Author John Degen has posted some
fictional conversations between a writer and a reader on
his blog
(
June
9,
June
10). I say it is fictional as it ignores how the relevant
technology works, and thus not only the lack of clarity of the
relationships between writers and readers but also the fact that
there is a technology company as intermediary that separates there
from being much of a relationship at all between writers and readers. It depicts some rare moment where all the parties involved have the
same understanding of the relationship, likely because this is really
just a case of John having a conversation with himself.
This conversation is a good
example to use to better understand the technology involved, the
relationships, and what is the correct law to govern these types of
relationships. It is also a demonstration why the existing
anti-circumvention provisions within Bill C-32 require major revision
in order to not cause massive unintended consequences that will be harmful to the
interests of both the writers and readers John was intending to be
writing about.
Before we can dive into John's
specific conversations, we need a bit of background. When analyzing
electronic books I categorize them into 4 different groups based on
the technical underpinnings of the relationships.
Licensing terms in human
readable format
This is the simplest case
where the book is made available in some electronic format, and where
the licensing terms are included within the text of a book just like
they would be in a printed book. We have all seen copyright notices
within the first few pages of a book. In this relationship model
traditional copyright is being used, and if the recipient of the
electronic book does things which are regulated by copyright without
permission, they are infringing copyright identically to if they had
done these things with a paper book.
Licensing terms in machine
readable format (metadata)
This is similar to the human
readable format, except that the human reader can make use of
technology to help remind them about what permissions they have been
given by the copyright holder. This type of metadata can let people
know scenarios where they are allowed to share without additional
permission such as Creative Commons licensing, and there are even
search engines to help people find electronic text which is licensed
this way. The relationship is the same in that it is traditional
copyright being used, and the technology is being used as an aid for
copyright holders to communicate terms to audiences. It is not an
enforcement mechanism, but a communications mechanism.
Licensing terms in machine
readable format, content encrypted where intended audience holds
decryption keys.
In this scenario cryptography
has been added to the previous scenario, in order to ensure that only
the intended audience can unlock the content. This technical measure
protects against access by unauthorized persons, but is not a
technical measure that pretends to protect the copyright holder
against unauthorized activities carried out by authorized persons. Often both encryption and steganography (digital watermarking) are
used in combination such that if content is leaked that it can be
traced back to the person who caused the leak, given only the
authorized audience member could have unlocked and unlawfully shared
that specifically encoded copy of the content. In this case
traditional copyright is still what protects the copyright holder,
with the technology used both as a tool in electronic commerce to
deny third parties access, but also as a mechanism to detect who is
responsible for any leaks. The use of digital encryption and
personal decryption keys is a useful psychological tool to encourage
appropriate behaviour by that audience member.
Licensing terms in machine
readable format, content encrypted where technology provider holds
decryption keys.
This may appear at first
glance to be an incremental change from the previous scenario, but is
in fact an entirely different scenario that brings with it entirely
different areas of law. It is not traditional copyright law that is
at play with the reader, but a copyright relationship between the
copyright holder and the technology platform provider, and separate
contractual relationships between the platform provider and readers.
Since the Kobo example that
John is using is largely an example of this last scenario, we will
concentrate on that relationship. Unlike the first three scenarios
where the copyright relationship is with the reader, the copyright
relationship in the last scenario is with the technology provider. The copyright holder isn't offering a license to the reader do
anything, but instead is licensing the technology provider under
specific terms. Once they agree on terms, the content is then
encrypted such that it can only be accessed by technology provided by
the licensed technology providers. One of the obvious features of
this relationship is that the copyright holder is trusting the
technology platform provider more than they do their own fans,
something I'll have to admit to not understanding.
The first error you may notice
from John's chat is when he said, "I guess, since Kobo books are
ePub format, the books I bought would be easily transferable to
another open device". He is confusing the issue of the
underlying file format (in this case, ePub) and the digital lock
whose purpose is to ensure that content is only accessible on the
specific licensed platform. Just like it is not possible for there
to be non-wet water, it is not possible to have an interoperable
platform dependance. In order to have content be interoperable
between different platforms, the copyright holders need to use one of
the first three scenarios listed above that do not involve platform
specific encryption.
The relationship that John the
writer has isn't where the complexity is. He had a copyright
relationship with the reader in three scenarios, and a copyright
relationship with a technology platform in the fourth.
Where the massive confusion
comes from is the changed relationship with the reader in that fourth
scenario. In the first three scenarios the copyright licensing
terms are communicated directly, in human and/or machine readable
format, with the reader. While not all readers may have read these
licensing terms, they are accessible to them as readers as well as
being easily accessible to their lawyer if there is a reason to go to
court. The reader can also make their own choices of technology,
both hardware and software, according to their own personal interests
and convictions. We have several hundreds of years of experience
dealing with copyright and possible disagreements with the terms of
copyright license agreements.
In the fourth scenario the
reader doesn't have a relationship with the writer at all, but a
relationship with the technology provider. What the reader can or
can not do with that technology, or any content delivered to the
reader via that technology, is determined in software authored by or
on behalf of the technology platform provider. The reader does not
have technology choice beyond "take it or leave it", given
if they want to have access to content delivered through this
platform (and increasingly there are exclusive deals being made) they
must accept unilaterally whatever is offered by the technology
platform provider.
In theory there is a
contractual relationship between the technology platform provider and
users of that technology. I say in theory, given I suspect very few
people purchasing these technologies are aware of the obligations
that they have in theory signed on to.
The most important thing to
recognize, however, is the relevant law regulating a dispute about
the terms of the relationship between the technology provider and the
customer. It is not at all a copyright dispute as the audience is
not a licensee of the content, but a contractual dispute. It is also
not a contractual dispute with a copyright holder, but a contractual
dispute with the technology provider -- an entirely separate party.
I believe that because the
relationships are unclear, serious misunderstandings will occur. I
believe it is wrong to simply say "buyer beware". This is
a brand new relationship that I believe the vast majority of
proponents do not adequately understand, so it is unreasonable to
expect technology consumers to understand.
There are ways to avoid the
massive unintended consequences. The first is to not offer any
protection for these scenarios under copyright law. The 1996 WIPO
treaties are clear in that legal protection for technological
measures should be tied to activities that were already infringing
under Copyright law. Since Copyright law does not contemplate the
concept of restricting "access", there should clearly be no
protection in copyright law for access control technical measures. Access control technical measures are clearly a matter of provincial
e-commerce, contract and/or property law.
This would clearly leave the
contractual relationships involved in that fourth scenario to
provincial contract law, where it belongs. While there are
constitutional reasons to be doing this (Hint: Bill
C-32 may not even be constitutional), it will also ensure
that the right laws and the right courts are being used when dealing
with any disputes that arise from these relationships. With this
understanding we can move away from thinking of protecting these
scenarios inappropriately under federal Copyright law, but looking at
ways of appropriately modernizing provincial e-commerce, contract and
property laws.
John brought up many more
issue which I wanted to touch on separately. We have strong
disagreements when it comes to Bill C-32's anti-circumvention
provisions, based on our different understanding of the technology
involved and legal implications. I think we are fairly close on
other issues.
"I still love the look,
feel, smell and heft of physical books"
Yes, I too am a big fan of
physical books. I have them all over the house, sometimes purchasing
them in addition to electronic versions (text and audio books). There really are types of books which just need to be read in the
physical form, and I can't image an electronic device replicating
that experience.
"That’s a 69% savings
over the physical book."
This is as it should be. When you purchase a physical book, you are buying something that you
have some ownership rights to. You can lend it, resell it in a used
book store, you can write on the pages, you can even - gasp - throw
it into a fireplace.
When I give my "I have 4
things in my hands" presentation on Protecting property rights in
a digital world, I often ask people what they think happens
if the tangible medium (physical book, physical CD, etc) doesn't
exist and you only downloaded "bits". The answer, as far
as I am concerned (and most lawyers I have spoken to), is that the
"ownership" rights that the customer would normally receive simply don't
exist. You have the right to delete the file (destroy it), and might
in some circumstances have the right to back it up, but not much
else. There really isn't "first sale rights" in the case
where no tangible medium was sold.
Given what you are acquiring
in a purely digital scenario doesn't have any resale, loaning or
other value, then it should be obvious that the price should be
lower. I do not, however, believe a majority of people understand
this situation. I have had many people want to "loan" or
even "re-sell" me something they have downloaded from an
e-commerce site, an activity that makes no sense to me.
There is nothing that says
that an author (directly or through a technology platform
intermediary) can't offer audiences the ability to loan, resell or
give digital content away. These things are just not something that
is automatically offered to the audience. Copyright holders have and
will always be free to slice up the copyright related rights into
individual copyright related activities and license each separately,
charging more money for those who want to do more things, and less
money for those people who want to do less.
"how about standard
fair-dealing rights"
Here is one of those
conversations I had with
Susan Crean
in the past. Book writers are in a very different situation than
some other copyright holders. It will always for most people to use
their eyes and look at one text (no matter whether paper or a
device), and type that section in again using a computer or even an
Underwood typewriter.
The situation will be
different for blind people, but we don't need to focus on that for
the moment.
More commonly, this is not at
all the same thing with photographs, sound recordings, motion
pictures or other multimedia. While it is true one can take a
photo of a photo on the screen, that is not the same thing as being
able to retype plain text.
Copyright does not, and can't
possibly, regulate all types of creativity in the same way. This is
why it is nonsense to suggest that all copyright holders be given
"the same rights". (don't get me started on the
photographic exceptionalism in Bill C-32)
"That’s great for
students and teachers – but does that mean MacIntyre gets paid to
have his book used in schools, or not?"
Here is what I had to say
about
that
section of Bill C-32 in my clause-by-clause notes:
I am not a fan of
institution specific exceptions to copyright. I don't believe that
provincially chartered educational institutions should receive
exemptions that home-schoolers or lifelong learners do not.
I consider section 29.4 through 29.9 of the existing
Copyright act to be a government program, masquerading as copyright,
that is paid for on the backs of copyright holders. Public education
programs should be paid for out of general revenue, and managed by
provincial governments. Inadequate funding is an educational sector
issue, and has some market based solutions (IE: Open Access
publication), and is not a "Copyright" issue.
I personally believe that Fair Dealings should simply
have been expanded to have phrases such as "including multiple
copies for classroom use" to clarify that educators can step
into the shoes of students and do things which the students would be
allowed to do alone. With that necessary clarification these sections
(and thus the related clauses in the bill) could be repealed.
"Okay... and since I
don’t want to do any of those things, I’m cool with
that."
The people who would say this
will never circumvent a technical measure for any lawful or unlawful
purpose. It is important to remember that the whole reason why some
groups claim we need legal protection for these technical measures if
because there are disagreements on these terms. These disagreements
are of a contractual nature and should be dealt with as a matter of
contract law, and thus the requirement for disclosure of these terms
will become more clear.
We need to get past the idea
that it is O.K. to 'trick' someone into agreeing to something, and
then to try to use the full force of excessively strong law against
people when they realize they have been tricked. There needs to be a
positive obligation on copyright holders and technology platform
providers to make clear the relationship they have with their
customers, and stop blaming customers or calling them "thieves" when they do not understand or obey unclear and/or unreasonable
terms.
"Calm down, calm down,
you're not writing a teenage vampire saga here. Doesn't Kobo already
know what book I’m reading?"
This is something that some
people know, but I suspect most people do not. This is a truth that
needs to be documented, not incorrectly presumed that it is already
understood.
This is something that needs
to be worked out over time to ensure that labelling, reasonable
contractual terms, and federal and provincial privacy legislation all
become in sync. Regardless, the last thing we need to do is confuse
the issue and delay moving forward by incorrectly labelling as a
"copyright" issue something that has little-to-nothing to
do with copyright.
"What am I, some sort of
tech-gadget sucker who needs to get every new thing as soon as it
comes out? How many e-readers does one person need?"
Isn't this a question we need
to ask of copyright holders, politicians, and the monopolistic and
dishonest technology platform suppliers they are currently
supporting?
I own a number of devices that
would qualify as e-readers, from my home computer, to my OLPC to my Google Nexus One. All of these devices run Free/Libre and Open Source Software, and I
am not interested in buying into any of the products or services of
vendor-dependant technology platform providers.
The only way I will be
purchasing an e-book is if it is offered in one of the first three
scenarios, not the last where the content is encrypted with a key
that I am not given.
What if a book author only
makes the book available for specific technology platforms? I am
left with a few choices.
- Buy the paper version. This
works for books, but not for multimedia since a "paper"
version of a television series can't exist.
- Buy the platform specific
version, and then format shift to work on the technology I use. This
is the scenario which the legal protection for technical measures in
C-32 is intended to stop.
- Don't buy. This means that I
become part of the falling revenue of these industries. Since the
models used to allege infringement do not differentiate between this
scenario and copyright infringement, I'm still counted as an
infringer even when I don't infringe.
So, which should I do? Different people have different ideas on how to resolve this
question, so I can only offer my own. John has indicated on his blog
that he thinks I should simply not buy if I don't find the terms
acceptable.
In the case of e-books, audio
book performances of books, and even music there is enough content
available that is platform agnostic that I can just ignore the
platform-specific titles. This will mean that some authors/composers
and performers will be receiving less money than they might
otherwise, but that it their own choice to not accept my money. I'm
a big fan of free markets, and just hope these authors and performers
realize it is their own bad choices and not infringement that are the
cause of their problems. If some authors or performers go out of
business because of these mistakes, I consider that to have been
their own choice.
These copyright holders need
to learn that the claims of the technology providers that these
technology platforms can reduce copyright infringement is snake-oil. Anyone who understands the science behind these technologies will
know that they have no impact on people who wish to infringe
copyright, other than possibly providing incentive to infringe for
people who otherwise would not infringe. The claims that this will
reduce copyright infringement are claims made by technology companies
to copyright holders who do not have adequate technical knowledge to
recognize that the claims are false. These technology providers are
seeking their own benefit, increased sales of their brands of
technology relative to competitors, to the detriment of sales to
copyright holders.
In the case of movies and
television, there is very little content available that isn't
platform specific. These technical measures are so prevalent that
few even recognize that they exist at all, and I doubt many copyright
holders are making deliberate informed choices about the use of these
technologies.
If I want to purchase
previously aired television shows, there is no option that isn't
platform specific (this includes DVD's which are encrypted using DVD
CCA controlled keys). In this case I have and will continue to feel
justified in paying for content and then format shifting. I am
aware that my format shifting is illegal under current law, and will
still be under C-32 because of the TPM. Since I'm going to be
counted in the statistics as an infringer no matter what I do, I am
going to do what I consider to be the right thing and pay for and
enjoy copyrighted content. In this case I do not consider my actions
to be wrong, but consider the law to be wrong.
It would be nice to trust that
these problems would work themselves out, but this is only possible
if copyright holders and policy makers take the time to understand
real-world technology and the new relationships being contemplated. As long as they believe that infringement is the greatest impact on
the bottom line, and that misunderstood and misapplied technical
measures aren't a concern, they will continue to make bad business
decisions and bad laws.
See also: When
consumer choice is not enough: Dishonest Relationship Misinformation
(DRM)
---
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.
