ARCHIVED — A Matthew Skala 1

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 Matthew Skala received on October 15, 2001 via e-mail

Response comment of Matthew Skala to the submissions of DirecTV, Inc. and Kyle Lahnakoski

Contents

• Introduction
• DirecTV is not Canadian and its concerns should not override the Constitution
• Canada risks becoming a safe haven for scientists and students
• The Radiocommunication Act already addresses DirectTV's legitimate concerns
• "Piracy" and "hacking" are not the issues here
• The Canadian government should not support corporate indoctrination
• DirecTV's call for notice and takedown ignores due process
• Conclusion

Introduction

This comment addresses some concerns raised by the September 15, 2001 submission of DirecTV, Inc. Many of these issues are also raised in other submissions; DirecTV's was chosen as the focus because it nicely summarizes many of the points we wish to address in our reply. The comments in this response, opposing DirecTV's views, should not be taken as an attack on DirecTV in particular; DirecTV is only an (unfortunately quite typical) example of a U.S. corporation whose interests are not necessarily in line with those of Canada and Canadians.

The September 14 submission of Kyle Lahnakoski is also singled out in this response in order to draw attention to a worthwhile point he made regarding the indoctrination or "brainwashing" of Canadian citizens, especially children, by U.S. corporate interests. As we shall describe, Mr. Lahnakoski correctly predicted an important aspect of DirecTV's rhetorical approach, and his perceptive comments bear repeating.

This comment is released to the public domain.

DirecTV is not Canadian and its concerns should not override the Constitution

As DirecTV itself admits, it is not a Canadian entity. Since the preservation of Canadian culture and values is an important priority of the present consultation process, the concerns of a U.S. corporation should be taken with the proverbial grain of salt. Is the ability of a U.S. corporation to limit the right of Canadians to receive signals broadcast on the public airwaves such a high priority that we should discard the Charter of Rights and Freedoms just to protect the corporation's profits? As discussed in this author's previous submission, there is serious tension between the Charter and the measures DirecTV proposes. The Constitutional requirement for the government to respect freedom of expression, although not mentioned at all in DirecTV's submission, must remain uppermost in the mind of anyone considering changes to the copyright law.

Canada risks becoming a safe haven for scientists and students

DirecTV spends a large part of its submission warning that if Canada does not introduce certain new reforms while the U.S.A. does, then Canada "risks becoming a safe haven for pirates". It is true that if Canada does not introduce new copyright reforms then Canada will become a safe haven - but not one for "pirates". Rather, Canada will become a safe haven for scientists and students.

DirecTV says that protection of digital rights management (DRM) against publication of scientific research would benefit privilege holders by allowing them to "invest in [DRM] technologies secure in the knowledge that even if [the] technology is defeated, the law will still protect their investment." Would it not be better for privilege holders for Canada to encourage scientific research, thereby enabling the development of stronger DRM in the first place? A broken DRM system that simply doesn't work, even with legal backing, benefits nobody. Privilege holders will never have the opportunity to invest in working DRM systems if research on such systems is quashed by legislation.

Even before the current copyright debate began, the restrictive U.S. rules on export of strong encryption technologies made some kinds of research effectively impossible in the U.S.A. That research was driven to Canada, and so were the resulting commercial benefits. The University of Waterloo, where this author currently attends, has a world-famous applied cryptography research group. Science requires publication of results, and until recently (the rules have changed in the past few years) many of the group's publications would have been illegal if made from within the U.S.A. Thus, the Waterloo scientists were able to pursue topics on which their U.S. colleagues were forbidden from working. Nortel, a Canadian company based in Ottawa and employing thousands of Canadians, has also benefited greatly from Canada's status as a "haven" for strong encryption; its Entrust division has for a long time sold security products to the global market, unchallenged by U.S. corporations who were restrained by the export rules. Surely if we would decide these questions on the basis of corporate bottom lines, then Nortel's bottom line should take precedence over DirecTV's. Permitting strong encryption, as well as being an economic benefit to Canadian business, is also well in line with the value Canadian culture places on respect for privacy. The Canadian rules on cryptography are the right ones for Canada, even if they differ from those legislated in the U.S.A.

Canada continues to be a haven for scientists and students in the current era of the Digital Millennium Copyright Act (DMCA). Many researchers are already boycotting U.S. academic conferences in response to the DMCA-related problems encountered by computer scientists who have attempted to present security results in the U.S.A. For instance, Dr. Edward Felten and his research team were threatened for their work by the very people who had originally invited it, and Russian graduate student Dmitri Sklyarov was jailed for three weeks and is still unable to leave the U.S.A., facing serious criminal charges under the DMCA. Students, including the present author, have chosen not to attend school in the U.S.A. These issues are described in this author's previous submission of August 25.

But in the time since August 25, the situation in the U.S.A. has become even worse, and the copyright-driven "brain drain" from the U.S.A. to Canada has become even more dramatic. A newly-proposed piece of legislation called the Security Systems Standards and Certification Act (SSSCA) would require all digital systems in the U.S.A. to include DRM features. That goes far beyond the DMCA's prohibition on "circumvention devices"; the SSSCA would criminalize virtually all current computer equipment and require expensive "upgrades" to every digital device. Dr. Ronald Rivest, a famous computer scientist and security expert who (among many other accomplishments) is the "R" in the RSA public-key encryption algorithm used to protect most Internet credit-card transactions, wrote a widely quoted critique of the SSSCA (http://lists.insecure.org/isn/2001/Sep/0048.html) in which he suggests that it be renamed the "Digital Rectal Thermometer Security Act" to highlight the absurdity of its provisions.

Computers by nature reduce all knowledge to a series of numbers; those numbers are the "digits" in the word "digital". Numbers, by nature, are easy to copy. In order to bring computer equipment into compliance with the SSSCA, every piece of digital hardware and software, including Rivest's rectal thermometer, would have to constantly be examining and evaluating all the numbers passing through it, looking for some kind of signal indicating "these numbers are not to be copied". It is doubtful that such a regime could ever be made to work at all; if it could work, or if there were a serious effort to make it work, it would completely eliminate the concept of user-programmable computers as we know them today. As Dr. Rivest says, "we'd probably have to close down all the country's computer science departments (can't have these kids making unsecured devices, you know, even if it is their homework assignment to build a computer...)"

So SSSCA implementation is effectively impossible, or at least expensive; but more important for the present discussion, SSSCA passage would further exacerbate the current brain drain away from the U.S.A. As just one example, consider the case of John R. Hall, one of this author's colleagues. Mr. Hall is a U.S. citizen, a student at the Georgia Institute of Technology, the author of the book Programming Linux Games (No Starch Press, ISBN 1-886-41149-2), and a contributor to several important free software projects. He says (comments used by permission): "I would seriously consider moving to a less-encumbered country if the SSSCA or similar passed. I really have no desire to leave the US, but it will be my only option if the legal climate becomes hazardous to intellectual progress." This attitude is typical of that among many of the best U.S. students and computer scientists. If Canada retained its current commitment to free publication of scientific expression, in face of U.S. restrictions, then Canada would become a haven not for DirecTV's "pirates" but rather for these valuable students and scientists. Canada should welcome them.

The Radiocommunication Act already addresses DirectTV's legitimate concerns

DirecTV's main complaint appears to be that Canadian citizens (whom it colourfully refers to as "pirates" and "hackers") might be able to view the signals its satellite transponders broadcast into the Canadian public airwaves, without paying DirecTV for the privilege. That activity is already illegal under Paragraphs 9.(1)(c), (d), and (e), of the Radiocommunication Act. DirecTV appears unsatisfied with its ability to prosecute Canadian citizens under Paragraph 9.(1)(c) (it does not mention the other two Paragraphs), because past court cases under 9.(1)(c) have not all been decided in a manner favourable to DirecTV. DirecTV complains that such cases have sometimes gone to the Supreme Court of Canada, without explaining why that is a bad thing. Is not the Supreme Court of Canada good enough for DirecTV? Why not?

The changes DirecTV requests would go much further than the existing legislation. The Radiocommunication Act prevents Canadian citizens from viewing without permission the signals DirecTV licenses and broadcasts. Surely that is the limit of what DirecTV can legitimately demand. Key aspects of the existing legislation are that it is limited to broadcasting undertakings, and that it is limited to the act of reception without permission. However, DirecTV's demands in its submission would cover much more: DirecTV calls for legislation covering all copyrighted works (not just those communicated by broadcast undertakings) and "circumvention devices", not just the act of reception without permission. DirecTV explicitly states that it wants computer software to be considered a "device".

No explanation is given in the DirecTV submission for why a broadcaster would be so desirous of legislation on non-broadcasting matters, but some support is given for the request to ban "devices" (including intangible "devices" such as software). As support for the ban on devices, DirecTV suggests that any concerns about "fairness" can be adequately addressed by limiting the ban in the way that the U.S. DMCA is limited. But DirecTV does not acknowledge the numerous abuses of the DMCA that are already in U.S. courts - for instance, the threats by the Secure Digital Music Initiative (SDMI) against Dr. Edward Felten and his research team based at Princeton University, for the work on digital music protection they did at SDMI's own invitation. The U.S.A. is hardly an example we would put forward for how a ban on "circumvention devices" is perfectly "fair" as long as it has a limitation component.

There is more at stake here than some vague notion of "fairness" anyway; the primary issue, which DirecTV never mentions, is the freedom of expression guarantee in the Canadian Charter of Rights and Freedoms. DirecTV suggests that it is perfectly natural and harmless to extend the already-existing limited ban on the act of circumvention, to become a comprehensive ban on "trafficking". But because they explicitly define "trafficking" to include the distribution of computer software, and computer software is a form of expression protected as a literary work by the Copyright Act and the Constitution, then DirecTV's proposed expansion of copyright crosses an important Constitutional watershed. That watershed should not go unremarked or unconsidered.

"Piracy" and "hacking" are not the issues here

DirecTV's rhetoric is typical of that currently popular among corporate holders of copyright privileges. The words "piracy" and "pirate" are used throughout the submission to refer to Canadian citizens whose actions are displeasing to DirecTV. The submission takes for granted that it is perfectly reasonable to equate the act of watching television with the act of forcibly boarding ships at sea to violently rob them of their cargoes. The similarity of those two acts is not completely obvious to the present author. DirecTV adds a bit of variety with occasional references to "hackers" and "hacking" - romantic words, to be sure, but not necessarily the most constructive ones. The submission attempts to apply our natural objection to violent robbery of physical property, towards the much less clear-cut issues of copyright reform, without acknowledging that there is any difference between the two.

Consider this quote from the DirecTV submission:

One particularly troublesome outgrowth of modern digital technology that recurs in the copyright context is the emergence of the pervasive and pernicious perception that the ability to access equals the right or permission to access.

Here is more confusion. The first question is not whether the ability of Canadian citizens to view ("access") the signals DirecTV broadcasts, equals permission to do so. The first question is whether DirecTV's permission should matter at all: should DirecTV have control over "access"? The sentence above argues in favour of a "making available" privilege by first assuming that such a privilege is justified, and then saying that therefore the privilege is justified. That particular logical fallacy is commonly called "begging the question". We suggest (short of a complete rewrite to avoid awkward alliteration and other writing gaffes) that the above sentence would be more usefully worded as follows:

One particularly troublesome outgrowth of modern digital technology that recurs in the copyright context is the emergence of the pervasive and pernicious perception that the privilege to restrict copying equals the right to restrict access.

Under the Copyright Act, holders of copyright privileges are given a limited privilege to restrict copying. Protection of DRM technologies would expand that privilege to cover restrictions on access. DirecTV's submission implies that the two kinds of restrictions are the same thing; and that since no DRM technology can ever prevent copying, they should be allowed to use a restriction on access as part of an attempt to control copying. (Never mind that those two claims conflict; the confusion appears deliberate.) But copyright law has never covered access before. Changing it to cover access is not merely a harmless update; especially when the proposed changes include a limit on the free expression guarantee in the Constitution.

DirecTV makes much of the Copyright Act's prohibition, in Subsection 27.(4), of printing plates designed to produce copies of a book without permission. DirecTV claims that it is natural to extend that prohibition to "circumvention devices". Printed books and satellite television broadcasts are not the same thing at all, but let us indulge the analogy for a moment. Printing plates contain the text of the books to be printed. A set of plates is itself a copy of a book, written on plates instead of on paper. A set of plates for a book can only be used to print that one book. The "circumvention devices" DirecTV would ban are not themselves copies of any specific works, but rather are used to access works in general. Setting aside copying versus access for a moment, banning "circumvention devices" is like banning the printing press, not the plates, just because the press could someday be fitted with unauthorized plates. It need not always or ever be used to make unauthorized copies. With "circumvention devices" defined to include software source and object code and discussion of such, they take the confusion one level further, to ban blueprints for printing presses, because those blueprints could be used to construct presses which could then be fitted with unauthorized plates. DirecTV's confusion of copying with access makes their ban even more irrelevant: instead of banning printing plates made without permission, DirecTV would ban magnifying glasses used to read small print.

We emphasize, also, that DRM does not enforce the law; DRM enforces the publisher's wishes, lawful or not. We are expected to take DirecTV's word for it that they would only use their legislated DRM powers for lawful purposes. They say, "Moreover, it is not foreseeable that copyright providers will begin blocking all types of access and use in a way harmful to Canadian residents." But although DirecTV acknowledges that libraries and educational institutions may sometimes have lawful reasons to circumvent DRM, their proposal to ban "trafficking in circumvention devices" makes exercise of that power difficult. Where will the libraries and educational institutions get their circumvention devices if trafficking in such devices is prohibited? Will every institution have to independently design and manufacture its own circumvention devices, not exchanging information about them with any other institutions because that would constitute "trafficking"?

Making it illegal to sell a device is, for practical purposes, the same as making it illegal to use the device. Permitting libraries to use printing presses is not much comfort if nobody is allowed to sell printing presses. DirecTV suggests that "trafficking" could be legal if "devices" were only distributed for the purposes of lawful circumvention - but in the same breath, DirecTV asserts that "The burden, however, must remain on the trafficker to show that the distribution was for purposes of a recognized exception." Are commercial manufacturers likely to design and sell circumvention devices, even for lawful uses only, if they know that at any time they could be brought before a criminal court to prove at their own expense that nobody who bought their product ever used it to commit a crime? No, commercial manufacturers will instead seek safer markets. The prohibition on trafficking in circumvention devices makes circumvention devices unavailable even to those who could lawfully use them. DirecTV might claim that it would only use its power of criminal complaint against the really evil "pirates" and not against innocent libraries or researchers, and that we should trust DirecTV to behave sensibly. But cases such as the Sklyarov case, in which electronic books were restricted in such a way as to prevent blind users from reading them with speech synthesis equipment, serve as examples for the claim that legislatively-backed DRM would be misused in practice.

The Canadian government should not support corporate indoctrination

DirecTV's submission goes on to describe a survey which revealed that "48% of [U.S.] kids do not consider hacking a crime". Their implications are that we should be shocked by that news, that it is relevant to the present copyright discussion, and that something ought to be done about it. Why?

The word "hacking" is problematic because it has many conflicting definitions, but one of the most popular, probably the one in the minds of most survey respondents, is unauthorized use of physical computers. For instance, someone who went through a Government office's recycling bins to find pieces of paper with passwords on them, and then used those passwords to connect to the office's computers, might be "hacking". That is not a copyright matter at all.

It appears that DirecTV would like the Canadian government to educate children against viewing television signals without the publisher's permission (not the most common definition of "hacking"), perhaps to prepare future generations for the kind of copyright-dominated cultural regime described by Richard Stallman in The Right to Read (http://www.gnu.org/philosophy/right-to-read.html). Why else would DirecTV, a television broadcaster, take the time to complain about the survey result? DirecTV demands that Canada "send the unequivocal message that ability and right are not synonymous in the digital context." DirecTV needs to learn that the ability to restrict access, through the use of DRM technology, is not synonymous with the right to restrict access.

Setting aside the (serious) issues that education is not a Federal responsibility and that "hacking" is not a well-defined word, it remains that no part of the mandates of the presently-addressed Departments covers indoctrination of Canadian children to satisfy the desires of U.S. corporations. This is exactly the issue that Kyle Lahnakoski warned us about when he wrote that "Canadian government and society should remove itself from the WIPO agreement and not implement the brainwashing agenda planned by the corporate elite." He was talking about a similar call for "education" put forward by the World Intellectual Property Organization; for further comments on that matter, see his submission of September 14.

DirecTV's call for notice and takedown ignores due process

DirecTV claims that notice and takedown is necessary because Canadian citizens (whom it calls "pirates") can post illegal material on the Web. Notice and takedown is hardly the only solution to the problem of illegal Web postings, but it is the only solution DirecTV offers. As described in this author's previous submission, there are other solutions, and notice and takedown is not the best solution. Indeed, notice and takedown is a completely unacceptable solution in the context of the Canadian Constitution, because notice and takedown allows plaintiffs in copyright cases to punish defendants all on their own authority, without the intervention of the judiciary. Notice and takedown directly violates the guarantees of the Canadian Charter of Rights and Freedoms, especially including the presumption of innocence of Section 11., item d).

Notice and takedown is supposedly necessary because without it, an allegedly-illegal posting could remain available on the Web, and be downloaded by thousands of people, while the plaintiffs are tied up in red tape pursuing a temporary restraining order through the court system. The claim is that because copyright cases can move so fast, the existing temporary restraining order system is not fast enough to achieve its goals. It may be true that the existing court system needs to be updated to account for technological developments; but that does not justify the creation of a new regime, just for copyright cases, with the delays eliminated by simply eliminating the checks and balances of due process. When we examine a court of law looking for useless frills to eliminate in order to speed matters up, the judge is not a useless frill! Notice and takedown would transfer the power of granting temporary restraining orders from judges to plaintiffs. That is not a clever reform; and under the Canadian Constitution, it is not an option.

Conclusion

DirecTV is a U.S. corporation, and its submission is typical of the rhetoric put forward by U.S. corporations in the present copyright reform debates. As the corporation says, Canada does risk becoming a "safe haven"; but not for "pirates" or "hackers". If we in Canada follow our present course of respecting freedom of expression, then we risk becoming a safe haven for scientists and students. Canada should welcome such people. The Radiocommunication Act already addresses DirecTV's legitimate complaints; calls for extensions like notice and takedown, which violates the Constitution by giving plaintiffs the power to issue their own temporary restraining orders without a judge, must be rejected out of hand. As Lahnakoski pointed out, Canada must also reject attempts by corporate interests to brainwash our children. Finally, we reiterate our previous assertion that digital rights management technology should not be legally protected in Canada because it harms Canadian interests, and cannot be legally protected in Canada because it is against the Constitution.