Predictable positions from subset of stakeholders at Brussels telecommunication/copyright event.

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 theviews of the stakeholders on issues like DRM, “three strikes and you’reout” policies (”graduated response”) , “technical mandates”, ISPfiltering/blocking of infringing content, and stronger cross-borderenforcement initiatives (ACTA).

With the “three strikes you’re out” policy there is obviousdishonesty by proponents. In many countries the statutory damages iffound guilty of infringement are so high that it is really “one trikeyou’re out”. Gaining access to an ISP will be the least of yourtroubles given the excessive financial implications of statutorydamages.

What we are really talking about is three unfounded allegations ofinfringement, not cases of actual infringement. These lazy dishonestcopyright holders don’t want to have to spend a moment of their timecollecting evidence of infringing activity. Part of the problem seemsto 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 isfalling” mentality, and are not the slightest bit interested in theunintended consequences (including the harm they seem to continuouslyinflict on themselves) from their poorly thought out policy proposals.

The ISP filtering/blocking problem has similar issues to DRM in thatit transfers too much control over critical communicationsinfrastructure to third parties/intermediaries. We know the phone/cablecompanies will abuse the filtering technology for their own specialinterests. The Network Neutrality debate would effectively be over andwon by the opponents to neutrality with mandatory filtering.

Determining copyright infringement is a question that well informedcopyright lawyers can’t agree on in many circumstances, and sometimeshigher judges overturn lower court judges, so obviously can’t beautomated in software. The problem of stopping SPAM is far easier andfar less subjective, and we should all have realized by now that thereis no easy technological solution to this social problem. The only realsolution is of enforcement of appropriate laws that target the actualproven perpetrators (and not innocent bystanders or technologyproviders).

I’ve written about the difference between DRM and “technologymandates” (Example: Broadcast Flag) in the past, and want to focus onthese two again. With an appropriate understanding of these issues, itis easy to understand the positions of the narrow subset ofstakeholders allowed to participate in these events.

With DRM you have a lock on content (encryption) andanti-circumvention laws which legally tie the ability to access thiscontent to specific “authorized” devices (”access control technologicalmeasures”). The content companies and the device manufacturers thennegotiate features of the devices which will be locked down and thenauthorized. Over time we end up with a situation where the platform todeliver content to audiences becomes more valuable than the content,putting device manufacturers in the more powerful position fornegotiation. The major recording labels and motion picture studios havealready 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 featuresonto device manufacturers where the device must be locked down, but thecontent 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 forthis is reducing. They are strongly supportive of “technology mandates”which gives them what they believe they want (locked downhardware/software) without the platform monopolies of DRM. They seemoblivious to the harm that locked down hardware/software will have totheir sector and its ability to innovate. I’ve seen some referencesthat suggest they are promoting the idea that “authorized”labels/studios should have exceptions to use unlocked hardware, a clearanti-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 thedebate there needs to be modernization and renewal in the organizationsthat make up the CCC. Otherwise creator copyright holders will continueto be politically lumped in with the non-creator copyright holdingintermediaries.

Hardware and incumbent proprietary software companies

They want the monopoly creating aspects of DRM, and believe thatthey (and not any competitors also represented in some of the sameassociations) will be the winners of this “Russian roulette” platformmonopolist game.

They are opposed to “technology mandates” claiming that this reducestheir ability to innovate. The reality is that DRM and “technologymandates” are similar in this respect as both reduce the ability ofhardware manufacturers and software authors to innovate. If they werehonest 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 partsinside”, meaning they can’t choose their own software, they can’tpossibly choose our software. We are effectively forced out of thismarketplace, with independent companies most often representing thegreatest innovation.

There is little difference between DRM and “technology mandates” forus given our issue is the locked down hardware and any incentives toforce customers to purchase locked down hardware. In the case of DRMthe new exclusive “access right” granted to copyright holders inanti-circumvention legislation becomes the incentive for people topurchase locked down hardware (If you want to access this movie, youneed to buy one of this subset of devices). With “technology mandates”it is the government disallowing the production or importing ofunlocked devices, meaning “if you want to access any movie, you need tobuy one of this subset of devices”.

Hardware owners (not asked)

In a “DRM” world someone who wants to protect their hardwareproperty rights has the option of simply “opting out” of (legally)accessing any content that is infected with DRM. There will be very fewof these people protecting their property rights as most people will beduped by the incentives ( If you want to access this movie, you need tobuy one of this subset of devices). With a “technology mandate” theirability to actually express basic ownership rights are legislated away.Sounds like a government taking of property without justification orjust compensation to me. Ironically if we take Bill C-61 as anindication, the alleged “Conservative” party of Canada may be the partymost likely to wipe out tangible information technology property rights.

We appear to have an election coming up soon, and I hope everyonewill ask their candidates their views on these important issues. Ourelected representatives should be representing us, an importantstakeholder 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.

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