Technology law suggests that conservatives shouldn’t vote Conservative

The Conservative party has released their platform. Various online forums are filled with people who might otherwise vote Conservative, but that are not doing so based on technology law which was tabled in the last parliament and promised to be re-introduced by a re-elected Conservative Government. What I find interesting is that more conservatives are starting to recognize that with this policy the Conservative party is either abandoning some of their founding principles, or admitting that they don’t understand a bill they have tabled.

On page 14 of the platform, immediately under a picture of someone holding up a sign saying “promise made promise kept” is the following:

“Protecting Creators and Consumers of New Ideas and Products

A re-elected Conservative Government led by Stephen Harper will reintroduce federal copyright legislation that strikes the appropriate balance among the rights of musicians, artists, programmers and other creators and brings Canada’s intellectual property protection in line with that of other industrialized countries, but also protects consumers who want to access copyright works for their personal use.

We will also introduce tougher laws on counterfeiting and piracy and give our customs and law enforcement services the resources to enforce them. This will protect consumers from phoney and sometimes dangerous products that are passed off as reliable brand-name goods.”

In order to reintroduce something, one needed to have introduced something that provided that balance in the first place. Many musicians, artists, programmers (like myself) and other creators have joined with consumer to strongly oppose the policy direction articulated in the Conservative Bill C-61. Those who support the legislation seem to either be unaware of the impacts of the most controversial aspects, or are only trying to protect themselves from legitimate competition from innovative new businesses.

While the media has focused on a few provisions relating to unauthorized P2P filesharing of music, the bulk of the bill and the most controversial aspect relates to technological measures. There are two types of technological measures being discusses. There are digital locks applied to content (called “access control” technological measures) which limit interoperability of the content with “authorized” hardware/software. There are also digital locks applied to hardware/software (called “use control” technological measures) which disallow the owner of the device from controlling the device through disallowing the owner from making software choices.

In the article titled ‘Even in the “DRM” debate, Content is not King‘ I describe why it is this second lock that is the most harmful one, even though it is the first lock that gets nearly all the attention.

I have used an analogy a transportation technology to help clarify the issue.

Imagine a law which said that car owners who wish to use public roads are no longer allowed to drive themselves, or choose their own drivers. Instead the car is locked by the manufacturers who decide what drivers will be allowed. The law would make it illegal for the owner of the car to unlock the car in order to drive themselves or hire their own drivers. Anyone who provides car unlocking services, or technologies to unlock cars, would also be violating the law.

If we switch from talking about a ‘car’ to talking about communications technology, this analogy becomes a fairly accurate description of the most controversial aspect of this policy direction. In the case of information technology it is software that drives the technology. Most people would recognize that a law which allowed people to “own” transportation/communications technology and yet not be legally able to make their own driver/software choices is an attack on their property rights.

The analogy to the ‘public roads’ is mainstream commercial content which is increasingly being locked down to only interoperate with locked-down hardware/software.

(See also: which is a shorter URL for my paper on protecting property rights in a digital world)

I became involved in this area of policy in the summer of 2001 when I was told that Canada was considering tabling a Canadian version of the USA’s Digital Millennium Copyright Act (DMCA). I was already familiar with the impact it has had there by harming the interests of technology owners and software developers, as well as how it provided further incentives that increased (not decreased) copyright infringement.

At the time it was a Liberal government contemplating importing this Clinton/Gore policy from the 1990’s that had been policy-laundered through WIPO in 1996. I kept waiting for a conservative party to recognize the harm to conservative values, and come out strongly against it. Until 2003 there were two conservative parties that kept silent, at which point the Progressive Conservative party dissolved leaving the newly renamed Conservative Party of Canada. This party remained silent on information technology property rights issues until after they were elected, and then started to talk about tabling a bill that was even worse than the one that the Liberal party had tabled. This election they now release a platform that adds this attack on traditional conservative values as a promise made that they intend to keep.

The rumours about this bill were confirmed on June 12, 2008 when the Conservative government tabled Bill C-61. While the Liberal Bill C-60 was a bit vague about what it restricted (one of its many flaws), Bill C-61 clearly protected both use control and access control technological measures. Where the Liberal bill was largely based on the language from the two 1996 WIPO treaties, the Conservative bill was based on the Clinton/Gore DMCA.

It may be interesting to run this policy past some of the founding principles of the Conservative party of Canada which include:

“A belief that the best guarantors of the prosperity and well-being of the people of Canada are:

  • The freedom of individual Canadians to pursue their enlightened and legitimate self-interest within a competitive economy;
  • The freedom of individual Canadians to enjoy the fruits of their labour to the greatest possible extent; and
  • The right to own property;”

    I think the last bullet is already addressed, and C-61 clearly goes against the property rights of information technology owners.

    As a software author I rely on the rights of technology owners to choose their own software, otherwise they can not choose my software. This means that C-61 also infringed upon the second freedom articulated by the Conservatives for me.

    With analog technology, it is the operator of the technology that is in control . With digital technology the buttons are just like keys on a keyboard, and are interpreted by software inside the hardware. It is ultimately the author of the software, and not the owner or operator, that is in control of digital technology. If you are a creator trying to use technology that is not under your control, this can clearly reduce your ability to enjoy the fruits of their labour to the greatest possible extent. The author of the software may have interests contrary to those of the owner/operator.

    The first type of digital lock applied to content, the access controls, reduces an otherwise competitive market for hardware and software. Only those devices which have been “authorized” to be able to access the content by the copyright holder can legally do so under C-61. This is an anti-competitive form of “tied selling” (the language used in section 77 of our Competition Act). This is a radical extension of copyright as copyright never granted that type of exclusive right to copyright holders in the past, and for very good economic reasons. This extension of copyright should have easily understood implications against the first freedom articulated by the Conservatives, given it is the interests of the platform monopolies which are being protected and not the interests of individual Canadians.

    If you are a Canadian that believes in the principles articulated by the Conservative party of Canada, what are you to do? It seems clear to me that the current government is ignoring those trying to sound the alarm, so we can’t seem to rely on them waking up and understanding the harmful implications to their own values of their legislation.

    The ultimate outcome of any Copyright bill really comes down to the 12 people who will sit on the committee that will study it. Party representation on committees is roughly proportional to the party standings in the House. With 308 members in the house, that means that for every approximately 26 members in the house a party gets a member on a committee.

    The ideal would be that all 12 of the people in this committee understand the harmful implications of this policy. Ironically it is Charlie Angus, of the Canadian New Democratic Party, that is most aware of and opposed to this policy direction first articulated by the US Democratic Party. What this means for a conservative is that they should find out if their local candidate is aware of the issues and is willing to be an ally on that committee. Otherwise, it is best to do what you can to reduce the number of Conservatives that will be on that committee, and the only way to do that is to help reduce the number of Conservatives that are elected to the house of commons.

    If your local Conservative candidate is technologically literate and willing to take on this area of policy to protect technology property rights, then please let me know. I feel it is quite unfortunate to be suggesting an “Anything But Conservative” (ABC) type political message as I am someone who holds many values in common with those articulated by the Conservative Party. I understand Danny Williams, Premier of Newfoundland and Labrador and Leader of the Progressive Conservative Party of Newfoundland and Labrador, who is clearly a conservative but disagrees with specific current polices of the current Conservative Party of Canada.

    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 Digital Copyright Canada.

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