Michael Geist has posted an article “The Battle Over Internet Filtering”
where he discusses a seminar in Brussels on the “telecoms package”
currently before the European Parliament. He listed out some of the
views of the stakeholders on issues like DRM, “three strikes and you’re
out” policies (”graduated response”) , “technical mandates”, ISP
filtering/blocking of infringing content, and stronger cross-border
enforcement initiatives (ACTA).
With the “three strikes you’re out” policy there is obvious
dishonesty by proponents. In many countries the statutory damages if
found guilty of infringement are so high that it is really “one trike
you’re out”. Gaining access to an ISP will be the least of your
troubles given the excessive financial implications of statutory
damages.
What we are really talking about is three unfounded allegations of
infringement, not cases of actual infringement. These lazy dishonest
copyright holders don’t want to have to spend a moment of their time
collecting evidence of infringing activity. Part of the problem seems
to be that they can’t seem to hire above-board investigators.
This subset of copyright holders (major labels and studios, etc)
seem to be able to be summarized as having a chicken little “sky is
falling” mentality, and are not the slightest bit interested in the
unintended consequences (including the harm they seem to continuously
inflict on themselves) from their poorly thought out policy proposals.
The ISP filtering/blocking problem has similar issues to DRM in that
it transfers too much control over critical communications
infrastructure to third parties/intermediaries. We know the phone/cable
companies will abuse the filtering technology for their own special
interests. The Network Neutrality debate would effectively be over and
won by the opponents to neutrality with mandatory filtering.
Determining copyright infringement is a question that well informed
copyright lawyers can’t agree on in many circumstances, and sometimes
higher judges overturn lower court judges, so obviously can’t be
automated in software. The problem of stopping SPAM is far easier and
far less subjective, and we should all have realized by now that there
is no easy technological solution to this social problem. The only real
solution is of enforcement of appropriate laws that target the actual
proven perpetrators (and not innocent bystanders or technology
providers).
I’ve written about the difference between DRM and “technology
mandates” (Example: Broadcast Flag) in the past, and want to focus on
these two again. With an appropriate understanding of these issues, it
is easy to understand the positions of the narrow subset of
stakeholders allowed to participate in these events.
With DRM you have a lock on content (encryption) and
anti-circumvention laws which legally tie the ability to access this
content to specific “authorized” devices (”access control technological
measures”). The content companies and the device manufacturers then
negotiate features of the devices which will be locked down and then
authorized. Over time we end up with a situation where the platform to
deliver content to audiences becomes more valuable than the content,
putting device manufacturers in the more powerful position for
negotiation. The major recording labels and motion picture studios have
already observed this with apple, and their desire to create an “open” DRM platform is entirely about getting out from under a near platform monopoly.
With “technology mandates” you have the government imposing features
onto device manufacturers where the device must be locked down, but the
content doesn’t have to be. (See: Is it possible to have a ‘use control’ without an ‘access control’?.)
Major label/studio copyright holders
They are recognizing part of the harm of DRM and their support for
this is reducing. They are strongly supportive of “technology mandates”
which gives them what they believe they want (locked down
hardware/software) without the platform monopolies of DRM. They seem
oblivious to the harm that locked down hardware/software will have to
their sector and its ability to innovate. I’ve seen some references
that suggest they are promoting the idea that “authorized”
labels/studios should have exceptions to use unlocked hardware, a clear
anti-competitive policy proposal.
Other copyright holders (not asked)
There isn’t consistency in the message you hear from creator copyright holders. If you look in Canada you see groups like the Creators Copyright Coalition largely aligned with the majors, with some of their own members breaking out and forming groups like Appropriation Art and the Canadian Music Creators Coalition which appear to oppose digital locks of any type (on their content, or on devices).
Before this group of copyright holders can really influence the
debate there needs to be modernization and renewal in the organizations
that make up the CCC. Otherwise creator copyright holders will continue
to be politically lumped in with the non-creator copyright holding
intermediaries.
Hardware and incumbent proprietary software companies
They want the monopoly creating aspects of DRM, and believe that
they (and not any competitors also represented in some of the same
associations) will be the winners of this “Russian roulette” platform
monopolist game.
They are opposed to “technology mandates” claiming that this reduces
their ability to innovate. The reality is that DRM and “technology
mandates” are similar in this respect as both reduce the ability of
hardware manufacturers and software authors to innovate. If they were
honest they would state that the key difference between DRM and
“technology mandates” is whether they gain a platform monopoly.
Independent software companies, including FLOSS developers (not asked)
If hardware is locked down to mandate “no user modifiable parts
inside”, meaning they can’t choose their own software, they can’t
possibly choose our software. We are effectively forced out of this
marketplace, with independent companies most often representing the
greatest innovation.
There is little difference between DRM and “technology mandates” for
us given our issue is the locked down hardware and any incentives to
force customers to purchase locked down hardware. In the case of DRM
the new exclusive “access right” granted to copyright holders in
anti-circumvention legislation becomes the incentive for people to
purchase locked down hardware (If you want to access this movie, you
need to buy one of this subset of devices). With “technology mandates”
it is the government disallowing the production or importing of
unlocked devices, meaning “if you want to access any movie, you need to
buy one of this subset of devices”.
Hardware owners (not asked)
In a “DRM” world someone who wants to protect their hardware
property rights has the option of simply “opting out” of (legally)
accessing any content that is infected with DRM. There will be very few
of these people protecting their property rights as most people will be
duped by the incentives ( If you want to access this movie, you need to
buy one of this subset of devices). With a “technology mandate” their
ability to actually express basic ownership rights are legislated away.
Sounds like a government taking of property without justification or
just compensation to me. Ironically if we take Bill C-61 as an
indication, the alleged “Conservative” party of Canada may be the party
most likely to wipe out tangible information technology property rights.
We appear to have an election coming up soon, and I hope everyone
will ask their candidates their views on these important issues. Our
elected representatives should be representing us, an important
stakeholder not adequately consulted on these policy issues.
—
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.
