Ahead of the curve : Bill C-32

Copyright: Get It Right, by not following Access Copyright proposals

Russell McOrmond — Tue, 21 Sep 2010 19:02:00 GMT

Collective Society Access Copyright, a business model intermediary used by some creators, has launched a C-32 related campaign website where they are critical of the fair dealings reform in C-32. I believe that the fair dealings reforms are a mixed bag of things which are "about time", things which are excessively complex, and only some I disagree with. As a creators' rights activist I must disagree with the perspective offered by Access Copyright, which I believe is harmful to the interests of Canadian creators.

I must start by saying that I question the legitimacy of Access Copyright claiming to represent creators. On their website they continue the claim that they represent Canada’s 600,000-strong cultural sector.

As a collective society they exist as an intermediary between copyright holders and licensees for specific uses of copyrighted works. People do not join Access Copyright like they do a political party, supposedly because they agree with the political views of the leadership. It is a way to get money that is owed to them, nothing more. Suggesting access copyright represents the political views of creators is like saying that anyone who applied for the HST rebate in Ontario did so because they agreed with the political views of Dalton McGuinty and Steven Harper.

Given this, I don't believe that collective societies should be involved in copyright reform process, alleging to "represent" their members. Their views can be heard at the Copyright Board when royalty rates are being set. It should otherwise be creators and groups representing creators that are independent of collective societies involved in the copyright reform process.

The site has some "fast facts", which I will make some fast comments on.

They claim that the new exceptions jeopardize the economic future of knowledge workers.
A repeat of the same as #1, using different words
A repeat, focusing on the educational exceptions
A claim that Canada's Creative Industry has lined up in opposition to C-32. This is true, but for a variety of very different reasons. Access Copyright's opposition is nearly opposite to my own opposition.
A call to get copyright right, something we can all agree on. This has no meaning given the loudest debates in the copyright reform process are different creators' disagreeing on what changes would benefit or harm creators.

Yesterday I summarized my views on five key issues around C-32. I think it is worth taking a closer look at the fair dealings reforms in C-32. I will do so by breaking those proposals into three groups.

Exceptions clearly for the benefit of follow-on creators.
The most obvious is the addition of "parody or satire" to our existing fair dealings which already had "research, private study". These are clear limits on the control of past creators that is necessary to enable new creativity. It is something that all creators should be strongly supportive of.
Access Copyright doesn't represent creators, but a business model. As such they want more money to flow through them, and are generally unconcerned with the burdens that such a system can place on creators -- especially those whose motivation for creativity are not royalty payments.
Exceptions that are similar to those that would exist under US-style living Fair Use regime.
This includes time and device shifting, backups, or non-commercial user-generated content, which does not have a negative effect on the value of the work for the creator. I believe the language in C-32 is excessively complex, and that Canada would be far better service adopting a US-style living Fair Use regime. Bill C-32 being excessively complex means that people who are not copyright specialists will likely interpret the terms wrong, inducing infringements that would otherwise not happen.
These are activities where the lack of requirement for permission or payment increases the value of the work to the audience, will increase the willingness to pay, and thus will increase revenue to creators. This basic economic analysis falls on deaf ears for those in Access Copyright who falsely believe that "more copyright" will mean "more money", when in fact the opposite is often the case. Any business person knows that as you decrease the value of something to the customer that sales will decrease.
These are activities which most Canadians already believed were outside of copyright. These exceptions will not cause a major shift in Canadian behaviour, just legalize the common activities of Canadians. There have been false claims that Canadian law is "weaker" than US law (meaning, balance less tilted in favour of past copyright holders). Canadians believe that any potentially copyright-regulating activity that was legal in the USA was also legal in Canada. I believe the USA got this aspect of their law better than Canada did, and has benefited their copyright industries to effectively have more exceptions to copyright.
This grouping includes the addition of "education" under the basic fair dealings list. The US made this more clear by including "multiple copies for classroom use" which recognizes the benefits of allowing educators to be able to step into the shoes of pupils and do things which would be an exception for the individual pupil.
Exceptions to copyright granted to specific institutions.
This is the one area that I partly agree with Access Copyright. I believe that the educational institution specific exemptions to copyright in Bill C-32 (and the existing copyright act) are a government program, paid for on the backs of copyright holders. In fact, I believe it is harmful to pupils to have one set of copyright rules when they are in the confines of an educational institutions, and a different set of rules outside.
Where I disagree with Access Copyright is that I believe the solution isn't to pay collective societies more money, but for the educational sector to migrate to the use of Open Access published works. Open Access is based on one-time payments to creators for the works, allowing for royalty-free redistribution. Creators get paid directly, and educational budgets are far more manageable than when institutions rely on legacy educational publishers.
In my opinion, if the educational sector refuses to explore alternatives to the incumbent educational publishers and Access Copyright, then we should feel no sympathy for their claims of budget hardships from their own business choices. We should not be adding government programs to federal copyright, and should leave this as an issue to be handled provincially.

The site suggest that I join them in defending Canadian culture & heritage. I must continue to publicly oppose their policy views in order to do my small part to defend Canadian culture & heritage,

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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.

The long computer registry and IT control

Russell McOrmond — Thu, 09 Sep 2010 03:33:00 GMT

When meeting with some members of parliament I have used a gun control analogy to explain digital locks applied to communications technology. A minor form of gun control is being hotly debated in parliament and the media in the context of a private members Bill C-391, which has "repeal of long-gun registry" in its title. A highly controversial form of third-party control over communications technology is part of copyright Bill C-32, even though this key aspect of the bill is not yet adequately understood.

I felt it might be an interesting thought experiment to compare and contrast these two proposals and the political debate surrounding them. In my case this thinking was useful for me to better understand the opponents of the Canadian firearms registry, and thus it may be helpful in allowing others to better understand opponents to legal protection for technological measures.

Here is how the analogy goes: Imagine a form of gun control where all guns are locked. Legal protection is granted to these locks such that it is illegal for the owner to unlock without permission, including for uses of the gun that would otherwise be lawful. In order to use a gun, its owner must call up an animal rights activist to get permission.

This is the essence of legal protection for technological measures applied to devices. The communications technology is locked by the manufacturer. Legal protection is proposed to be granted in Bill C-32 to these locks such that it is illegal for the owner to unlock the communications technology without permission, including for uses of the technology that would otherwise be lawful under existing Canadian copyright law as well as the traditional definitions of copyright. The permitted uses of the communications technology are restricted to those negotiated between the hardware manufacturers and the incumbent content industry, with the incumbent content industry being the least likely to grant permission. This is a set of companies successful prior to the invention of this new technology, and that wish that this new communications technology never existed in the first place.

The following are, in point form, some comparisons in how these two different restrictions of technology are understood and being debated. To save space I will use the acronym TPMs (technological protection measures) to describe technologies used to grant someone other than the owner control over communications technology. It is easier than writing communications technology control, digital rights/restrictions management (DRM), or the whole slew of other related terms to describe these ab(uses) of technology.

When a gun is used, the result can be death. The death may be the intended target, or an unintended target, but the most common use is to cause the death of something that was previously living. Many abuses of guns are already illegal under a variety of different laws.
When information technology is used, the result is knowledge is shared. It may be beneficial or potentially harmful for various parties for that knowledge to be shared. The most common form of potentially harmful sharing is copyright infringement. Some copyright infringement leads to loss of revenue, while others have no effect or increase revenue. The economic analysis of copyright infringement is quite complex. Other potentially harmful forms of communication are regulated, where it is the specific idea being communicated and not the technology itself that is being restricted.
Many members of the Conservative party in Canada oppose mere registration of firearms. On the other hand, the same party is thus far pushing legislation in the form of C-32 which legally protects someone other than the owner of technology being in control of that technology.
Many members of the NDP are strong supporters of gun control, with there being a split in the caucus about the long gun registry. The NDP has Charlie Angus as their critic on copyright, and he has been an outspoken critic against legal protection of TPMs and C-32. Charlie was also supportive of repealing the long gun registry, but may change his mind because of political interference from Conservatives who seem intent to defeat their own proposal.
The strongest supporters of the registry and TPMs are people who, when being honest, will admit they wished the underlying technology didn't exist at all. It is not just registration or manufacturer control they are ultimately interested in, but abolishing. Registry and manufacturer control over these technologies are just seen as steps in the right direction.
"Something must be done. This is something". I have heard this from both supporters of the long gun registry as well as supporters of legal protection for TPMs. They are generally unwilling to discuss whether this specific "something" helps or hinders the alleged problem they are trying to solve.
Many supporters of the long gun registry are supporters of gun control. They see the registry as a form of gun control, while many opponents don't see how it relates to gun control at all.
Many supporters of TPMs are supporters of stronger copyright protection. They see TPMs as a form of stronger copyright protection, while opponents don't see how TPMs relate to copyright at all (Note the Bill C-32 FAQ where I argue TPMs are a matter of contract/e-commerce law).
Police forces generally support the restrictions. Police forces may not give adequate weight to the benefits to society and/or the individual citizen of technology which has both beneficial and harmful uses. As a matter of policing it is simpler to reduce the existence and/or citizen control over the technology. This is not an insult of police forces, but a recognition of human nature.

Please add in the comments other ways in which these two policies and the debates around them are similar or different.

Jailbreaking must be legal, but should you do it?

Russell McOrmond — Tue, 07 Sep 2010 14:32:00 GMT

You will be hard pressed to find someone who find the practise of applying technology locks to someone elses property more reprehensible than I do. This is what I feel of the practise of companies like Apple and Sony who sell technology where they, not the owner, retain the keys to the technology and treat their owners as attackers of their own property. I believe that this practise should be clearly outlawed, while backward facing legislation such as the Conservative Bill C-32 seeks to legally protect it.

While this is true, I recommend against what has become the most common form of jailbreaking.

The USA has a less nasty version of legal protection of this business practise than the Conservative Bill C-32. As part of the Digital Millennium Copyright Act (DMCA), the U.S. Copyright office convenes a rule making process every three years. This round the Electronic Frontier Foundation proposed an exception for jailbreaking, which was granted. The most vocal opponent was Apple, which aggressively defended their business practises.

I have even less respect for Apple's position on this than EFF's Fred von Lohmann. If Apple wants to retain the keys for devices that they are distributing to other people, the law should force them to be more honest than they have wanted to be thus far.

In order for the people possessing technology to be prohibited from changing the locks, they should be properly notified that they are not owners. It would be perfectly legitimate for Apple to retain ownership, and have people when they acquire Apple technology to sign a technology use agreement which lays out all the conditions of this arrangement. All the balance of contract and other law would exist in this relationship which has many more similarities to a rental agreement than a purchase agreement. Users of Apple technology would understand their rights and responsibilities in their relationship with Apple, and wouldn't be dishonestly confused into thinking that they were actually purchasing Apple hardware in the same sense as they might purchase other tangible goods.

Once Apple is forced by the legal system to be more honest, Apple technology users would be able to make better informed choices about whether they wish to sign onto such contractual arrangements. The markets would then be able to device, something that this dishonest relationship misinformation (DRM) has thus far prohibited. Technology users have other options available to them under other contractual arrangements, each of which should require under adequately enforced Canadian law a level of transparency such that users are able to make informed choices. In Canada the body tasked with enforcement of competition, consumer packaging and labelling law is the Competition Bureau. This bureau should be given a strong mandate to enforce a minimum level of honesty on these companies.

When you unlock or jailbreak technology, there are a variety of reasons you may be doing so.

People who unlock their Sony PlayStation 3 are most often doing it so that they can install competing operating systems such as Linux which allows them to expand the functionality of the hardware. Installing a competing operating system was previously a feature supported by Sony. When Sony removed this feature, owners resorted not only to jailbreaking but also launching lawsuits against Sony.

On the other hand, many people are unlocking their iPhones so that they can install application software that has not been approved to be installed via the Apple app store on iTunes.

When you unlock a device to install a competing operating system, you receive all the benefits of this new environment including the security patches and other critical updates. When you unlock a device, but keep the original operating system, you end up with an inherently insecure system as you are now in a battle not only with third party attackers but also your security vendor.

When the U.S. Copyright office clarified that jailbreaking didn't constitute circumvention under their DMCA, a number of websites launched that would allow you to jailbreak your iPad, iPhone and iPod Touch. These sites made use of security vulnerabilities in Apples iOS, which when discovered Apple will quickly fix.

Think about this: In order to be able to jailbreak your iOS you are making use of flaws in the software, which the software vendor is going to fix once discovered. If you keep unpatched software around, you are then running a computer -- often actively accessing and accessible by the Internet -- which has known security vulnerabilities. If you keep your operating system patches up-to-date, the activity critically recommended for any computer that is network connected, then the jailbreaking of your device keeps being re-locked.

This is a no-win situation, and one that should be avoided.

I believe people need to take this into consideration, and make use of alternatives.

Purchase hardware where the vendor offers you an arrangement that you are happy with. In my case I run hardware that is compatible with, or preferably shipped with Free/Libre and Open Source Software (FLOSS) operating systems. My desktops and servers all run traditional Linux distributions such as CentOS and Ubuntu, and my cell phone runs Android.
If you do unlock a device, replace the operating system and other software such that you end up with a properly secure system. Do not retain the original operating system whose vendor then becomes an attacker against your device, one with intimate knowledge of how the system works.

Whatever hardware and software choices you make, please get involved in the legal issues. Please ensure that your member of parliament knows you oppose the legalization and legal protection of these business practises. Currently this means amendments to Bill C-32, or otherwise rejecting the bills passing. On BillC32.ca we have a FAQ where you can learn more, and a form letter you can send to your MP to make your views heard.

The most objectionable aspect of the Copyright debate

Russell McOrmond — Thu, 19 Aug 2010 00:03:00 GMT

For those who did not know, Access Copyright, which represents a limited subset set of Canadian creators and publishers, has proposed (and will likely be granted) a yearly per-student fee for the use of photocopiers by schools. This increase will set the rate to $45 for Universities, and $35 for other educational institution, multiplied by the full time equivalents (FTE). (For details, read this PDF)

I have some sympathy for the economic situation these organizations find themselves in. Creators of various types (book authors, visual artists, photographers, poets, playwrites, etc) don't generally receive incomes that represent the value they contribute to society. While there are exceptions, many creators fall into the "starving artist" stereotype. I also recognize that educational institutions are increasingly cash strapped, being asked to do less with less, for a service (public education) that is the foundation upon which all other aspects of a democratic society are built.

While I have this sympathy, I don't see what this has to do with Copyright. Copyright is a series of activities that if done with respect to a copyrighted work require permission, with some exceptions (compulsory licenses, fair dealings). Requiring permission for this set of activities facilitates a wide variety of methods of production, distribution and funding of creative works. Copyright is not, and should never be treated as, a government program.

I consider the question of how much money some creators are earning, or how much money specific users of creative works have to pay, to be entirely off topic. I consider educational institutional exceptions to copyright to be a government program paid for on the backs on creators, and harmful to students. I consider royalty rates set by the Copyright Board that ignore fair use limits or the limits of the repertoire of a collective, effectively offering payment to collectives beyond what is required, to be no more morally valid than premeditated commercial copyright infringement (what some of the more extreme personalities associated with Access Copyright like to inappropriately characterize as "theft").

I continuously hear what I consider to be childish whining from groups like Access Copyright (and some of their outspoken members), as well as parts of the educational community, talking about how poor they are. If these groups were asking for a new government program, or increased funding to an existing government program, I would be on their side in support. Since each is asking for changes to copyright law that theoretically benefit them, but which are at the expense of society as a whole, my answer has always had to be to wish a pox on all their houses.

There is what I consider to be a relatively easy solution to get out of this mess that has great benefits to most of the people involved.

Contrary to the loudly expressed views of some of their members, Access Copyright does not "represent creators". What Access Copyright represents is a tiny subset of business models that may be chosen by creators and their customers. They offer one-stop selling for authors who simply want a royalty fee for specific uses. They also have flat-fee royalties for uses of any works within their repertoire.

Charging royalties is not the only way to get paid for creative works. Most knowledge workers do not receive residuals or royalties, but are paid flat fees or salaries that are unrelated to the number of users or uses that the resulting works are put to. Royalties are something that is speculative and paid after-the-fact for work done in the past, a situation that is very different than how most workers in the economy are paid.

A number of different knowledge sectors are making a transition from speculative royalties to up-front fees and salaries. While not the way it is described in the marketing material, this is in fact what is happening with the fastest growing part of the software sector which is the creation and support of Free/Libre and Open Source Software (FLOSS). It is also how the various participants in Open Access publishing are paid. Put together, these development and funding techniques are sometimes called Peer Production.

I have for years been suggesting that the educational sector move to Peer Production for software and non-fiction works. While I wish this beneficial transition for authors and the educational sector could happen for all works, there are reasons why fiction and entertainment works will tend to be stuck with uncertainty in the speculative royalty payment system. These represent, however, a tiny fraction of the works used in the educational sector that are non-fiction, instructional and/or software in nature.

It needs to be repeated that not charging royalties does not mean that the author does not get paid. In fact, if the FLOSS sector is any indication, authors get paid better in a fee-for-service or salary scenario than they do in a royalty system. I believe the same will be true for the researching, authoring, editing and other management of educational material.

The benefits for authors of higher salaries and to educational institutions of more manageable budgets does come at a cost for someone, and that will be with the minimalization or in some cases closure of businesses dependant on the legacy royalty-based systems. I believe that traditional educational publishers will be on the chopping block, with some of those employees moving to work within educational institutions directly. Organizations like Access Copyright will need to return to providing that one-stop-shopping service for fiction works still part of the curriculum, although many institutions may simply leave this to an issue handled at bookstores rather than negotiations with collective licensing agencies.

This transition isn't going to happen overnight. Given the animosity between authors and educational institutions, I believe the faster the transition the better for all concerned. Access Copyright can't really stop being Access Copyright, or stop promoting the narrow set of business models it represents. It is really up to the educational institutions in Canada to stop being lazy and push for this transition. The educational sector need to stop treating Copyright as a government program, stop asking for education institutional exceptions, stop handing undeserved money to collective societies, and fully embrace Peer Production in all scenarios where possible. And if the educational sector can't move forward, they should at least stop whining about the financial and other costs of their own decisions.

Is there a copy left vs copy right?

Russell McOrmond — Sat, 26 Jun 2010 20:53:00 GMT

When I first heard a group outside of the Free/Libre and Open Source Software (FLOSS) or Creative Commons movement use the word "CopyLeft", I thought they were simply using the term incorrectly. (See: Independent authors just wanting a little respect... from fellow creators and collective societies from 2006)

In the FLOSS movement it means something similar to ShareAlike with Creative Commons: the license says the copyrighted work can be freely shared (without additional permission/payment) as long as any derivatives are equally shared. The licensing model is not opposed to copyright in any way, and focuses on material rewards in the form of additional creative works rather than royalties.

I continue to hear the term "copy left" used, sometimes by those who consider it a positive term, but more often by people who are trying to use the term in a derogatory manner. In this context the term is not being used to reference to a licensing model, but a political philosophy.

This suggests that the term "copy left" references a liberal creators' rights philosophy, and the "copy right" refers to a conservative creators' rights philosophy. It is only a coincidence that those on the "copy left" also support CopyLeft style licensing.

One thing I have noticed is that in politics one isn't necessarily conservative or liberal in all areas of their lives. I consider myself a social liberal, but fiscal conservative. On environmental policy I consider myself a conservationist, which could be considered a form of conservative compared to a person who is liberal and thinks that the resources of the planet are infinite.

In order to be as unbiased as possible in finding meaning in the terms copy left and copy right, I think a encyclopedia definition is a good start. Wikipedia: Conservatism "Conservatism (Latin: conservare, "to preserve") is a political and social philosophy that promotes the maintenance of traditional institutions and opposes rapid change in society. Some conservatives seek to preserve things as they are, emphasizing stability and continuity, while others oppose modernism and seek a return to "the way things were". Wikipedia: Liberalism Liberalism (from the Latin liberalis, "of freedom") is the belief in the importance of liberty and equality. Liberals espouse a wide array of views depending on their understanding of these principles, but most liberals support such fundamental ideas as constitutions, liberal democracy, free and fair elections, human rights, capitalism, free trade, and the separation of church and state.

So a conservative creators' rights advocate would be one trying to maintain traditional publishing and distribution institutions, and oppose to embracing the rapid changes in business models and methods of communication that is sparked by new communications technology.

A liberal creators' rights advocate would be uninterested in maintaining traditional methods of production, distribution and funding of creativity, but would be espousing a full spectrum of methods.

With this as a context, many of the conversations I have had over the past 9 years that I have been involved in copyright policy start to make sense. While any individual creator may position themselves anywhere on that political spectrum, understanding that spectrum helps to make sense why two individuals fighting for creators' rights may find themselves disagreeing with each other more than they disagree with someone who isn't fighting for creators' rights.

(Note: Apologies to the users' rights advocates who may be reading this. As I am a creators' rights advocate, this is my focus. A similar analysis can be done with users' rights advocates, with some of the educational community focused on education institutional exceptions fitting closer into the conservatism definition).

So, what am I? Anyone who has read articles I have written would know I am a liberal creators' rights advocate. I hadn't realized this until recently as I thought the term "copy left" was being used in a derogatory way by fellow creators' rights advocates, but I now feel proud to be saying this.

I believe in a full spectrum of methods of production, distribution and funding of creativity that includes historical institutions, but that is no longer dominated by them. In some cases, such as the major label recording industry, major broadcasters/BDU's, and major software manufacturers, I am rooting for what I hope will be an inevitably fade from their historical dominance. I consider this to be a positive evolution that will mean better material and moral rewards for individual creators, who will finally after so long be able to make their own decisions and choose their own destinies.

None of the policy proposals I have made for copyright would remove traditional options from those creators who wish to chose those options. I wish that all creators could agree to policies that would allow all of us to co-exist and become successful using a full spectrum of options.

I recognize that there are other creators, often closely associated with long standing creator groups, that strongly disagree with this viewpoint. Like other political philosophies that have a spectrum of beliefs, those with opposing beliefs will tend to have opposing policy proposals or even different criteria for success. I would consider it a failure of copyright reform if what it did was protect the incumbent institutions from change, rather than protecting the interests of a wider range of creators.

With these tools in hand, we can go through some sample organizations and see where their policies and talking points put them on that political scale. Please be aware that individuals within these organizations may have different or even incompatible political philosophies from the executive, so I can only speak about the people claiming to be spokespersons or the official policy of the organizations. Fair Copyright For Canada Liberal: While my impression is that the most active participants in this group are creators' rights advocates, they are liberal enough to have creators and non-creators all together discussing in the same group. CLUE: Canada's Association for Open Source Liberal: Like Fair Copyright for Canada, this group is a mixture of people who consider themselves primarily authors of software and those who are strictly software users. What brings them together is an interest in the usage of software that uses liberal licensing terms. Canadian Music Creators Coalition Center-left: While they advocate for stronger composer and performer collective societies, including more compulsory licensing schemes, they also otherwise endorse a full spectrum of options outside of those activities covered by the compulsory licensing. Creators' Copyright Coalition Conservative: All it takes is a quick look at the articles on their site to see that they are focused on maintaining existing institutions and business methods. The individuals I hear using the term "copy left" to refer to some "other" tend to be active members of this coalition, so I can only assume that they would be happy to be acknowledged to be creators' rights conservatives. Canadian Recording Industry Association Conservative, by requirement: I don't believe that CRIA has a choice but to promote conservative copyright values as they are one of those traditional institutions that is under radical change. (See bottom of: Differentiating allies and opponents in the Copyright debate) Clearly in order for them to survive they need to somehow return things to "the way they were". I think they have picked bad allies in this, but that is unimportant for trying to place them on a policy spectrum. Balanced Copyright for Canada Conservative: While we are only slowly learning who is behind this group, their policy proposals are clearly conservative in nature. It is also important to recognize that many individuals who have been seen as spokespersons for the Creators' Copyright Coalition have endorsed the views of this group, further suggesting they are pushing compatible conservative creators' rights values

There are some individuals worth noting.

While on a scale from a copyright minimalist to copyright maximalist I would put Michael Geist in the centre, on this scale I would put him more center-left. He recognizes a full spectrum of creators, but is not as quick as others to dismiss the relevance of some of the traditional institutions. He has been instrumental in convincing me to no longer reject WIPO as an institution, and to instead look at ways that existing treaties can be interpreted more centrist, and a possible future WIPO that itself becomes more centrist. Maybe over time Mr. Geist will continue to move me closer to the center-left.

Interestingly, some conservative creators' rights advocates do not even recognize Michael Geist as a creators rights advocate as he is a lawyer. (His book ignored) These same people will recognize and promote lawyers such as James Gannon or Barry Sookman whose clients and policies are clearly conservative.

When I first met him years ago I would have put John Degen, then head of the Professional Writers Association in Canada, on the center-right. I believe over time (and whenever a bill is tabled) he tends to focus on more conservative creators' rights views. There has been quite a bit of heated discussions between him and people associated with Fair Copyright for Canada and its chapters. In various discussions he has been quick to label anyone even slightly to the left of his views as representing the "copy left", and I always get the feeling the term is intended to be derogatory.

Highly successful Canadian science fiction author and creators' rights activist Cory Doctorow is on the center-left-left. While he still makes sure he keeps his publisher in business, he is one of the most cited examples in fiction literature of someone being financially successful using more liberal licensing models and promoting a full spectrum of options to fellow authors.

Rocker MP Charlie Angus is clearly center-left, focused on independent creators while also promoting institutions like composer and performer collective societies (including tabling a bill to extend the private copying levy to devices). From the conversations I have had with other composers and performers over the years, I believe his views represent a majority of composers and performers. These views are often in obvious conflict with those expressed by the recording industry, the other of the 3 copyright holding groups in the music business.

Charlie Angus is the current Heritage critic for the NDP. The past Heritage critic of the NDP, Wendy Lill, was one of the most conservative creators' rights MPs I've run into.

As Heritage Ministers I would put both James Moore and past Minister Sheila Copps on the conservative side. The fact that one was a Liberal cabinet minister and the other a Conservative cabinet minister doesn't matter. It appears to be considered part of the mandate of a Heritage minister to protect existing institutions, including protecting them from competition from creators exploring new ideas.

I do not believe that conservative vs. liberal creators' rights policies map into the Conservative vs. Liberal vs. NDP parties. My impression is that current Industry Minister Tony Clement is center-right, far closer to Michael Geist than to people like John Degen, James Moore or myself.

Some example policies?

I believe that traditional copyright itself is centrist in nature, not giving specific favour to traditional institutions or to new entrants exploring new ideas. I don't, however, believe that all of C-32 fits within traditional copyright.

Collective Societies? While the language may seem left-of-center from traditional politics, I think that the basic concept of collective societies would be center-right. Where things sway from the center is when we diverge from voluntary licensing schemes. When collective licenses are voluntary to both creators and audiences, these entities provide a valuable catalogue licensing model that makes licensing easier for everyone involved. When collective licensing becomes mandatory to either creators or audiences, then they become an institution that removes rather than grants creator choice and slides to the right. One of the issues where I argued strongly with people associated with Access Copyright, a collective society for written works, was on an extended or compulsory licensing scheme for educational works which would effectively rule out any alternative funding models for educational works.

Access Control TPMs in Copyright? I really don't know where to fit this. It is a radical change to the contours that copyright law has had for hundreds of years, given Copyright never before contemplated the concept of "access". Once copyright regulates access, it makes the existing list of activities regulated by copyright largely redundant. The concept of access had always been left outside of copyright to other non-copyright areas of law. It is also questionable whether copyright law protecting access controls is compatible with the Canadian Constitution given access control should be recognized as more of a provincial (e-commerce, contract, property) issue, not federal copyright. Looking towards things like the constitution and traditional definitions of Copyright may be something you would expect a conservative to be saying, but it has been the "copy left" that has been opposed to access controls being added to copyright, and the "copy right" has been active proponents.

It may be that since TPM policy rightfully falls outside of copyright policy and into other areas of law, that the copy right vs copy left political dynamic cannot be mapped. This may be yet another warning about this area of policy, and why TPM policy should be added to the right laws and not to copyright law at all.

I invite people to think about other policies and where they may fit. Sometimes it will help make sense out of some of the policy debates between creators' rights advocates. Sometimes it may expose a policy where there may be some other dynamic happening that isn't consistent with those political values.

Differentiating allies and opponents in the Copyright debate

Russell McOrmond — Fri, 18 Jun 2010 23:56:00 GMT

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

The problem is that the reality is quite different. With digital copyright you have potentially 4 rights-holder groups. Even if you only consider the interests of copyright holders, the vast majority of the debates I have witnessed have been between and within copyright holder groups, not between copyright holders and some other individual 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 a kick-start for those people.

Who am I

While it is true that all creators of copyrighted works are also audiences of far more than they create, considering yourself a creator first gives you a certain perspective. For most creative works I am only an audience or fan, and it is only with software and a few amateur articles like this one where I am an author.

To put food on the table I am an independent software author, and Internet consultant. When I say independent, I mean independent of the big names in the software industry such as Apple, Adobe, and other members of the Business Software Alliance. I consider these companies to be business competitors and political opponents.

The largest growing part of the software sector, and which most threatens the legacy business models of BSA members, is the Free/Libre and Open Source Software (FLOSS) movement. I joined this multi-sectoral movement, which includes but is not limited to commercial software companies, in the early 1990's. Most of the policies promoted by the BSA since the mid 1990's have been aimed at stopping or reducing the growth of this movement. The two most active policies are software patents and legal protection for technical measures.

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

We can ignore software patents for the moment as that is separate from the Copyright debate. In the copyright debate the tool of choice is an abuse of technical measures. The claim is that their use will reduce copyright infringement, a claim that anyone with computer security knowledge will disagree with.

What these misapplied technologies offer is a subversive protection of contracting terms that create dependencies on technology intermediaries. A few BSA members are playing a game of Russian Roulette where the winner takes all, and is able to control though misapplied technological protection measures the keys to the technology which forms the means of production in the new economy.

The reason I insist so strongly that any legal protection for technological measures not be in Copyright is because, if these contracting terms were exposed as being contracting terms, then regulators and the courts would be able to far more easily minimize the worst harm.

Obvious allies

Independent software authors have obvious allies with other independent software authors. There is the Open Source Initiative, the Free Software Foundation and the Linux Foundation in the US, and various software user/developer groups in Canada such as CLUE: Canada's Association for Open Source.

If you look at the membership for the Linux Foundation and the BSA, you may notice there are overlapping companies between who I consider to be my most obvious opponents and allies. This is not only true within these associations, but within individual companies. I've observed informal policy debates between employees of IBM, with these different employees being as far as two individuals can be from each other on key areas of technology policy.

This means that it isn't as simple to assume that just because someone works for a specific company that they hold a certain view. You can comment on the overall policies of a company or association, without it necessarily reflecting the views of any specific individual. This has also been my experience with many of the business associations, creator groups and unions. I have met many people who are members of The Writers Union that strongly oppose the political views expressed by the executive of that union, or Access Copyright, both which claim these individuals as supporters.

Non-technical allies

Outside of the software sector, there are many lawyers who have helped protect the checks and balances in the application of law in the all too often misunderstood scenarios that involve digital technology. The Electronic Freedom Foundation was founded in 1990 to help with a series of oddball court cases at the time, and has been at the forefront of protecting human rights in relation to digital technologies. In Canada we have the Canadian Internet Policy and Public Interest Clinic, and individual technology law professors like Michael Geist.

There are other people not primarily in a technical profession that have been allies, including many that exist in other non-software copyright holding sectors.

Allies who act like opponents

The most confusing aspect of the debate has been sitting on the opposite side of the debate as fellow creators. Most often the disagreement is not about the ultimate goal of protecting the material and moral interests of creators, but whether a specific policy being debated will help or hinder that goal.

It is often the case that the person I am claimed to be an opponent of is unaware that I am on their side, and thinks that if I disagree with a policy that someone has falsely claimed will help them, then I am somehow opposed to their goals.

If you are put in a situation to "debate" copyright with a fellow creator, they will be focused on a higher-level "we deserve to be paid". You need to make clear that you agree with them at that level, but do not believe that the policy put before us agrees with that goal. This will be hard as many individual creators are members of associations whose executives are promoting specific harmful policies, and have all too often become allied with the BSA and their "stronger copyright is better copyright" misdirection.

It is important that we disagree with the harmful policies, and not think that everyone who is pushing harmful policies is an opponent. Think of them as someone with a different understanding of technology and/or economics, and the disagreement as an opportunity to have some great and hopefully fruitful conversations.

Dying industries who are the most aggressive opponents

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

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

Governments legalized the activity of recording, and performers and the makers of sound recordings were given their own copyright called Neighbouring Rights. This means that there are 3 copyright holding groups in music. In many countries composers weren't given any choice at all, and were subject to a compulsory license where anyone could perform and record their music without permission, only payment at a government set rate.

The equipment to record was expensive, so the recording labels quickly became a specialized banking sector to fund the massive up-front capital costs to record and distribute recordings. For their participation they took the lions share of the revenues from the sales of recorded music, with musicians making only a few pennies on the dollar.

Technology changed, as it always does, and the equipment to record and distribute is getting cheaper by the day. Musicians are increasingly realizing that they can keep the copyright on their own recordings, and keep the majority of the revenues. They can then hire the services of others for promotion/etc, just like they would hire an accountant do to their taxes. These jobs are not disappearing, they are just no longer jobs at organizations calling themselves recording labels.

What this means is that the labels are no longer necessary for an ever growing number of musicians. The major labels are observing a decline in the portion of the music industry that they participate in, and many are struggling to survive. This decline is largely about competition, even while they falsely claim it is about copyright The statistical models they use to claim harm do not differentiate between competition and infringement.

The major labels have allied themselves with other old-economy entities who claim to be able to help. Some of the members of the BSA have claimed they have this "magic potion" that would reverse the trend in the music industry such that musicians remain dependant on the labels.

This magic potion is more commonly referred to as "technical protection measures" (TPMs), or DRM. Those of us in the independent software industry know this magic potion is actually poison, but the major labels and most other groups claiming to represent creators aren't listening.

This technology protects a software and/or hardware platform in between copyright holders and audiences. In the end this technology benefits the owners of the platform, and creates a dependency on the platform for both copyright holders and audiences wanting to reach each other. As they grow, these these platform providers will have less of a need for labels than musicians do since they act as intermediary directly between musicians and music fans.

The BSA members are using the labels as their public face to the political process, just as the labels have always used specific famous musicians as their public face. Michael Geist has suggested that the major labels are behind the latest Astroturf campaign, and from what I have seen I suspect this is true.

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

While the major labels have no future, the future of composers and performers is uncertain. If the people working at the labels focused on the interests of musicians, they would be putting forward policies which would protect those interests rather than wasting energy trying to save the the labels. It is important that we try to speak with individuals who traditionally worked at the labels, and who really believe in the music industry. If we can get them to focus on musicians rather than labels, they can become allies of the future of music rather than opponents. Do not presume they are pushing the policies they are because they want to take money out of the pockets of creators -- many will believe that the policies they are promoting will help the music industry.

Those of us in the technology community need to make as many alliances with other creators as possible. Our future in our competitive and political battles is intimately linked with these non-software creators. We need to turn people who at first glance appear to be opponents into being the allies they should always have been.

A real-world e-book conversation, TPM included

Russell McOrmond — Sat, 12 Jun 2010 09:40:00 GMT

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.