Differentiating allies and opponents in the Copyright debate

Copyright is often claimed to be abalance between rights-holders’ interests on the one hand and theinterests of users and society as a whole on the other hand. I onlywish things were that simple. I could take my place alongside otherrights-holders, and know that copyright law would at least be takingthe interests of creators into serious consideration.

The problem is that thereality is quite different. With digital copyright you havepotentially 4 rights-holder groups. Even if you onlyconsider the interests of copyright holders, the vast majority of thedebates I have witnessed have been between and within copyrightholder groups, not between copyright holders and some otherindividual or group.

Just as with previous bills,the tabling of Bill C-32 will bring new people to the debate. Reading how I evaluate my allies and opponents may be useful as akick-start for those people.

Who am I

While it is true that allcreators of copyrighted works are also audiences of far more thanthey create, considering yourself a creator first gives you a certainperspective. For most creative works I am only an audience or fan,and it is only with software and a few amateur articles like this onewhere I am an author.

To put food on the table I aman independent software author, and Internet consultant. When I sayindependent, I mean independent of the big names in the softwareindustry such as Apple, Adobe, and other members of the BusinessSoftware Alliance. I consider these companies to bebusiness competitors and political opponents.

The largest growing part ofthe software sector, and which most threatens the legacy businessmodels of BSA members, is the Free/Libre and Open SourceSoftware (FLOSS) movement. I joined this multi-sectoralmovement, which includes but is not limited to commercial softwarecompanies, in the early 1990's. Most of the policies promoted by theBSA since the mid 1990's have been aimed at stopping or reducing thegrowth of this movement. The two most active policies are softwarepatents and legal protection for technical measures.

While I consider copyrightinfringement important, I don't consider that to be my greatestthreat. Before copyright can protect me, computer owners need to beable to make their own software choices so that they are allowed tochoose my software. The policies of the BSA are aimed at reducingsoftware choice, ironic given they were behind an Astroturf campaignthey titled the Initiative for Software Choice. A prominent memberof our community launched a counter-campaign called Sincere Choice.

We can ignore software patentsfor the moment as that is separate from the Copyright debate. In thecopyright debate the tool of choice is an abuse of technicalmeasures. The claim is that their use will reduce copyrightinfringement, a claim that anyone with computer security knowledgewill disagree with.

What these misappliedtechnologies offer is a subversive protection of contracting termsthat create dependencies on technology intermediaries. A few BSAmembers are playing a game of Russian Roulette where the winner takesall, and is able to control though misapplied technologicalprotection measures the keys to the technology which forms the meansof production in the new economy.

The reason I insist sostrongly that any legal protection for technological measures not bein Copyright is because, if these contracting terms were exposed asbeing contracting terms, then regulators and the courts would be ableto far more easily minimize the worst harm.

Obvious allies

Independent software authorshave obvious allies with other independent software authors. Thereis the Open SourceInitiative, the FreeSoftware Foundation and the LinuxFoundation in the US, and various software user/developergroups in Canada such as CLUE:Canada's Association for Open Source.

If you look at the membershipfor the Linux Foundation and the BSA, you may notice there areoverlapping companies between who I consider to be my most obviousopponents and allies. This is not only true within theseassociations, but within individual companies. I've observedinformal policy debates between employees of IBM, with thesedifferent employees being as far as two individuals can be from eachother on key areas of technology policy.

This means that it isn't assimple to assume that just because someone works for a specificcompany that they hold a certain view. You can comment on theoverall policies of a company or association, without it necessarilyreflecting the views of any specific individual. This has also beenmy experience with many of the business associations, creator groupsand unions. I have met many people who are members of The WritersUnion that strongly oppose the political views expressed by theexecutive of that union, or Access Copyright, both which claim theseindividuals as supporters.


Outside of the softwaresector, there are many lawyers who have helped protect the checks andbalances in the application of law in the all too often misunderstoodscenarios that involve digital technology. The Electronic Freedom Foundationwas founded in 1990 to help with a series of oddball court cases atthe time, and has been at the forefront of protecting human rights inrelation to digital technologies. In Canada we have the Canadian Internet Policy andPublic Interest Clinic, and individual technology lawprofessors like MichaelGeist.

There are other people notprimarily in a technical profession that have been allies, includingmany that exist in other non-software copyright holding sectors.

Allies who act likeopponents

The most confusing aspect ofthe debate has been sitting on the opposite side of the debate asfellow creators. Most often the disagreement is not about theultimate goal of protecting the material and moral interests ofcreators, but whether a specific policy being debated will help orhinder that goal.

It is often the case that theperson I am claimed to be an opponent of is unaware that I am ontheir side, and thinks that if I disagree with a policy that someonehas falsely claimed will help them, then I am somehow opposed totheir goals.

If you are put in a situationto “debate” copyright with a fellow creator, they will befocused on a higher-level “we deserve to be paid”. Youneed to make clear that you agree with them at that level, but do notbelieve that the policy put before us agrees with that goal. Thiswill be hard as many individual creators are members of associationswhose executives are promoting specific harmful policies, and haveall too often become allied with the BSA and their “strongercopyright is better copyright” misdirection.

It is important that wedisagree with the harmful policies, and not think that everyone whois pushing harmful policies is an opponent. Think of them as someonewith a different understanding of technology and/or economics, andthe disagreement as an opportunity to have some great and hopefullyfruitful conversations.

Dying industries whoare the most aggressive opponents

There is a transitionhappening in the music sector that demonstrates a critical dynamic. While music fans tend to think of the music industry as one happyfamily, this can't be much further from the truth.

What is currently happeningstarted back a little over a hundred years ago when the musicindustry was composers, performers were considered trained monkeys,and anyone making recordings (player pianos, talking machines) wereconsidered pirates.

Governments legalized theactivity of recording, and performers and the makers of soundrecordings were given their own copyright called Neighbouring Rights. This means that there are 3 copyright holding groups in music. Inmany countries composers weren't given any choice at all, and weresubject to a compulsory license where anyone could perform and recordtheir music without permission, only payment at a government setrate.

The equipment to record was expensive, so therecording labels quickly became a specialized banking sector to fundthe massive up-front capital costs to record and distributerecordings. For their participation they took the lions share of therevenues from the sales of recorded music, with musicians making onlya few pennies on the dollar.

Technology changed, asit always does, and the equipment to record and distribute is gettingcheaper by the day. Musicians are increasingly realizing that theycan keep the copyright on their own recordings, and keep the majorityof the revenues. They can then hire the services of others forpromotion/etc, just like they would hire an accountant do to theirtaxes. These jobs are not disappearing, they are just no longer jobsat organizations calling themselves recording labels.

What this means is that thelabels are no longer necessary for an ever growing number ofmusicians. The major labels are observing a decline in the portionof the music industry that they participate in, and many arestruggling to survive. This decline is largely about competition,even while they falsely claim it is about copyright The statisticalmodels they use to claim harm do not differentiate betweencompetition and infringement.

The major labels have alliedthemselves with other old-economy entities who claim to be able tohelp. Some of the members of the BSA have claimed they have this”magic potion” that would reverse the trend in the musicindustry such that musicians remain dependant on the labels.

Thismagic potion is more commonly referred to as “technicalprotection measures” (TPMs), or DRM. Those of us in theindependent software industry know this magic potion is actuallypoison, but the major labels and most other groups claiming torepresent creators aren't listening.

This technologyprotects a software and/or hardware platform in between copyrightholders and audiences. In the end this technology benefits the ownersof the platform, and creates a dependency on the platform for bothcopyright holders and audiences wanting to reach each other. As theygrow, these these platform providers will have less of a need forlabels than musicians do since they act as intermediary directlybetween musicians and music fans.

The BSA membersare using the labels as their public face to the political process,just as the labels have always used specific famous musicians astheir public face. Michael Geist has suggested that the majorlabels are behind the latestAstroturf campaign, and from what I have seen I suspectthis is true.

No matter which outcome we seein the copyright debate, recording labels will never again have theprominence they did in the 1980's and 1990's. This is true now, andwould be true even if not a single song copyright had ever beeninfringed. There really is nothing that can be done to help thelabels that won't greatly harm the interests of creators in return.

While the major labels have nofuture, the future of composers and performers is uncertain. If thepeople working at the labels focused on the interests of musicians,they would be putting forward policies which would protect thoseinterests rather than wasting energy trying to save the the labels. It is important that we try to speak with individuals whotraditionally worked at the labels, and who really believe in themusic industry. If we can get them to focus on musicians rather thanlabels, they can become allies of the future of music rather thanopponents. Do not presume they are pushing the policies they arebecause they want to take money out of the pockets of creators –many will believe that the policies they are promoting will help themusic industry.

Those of us in the technologycommunity need to make as many alliances with other creators aspossible. Our future in our competitive and political battles isintimately linked with these non-software creators. We need to turnpeople who at first glance appear to be opponents into being theallies they should always have been.

Russell McOrmond is a self employed consultant,policy coordinator for CLUE:Canada's Association for Free/Libre and Open Source Software,co-coordinator for Getting Open Source Logic INto Governments (GOSLING),and host for DigitalCopyright Canada.

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