ARCHIVED — A Matthew Skala 3

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 20, 2001 via e-mail

Subject: Response comment of Matthew Skala to the submissions of Aliant Inc., et al.; Telus Corporation; DirecTV, Inc.; and Information Mechanics Ottawa, Inc.

Response comment of Matthew Skala to the submissions of Aliant Inc., et al.; Telus Corporation; DirecTV, Inc.; and Information Mechanics Ottawa, Inc.

And in this - as in other ways of boys, whose ways, fundamentally, are grown people's ways, and of whom nearly all human truth may be learned - in this we see a plain old fact of life prettily confirmed: that once we judge, we no longer possess judgment. That is one reason why grown people who have decided to think of certain other people as enemies, or as bad people, are shocked and troubled (for the moment) when they hear of those enemies or bad people doing something worthy and creditable.

- Booth Tarkington, Penrod Jashber (Doubleday, 1929)

Contents

• Introduction
• Moderate comments
• DRM does create monopoly concerns
• ExpressVu v. DirecTV
• Fair dealing as an affirmative obligation
• Conclusion

Introduction

The copyright reform process is full of surprises. This reply comment is meant to highlight two submissions the present author found surprising. Both were essentially from Canadian telephone companies. The longer of the two we shall refer to as Aliant et al.; it represents the views of eight Canadian corporations in the telephone and telecommunications businesses. The other surprising submission was the one from Telus. This reply also discusses issues raised by the submissions of DirecTV, Inc., and Information Mechanics Ottawa, Inc.

This reply is released to the public domain.

Moderate comments

Socially-conscious members of the computing profession are often mistrustful of large corporations, and for good reasons. We need not discuss the problems caused for everyone in the industry by various questionable actions of the Microsoft Corporation; the corporate interests in the RIAA and MPAA are generally blamed for much of the U.S. Digital Millennium Copyright Act (DMCA) debacle; Disney is suspected of having been connected to the Sonny Bono Copyright Term Extension Act; and so on. Telephone companies are hardly exempt from this mistrust. Indeed, the present author has long been calling for a boycott of Telus , for reasons which are beyond the scope of this response comment.

So it is a surprise, and a pleasant one, to read the comments of Aliant et al. and Telus in the present copyright reform debates. These are moderate comments, and to the extent that they support Canadian values and value for Canadians, they should be applauded. We have previously noted that the Canadian Departments have done a good job of researching the issues of copyright reform, much more so than their U.S. counterparts; it now appears that the same can be said for the Canadian telephone companies.

For instance, Aliant et al. cite the Sklyarov circumvention trafficking case in their discussion of the U.S. DMCA and its consequences. They are hardly alone in doing that - a fast, automated scan of the posted submissions showed almost 300 submissions citing the Sklyarov case. But almost all of those are submissions from individual Canadian citizens, and have a general strongly anti-corporation tone. Who would ever have expected that a coalition of large telecom companies would be willing to acknowledge Sklyarov? And the manner of their citing the case was noteworthy, too. Instead of decrying this Russian graduate student as an evil "hacker" threatening the security of the North American economic infrastructure, Aliant et al. describe him as "a security researcher", underscoring the academic nature of his work. They then make even stronger statements against the DMCA:

Thus, when the D.M.C.A. protects technology that in turn protects copyrighted material, it often protects much more broadly than copyright law does. It makes criminal what copyright law would forgive.

America is essentially alone in this strategy of techno-lawmaking.

This is bad law and bad policy. It not only interferes with the legitimate use of copyrighted material, it undermines security more generally.

The Telus submission stresses the dangers of DRM-created monopolies; a surprising position for a company that originated in a merger of the deregulated remnants of the British Columbia and Alberta Government-owned telephone monopolies, but no matter, it is a valid one. Telus decries inflated prices of online materials, and goes so far as to single out Microsoft as a potential monopoly threat:

Some business models are predicated on the maintenance of on-line retail prices near off-line retail levels despite the differences in the costs of distribution. Rights holders are accordingly seeking to devise and deploy technologies that will help them to protect, and maximize revenue from, copyrighted works. While it is natural that rights holders should strive for the highest prices that the market will bear, such above-cost pricing demonstrates market power and at the same time encourages the development of means to circumvent such technological measures, as well as rights management information systems, intended to protect copyrighted materials.

[...]

TELUS seriously questions the correctness of targeting for prohibition goods, services, software, devices and methods, which may have the potential for circumvention of copyright protection, rather than targeting the conduct of persons that willfully commit copyright violations. Even a "primary function test" to determine whether a software or hardware device should be prohibited on the basis of whether it is capable of circumventing technological measures should be prohibited, would be a crude test, as it could come down to a 49% vs. 51% kind of distinction, with a resultant prohibition on the legitimate 49%. An example could be a device that recognizes and works effectively with products from the same or affiliated firms, but which does not recognize and renders ineffective the technological protective measures devised by competing firms (e.g., in a manner analogous to the way Microsoft operating systems have been found to have difficulty working with the software of some competitors). Such cases may be more a matter for competition law authorities than a copyright matter.

This author, being an individual and so presenting a very small target, often makes direct statements against large corporations; but for one large corporation to do so about another is practically unheard-of. Telus should be commended for its candor in this matter; and readers of the Telus submission should consider how serious the monopoly issues must be to warrant this kind of language from Telus.

DRM does create monopoly concerns

Telus's remarks were prophetic, for on October 19, British news Web site TheRegister reported that the Microsoft "DRM 2" scheme had been (http://www.theregister.co.uk/content/4/22354.html) successfully broken and details of its operation published by someone using the alias "Beale Screamer". One thing found during the analysis was that the system had been carefully designed not only to limit access to digital media files, but also to make sure that only Microsoft could build (or authorize to be built) software systems compatible with the DRM scheme. Some of these design features sacrificed efficiency (for instance, translating data back and forth between different secret codes several times while passing it between software modules) in order to reduce the possibility for competitors to build interoperable systems. The psuedonymous analyst described the monopoly issues in a document linked from the news story (emphasis added):

Presumably, this is done so that anyone monitoring parameters passed between DLL modules wouldn't see any "sensitive data," although its use for this purpose is pretty limited. However, it does lead to some interesting and strange situations: when blackbox is sent a packet to decrypt, it decrypts it, and then immediately *re-encrypts* it using the session key to send it back to the media player! So in decrypting a packet, the computer actually goes through a decrypt/encrypt/decrypt sequence of operations!

One very important effect of this scheme is that Microsoft fully controls who gets to write modules that interact with the basic Microsoft media modules. Without a certified public key (and the corresponding private key) it is impossible to write a compatible DLL that interfaces with their code. Since Microsoft controls the issuing of certified public keys, they also have complete control over who is allowed to make compatible and competing products. Microsoft's reputation for being generous to competitors is well-known, so this effectively gives Microsoft a technically guaranteed monopoly power.

This episode underscores that DRM can create or reinforce monopolies, the same concern countless citizens have expressed with reference to things like DVD and SDMI encryption. Something else is also noteworthy about the breaking of DRM 2: although the analyst discovered information critical to writing systems interoperable with the Microsoft product, there is no indication that that was his or her primary goal. Furthermore, the analyst also discovered information useful in transferring a file playable on one computer to another - arguably, information of interest to so-called "pirates".

An exemption to anti-circumvention rules allowing circumvention if solely for purposes of interoperability, might arguably not cover this work because this work could also have significant uses in making allegedly infringing copies. Under the DMCA, this work could not be done; and its author's use of a psuedonym suggests that he or she may well have been working in the U.S.A. and been fearful of DMCA prosecution. Without this work, we would not know about the monopoly threat posed by Microsoft DRM 2; that seems like one more good reason why circumvention should be allowed for general purposes, not just for "interoperability" or some other narrowly-defined exception or list of exceptions.

ExpressVu v. DirecTV

This author's submission to the Departments in late August of 2001 confidently predicted that "corporations" would be submitting large quantities of rhetoric about copyright as a natural right, various kinds of deliberate confusion between access and copying, and calls to protect commercial profits at any social cost. Indeed, many of those things appeared in the corporate comment submissions. But, as mentioned above, some comments were surprising. A comparison between the Canadian Bell ExpressVu and the U.S. DirecTV (already the subject of one response comment from this author) may be instructive.

Bell ExpressVu runs a digital mini-dish satellite television system similar to DirecTV's. One could suppose that as they are in the same business, the same "piracy" and similar problems that apply to DirecTV would also apply to ExpressVu. If it were true that DirecTV suffers the depredations of hackers and pirates as a result of Canada's lax intellectual property laws, as DirecTV claims, then ExpressVu should be suffering too. Doubly so because ExpressVu's customers are actually located in Canada and covered by those "lax" laws, whereas DirecTV's worries seem to revolve around Canadians somehow inciting U.S. citizens to break U.S. law. ExpressVu was clearly aware of the comment process because it participated in the comment of Aliant et al. But ExpressVu did not submit a comment of its own, nor include anything resembling the complaints of DirecTV in the joint submission with the telephone companies. The Aliant et al. submission does not even mention satellite television. Why not?

Perhaps this omission was an oversight on the part of ExpressVu. Perhaps ExpressVu was depending on other corporations to wave the pro-DRM flag, although that does not explain the comments against DRM in the submission it joined. Perhaps ExpressVu's name was added to the submission on the initiative of its parent company, Bell Canada, solely to bulk up the list of companies in the title. But perhaps DirecTV's issues were and are irrelevant to a Canadian satellite operator like ExpressVu. In that case, they should be ignored.

Fair dealing as an affirmative obligation

The submission of Information Mechanics Ottawa, Inc. (IMO) is flawed in that it assumes unrealistic capabilities for DRM systems, but it makes one significant point that is relevant to the DirecTV submission and others: that the need to draw a distinction between possession and use is a new need brought on only recently by developments in technology. It used to be that physical possession of something was exactly the same as the ability to use that thing. Now, in the case of digital media, a consumer may well have physical possession of a recording without having full ability to use it - either because of compatibility problems between the media and the consumer's equipment (e.g. Macintosh software not usable on a PC) or directly because of DRM restrictions. The IMO submission describes the new distinction between possession and use as a "sea change".

DirecTV says in its submission that "Importantly, the exceptions in the Copyright Act have never been interpreted as positive obligations on copyright owners." That is true. Fair dealing is not formally a right under law (the submissions of hundreds of Canadian citizens calling for fair dealing rights in the present consultation notwithstanding) but rather an affirmative defense; persons alleged to have violated copyright can claim that their actions were fair dealing, but the privilege holders are not obligated to assist consumers in fair dealing.

However, until now there has never been a need for privilege holders to assist consumers in fair dealing; and although fair dealing may not be a right itself, it exists because of and is derived from the unquestionable rights to freedom of thought, expression, and belief. There has never been any affirmative obligation on privilege holders to assist fair dealing not (as DirecTV suggests) because privilege holders have no responsibility to respect fair dealing, but because (as IMO suggests) until recent times possession has been the same as the ability to use. Until the advent of DRM and restrictive standard form contracts in the last twenty years or so, privilege holders had no ability not to respect fair dealing. The publisher of a paper book cannot prevent its being quoted in reviews. The publisher of an electronic book can try.

If readers will excuse a triple negative: publishers of paper books are not bound not to prevent quoting in reviews. There is no affirmative obligation on publishers of paper books to help critics quote from the books, because that is a fundamentally easy thing for critics to do and the publishers cannot prevent it anyway. Critics do not need help from publishers. Digital rights management changes everything: now, the publisher of an electronic book can make a strong effort to prevent quoting. Now may be the time for the law to create a new obligation on publishers, to respect fair dealing. Publishers have always had to respect fair dealing, but in former times that was enforced by physics, not by human law. Under a DRM regime, or if restrictive standard form contracts are permitted, the obligation of privilege holders to respect fair dealing may have to become an explicit human law. But it would be better to simply not regulate DRM at all, not to protect nor limit it; the marketplace, represented by the hundreds of Canadian citizens who have submitted comments to the department, can safely be trusted to find a balance as long as citizens remain free to frankly discuss DRM weaknesses and to circumvent DRM for fair dealing.

Conclusion

Only one thing is impossible for God: to find any sense in any copyright law on the planet.

Whenever a copyright law is to be made or altered, then the idiots assemble.

- Mark Twain, Mark Twain's Notebook, May 23, 1903

The author of the above quote would doubtless consider the collection of individuals and organizations submitting comments - including this author, Matthew Skala - to be an impressive assembly of idiots. Although the overwhelming majority of submissions agree on the main points, for instance that DRM anti-trafficking rules are unacceptable, we have heard views on a wide range of other topics as well, and we have heard the majority view from some unexpected quarters. This reply submission has highlighted surprisingly moderate comments from Canada's major telephone companies; described monopoly concerns raised by DRM; drawn a comparison between ExpressVu and DirecTV, who submitted wildly different comments despite being in the same business; and suggested that it may be time for Canada to recognize fair dealing as an affirmative obligation on copyright privilege holders. In all these matters, the Canadian Charter of Rights and Freedoms requires that freedom of expression must remain the number one consideration.