ARCHIVED — A David von Bobzibub

COPYRIGHT REFORM PROCESS

REPY COMMENTS

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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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Reply comment from David von Bobzibub received on October 05, 2001 via e-mail

Subject: I would like to make a few comments..

Departments of Industry Canada and Canadian Heritage;

My comments pertain to the section listed below of the following paper:

CONSULTATION PAPER ON DIGITAL COPYRIGHT ISSUES
4.2 Legal Protection of Technological Measures

And also to the submission by the CMPDA.
http://strategis.ic.gc.ca/SSG/rp00343e.html


First, I would like to make an additional comment regarding the disabling or circumvention media content controls. I wish to give another example of why this can be a good thing.

I lived in Vancouver, BC (though now in Denver) for about 5 years. The Greater Vancouver Regional District are but one example of why a content control mechanism deserves to be broken. Please let me explain:

The new "standard" for videos is the DVD. A DVD player typically has one geographic "region" where the DVDs will play. If a DVD is coded into region X and the player is coded to region Y, the DVD will not play. Many players can be "reset" only seven times before they are fixed for good, regardless of whether one turns off the machine.

Consider the proportion of the population of Vancouver which is of, for example, Asian ancestry. I believe this is approximately 30% of Vancouver, and higher in some cities in British Columbia. These people must make difficult choices regarding their DVD purchases. The regional content control system places these people at a disadvantage because if they have relatives sending a DVD as a gift, or if they bring a DVD over from their former home, they will have difficulty playing their own DVDs. There are, of course, other peoples which have strong ties to other countries and this fact makes this problem more acute.

The DVD players which produce the NTSC signal and run on 110 volts are typically encoded to region "1" or North America, so they will not play the foreign media that they have purchased. They have a choice between viewing only North American DVDs or viewing DVDs from their former home. This is inconvenient to say the least.

In Canada, we claim to be a multicultural society, yet we allow companies to restrict consumer's choices in this way. It prevents me from purchasing a Hong Kong DVD, even if it has English subtitles (which I would require). The DVD must be created from some plant in North America, which restricts my rights as a consumer. This is to the detriment of everyone who owns DVDs, not simply ones who move from one region to the next. This will restrict my choice of foreign DVDs if I have an interest in foreign content.

Laws like the paper proposed will prevent companies from producing players or software writers from producing software that circumvents these monopolistic practices. This will prevent many people in Europe or Asia from purchasing Canadian produced DVDs due to high cost or because they are simply unavailable. It will harm sales of independent movies disproportionately hard due to shrunken markets, unless the creators happen to have a deal with a major distributor. (Perhaps this is a reason for DVDs being quickly adopted by major studios.)

DVD players ought to be able to play a DVD from anywhere in the world. The content owners have developed this system supposedly to stop the pirating of content. This will not prevent those pirates with the equipment from pressing a pirate DVD, and simply altering the DVD region code during pressing. The actual reason is to force higher prices for "block buster" movies, by preventing any competition among DVD producers--and perhaps to block international markets for many independently produced films.

Regardless of WIPO, The Bern Convention, the WCT, and the WPPT, Canadian consumers and independent producers deserve better than this. A Canadian should be able to purchase and view an independent movie from Bombay, Brussels, or Budapest in DVD format. People from these cities should be able to purchase a Canadian independent DVD movie also. Not only should it be legal to circumvent regional encoding, but regional encoding should be illegal.

Since Industry Canada or the Dept of Canadian Heritage (or the Competition Bureau) has not seen fit to make regional encoding illegal, please allow companies, groups, and individuals to circumvent this monopolistic, anti-consumer and mean-spirited content control. And others like it.

One specific section of the CMPDA's submission is the comment regarding ISPs. (I hope they do not mind me quoting from their submission. With a DMCA in affect in Canada, they could disallow it.)

"26. Copyright owners and other interested parties should have the ability, in the absence of voluntary compliance, to obtain an order requiring an ISP to comply with the notice and takedown regime and such order should be available ex parte by way of a summary proceeding."

Some like summary justice. The comments remind me of the bruising that free speech has taken in the US with the Digital Millennium Copyrite Act. I invite you to read this paper on the topic, which discusses how one organization has successfully used it to squelch free speech in a country that worships free speech:

http://www-camlaw.rutgers.edu/publications/law-religion/scientology.htm

One comment from the paper is particularly relevant here:

"The DMCA, by 'requiring' ISPs to remove speech that may or may not actually be infringing on the copyrights of others, creates a kind of 'prior restraint' (99) that comes at substantial expense to individual Internet users and free speech. (100) (On a side note, while some may argue that the DMCA does not qualify as a 'prior restraint' because it is carried out by individual private plaintiffs, the DMCA may, in fact, be construed as state action because it provides the procedural and substantive mechanism with which private citizens are able to silence potential speakers.) (101) The facts and holdings as they relate to two particular parties in the Scientology litigation illustrate the dangers to free speech on the web."

A few working examples of this type of summary justice:
http://slashdot.org/articles/01/03/16/1256226.shtml
http://www.infoworld.com/articles/op/xml/00/10/23/001023opfoster.xml?1025weic
http://cryptome.org/mormon-dmca.htm

The legislation that the CMPDA proposes is much too strong, and many forms of controversial speech--the kind that is most important to publish--will be censored by unwilling ISPs without the legal resources to fight CMPDA members, or anyone else with a large legal team. Publication of certain computer code will be banned as it is in the US, and as a professional software developer, I cannot agree to this. CMPDA members ought not to be able to censor code they don't like, just as I ought not to be able to censor music I don't like.

And finally, I wish to point out that it is not my belief that CMPDA members are evil. It is simply that given the chance, they would extract the most rent from consumers irrespective of any other considerations, as I believe my examples show. Considerations such as free speech and consumer's "fair use", come to mind.

In the US, the DMCA is popularly known as the "best copyrite law money can buy." I trust that Industry Canada and the Department of Heritage will do better for its millions of citizens you represent than your US counter-parts did for a handful corporations which they represent.

Thank you for your time.

David A. Chappel
(Address removed)