ARCHIVED — A Mike Warren

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 Mike Warren received on October 26, 2001 via e-mail

Subject: Reply to Comment from AOL/Time/Warner

Regarding AOL-Time-Warner's submission, found at:

http://strategis.ic.gc.ca/SSG/rp00345e.html

I will refer to AOL/Time/Warner as simply ``AOL'' for brevity. In
their submission, AOL states:

``2.10 Legal protection of technological measures is necessary for the
development of thriving, legitimate online markets for protected works
and performances.''

``Without greater assurance that their technological
protections cannot be easily circumvented, right holders will not make
their valuable creative products widely available in a broad range of
formats and delivery options Legal protection for technology therefore
furthers the interests not only of right holders but also of
consumers, distributors and service providers.''

They do not support this rather wild assertion. First of all, it is
not the job of copyright to ``provide'' and sorts of markets. The goal
of copyright is more public-domain art for the Canadian public. If
this is facilitated by more markets, then the *method* of copyright to
achieve its goal may be to expand markets, but it is not the *goal* of
copyright to merely provide a market.

That aside, AOL does not suggest a) why ``legal protection of
technological measures'' is the best or only way to encourage on-line
distribution of works, nor b) what ``thriving'' means: does it mean
lots of income for a few large entertainment conglomorates like AOL,
or does it mean lots of income for thousands of individual artists?,
nor c) how -- if legal tools existed to squash ``circumvention''
devices -- works will emerge into the public domain.

AOL does not suggest why dissemination of encrypted media -- the
consuming of which would ultimately be strictly regulated by AOL
themselves -- is such a panacea for consumers. Are consumers really
better off if AOL can easily implement such technological measures as:
one-time or time-limited viewing; digital works which cannot be
re-sold or shared; digital works which consumers cannot exercise their
fair-use privileges over, such as quoting or making back-ups; digital
works which will never be public domain.

If AOL is given legal tools to prevent ``circumvention devices'' being
explored, it means that AOL and *only* AOL has complete control over
what consumers can do with AOL content. This is not what copyright is
about; copyright is supposed to be a deal between the public
(i.e. consumers) and AOL. With legal anti-circumvention tools, AOL can
legally crush any fair use a consumer may wish to make from his
digital content. With legal anti-circumvention tools, AOL is
effectively granted a copyright on an *encrypted* work -- a work which
may very well *never* be in the public domain. This means that the
consumer gets nothing from the copyright deal and AOL gets
everything. Of course AOL wishes to have such legal tools, but they
are laughably incorrect in stating that the balance of interests
remains the same.

AOL continues:

``It also follows in the tradition of laws in Canada and many other
countries that prohibit the descrambling of scrambled broadcast
signals and the purveyance of unauthorized descrambling devices, also
with the goal of making possible a wider range of delivery options for
content.''

This, too, is unclear. How do such legal tools make a wider range of
deliver options available? AOL again glosses over the trampling of the
public's end of the copyright bargain without explaining how making
descramblers illegal has enabled people to make fair use out of their
broadcasts nor how making descramblers illegal will result in
broadcasts eventually becoming public-domain.

If one may not archive the broadcasts awaiting the time when their
copyright expires, how may one ensure that public-domain broadcasts
will *ever* exist?

AOL goes on:

``2.11 It was in recognition of this need that countries around the
world agreed to the anti-circumvention provisions contained in the
WIPO Treaties. The international implications of implementing these
provisions are also clear. Canadian content would be given the benefit
of such protection in all countries that are party to the
treaties. Moreover, in the absence of such protection, Canada could
inadvertently play the role of a haven for the manufacture and sale of
hacking devices.''

``Protection'' is a pejorative which implies that copyright-holders
have some ``right'' to their copyright. This is not true.

AOL does not make it clear what a ``hacking device'' might be, nor why
it would be a bad thing if Canada were a ``haven'' with weaker
copyright laws than the rest of the world -- perhaps the Canadian
public would then enjoy more public domain works, thus achieving the
goal of copyright.

``2.12 The immediate threat to the development of e-commerce and to
the continued viability of copyright markets calls for prompt
legislative intervention. The arguments for delay, in contrast, are
based on legitimate but speculative concerns about negative
consequences that could come to pass in a worst-case scenario. If
works are available only in digital form; if all are encrypted; and if
the encryption technologies do not build in appropriate access for
lawful purposes, then the result could be to "imped[e] legitimate
uses," (p. 24) and affect the policy balance in the Copyright Act. In
a rational marketplace, it is improbable that this will happen. The
vast majority of right holders are interested in maximizing the
availability of their works, in a form that will meet widespread
consumer acceptance, not locking them behind digital walls.''

The sentiments at the beginning of this paragraph cannot be reconciled
with the sentiments at the end. If ``right holders'' are really
interested in ``maximizing the availability'' of their works in
unencrypted, unencumbered formats, then they don't need copyright nor
the legal tools to prevent people building decryption (or
de-encumbering) devices.

<b>If AOL is truly not interested in making their content encrypted,
why do they want legal tools to prevent people from attempting to
circumvent their encryption?</b>

AOL recognizes these (very real) threats to the limited copyright
privileges the public currently enjoys, yet urges the government to
rush into a legislation framework which explicitly denies some of
these privileges and makes it easy for corporate copyright-holders to
deny even more of these few privileges. This has already happened in
the US -- a country which did rush into further copyright legislation
prohibiting circumvention.

The 2600 Magazine/DeCSS case is a perfect example: the movie industry
has not yet presented a *single* example of DeCSS being used to
``pirate'' a movie, yet still aims to get rid of this decrypting
technology completely. The aim of the DeCSS DVD-decrypting technology
is to enable people with unsupported (by the movie industry) operating
systems (such as GNU/Linux) to play DVD movies with their hardware --
AOL suggests that such use would be embraced by large corporate
copyright holders (who wish to ``maximize the availability of their
works'' , apparently). The opposite is happening right now in the US,
as enabled by the DMCA.

``Nor should the exceptions and limitations to copyright protection
itself be applied to the prohibition on circumvention, since doing so
could effectively negate the prohibition by enabling the widespread
distribution of circumvention devices or services, which can be used
for illegal as well as legal purposes.''

AOL falls into a trap they constructed earlier for
themselves. Previously, AOL suggested that ``theoretical'' worries --
such as legitimate uses being stamped out -- were not worth
considering when making new legislation. Here, AOL speculates about
the possibility that a ``circumvention'' device devised for legal uses
may also have illegal uses. We can turn AOL's words back upon them:
unless a device is actually *used* for an illegal use, then it is of
no concern to legislators.

Furthermore, it is not clear that any device or knowledge should be
prohibited merely because it has *some* illegal uses. Referencing the
Betamax case in the US, it should be noted that, where legal uses
exist, devices or knowledge should not be prohibited. For example,
hunting knifes can -- and have been in the past -- used to commit
murder; this is not an argument for banning thinking about, designing
or implementing a hunting knife, however.

``General privacy concerns are ordinarily not implicated by
anti-circumvention technologies, and may be better addressed through
specifically targeted privacy laws.''

Whether or not separate laws are useful to address privacy concerns is
legitimate. It is not clear, however, that privacy concerns are absent
when discussing ``protection'' technology of copyright-holders. Many
schemes involve the storage of personal information, or the encoding
of content such that each purchaser receives a unique digital
fingerprint. Such technologies may very well cause legitimate privacy
concerns.

``Among [``rights management information''] would be the identity of
the right holder, and essential terms and conditions such as cost and
limitations on the manner of use.''

AOL reveals here that they wish to control the ``manner of use'' that
a consumer puts their content to. This is not something which
copyright typically allows for and shows that the public does have a
legitimate concern that anti-circumvention legislation may prevent the
consumer from making full use of purchased content.

``3.1 AOL Time Warner supports adopting new limitations on service
provider liability for online copyright infringement [..] in order to
achieve a balanced solution that protects rights online without
imposing inappropriate liability on service providers for acts
initiated by third parties.''

AOL does get this right. Service providers should not be liable for
the use to which people put their service. Just as a phone company
should not be liable for a murder planned using their system, an
Internet service provider should not be liable for illegal activities
performed by their subscribers.

Unfortunately, AOL can't reconcile this sentiment with their desire to
have authoritarian control over content:

``It is particularly important in the area of copyright infringement
to have a pre-judicial notice and take down procedure [..]''

``Whenever the service provider receives valid notice from the
copyright owner or its agent, or otherwise becomes aware of facts or
circumstances from which infringing activity is apparent, it should be
obliged to take down the content in question expeditiously [..]''

If ISPs are not to be liable for copyright infringement, then they
should not be required to take action until a court-order can be
obtained instructing them to do so. AOL recognizes that an ISP should
not be responsible for policing the communications which go through
their systems, so why should they be expected to be experts in
copyright law? Just because someone *claims* copyright infringement
does not mean that they are right -- why should ISPs be expected to
make the determination before a judge has ruled on whether or not a
particular communication is infringing copyright? Many arguments come
it to play, and such a ``rapid'' take-down procedure does more to
allow corporations to limit criticism (for example, parody Web sites)
than it does to prevent copyright infringement. Until a judge has
properly determined whether a case in question involves copyright
infringement or not (possible issuing a preliminary injunction), an
ISP should not be responsible for taking action; taking premature
action has just as much chance of harming the alleged infringer as not
taking action has of harming the alleged infringee.

Proper legal procedures will determine who is correct, and then
appropriate action can legitimately be taken by the ISP.

``Service providers can, and should, deter infringement by informing
subscribers of their responsibility to obey copyright laws.''

Whether or not one has a responsibility to obey copyright law is a
philosophical question and not a matter for service providers to be
forced to decide.


CONCLUSION

AOL makes the expected recommendations, given that they are a holder
of a mind-boggling number of copyrights, as well as being a service
provider. To wit: AOL suggests that copyright-holders be given more
legal power to control even further the manner in which their content
is experience, delivered, disseminated and shared while at the same
time advocating strict limits to the liability of ISPs.

While wanting a significantly sweeter copyright bargain, AOL glosses
over very real and very legitimate concerns of the people on the other
end of the copyright bargain: the public.

AOL presents no evidence that copyright -- in current or different
form -- is the best (or even a good) way to achieve copyright's goals
of a large amount of public-domain art. They do advance their desire
to use copyright to give themselves more control over the copyright
privileges they currently enjoy, which will almost certainly increase
their chance to make money. It is taken as given that this is good for
the goals of copyright. One cannot presume their conclusion, however,
and this case is no different.

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