the achieving the actual results sought. Those who pass the laws are not those who have to enforce it. Therefore one should be very very reluctant to proceed with creation of new classes of criminal behavior.

Of course there are many traditional constraints on communication. I am sure yelling fire in the movie theater and other problems are well enough discussed elsewhere. I am just saying that almost every other constraint on communication has socially damaging side effects.

In the case of criminalizing rights management circumvention software, even the legislators just don't really understand what programmers know instinctively: software is language! It's really hard to get that across to those who have not become fluent in any software language. So if the legislators scarcely understand the quagmire they are entering; how well do you think the enforcers will understand it?

Criminalizing this is a terrible assault on the language that programmers express themselves with. And there is no real difference between a program and a mathematical algorithm expressed in a sufficiently clear language. So even mathematicians are going to get caught up in this awful machinery, if it becomes law.

I should note that mere civil penalties are not that much different than the effect of making something criminal. Someone could lose his entire life savings, and college for his kids, if some over-zealous enforcer decides to make a career move and finds a chance to persecute him/her for playing with a decrypting algorithm. You say chances of his being found out are small, if he just does it at home for private education? You haven't met his vindictive ex-wife yet!

What about Mickey Mouse LTD losing it's opportunity to make more profits in new areas, you say? But I say, what about Mickey Mouse's continued opportunity to make its profits in it's traditional areas of business? You can still publish a comic book, even in the Internet age. You don't have to put it on a web site if you don't want to. Not giving Micky Mouse LTD a free trump card in the new media game does not explicitly take anything away from him.

You claim that the comic book itself is endangered because of the ability of inexpensive digital devices to transform it into mere bits of information? That therefore that old media will become too vulnerable, if it can never be replaced with digital rights managed media? But experience shows that new media don't replace the old. They supplement it. There is still theater after the radio and the movie were invented. There are still movies and radio after the the TV, the VCR and the DVD were invented. There will still be newspapers and books after the Internet and DRM schemes became became available. You tell me that the market for computer games is going to explode once DRM tampering is criminalized? I tell you that market is already saturated, without criminalizing DRM tampering! The mega media people, and individual writers and performers, will still have plenty of opportunity to continue doing what they like best. I can't guarantee there will be exactly the same attention paid to every medium for all time, some will grow a bit, and some will shrink a bit. But that does not give cause to virtually hand over police powers to the old media interests.

The point is, and you know as well as I, that so long as there exists a method of communicating it to my eye or my ear, then there will be some relatively low tech way to record it and copy any DRM media you can invent -- unless you legislate installation, and criminal penalties for tampering with, a chip in everyone's brain. So why make criminal a tool to explore a DRM scheme that cannot possibly be relied upon for more than a few months or even just days? DRM is just a pipe dream. Every real programmer knows it, even if lobbiest lawyers cherish their wet dreams of total control.

Commercial sales of DRM breaking software will never be profitable -- unless it has some other purpose than just making a million copies. You only need one stripped DRM media to make the million copies. How are you going to sell your next copy of that DRM breaking code, if that is what it's main purpose is? So the main purpose of any commercial DRM breaking software, by internal contradiction, cannot possibly be for breaking copyright, even if in some cases, that might be an incidental consequence of its existence. Commercial software for breaking DRM is not the real threat, even if you can find some depressing (to you) instance of it. It's the distribution of the copies that is the problem. And just because that making of copies problem is difficult to solve, it is unbearably lame to then rush off and try to solve one's frustrations by criminalizing other behaviors do not necessarily result in copying, which do have other benefits, and are not in themselves the act of copying.

You know as well as I that few judges will be able to see beyond the "O, it enables making illegal copies -- that must be what it is made for!". So outlaw DRM breaking code, and you will get your automatic miscarriages of justice, since the issue is too subtle for the justice system for handle fairly. Look what's happening in the USA. It's like handing someone a sledge hammer to open his computer case with. You'll never fix the loose cable that way. Accordingly, you don't need to treat the commercial creation of DRM breaking code any differently than the non-commercial creation of DRM breaking software.

You are really worried about the profit incentive to people making money by selling DRM breaking software? You think your copyright laws are so all crucial to the advancement of humanity? How about a non-coercive solution? Is there anyone out there who really has any brains? Here's something you could have have thought of if your real drive wasn't just from being such control freaks: Just explicitly remove the right of copyright protection from any DRM breaking software, or any decrypting algorithm! You could have thought of it right? So why the hangup with increasing the population of the criminal class?

And if the call for old fashioned comic books fades back a bit, well we didn't promise buggy whip manufacturers the right to make as much money selling their products after the electric trolley car was invented, did we? There are always opportunities, but we shouldn't try to legislate being frozen into the past. It's not that copyright should not be protected in the normal ways, but because of the new tools that are available for replication of graphic or audio works, there is bound to be some social structural change. The hard part to realize is that the mere making of simplistic analogies, where digital rights management schemes are taken as metaphors of locks and fences doesn't make them so. Sure that sounds superficially plausible; but it doesn't work that that way in fact. Believing it is just reactionary thinking. And trying to make laws based on such over-simplifications is destructive of the great benefits that are coming into being with communications and information processing improvements.

But more particularly, I as a programmer, should not have to worry about my perl script, or C# program, being used as a tool to get around someone else's digital rights management software. Moreover, I should be able to explore any encryption scheme, in the privacy of my own home, without being afraid that I might create some kind of digital blasphemy that the corporate religious police will strike me down for, should they suspect it, whether or not I even tell it to someone else. For it is merely a kind of self-serving, almost religious, belief that big media has in thinking that the Internet and all computer media should be their protected playground. This proposal to enforce DRM, even at second remove, by criminalizing or financially ruining even those who who make tools to test it, has another problem: there are no clear boundaries, and there never can be clear boundaries, as to what that kind of tool making consists of. Sure you can come up with cases that are pretty clear (maybe only in your own mind though) but for each one, I can show you how the boundaries of that case merge smoothly and imperceptibly into some kind of behavior that is clearly legal. It's similar to the problem of circumscribing pornography, that most ancient attempt at restriction of communications. What do you want to base your boundaries on? Local community standards of API writing? Don't create another legal quagmire of this nature, I beg you.

Just as overzealous enforcement of limitations on erotic communication, can hurt legitimate art, or harmless erotica for that matter, so will inevitable overzealous enforcement of new laws against making decryption tools damage the field of crypto research. Only a program or algorithm can really be convincing as a comment in this area. If decryption experts are not allowed to comment on the robustness of DRM schemes, then those defective schemes will be used for much longer, and far many more works that will later be compromised before use of the defective encoding scheme is ended. Better that authors should know sooner who's scheme to trust and whose not to; it's even better to know when something can't be done, than to merely forbid communication of that fact.

Whoever will know if when they entrust their creation to some inept publisher, that their works are being copied en mass, until many other authors have made the same mistake, and all along they were falsely expecting their royalty rights to be protected. By the time an inept publisher's reputation is sufficiently damaged, by the eventual leak of the truth from the information underground, many more authors will have been deceived. Better to let it all hang out, and make the weaknesses known right from the start.

There are a thousand complications to legislation in this area. I could never cover them all. (And I am not being paid to, dammit.) What if a decrypting program already previously exists for someone's spanking new DRM scheme? What if a legitimate use of one decryption scheme, maybe working fairly with one DRM scheme, makes some other DRM scheme easily defeatable? Oh, I see, you don't mind making guinea pigs of a few programmers -- throw them in jail, serves them right, those nerds with their noses in the air, or rather eyes glued to the screen. Evil hackers, like Sklyarov, shouldn't be allowed to enjoy their young families -- they would only corrupt their own children.... I see.... I see.

Because of the endless complexities of this kind of legislation it must not be implemented by those who cannot even see the far flung ramifications.

I have no objection to publishers trying their DRM schemes; let them learn the folly of it. Just don't substitute bad law for good programming. It makes a horrible mess and people get hurt when society is at odds with itself, and with reality too.

You know, with the latest terrorist horror, we are probably going to see a certain number of further circumscriptions of civil rights in the digital area. But that maybe I can forgive, especially if it proceeds from legislation with time limits on it. Is Mickey Mouse LTD of the same level of national importance? If he gets richer, and richer, at the expense of our new digital freedoms, will he save us from Osama? or is it the new digital freedoms, uncentralized creativity and communications, that might just some day, bring us all together, and end the misunderstandings between cultures that are the source of our real problems?

(http://computershop.calgary.ab.ca/DMCA) More comment

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Yours truly,

Austin Hook

(address removed)


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