Author John Degen has posted somefictional conversations between a writer and a reader on his blog(June9, June10). I say it is fictional as it ignores how the relevanttechnology works, and thus not only the lack of clarity of therelationships between writers and readers but also the fact thatthere is a technology company as intermediary that separates therefrom being much of a relationship at all between writers and readers. It depicts some rare moment where all the parties involved have thesame understanding of the relationship, likely because this is reallyjust a case of John having a conversation with himself.
This conversation is a goodexample to use to better understand the technology involved, therelationships, and what is the correct law to govern these types ofrelationships. It is also a demonstration why the existinganti-circumvention provisions within Bill C-32 require major revisionin order to not cause massive unintended consequences that will be harmful to theinterests of both the writers and readers John was intending to bewriting about.
Before we can dive into John'sspecific conversations, we need a bit of background. When analyzingelectronic books I categorize them into 4 different groups based onthe technical underpinnings of the relationships.
Licensing terms in humanreadable formatThis is the simplest casewhere the book is made available in some electronic format, and wherethe licensing terms are included within the text of a book just likethey would be in a printed book. We have all seen copyright noticeswithin the first few pages of a book. In this relationship modeltraditional copyright is being used, and if the recipient of theelectronic book does things which are regulated by copyright withoutpermission, they are infringing copyright identically to if they haddone these things with a paper book.Licensing terms in machinereadable format (metadata)This is similar to the humanreadable format, except that the human reader can make use oftechnology to help remind them about what permissions they have beengiven by the copyright holder. This type of metadata can let peopleknow scenarios where they are allowed to share without additionalpermission such as Creative Commons licensing, and there are evensearch engines to help people find electronic text which is licensedthis way. The relationship is the same in that it is traditionalcopyright being used, and the technology is being used as an aid forcopyright holders to communicate terms to audiences. It is not anenforcement mechanism, but a communications mechanism.Licensing terms in machinereadable format, content encrypted where intended audience holdsdecryption keys.In this scenario cryptographyhas been added to the previous scenario, in order to ensure that onlythe intended audience can unlock the content. This technical measureprotects against access by unauthorized persons, but is not atechnical measure that pretends to protect the copyright holderagainst unauthorized activities carried out by authorized persons. Often both encryption and steganography (digital watermarking) areused in combination such that if content is leaked that it can betraced back to the person who caused the leak, given only theauthorized audience member could have unlocked and unlawfully sharedthat specifically encoded copy of the content. In this casetraditional copyright is still what protects the copyright holder,with the technology used both as a tool in electronic commerce todeny third parties access, but also as a mechanism to detect who isresponsible for any leaks. The use of digital encryption andpersonal decryption keys is a useful psychological tool to encourageappropriate behaviour by that audience member.Licensing terms in machinereadable format, content encrypted where technology provider holdsdecryption keys.This may appear at firstglance to be an incremental change from the previous scenario, but isin fact an entirely different scenario that brings with it entirelydifferent areas of law. It is not traditional copyright law that isat play with the reader, but a copyright relationship between thecopyright holder and the technology platform provider, and separatecontractual relationships between the platform provider and readers.
Since the Kobo example thatJohn is using is largely an example of this last scenario, we willconcentrate on that relationship. Unlike the first three scenarioswhere the copyright relationship is with the reader, the copyrightrelationship in the last scenario is with the technology provider. The copyright holder isn't offering a license to the reader doanything, but instead is licensing the technology provider underspecific terms. Once they agree on terms, the content is thenencrypted such that it can only be accessed by technology provided bythe licensed technology providers. One of the obvious features ofthis relationship is that the copyright holder is trusting thetechnology platform provider more than they do their own fans,something I'll have to admit to not understanding.
The first error you may noticefrom John's chat is when he said, “I guess, since Kobo books areePub format, the books I bought would be easily transferable toanother open device”. He is confusing the issue of theunderlying file format (in this case, ePub) and the digital lockwhose purpose is to ensure that content is only accessible on thespecific licensed platform. Just like it is not possible for thereto be non-wet water, it is not possible to have an interoperableplatform dependance. In order to have content be interoperablebetween different platforms, the copyright holders need to use one ofthe first three scenarios listed above that do not involve platformspecific encryption.
The relationship that John thewriter has isn't where the complexity is. He had a copyrightrelationship with the reader in three scenarios, and a copyrightrelationship with a technology platform in the fourth.
Where the massive confusioncomes from is the changed relationship with the reader in that fourthscenario. In the first three scenarios the copyright licensingterms are communicated directly, in human and/or machine readableformat, with the reader. While not all readers may have read theselicensing terms, they are accessible to them as readers as well asbeing easily accessible to their lawyer if there is a reason to go tocourt. The reader can also make their own choices of technology,both hardware and software, according to their own personal interestsand convictions. We have several hundreds of years of experiencedealing with copyright and possible disagreements with the terms ofcopyright license agreements.
In the fourth scenario thereader doesn't have a relationship with the writer at all, but arelationship with the technology provider. What the reader can orcan not do with that technology, or any content delivered to thereader via that technology, is determined in software authored by oron behalf of the technology platform provider. The reader does nothave technology choice beyond “take it or leave it”, givenif they want to have access to content delivered through thisplatform (and increasingly there are exclusive deals being made) theymust accept unilaterally whatever is offered by the technologyplatform provider.
In theory there is acontractual relationship between the technology platform provider andusers of that technology. I say in theory, given I suspect very fewpeople purchasing these technologies are aware of the obligationsthat they have in theory signed on to.
The most important thing torecognize, however, is the relevant law regulating a dispute aboutthe terms of the relationship between the technology provider and thecustomer. It is not at all a copyright dispute as the audience isnot a licensee of the content, but a contractual dispute. It is alsonot a contractual dispute with a copyright holder, but a contractualdispute with the technology provider — an entirely separate party.
I believe that because therelationships are unclear, serious misunderstandings will occur. Ibelieve it is wrong to simply say “buyer beware”. This isa brand new relationship that I believe the vast majority ofproponents do not adequately understand, so it is unreasonable toexpect technology consumers to understand.
There are ways to avoid themassive unintended consequences. The first is to not offer anyprotection for these scenarios under copyright law. The 1996 WIPOtreaties are clear in that legal protection for technologicalmeasures should be tied to activities that were already infringingunder Copyright law. Since Copyright law does not contemplate theconcept of restricting “access”, there should clearly be noprotection in copyright law for access control technical measures. Access control technical measures are clearly a matter of provinciale-commerce, contract and/or property law.
This would clearly leave thecontractual relationships involved in that fourth scenario toprovincial contract law, where it belongs. While there areconstitutional reasons to be doing this (Hint: BillC-32 may not even be constitutional), it will also ensurethat the right laws and the right courts are being used when dealingwith any disputes that arise from these relationships. With thisunderstanding we can move away from thinking of protecting thesescenarios inappropriately under federal Copyright law, but looking atways of appropriately modernizing provincial e-commerce, contract andproperty laws.
John brought up many moreissue which I wanted to touch on separately. We have strongdisagreements when it comes to Bill C-32's anti-circumventionprovisions, based on our different understanding of the technologyinvolved and legal implications. I think we are fairly close onother issues.
“I still love the look,feel, smell and heft of physical books”Yes, I too am a big fan ofphysical books. I have them all over the house, sometimes purchasingthem in addition to electronic versions (text and audio books). There really are types of books which just need to be read in thephysical form, and I can't image an electronic device replicatingthat experience.”That’s a 69% savingsover the physical book.”This is as it should be. When you purchase a physical book, you are buying something that youhave some ownership rights to. You can lend it, resell it in a usedbook store, you can write on the pages, you can even – gasp – throwit into a fireplace.
When I give my “I have 4things in my hands” presentation on Protecting property rights ina digital world, I often ask people what they think happensif the tangible medium (physical book, physical CD, etc) doesn'texist and you only downloaded “bits”. The answer, as faras I am concerned (and most lawyers I have spoken to), is that the”ownership” rights that the customer would normally receive simply don'texist. You have the right to delete the file (destroy it), and mightin some circumstances have the right to back it up, but not muchelse. There really isn't “first sale rights” in the casewhere no tangible medium was sold.
Given what you are acquiringin a purely digital scenario doesn't have any resale, loaning orother value, then it should be obvious that the price should belower. I do not, however, believe a majority of people understandthis situation. I have had many people want to “loan” oreven “re-sell” me something they have downloaded from ane-commerce site, an activity that makes no sense to me.
There is nothing that saysthat an author (directly or through a technology platformintermediary) can't offer audiences the ability to loan, resell orgive digital content away. These things are just not something thatis automatically offered to the audience. Copyright holders have andwill always be free to slice up the copyright related rights intoindividual copyright related activities and license each separately,charging more money for those who want to do more things, and lessmoney for those people who want to do less.
“how about standardfair-dealing rights”Here is one of thoseconversations I had with Susan Creanin the past. Book writers are in a very different situation thansome other copyright holders. It will always for most people to usetheir eyes and look at one text (no matter whether paper or adevice), and type that section in again using a computer or even anUnderwood typewriter.
The situation will bedifferent for blind people, but we don't need to focus on that forthe moment.
More commonly, this is not atall the same thing with photographs, sound recordings, motionpictures or other multimedia. While it is true one can take aphoto of a photo on the screen, that is not the same thing as beingable to retype plain text.
Copyright does not, and can'tpossibly, regulate all types of creativity in the same way. This iswhy it is nonsense to suggest that all copyright holders be given”the same rights”. (don't get me started on thephotographic exceptionalism in Bill C-32)
“That’s great forstudents and teachers – but does that mean MacIntyre gets paid tohave his book used in schools, or not?”Here is what I had to sayabout thatsection of Bill C-32 in my clause-by-clause notes:
I am not a fan ofinstitution specific exceptions to copyright. I don't believe thatprovincially chartered educational institutions should receiveexemptions that home-schoolers or lifelong learners do not.
I consider section 29.4 through 29.9 of the existingCopyright act to be a government program, masquerading as copyright,that is paid for on the backs of copyright holders. Public educationprograms should be paid for out of general revenue, and managed byprovincial governments. Inadequate funding is an educational sectorissue, and has some market based solutions (IE: Open Accesspublication), and is not a “Copyright” issue.
I personally believe that Fair Dealings should simplyhave been expanded to have phrases such as “including multiplecopies for classroom use” to clarify that educators can stepinto the shoes of students and do things which the students would beallowed to do alone. With that necessary clarification these sections(and thus the related clauses in the bill) could be repealed.
“Okay… and since Idon’t want to do any of those things, I’m cool withthat.”The people who would say thiswill never circumvent a technical measure for any lawful or unlawfulpurpose. It is important to remember that the whole reason why somegroups claim we need legal protection for these technical measures ifbecause there are disagreements on these terms. These disagreementsare of a contractual nature and should be dealt with as a matter ofcontract law, and thus the requirement for disclosure of these termswill become more clear.
We need to get past the ideathat it is O.K. to 'trick' someone into agreeing to something, andthen to try to use the full force of excessively strong law againstpeople when they realize they have been tricked. There needs to be apositive obligation on copyright holders and technology platformproviders to make clear the relationship they have with theircustomers, and stop blaming customers or calling them “thieves” when they do not understand or obey unclear and/or unreasonableterms.
“Calm down, calm down,you're not writing a teenage vampire saga here. Doesn't Kobo alreadyknow what book I’m reading?”This is something that somepeople know, but I suspect most people do not. This is a truth thatneeds to be documented, not incorrectly presumed that it is alreadyunderstood.
This is something that needsto be worked out over time to ensure that labelling, reasonablecontractual terms, and federal and provincial privacy legislation allbecome in sync. Regardless, the last thing we need to do is confusethe issue and delay moving forward by incorrectly labelling as a”copyright” issue something that has little-to-nothing todo with copyright.
“What am I, some sort oftech-gadget sucker who needs to get every new thing as soon as itcomes out? How many e-readers does one person need?”Isn't this a question we needto ask of copyright holders, politicians, and the monopolistic anddishonest technology platform suppliers they are currentlysupporting?
I own a number of devices thatwould 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 Iam not interested in buying into any of the products or services ofvendor-dependant technology platform providers.
The only way I will bepurchasing an e-book is if it is offered in one of the first threescenarios, not the last where the content is encrypted with a keythat I am not given.
What if a book author onlymakes the book available for specific technology platforms? I amleft with a few choices.
- Buy the paper version. Thisworks for books, but not for multimedia since a “paper”version of a television series can't exist.
- Buy the platform specificversion, and then format shift to work on the technology I use. Thisis the scenario which the legal protection for technical measures inC-32 is intended to stop.
- Don't buy. This means that Ibecome part of the falling revenue of these industries. Since themodels used to allege infringement do not differentiate between thisscenario and copyright infringement, I'm still counted as aninfringer even when I don't infringe.
So, which should I do? Different people have different ideas on how to resolve thisquestion, so I can only offer my own. John has indicated on his blogthat he thinks I should simply not buy if I don't find the termsacceptable.
In the case of e-books, audiobook performances of books, and even music there is enough contentavailable that is platform agnostic that I can just ignore theplatform-specific titles. This will mean that some authors/composersand performers will be receiving less money than they mightotherwise, but that it their own choice to not accept my money. I'ma big fan of free markets, and just hope these authors and performersrealize it is their own bad choices and not infringement that are thecause of their problems. If some authors or performers go out ofbusiness because of these mistakes, I consider that to have beentheir own choice.
These copyright holders needto learn that the claims of the technology providers that thesetechnology platforms can reduce copyright infringement is snake-oil. Anyone who understands the science behind these technologies willknow that they have no impact on people who wish to infringecopyright, other than possibly providing incentive to infringe forpeople who otherwise would not infringe. The claims that this willreduce copyright infringement are claims made by technology companiesto copyright holders who do not have adequate technical knowledge torecognize that the claims are false. These technology providers areseeking their own benefit, increased sales of their brands oftechnology relative to competitors, to the detriment of sales tocopyright holders.
In the case of movies andtelevision, there is very little content available that isn'tplatform specific. These technical measures are so prevalent thatfew even recognize that they exist at all, and I doubt many copyrightholders are making deliberate informed choices about the use of thesetechnologies.
If I want to purchasepreviously aired television shows, there is no option that isn'tplatform specific (this includes DVD's which are encrypted using DVDCCA controlled keys). In this case I have and will continue to feeljustified in paying for content and then format shifting. I amaware that my format shifting is illegal under current law, and willstill be under C-32 because of the TPM. Since I'm going to becounted in the statistics as an infringer no matter what I do, I amgoing to do what I consider to be the right thing and pay for andenjoy copyrighted content. In this case I do not consider my actionsto be wrong, but consider the law to be wrong.
It would be nice to trust thatthese problems would work themselves out, but this is only possibleif copyright holders and policy makers take the time to understandreal-world technology and the new relationships being contemplated. As long as they believe that infringement is the greatest impact onthe bottom line, and that misunderstood and misapplied technicalmeasures aren't a concern, they will continue to make bad businessdecisions and bad laws.
See also: Whenconsumer 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 DigitalCopyright Canada.