ARCHIVED — A William G. McGrath
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COPYRIGHT REFORM PROCESS
REPY COMMENTS
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.
Reply comment from William G. McGrath received on October 28, 2001 via e-mail
Subject: Criticism of Submissions
Membership in the WIPO Treaties
CRIA asserts that the WIPO treaties should be ratified as quickly as
possible. It notes that years after the initial treaties have been
signed, Canada has not yet ratified the treaties and urges
compliance as soon as possible.
I would like to point out that while twenty plus countries have
ratified the treaty thus far, this is a distinct minority of the
more than 160 countries with Internet access. I would hate to see
Canadians loose the Internet freedoms that continue to be enjoyed
in the vast majority of countries, just to meet some obscure
deadline.
Besides, there is really no reason why prudence will prevent
industry from making works available on-line - especially now that
Napster has been shut down. In fact, such initiative would reveal the
true nature of problems with on-line commerce and lend considerable
weight to any claims that industry might wish to make.
CRIA make the assumption that a single, 'one size fits all'
cultural protection package should be implemented by all countries.
Reciprocity it is felt, is essential to deter copyright infringement
in a global environment. However, we must recognize that, just as
national systems of law have not prevented crime within countries,
so too, it is unreasonable to expect international law to eliminate
crime on a global scale, especially organized crime. Such
expectations, while truly noble and high minded, are unreasonable
and legislation crafted with these objectives will probably fail.
Then there is the matter of constitutional court challenges,
to laws such as the DMCA, in the United States. Authorities do not
expect such laws to withstand these challenges. Canada should wait
and observe the outcome of such cases, as the results will no
doubt lead to revised laws. As well, we should take note of such
atrocities as the Dimitry Sklyarov case and do our best to avoid
duplicating such obvious errors.
Finally, it seems to me that the impact of the laws and technologies
contemplated will be far reaching. Proper evaluation and input from
the fields of cryptography and computer science should be solicited,
prior to certification, for example, because organizations such as
CRIA clearly have not done their homework on the implications of
their proposals.
CRIA believes that rights holders should have 'exclusive rights' to
determine whether and how their works are copied and distributed.
While atrocities such as Napster have no doubt coloured this view,
the notion that content should regulate the Internet is
preposterous. The Internet is much more than a medium of commercial
distribution. Thus, the changes contemplated should not negatively impact
the functionality of the Internet in general.
For example, it may be thought wise to adopt an outright ban on
Napster type, peer-to-peer copying though the Internet. However, I
am told that certain Napster-like facilities enable the free
acquisition of rare, uncopyrighted, recordings of obscure jazz
artists. These recordings are available nowhere else and should,
therefore, remain unaffected by new legislation. An outright ban
would prevent this.
While I agree with the banning of Napster-type infringement, I also
realize that the procedure of 'copying' is central to digital
technology and has to remain unaffected by new laws. As Nicholas
Negroponte at MIT has pointed out, bits and atoms are different.
Industrial era concepts of property are rooted in the physical,
material notion of the atom. Products are physically manufactured.
Cars, tomatoes, records etc., cannot be separated from their material
existence. If one wishes to purchase a product, one has to purchase
it physically. With the bit things are different. The bit allows us
to separate information content from physical existence. Thus,
information, in its pure form, is an abstraction, both replicable
and communicable. In fact, both these concepts are essential for the
normal functioning of information technology and the attempt to
restrict or regulate information in these senses will impair its
normal use for legitimate purposes.
From a technological perspective, this makes the task of copyright
restriction very difficult, if not impossible. How can the computer
distinguish between a legitimate and an illegitimate copy of a
copyrighted work? For example, suppose the owner of a CD wishes to
make a copy of the work. It could be a backup copy or a gift-copy.
How is the technology to discern the motive for making the copy?
This is a question of human intention. The backup copy is arguably
legitimate, whereas the gift-copy is not. One cannot prevent the
latter without also preventing the former. Such a strategy has
serious implications for information technology in general, and is
to be seen as an attempt to limit, restrict or redefine the
technology and, where such initiatives concern digital content, as
a curtailment of free speech. Another example, might concern the
ability of the owner of a collection of CDs to develop a music
collection by copying approximately 130+ CDs to a single 80GB (or
larger) hard disk. Doing so, would allow the owner to automate his
collection and develop different programs of music for different
occasions, thereby reducing the amount of work involved in
furnishing his dwelling with continual background music. At the
present time, this is completely possible and infringes no copyright.
There is no reason to prevent such patterns of consumption in the
future, yet certain approaches to copyright infringement, such as
encryption, will most certainly do so. As a society, we may have to
make a choice. We may have to decide about the future of computing.
One function in principle, of a computer, is an information storage
and retrieval device. But, should it, or should it not, have copy
capability in the future? This is most certainly a freedom of
thought, freedom of speech, freedom of the press issue.
In the digital domain, what exactly is a copy? Is it a file of
source code, a binary file, an image file, its formatted form,
its compressed form, its encrypted form, its form in an IP
packet? None of these is an original file. All, in one sense or
another, are derivatives and 'refer back' to something else, the
content of which may or may not be recoverable. How do we define
the relation between an original sound file and an MP3? The latter
has a lower bit count, and is therefore not an exact replica of the
original. Is one a 'copy' or a 'derivative' of the other? Are these
the same? How similar do two files have to be? Is a similar title,
score and instrumentation sufficient? At what point are there two
different, original files and at what point is one a copy or
derivative of the other? These are questions that the information
era thrusts upon us. They never arose in the industrial era, when a
copy was one thing and an original another. But we shall have to
attend to these subtle distinctions now, for we shall have to
distinguish between the making available of an original work and its
derivatives.
Clearly then, the extension of copyright law into the digital
domain is problematic. The notion of physical property is central to
copyright and yet it cannot be adequately extended to information.
It seems to me that different ideas are needed. Copyright law is not
that old and was brought into existence during the industrial era.
Is it so radical then, to suggest that perhaps the information era
also requires its own concepts? Would it be too bold to suggest that
copyright law in the digital domain should be based upon new,
appropriate ideas? If it is felt that the notion of 'making
available' fills this bill, I would like to point out that CRIA only
addresses this issue from the original/copyright/server side.
Copyright issues on the private/user/copy, professional/system
-administrator/copy side remain unaddressed. Such an oversight
demonstrates a horrendous lack of balance in the CRIA submission.
Surely consumers needs should carry some weight, even in the vision
of the CRIA.
For example, as I explain below, it is unreasonable to expect
that copyright law can completely eliminate illicit copying. If then
rights holders have no practical choice but to accept some
unauthorized copying as a fact of life, perhaps this acceptance
should structure the response of industry. I do not think it is out
of line, to think of the Internet as a new market, or digital
technology and new financial models, as a business frontier for the
recording industry. Further, it is a mistake to try and import old
business models intact and the government of Canada should be on its
guard against submissions that make such assumptions or attempt such
a transfer. It is reasonable, therefore, to expect some sacrifices
to be necessary on the part of industry. Change happens. Technology
evolves. Markets naturally reflect this volatility. Witness the
recent collapse of the venture capital market. Why should the
recording industry by any different?
Along this line, if it is recognized that complete compensation for
every copy of a work in existence is beyond realization, then a
different approach to royalties may be needed. In the information
era, it may well be that a certain amount of illicit copying will
have to be tolerated. An appropriate strategy to this problem
therefore, will seek to minimize such duplication in order to
maximize the number of legitimate copies that are sold. It is my
suggestion then, to ignore the duplication of copyrighted works for
personal use. The rights holders have received some compensation
for the original copy at least, and the cost of adequately
enforcing laws at the misdemeanour level would be astronomical and,
therefore, impractical. It is not a wise use of resources to assign
even one enforcement officer the task of pursuing a high school
student, who copied a friends CD, through the court system. Even if
successful, the result of this kind of action is minimal and the
industry would generate considerable negative publicity and have
to rely upon a deterrent effect to enforce the law in the majority
of cases. Rather, it is my suggestion to the CRIA that they focus
their efforts and resources upon criminal activities, such as the
black market, and initiatives such as Napster, which facilitate the
illicit copying of works on a large-scale. Existing laws are more
than adequate to deal with most of these problems, in this country.
The real problem here is one of enforcement of existing laws - not
an absence of law.
In fact, the problem is similar to that faced in other industries.
Inventory shrinkage is a problem in the construction and retail
industries. Shop-lifting and theft are real problems for these
businesses and they are not going to disappear. How do they cope? It
is normal for the construction industry to order materials over and
above estimated needs, so that if a 'few' pieces 'go missing' there
will be no inconvenience. Similarly, department stores and record
stores know what their losses from shop-lifting are. Retail prices
are calculated with this in mind. The result is that consumers end
up paying for these losses. Is there any reason why information
industries should be any different? I am not suggesting that this
is fair. There is nothing just about theft. However, raising prices
is one way for rights holders to regain some of their lost
compensation.
This is quite different from other strategies. Since illicit
copying is a problem, they have decided to eliminate all copying
of music in future. Instead, music will be leased, in a 'live'
fashion, only. Many people find such paradigms revolting. The
definition of consumers as 'gullets' whose only purpose on earth
is to 'gulp products' and 'crap cash' is obscene. I find such a
view of life objectionable and the attempts to force me to conform
to its patterns terrifying. Music, which has been called 'a gift
of the gods,' should not be abused in this way.
If the Government of Canada has any doubt that the future of
Canadian culture and the freedom of information and technology are
threatened by such ideas, I refer them to two documents on the web.
Please note that I am in no way connected with or support the
actions of 'Beale Screamer,' but find the information, concerning
the future of computing, revealed in these documents to be truly
chilling.
1. http://www.nytimes.com/2001/10/23/technology/23PIRA.html?todaysheadlines
2. http://www.cryptome.org/ms-drm.htm
CRIA sees new laws, such as the WIPO treaties, as the solution to
the problem of counterfeiting and other forms of piracy. This is naive.
CRIA seem to assume that once the WIPO treaty is ratified, and new
laws are in place, copyright infringement will disappear. This is a
mistake.
Throughout human history, irregardless of era, country,
civilization, or continent, crime appears. No system of law has
successfully eradicated it. During medieval times children were
hung for stealing a loaf of bread, in the middle east, even today,
limbs will be amputated for the same offense. Yet crime continues.
Where ever rules are made, there seems to be something buried deep
within human nature that sometimes tempts people to break those
rules: making a U-turn, exceeding the speed limit, running a red
light, double parking, shop-lifting, cheating on their income tax
and so on. These offenses are commonplace. No matter what the
law, someone will break it.
This does not excuse crime, of course. It is not our intention to
justify the breaking of the law, even in the matter of a
misdemeanour. Rather, we would like to point out that CRIA's
expectations of what law and technology can accomplish are rather
misguided and uninformed, and thus a poor foundation for legislation.
It is completely unreasonable to assume that new laws and
technology will completely eradicate copyright crime in the future
information economy. Millennia of human experience, and the brute
facts of human nature, suggest that trying to construct a legal
system on the basis of puritanical zeal is nothing less than naive,
uninformed, foolish and downright silly. Moreover, we should be on our
guard against crafting inappropriate laws originating in such visions
because they could lead to much injustice.
Rather, an enlightened perspective will accept the reality of human
nature and adopt a different strategy towards the problem of
copyright infringement. It will accept the fact that some crime will
occur, regardless of law or technology, and adopt measures that seek
to minimize the problem and redress its most serious objections.
Another mistake that CRIA makes is in assuming that all copyright
infringement is the same and should be treated as such. In fact,
there are at least two distinctly different types of copyright crime.
One is personal and private infringement. Another of these is organized
crime. It occurs on a large scale, and for profit. Experience with
other industries indicates that any lucrative market attracts this kind of crime. For example, 'Rolex' watches, 'Levi' jeans, 'Gucci' shoes and
so on are all available on any black market. The success of information industries then, can be expected to attract, and continue to attract,
such attention. In a sense, such businesses are a victim of their own prosperity. No matter what counter measures companies use to discourage illicit duplication, the rewards are sufficient to justify whatever risk
is involved in illegally duplicating successful products. Regardless of
the laws and security protection methods used, I fully expect illicit
duplicates of copyrighted information products to be readily available
on the black markets of the future.
It is a mistake to think that this is a problem that requires new
laws and new technology. Our existing laws and technology are
perfectly adequate to deal with it. Rather, this is a problem of
enforcement. The organized, international networks of illicit
duplication, and distribution will continue to function regardless of
law and technology. Laws do not stop criminals. Stopping them requires adequate systems of investigation, prosecution, and enforcement. I
would suggest that the way to do this is to strive for greater
cooperation between international police agencies such as Interpol,
national police forces such as MI5, the FBI, the Surete, the RCMP and
so on, and local police agencies. I would even go further and
encourage copyright holder industries to create their own specialized, investigation agency and use it to declare war on the sources of
black market copyright crime. This, I believe, would result in vastly increased legitimate sales and profits.
Strategies such as encryption will not deter such networks of
organized crime. Rather, it must be remembered that such networks
have the resources to fund large, structured initiatives whose only
purpose is to break whatever encryption is being used. Perfect
encryption is unattainable and flaws will always be found. It is
simply a matter of enlisting the mathematically sophisticated talent
of Russia, India, China or where ever, to find those flaws. Laws
against circumvention in this country will do no good without
corresponding laws and enforcement in foreign countries, where
bribery of the local police forces should be taken as a given.
Once the flaws are found, the results can be shared across the
entire network and illicit duplication of information products can
proceed unimpeded, at least in theory. Indeed, they may even offer
such information for sale on the black market, if it was judged to
be in sufficient demand.
The dream of an international economy without infringement is
beautiful, but hardly realistic. The recording industry's desire for
an economy without crime is inadequate for its realization.
In fact, the ideas that CRIA propose constitute a cure that is worse
than the disease. On the one hand, it will not eliminate copyright
crime and so lacks that virtue, and on the other hand it will
dramatically impair other users ability to compute and restrict
their access to data, programs and ideas, and so has these vices.
For a better understanding of the history and real nature of
cryptography, I recommend reading 'Crypto' by Stephen Levy. For
example, the Enigma/Ultra dual during WWII, dates from the earliest
days of computing and shows just how interrelated the two
disciplines of cryptography and computer science are. Indeed
the recent DeCSS affair is very much a replay of this historical
conflict. Such an understanding is essential to grasp the
imperfect and fallible nature of cryptography, and its
limitations.
On my analysis, it seems that the CRIA view of technology is
based upon its experience with stereo equipment. With respect its
content, I believe the music industry is used to thinking of the
physical hardware necessary to reproduce sound in exclusive,
specialized, single-purpose terms. For example, a cassette deck
cannot normally be used for recording data. On the other hand, a
computer is designed as an inclusive, multi-purpose instrument.
It can be used for email, video conferencing, data storage as well
as to play music or games.
All in all, it seems the CRIA wish to turn the personal computer
into a stereo system - at least in terms of its design values. The
desire to restrict the capabilities of the PC is contrary to its
rich and diverse heritage. It seems to me that the music industry is
moving into the digital domain - not vice versa. It is the CRIA then,
that should be adapting to the Internet and not the other way
around. If the CRIA need a specialized, digital sound system, they
should design and manufacture one. I do not believe this will solve
their security problems any more than their current proposals,
however, such a machine will not present the computer industry with
any headaches.
Making Available
CRIA asserts that the right of 'making available' is no different
than the exclusive right of reproduction enjoyed by copyright
holders in the past. Nothing could be further from the truth.
Firstly, this conception of a 'copy' is defined only in terms of the
server side of a transaction. It does not address the idea of
'participatory' or 'personal' copying. Indeed, duplication is an
essential characteristic of the digital medium, and users have the
ability to 'manufacture' many copies of a work in a way that is not
enjoyed in other media. Indeed, in other media, one places great value
on whether or not a work is an original or a copy. In the digital
domain this question has no value and there is no difference
between an original and a (legal) copy. So too, the notion of user
participation in the fabrication of a CD, purchased and downloaded,
via the internet, is not addressed. Does the owner/user/consumer have
a right to make a copy of the work? This is radically different
from industrial era copyright and far from the exclusive control
enjoyed by the rights holder previously. Such notions of 'personal'
copying have to be addressed. Is 'educational' copying going to be
considered commercial or personal?
Let me be clear. In no way do I support the unauthorized
exploitation and duplication of works by agencies such as Napster.
But neither do I support the criminalization of mathematics or the
repression of technology and its legitimate use. 'Making Available,'
as conceived by CRIA, is a vague, unbalanced, inadequately developed
idea. Until the CRIA can be specific, we have much to fear from such a proposal, because of its impact on other aspects of computing.
Legal Protection of Technological Measures
1."Law and technology must be used together to maintain adequate
incentives for creativity."
This assumes that this is possible, that law and technology can be
used in this way. To the best of my knowledge this is not the case.
Law cannot eliminate crime, and cryptography is imperfect. Moreover,
many users have legitimate reasons for circumventing encryption such
as making backups, or organizing collections of songs. If this is to
continue, how is future technology to distinguish between legitimate
and illegitimate copies and other issues of human intention?
As well, this position dumps responsibility for security and
encryption upon hardware manufacturers. Manufacturers do not have
the capability to do security research or development. Will they be
liable if algorithms are cracked? Moreover, the vague notions put
forward by CRIA are anything but specific, and little more than
'magic bullet' or 'black box' solutions. If the CRIA demand
encryption, then they should fund its research and development,
articulate an international standard, and request manufacturers to
comply.
Finally, CRIA's submission offers no assessment of the effect
these changes will have upon existing digital domain technology and
users. It expresses CRIA's vision, but is not based upon facts or
evaluations.
2."TPM's have the capacity to deter piracy and encourage rights
owners to use new media..."
This assumes that cryptography is infallible and that TPM's
will not be broken. Throughout history this has never been
possible. What is the reason for assuming that it will?
Is the development of new media the CRIA's real motivation here?
Do they wish to use the law to establish a new music medium at
the expense of the old?
3."...a TPM is only as good as its legal protection..."
4."...technical systems can be hacked."
These assume that law stops crime, rather than establishing
penalties, and that laws will stop crackers. Where ever there are
sufficiently high incentives, there will be crime. What is needed
is enforcement of existing laws. Unfortunately, most law
enforcement officials do not have a highly technical nature,
and most security gurus prefer the rewards of industry. A private
security agency could combine the talents of both groups and
investigate copyright based crime.
5."...should prohibit both the act of circumventing TPM's and the
manufacture and dealing in circumvention tools..."
In many cases circumvention is necessary. Cryptography does not
exist in a vacuum. There are questions of fair use, of personal use
such as making backups, collections etc., of educational use, such
as making duplicates, of archival use, such as decrypting old
documents, and of professional use, such as system administration.
In addition it is wrong to suggest criminalizing a branch of
mathematics. Perhaps we should criminalize algebra, or statistics
along with cryptography? It is wrong to prevent cryptographic
research or silence cryptographic discussion. These are freedom of
thought and freedom of speech issues, and most citizens of
democracies treasure these private rights even though, like myself,
they may rarely use them.
6."...limitations to the legal protection should be focused narrowly
enough to preserve the adequacy and effectiveness of the
prohibitions on circumvention."
If anything this is backwards. Legal protection should focus on
specific methods and algorithms to be used by rights holders.
Disallowing tampering with these and allowing all else is much more
acceptable to industry as a whole than trying to limit circumvention.
Who knows what will be needed in five years time? If needed,
updates or revisions of an algorithm, in order to preserve its
efficacy, are easy and possible. Overall, the onus should be on the
rights holders to supply suitable algorithms. In general, law
is prohibitive and specific. What the CRIA really want here is to
prevent tampering with their algorithms with criminal intent.
(Assuming that intent is an effective way to distinguish personal
from criminal duplication.) Otherwise, there are too many needed
exceptions for a general prohibition on circumvention to succeed.
7."Allowing circumvention in cases where a traditional copyright
exception applies, would totally undermine the protection of TPMs."
This is the atoms and bits issue again. As outlined above, a
different domain requires different rules and Canada should beware
of submissions that try and import old business models intact. The
citizens of this country have no obligation to support and maintain
the CRIA shareholders standard of living. As above, I again
recommend CRIA re-evaluate its 'traditions' and adapt to change.
8."We fail to identify any [non-copyright] issues that would
be genuinely relevant [to issues of intellectual property in the
digital domain].
This is a basic confusion of the practice of law with the making of
law. Law is always about something, hence there are always issues
prior to the existence of law. And they are numerous.
There are issues concerning encryption, circumvention, fair use,
personal copies, definitions and adaptations to the digital domain,
the differences between the bit and the atom, and many more.
I believe CRIA has to rethink much of its submission. It needs to
begin from the clean foundation of a new business model or models.
It needs to define 'copy' and 'copying' in ways that are sensitive
to the technology, and the other needs of users. It needs to define
'property' in digital terms rather than atomistically. It needs to
clearly define an owners rights with respect making backups,
collections and other 'fair use' patterns of consumption, such as
educational use, in such a way as they are clearly distinguished from infringement. Above all, CRIA needs to evolve its vision of the digital marketplace. Is it going to accept the existence of crime? Is it
going to accept the unavoidability of some infringement? How does
it intend to cope with these inevitable facts of life? As the cost
of doing business? Is it going to re-price its products to take
piracy into account? Is it going to adopt new strategies that
'magnanimously' accept low levels of piracy as a form of market
development or promotion appropriate to the global scale of the
internet? Is it going to promote 'originals' as having a
'superior bit count' and thus superior audio quality compared
to MP3s? Many of these ideas are possible, but it is up to the
CRIA, and other rights holders. Their future is in their hands
and the hands of legislators. What they have to learn is that,
on the Internet, theirs is not the only game in town, and conduct
themselves accordingly.
William G. McGrath
(Address removed)
IPIC claims to be 'Canada's *pre-eminent* association of
professionals, who specialize in intellectual property including
copyright....' [and] 'IPIC members can be found in all areas of
the Canadian "knowledge economy"....'
While IPIC's legal expertise is, no doubt, impeccable, it is
notable that this high level of knowledge and experience does not
extend to the technical side of the digital domain. IPIC's
submission, is confined to the legal aspects of copyright. It is a
mistake to assume that the digital domain is no different from the
physical domain to which copyright law has been applied for many
years. In point of fact, these differences are why new laws are
being requested.
Clearly then, we must distinguish the making of law from the
practice of law. Law is always about something, hence issues, of one
kind or another, always precede the making of law, which precedes
the practice of law - its application. In this matter, then, it is
worth observing that IPIC speaks of a desired outcome, in terms of
copyright law, and not to the issues at hand, as they manifest
themselves in the digital domain. IPIC's insights, then, while of an
expert nature, are unbalanced, and do not reflect any consideration
of the present technological concerns or of the digital domain to
which they will apply.
IPIC makes a number of objectionable claims that are worthy
of criticism.
1. "...copyright law generally, provide[s] 'exclusive' rights to
creative individuals which allow them to determine whether and how
their works are copied and distributed."
2. "Electronic commerce in copyrighted products requires a healthy
trading environment where only legitimate copies of works are
transmitted, under the terms permitted by the rights owner."
Following Nicholas Negroponte of MIT, I shall affirm that
bits are different from atoms. Industrial era concepts of property
are rooted in the physical, material notion of the atom. Products
are physically manufactured. Cars, tomatoes, records etc., cannot
be separated from their material existence. If one wishes to
purchase a product, one has to purchase it physically.
With the bit things are different. The bit allows us to
separate information content from physical existence. Thus,
information, in its pure form, is an abstraction, both replicable
and communicable, without physical referent. In fact, both these
concepts are essential for the normal functioning of information
technology and the attempt to restrict or regulate information
in these senses will impair its normal use for legitimate purposes.
In principle, a computer is many things, but for these
present purposes, I shall refer to two. A computer is firstly,
an information storage and retrieval device. In order to function,
it must move information from one location to another and be able
to modify it as needed. For example, a computer must be able to
copy a file from its hard disk to its floppy disk or upload it
across the Internet to another computer, which then copies it
to its own hard disk. Hence, we see that the ability to copy
information is a functional characteristic of digital technology.
Secondly, a computer is a multi-purpose machine. It can be used
for many tasks: email, video-conferencing, data storage, as well
as playing music or games. It is able to do this because, at the
most fundamental level, it treats all data identically - a bit,
is a bit, is a bit. At a fundamental level all digital
information is the same. It does not matter whether it is
copyrighted or not or to what program or user it belongs. It
functions in a purely objective sense, and has done so for more
than 50 years. Changing the basic design specification of
digital technology now will have far-ranging, serious, long-term
ramifications for the rest of the computing industry. Hence,
control should remain with the computing industry in general and
not be transferred to copyright holders via legal proxy.
Hence, we see that the principle of copyright law is in
conflict with the very nature of digital technology. As in the above,
(1.& 2.) we see that IPIC is demanding that copyright holders have
control over how and where their property is copied. Such a right
would effectively compromise the control a computer owner has over
his machine's copying abilities in other circumstances. For example,
either an owner can make a copy of a file downloaded from the
Internet or he cannot. It could be a copyright file or a
non-copyright file. The computer cannot tell the difference. So, in
order to give IPIC copyright holders the kind of control they
demand, computers would no longer be able to have a general purpose
ability to copy files. This would obviously constrain the computer
owners ability to run other programs, if indeed the system was
capable of copying information at all. Clearly, the singular,
specialized nature of communication, as desired by IPIC is in
conflict with the generalized, multi-purpose nature of digital
communication over the Internet, as it exists at the present time.
For example, suppose a retailer wished to sell a customer a CD via
download over the Internet. In order to receive and fabricate that
product, the customer's computer must have a copy capability. But
there is nothing stopping him from making more than one copy. So
should the customer's computer have copy capability or not? It is
quite normal to make multiple backups of a file in other
circumstances, but to do so in matters of copyright, as envisioned
by IPIC, would be infringement. There are other factors involved
here of course, but overall, the computer requires replication
capability and the stereo system does not. At the design level,
these are distinctly different technologies: one general, one
specialized. In moving into the digital domain, both industry and
copyright law are going to have to make adjustments and allowances
for the nature of digital technology. It would be a mistake to
place physical restraints upon the digital domain, which is what
IPIC seems determined to do, possibly, in order to preserve its
pre-eminence with respect the status quo of copyright law.
3."If the government does not adopt provisions relating to
technological measure, the playing field will not be level in the
digital environment since such protections already exist in the
United States, Europe and other countries."
Elevating statutes such as the 'Digital Millennium Copyright
Act' to the station of legal ideal is a very dangerous proposition.
The DMCA is under serious constitutional challenge in the United
States and not expected to survive. Moreover, the DMCA led to the
Dimitry Sklyarov affair, which is surely one of the most outrageous
abuses of law in recent years. That IPIC seriously considers the
DMCA to be an example of judicial propriety and a level playing
field is proof positive of its lack of both balance and a sense of
justice. Prudence and caution are a better course of action in
this matter.
Moreover, the issues associated with the DMCA are truly
draconian. These go far beyond circumvention issues. Not only does
the DMCA prevent cryptographic research, and the publication of
findings, but even the discussion of the subject by professionals.
There is simply no way to justify the criminalization of
mathematics, the loss of free speech, or the repression of the
legitimate use of technology. This in no way is a 'level playing
field.' As well, now that existing law has proven adequate to deal
with current crises such as the Napster affair, Canada has the
luxury of time with which to assess future matters of copyright.
4."...a prohibition on the devices and services that enable
circumvention ...[is] critical....In the absence of such a
prohibition, a copyright owner's only recourse is to attempt to
detect individual infringements and bring a multitude of actions
against the infringers."
Unfortunately, circumvention is required in a multitude of
legitimate instances, and the computer is unable to determine what
is infringement and what is not. For example, an owner of a CD may
wish to make a copy of it. It may be for backup purposes or it may
be to give to a friend. The former is arguably a fair use copy,
whereas the latter would probably qualify as infringement. Whether
or not the law is broken here is a matter of human intention. How
can the law, or the computer, predetermine this? If there is a
blanket prohibition on circumvention, the owner looses his
legitimate, fair use right. If not, infringement is possible. But,
until it has actually occurred, there has been no crime and the
owner should not be penalized in advance. It seems that the request
for a blanket prohibition, against all types of circumvention,
assumes, in advance, that all copies of copyrighted works are always
infringement, and that all users who make such copies are always
guilty of a crime.
This is not the case. In addition to backups, it is common
for individuals to 'compile' collections of CDs. For example, a
typical 80GB hard disk can hold 130+ CDs - many more if compressed.
Many individuals consolidate their music collections into such 'juke
boxes' to facilitate organization, automation and convenient
playback. At the present time this is possible, and legal under fair
use provisions. But, if encryption and anti-circumvention legislation
were enacted, such actions would not be possible.
As well, professional system administrators are responsible
for the integrity of the data on the computers under their care. As
such, doing regular, daily backups of data and systems is a
commonplace activity. This includes making copies of copyrighted
information such as copyrighted computer programs. As well, such
professionals are responsible for system security. If an email
account under their care, were sent a message with an encrypted
attachment, from a suspicious address such as www.rootkit.com,
a good administrator would assess the security threat to their
system, by decrypting the attachment and scanning it for viruses.
Again circumvention is a necessity.
As to the alternative, the pursuit and prosecution of
infringers, it is worth noting that other industries have to put up
with similar situations. For example, the loss to shop-lifting in the
retail industry runs into billions every year. Retail responds to
inventory shrinkage by raising prices to compensate. The consumer
pays the bill, and the retailer recovers his loss. Why should
information industries be any different? Infringement is one of the
legitimate costs of doing business and industry can respond by
raising prices to recover those losses as an alternative strategy
to encryption.
5."An explicit right to make available will enhance the abilities of
rights owners to control the unauthorized exploitation of their
works over the Internet."
This position addresses only the rights holders side of the
equation and not the consumer side. Adequate copyright legislation
should address both sides in a balanced fashion. What exactly are a
users right to make copies of a copyright work for personal use? Is
he entitled to make the work available to himself? What exactly is
personal use? Educational use? With respect the digital domain, it
is important to define what a 'work' and what a 'copy' are.
'Intention' and 'use' may also have to be defined. Industrial era
concepts, based upon physical objects, will not map adequately
onto the digital domain. For example, is an original sound file the
same as its MP3? The latter has a lower bit count and is therefore
not an identical copy, but, is perhaps, a derivative of the original.
As well, we have to examine what is meant by a rights
owner's control over digital technology and the design of computers
in general. To what extent does it imply control over a users
computer? The notion that content should regulate the computing
industry is ludicrous. Messages do not design their media.
Finally, for the sake of clarity, it is not the intent of
this submission to support the unauthorized exploitation and
duplication of works by agencies such as Napster. Furthermore, this
submission explicitly supports the rights of content creators to
profit from their endeavors as currently allowed under copyright
legislation. But it definitely does not support the criminalization
of mathematics or the repression of technology and its legitimate
use or the loss of free speech. The present submission, from IPIC,
is nothing but a vague, unbalanced, inadequately developed
endorsement of the DMCA. Until IPIC can be specific, Canada has
much to fear from such a proposal, because of its impact on other
aspects of computing and its grave potential for significant
injustice.
William G. McGrath
(Address removed)
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