Copyright lobby to IT sector: It’s all your fault! In some cases it is.

While copyright holders already have the legal tools to sue people in Canada infringing copyright, statements made by a relatively large number of organizations from the Copyright lobby have named their real target: the IT sector. They are lobbying to make changes to Canadian law to make the providers of IT products and services more liable for the activities of their customers.

The statements came from two sets of copyright lobbiest earlier this week. An umbrella group calling itself the Creators’ Copyright Coalition (CCC) has released a copyright platform. This group is made up of unions and associations representing individual creators, as well as collective societies that represent specific business models used by some of the same creators, for a total of 16 partly overlapping groups. The CCC platform discusses many issues, most which I will leave for future articles. As an independent creator I am opposed to most of the platform, which I believe is harmful to the interests of Canadian creators.

Also on Monday another partly overlapping set of copyright holder associations were meeting with the Ottawa Citizen Editorial Board (audio of meeting online). This group included Graham Henderson of the Canadian Recording Industry Association (CRIA), Stephen Ellis of the Canadian Film and Television Production Association (CFTPA), Alan Willaert of the American Federation of Musicians (AFM), Brad Kennan of the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA) and Duncan McKie of the Canadian Independent Record Production Association (CIRPA). (Note: AFM and ACTRA are also members of CCC)

If you are in this sector, you are likely a member of one or more of these groups. They are doing this lobbying in your name. Ideal would be if the members of these associations took over the executives to ensure that they lobbied for more forward-facing policies that embraced rather than tried to harm new media.

Both sets of groups essentially stated that they have no interest in suing copyright infringers, and instead want to go after what they are calling the “enablers”.

Listening to Graham Henderson in the audio, I felt like screaming when he was upset that they haven’t received enough “credit” for recording labels not launching lawsuits against alleged infringers in Canada as they have in other countries. The reality is that misinformation about this issue has benefit their call for WIPO Internet treaty ratification, given many Canadians — including past Heritage Ministers — have been incorrectly convinced that unauthorized P2P sharing and other unauthorized Internet distribution of copyrighted works isn’t yet illegal in Canada. The reality is that copyright holders have deliberately decided not to enforce their rights. I don’t consider their unwillingness to collect evidence and sue infringers to be something to be proud of, but yet another aspect of their lobbying efforts for unnecessary and radical changes to Canadian law.

If there is actually more per-capital infringers in Canada than in our major trading partners, and of this I have not seen credible evidence, I put much of the blame on the misinformation campaign from the copyright lobbiests and their unwillingness to sue. My involvement in the earlier case was to ensure that evidence would be required of infringing activity so innocent bystanders wouldn’t be pulled into a dragnet. I believe that proven infringers should be liable, not innocent bystanders. (The case was BMG vs Doe. I wrote quite a bit about the case, and hosted the Canadian Filesharing Legal Information Network. Our hosting of that domain ended in January 2006, so ignore anything past then.)

The discussion of child pornography or hate propaganda by the CCC is also infuriating, given these activities require a court order before an ISP is required to take action. This is the current situation with copyright infringement as well, where ISPs must respond to court orders for names of customers as well as removing material which may be hosted on ISP owned servers. What the CCC is suggesting is that copyright infringement should be treated as more harmful to society than either child pornography or hate propaganda, something I believe most reasonable people would disagree with. It is also far easier for a layperson to decide on their own whether they think something is child pornography or hate propaganda than copyright infringement, making the suggestion that ISPs should police copyright even more ludicrous.

There are thus far two major prongs to the campaign against “enablers” (which includes innocent bystanders) of this broad set of incumbent copyright holder groups. If these prongs get support I suspect they will seek to make more components of the IT sector liable for the activities of third parties.

The first prong is WIPO Internet treaty ratification with strong anti-circumvention legislation (legal protection for “Digital Rights Management”). As discussed in earlier articles, the digital locks being discussed are primarily applied to the devices that we own and use. While many people are distracted by DRM applied to content, this is a regulation that primarily affects hardware manufacturers and software authors. Some copyright holders are confusing DRM with non-controversial technical tools such as watermarking and metadata (sometimes called Rights Management Information, but that term has also confused some non-technical people), but I will leave that for another day.

The second prong is ISP liability where they want to have ISPs monitor and control their customers, proposing mandatory filters with the ISPs being held liable for any copyright infringements their customers might carry out.

I am frustrated at this for a number of reasons. I obviously take this personally as I am in the IT sector both as a software author and as a provider of Internet related services (sysadmin of hosting services, etc), meaning that these proposals directly threaten nearly every aspect of my livelihood.

As frustrated as I am at the CCC, I am also frustrated by parts of the IT sector who are partly to blame for these proposals. While I have always offered services that help put my customers in control of their IT, some of my competitors in both the software and telecommunications sector have not.

Lets start with the Telecom sector. In North America we have a serious problem in that the two incumbent businesses whose older business models are the most threatened by the Internet as originally envisioned — the phone and cable companies — are also ISPs. Because of this conflict of interest, they have been wanting to offer something that is far less than the Internet and instead offer something that is closer to their traditional offerings: a phone-like transaction service where they charge per transaction, charging premiums for more valuable “calls”, or a cable-like service where there are thousands of “channels” that are offered in various premium package bundles. The historical end-to-end neutral network where a packet is a packet and it doesn’t matter what its source, destination or contents were would be tossed out entirely.

Once we have an Internet that looks more and more like traditional broadcasting, Copyright holders are obviously going to ask why this should be treated different than traditional broadcasting where the broadcasters were liable for what they chose to communicate, and providers were regulated under Canadian Content and other such rules.

The problem is: this is not the Internet that offered so much promise in the early 1990’s. Most of the benefits of that Internet would be gone with this entirely different broadcast-like communications service. We should not be punishing all Internet Service Providers because of the mistakes of a few companies who aren’t all that interested in offering proper Internet services anyway.

This means that we now have incumbent recording labels and movie/television studios, performers, composers, writers, artists, the phone companies and the cable companies all effectively working together to put the Internet and new media genie back in the bottle. And unlike others in the tech sector who naively believe this is impossible, I am in full agreement with Lawrence Lessig who stated in his book Code and other laws of Cyberspace that this is quite likely if we don’t fight against it.

Certain parts of the computing hardware and software sectors have been headed in similar harmful directions. Non-technical Copyright holders did not come up on their own with the concept of device manufacturers and software authors monitoring and controlling the activities of technology owners. What we currently see as “DRM systems” were created by technology companies like Macrovision, Microsoft, Apple, Adobe and Sony. These companies have long understood that controlling the activities of their customers can be leveraged to manipulate otherwise free markets, and solidify their market position. By deliberately making documents and communications protocols incompatible with the products and services of their competitors, these formats could be used as a form of “second hand smoke” to impose software choices on new customers. Locking down the hardware and software also disallows owners from making their own software choices, such that they can’t choose competing products and services. From the perspective of these software vendors, anti-circumvention laws make it illegal for computer owners to circumvent this vendor lock-in.

The Copyright lobby not so coincidentally includes the Business Software Alliance that has Microsoft, Apple, Adobe and others as members, as well as associations with Macrovision and Sony. It make perfect sense for the larger lobby to use the services offered by these vendors to control their customers. Since more advanced technology users will always be able to remove third party locks from their devices and get out of any vendor lock-in, the lobbiests want a legal layer to make these perfectly legitimate activities illegal.

This is important: anti-circumvention laws are not aimed at the average technology user who doesn’t have the required knowledge to unlock their content or devices, but technically competent individuals who would otherwise be able to Unlock their Media and protect their own rights and freedoms, or companies offering services to help protect these rights.

The question we need to be asking is what vision of the future economy do we want to see? Do we want to create one where a small number of providers of IT products and services are granted government protected control over the primary means of production, distribution and funding of knowledge in the future knowledge economy?

Should we instead be enacting laws to disallow Internet and software service providers, and hardware vendors, from monitoring and controlling the activities of their customers? This would include network neutrality laws, strong competition (anti-trust), privacy, IT property and other protection, and legal protection against (not for) third party locks being applied to our hardware and software.

Might I suggest a middle ground? Those providers of products and services which clearly put the customer in control should not be liable for the activities of their customers. This way it is only those providers that are trying to put the new-media genie back in the bottle which would be held liable for the activities of their customers. If cable companies want to act like a broadcast undertakings in the way that they offers Internet services, then this service should be as highly regulated as broadcasting. Providers who do not monitor or filter their customers would not be treated as broadcasters.

There is some good news in that Canada’s Privacy Community called for copyright consultation this week as well. It is critically important than the government realize that the proposals of the Copyright lobby will cause massive invasions of privacy of Canadians. When the IT sector is mandated/allowed to monitor and control the activities of customers, it is inevitable that they will go beyond copyright issues and monitor and control customers for their own special interests as well. If violating peoples rights to protect the business models of copyright holders should be protected, why would violating these same rights to protect the business models of these specific IT sector companies be any different?

Note: If you happen to be in Ottawa on a Friday afternoon after 16:30, please consider dropping in for a chat. I attend a weekly gathering with the GOSLING Community, currently held at the Parliament Pub.

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