It was interesting to read two articles from CBC earlier this week that had the same website URL except one was dated the 12′th and the other the 13′th. The first had the headline “Canada a top copyright violator, U.S. group says” and the second “Business coalition opposes harsh copyright reform“.

International Intellectual Property Alliance

The first article was about a group that wants “stronger” copyright law, and was pushing the US government to put Canada as in the top priority watchlist in the USTR’s “Special 301″ annual review. This watchlist lists countries which the USTR believes isn’t providing copyright and patent rules the way they would like. Given the subjective and controversial criteria for this list the only reason the USA isn’t on the list itself is because they are the author.

The US-based group sending this message calls themselves the International Intellectual Property Alliance and is made up of 2 associations from the software industry [Business Software Alliance (BSA), and The Entertainment Software Association (ESA)] and 5 associations from the content industry [Association of American Publishers (AAP), The Independent Film & Television Alliance (IFTA), The Motion Picture Association of America (MPAA) , National Music Publishers’ Association (NMPA) , and the Recording Industry Association of America (RIAA)].

They have been creating country reports for a few years. Their focus for Canada in 2008 is similar to other recent reports in that we haven’t ratified the 2 WIPO Internet treaties (and in the way they want us to with strong anti-circumvention legislation), and don’t provide adequate enforcement. The latter claim is interesting in that the real complaint is that the members of the IIPA don’t receive adequate corporate welfare in the form of government funding of this enforcement, rather than leaving copyright holders to defend their own rights in courts as they are currently expected. Many of the problems they see are about as fictitious as what we saw earlier from a Microsoft Canada lawyer.

The reason I separate the software industry associations from the content industry associations is because I believe that the software associations are aware that what they are asking for won’t have the intended consequences, but that the other associations are not technologically literate enough to realize this. For technology issues, they are going to rely on the software industry associations.

The software industry learned from the 1980’s that technologies they like to call “copy control” do not work to stop copyright infringement. What they have learned, however, is that the types of technologies which laypersons will confuse with “copy control” have other benefits to the relevant software vendors: they create vendor dependencies where specially encoded information can be made to only be accessible on specific brands of access software, and that it is possible to lock down hardware such that it is the software author and not the hardware owner that is ultimately in control of software choices. For the monopolists like Adobe, Apple and Microsoft who largely control the BSA (and not in that order) and offer “copy control”, this is not an unintended consequence of this technology and policy but a key anti-competitive business tool for them.

Business Coalition for Balanced Copyright

The second article was from the Business Coalition for Balanced Copyright, a coalition including a who’s who of the telecom, Internet, retail, and broadcast communities. Signatories include the Canadian Association of Broadcasters (CAB), Canadian Association of Internet Providers, a division of CATAlliance (CAIP), Canadian Cable Systems Alliance (CCSA), Canadian Wireless and Telecommunications Association (CWTA), Computer and Communications Industry Association (CCIA), Retail Council of Canada (RCC), Google, Third Brigade, Tucows, Yahoo! Canada, Cogeco Cable, EastLink, MTS Allstream, Rogers Communications Inc., SaskTel, and Telus.

They are calling for (See: position paper via Google) expanded fair dealings, a reasonable interpretation of “legal protection for TPMs” and “making available” from the WIPO treaties, suggest that ISPs shouldn’t be liable when acting as intermediaries, study and possibly abolish current form of private coping, avoid Copyright liability for technical processes, and have rational and effective enforcement. In many ways their message was in direct contradiction to the message from the IIPI.

(See also Google Public Policy BLOG post by Jacob Glick, Canada Policy Counsel, and No One Likes a Bully: The IIPA and Canada by William Patry, Senior Copyright Counsel, Google Inc.)

Those people who have shielded themselves from the real Copyright debate by thinking that it is a disagreement between copyright holders and copyright users should recognize from these two sets of associations that this is not true. Both associations include members who act as both copyright holders and copyright users. In cases like Google, Microsoft and Yahoo you have companies that have spoke about acquisition of, merger with and competition with each other, clearly believing that they are now or plan to be competing in core markets.

In both associations we also have industries that might otherwise be disagreeing with each other, but have come together on some narrow common ground they agree with within the association, and disagree with with respect to the opposing association.

On the issues articulated by the IIPI and the BCBC, I am in strong disagreement with the IIPI and in agreement with the BCBC. While the devil can always be in the implementation details, this is where I stand based on the broad statements and what I believe would be good for Canada. I suspect that if it was solicited, the BCBC could have included Canada’s Free/Libre and Open Source Software sector as a signatory.

To abuse, or not to abuse, an unintended consequence

While there is quite a bit that can be said about each of the points from each of the coalitions, I notice a key difference. In the case of the software associations in the IIPI they are promoting policy where they will be great beneficiaries of an “unintended consequence”. By claiming that locks are being added to content and devices in order to reduce copyright infringement, they are able to receive the massive anti-competitive benefits of revoking software choice from technology owners.

The cable and phone companies have a similar business goal in that they do not want to be offering “Internet” services under the end-to-end principle it was designed under. When end-to-end is used, all the innovation is at the “endpoints”, which means that communications providers must then compete on a more level playing field with individuals and organizations that are not also providing underlying communications services. The phone and cable companies want to be vertically integrated, and be able to leverage physical monopolies relating to the underlying communications services in order to create monopolies in the endpoint services.

According to a Reuters article published by the Globe and Mail on the 13th, mobile carriers are fighting very hard to not be considered “dumb pipes” — in other words, trying to avoid becoming wireless Internet carriers. While customers are increasingly asking for mobile Internet, incumbent carriers do not want to offer it.

One way to justify breaking the end-to-end design principle is to claim that it needs to be done in order to police copyright. If the phone and cable companies were offering only services that acted like — well — phone and cable services, then the merger of these old-style point-to-point communications service and centrally controlled one-to-many broadcast service would be easily controlled to stop copyright infringement. It would also stop any other service that might compete with the phone and cable companies. Rather than the promises that were possible with an end-to-end Internet where innovation occurred at the endpoints, we would only have succeed in merging the phone and cable companies into a single set of competing companies that would offer both phone and broadcast services.

Unlike the incumbent monopoly software vendors, the incumbent phone and cable companies have in this policy declaration avoiding abusing this unintended consequence. While they could be calling for stronger ISP liability in order to make end-to-end Internet services impossible to offer (and thus they would have no competition from emerging companies offering end-to-end Internet services), they chose instead to call for there to be no liability when providers are acting as intermediaries.

While I often find fault with the phone and cable companies for their opposition to the very existence of proper end-to-end Internet services, I will grant that in this case they are being far more honest than their monopolistic counterparts in the software industry.

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