Dear James Moore: Is your intellectual property more important than my personal property?

By Dorian Taylor

To the hon ­ourable mem ­ber from Port Moody-West ­wood-Port Co ­quit ­lam:

I ap ­plaud your en ­thu ­si ­asm for pro ­tect ­ing the prop ­er ­ty rights of your con ­stituents and Cana ­di ­ans at large. Your re ­cent per ­for ­mance has demon ­strat ­ed your courage and zeal. I do, how ­ev ­er, have one con ­sid ­er ­a ­tion to offer. I hope I can com ­mu ­ni ­cate in a way that you per ­ceive as nei ­ther too tech ­ni ­cal nor too ex ­trem ­ist.

My con ­sid ­er ­a ­tion con ­cerns pro ­posed leg ­is ­la ­tion to out ­law the cir ­cum ­ven ­tion of so-called dig ­i ­tal locks by in ­di ­vid ­u ­al peo ­ple or their agents, on their own prop ­er ­ty, for their own pri ­vate pur ­pos ­es. My con ­cern is not about a right to de ­prive oth ­ers of rev ­enue, but my right to com ­mand my own pri ­vate prop ­er ­ty, con ­sis ­tent with the found ­ing prin ­ci ­ples of the party which you rep ­re ­sent.

In re ­cent decades it has be ­come ex ­treme ­ly ad ­van ­ta ­geous for man ­u ­fac ­tur ­ers of nu ­mer ­ous mod ­ern con ­sumer and in ­dus ­tri ­al goods to turn from plain me ­chan ­i ­cal or elec ­tron ­ic de ­vices to com ­put ­ers with com ­mod ­i ­ty at ­tach ­ments. A car is now a com ­put ­er with wheels. A cam ­era is now a com ­put ­er with op ­tics. A tele ­phone is now a com ­put ­er with a mic. This tech ­nol ­o ­gy en ­ables man ­u ­fac ­tur ­ers to cre ­ate, with much less over ­head, prod ­ucts that can per ­form any trick the at ­tached hard ­ware af ­fords them. This is gen ­er ­al ­ly good for the con ­sumers of these prod ­ucts.

The prin ­ci ­pal side ef ­fect is that these prod ­ucts are now worth ­less with ­out soft ­ware to drive them. The agree ­ment around this soft ­ware is sep ­a ­rate from the pur ­chase of the phys ­i ­cal prod ­uct, yet through this mech ­a ­nism it is ef ­fec ­tive ­ly tied. Pur ­chas ­ing a com ­put ­er-driv ­en de ­vice en ­tails agree ­ing in full to the terms of the man ­u ­fac ­tur ­er re ­gard ­ing how that de ­vice ought to be ­have. Be ­fore com ­put ­er-driv ­en de ­vices, the risk to the con ­sumer was a prod ­uct that didn't be ­have as ad ­ver ­tised. Now, the risk is that a prod ­uct be ­haves in ways that are not ad ­ver ­tised.

For ­tu ­nate ­ly, a great many of these prod ­ucts can be au ­dit ­ed by suf ­fi ­cient ­ly-skilled peo ­ple, who can dis ­able un ­want ­ed be ­haviour or re ­place it en ­tire ­ly, and share their re ­sults on what ­ev ­er terms they please to oth ­ers who are in ­ter ­est ­ed. The only mea ­sure that would pre ­vent them from doing so is the out ­law ­ing of the cir ­cum ­ven ­tion of dig ­i ­tal locks, which as of now I will call by the in ­dus ­try term Dig ­i ­tal Rights Man ­age ­ment, or DRM.

To be sure, it is this at ­tach ­ing of strings, a mere side ef ­fect of progress, which is erod ­ing the no ­tion of per ­son ­al prop ­er ­ty in our great coun ­try. How ­ev ­er, until the man ­u ­fac ­tur ­ers of these prod ­ucts, across so many af ­fect ­ed in ­dus ­tries, can re ­spond in a way that suits them eco ­nom ­i ­cal ­ly, cir ­cum ­ven ­tion is the only pro ­tec ­tion from this ero ­sion. To out ­law it is not only to call into ques ­tion the value placed on the per ­son ­al prop ­er ­ty of or ­di ­nary Cana ­di ­ans by this gov ­ern ­ment, but also its strat ­e ­gy of prop ­ping up what is wide ­ly un ­der ­stood by in ­dus ­try pro ­fes ­sion ­als to be a fan ­ta ­sy.

The fan ­ta ­sy of which I speak is that in ­for ­ma ­tion of any kind can be pro ­tect ­ed ef ­fec ­tive ­ly by tech ­ni ­cal mea ­sures when it is in pos ­ses ­sion of some ­body other than the per ­son in ­ter ­est ­ed in pro ­tect ­ing it. It is noth ­ing short of a law of na ­ture that makes these locks cheap ­er to cir ­cum ­vent than to en ­force, as any com ­put ­er pro ­gram can be re ­li ­ably fooled about its en ­vi ­ron ­ment. DRM is a quixot ­ic arms race against eco ­nom ­ic, math ­e ­mat ­i ­cal and phys ­i ­cal re ­al ­i ­ty.

This is where the term dig ­i ­tal lock de ­parts from an un ­bi ­ased at ­tempt to re ­late to non-ex ­perts. We un ­der ­stand a lock as a means of pro ­tect ­ing our own prop ­er ­ty from tres ­pass, van ­dal ­ism and theft, and to sig ­nal our in ­tent to do so. We have laws pe ­nal ­iz ­ing those who ig ­nore this sig ­nal. How ­ev ­er, the cost of lock ­ing a piece of prop ­er ­ty is borne on the per ­son who sees fit to pro ­tect it, the site of any in ­fringe ­ment is the prop ­er ­ty it ­self, and the risk of ma ­te ­ri ­al loss to this per ­son is near ­ly al ­ways the price of a new lock in the very least.

In con ­trast, the cost of en ­forc ­ing DRM-pro ­tect ­ed in ­for ­ma ­tion is over ­whelm ­ing ­ly borne by ev ­ery ­body but its au ­thor, hob ­bling the prop ­er ­ty of the ma ­jor ­i ­ty to serve the in ­ter ­ests — not ex ­clu ­sive ­ly copy ­right in ­ter ­ests — of what is ul ­ti ­mate ­ly a mi ­nor ­i ­ty. More ­over, if you pur ­chase an ob ­ject which is ul ­ti ­mate ­ly still under the con ­trol of the one who sold it to you, do you re ­al ­ly own it? Is it re ­al ­ly your prop ­er ­ty if it can be ­tray you and obey some ­body else? We see this be ­haviour al ­ready with locked mo ­bile phones and HD ca ­bling boon ­dog ­gles among nu ­mer ­ous other com ­mon ex ­am ­ples. It does not ben ­e ­fit the con ­sumer one iota to have these locks in place.

I can un ­der ­stand con ­tent pro ­duc ­ers sig ­nalling their in ­tent to ex ­er ­cise rights over their in ­tel ­lec ­tu ­al prop ­er ­ty and can re ­spect it vol ­un ­tar ­i ­ly, but an an ­ti-cir ­cum ­ven ­tion leg ­is ­la ­tion would man ­date that re ­spect at the cost of my rights to my prop ­er ­ty. That, or make me a crim ­i ­nal to cause the equip ­ment I work hard to pay for, and pay taxes on, to be ­have ex ­clu ­sive ­ly ac ­cord ­ing to my in ­ter ­ests and no ­body else's.

Thank you for your at ­ten ­tion.

Dorian Taylor is an independent designer of software and information systems. He is currently involved in reconciling the Web with the original visions of hypertext, its applications for information and project management, and a philosophy around the business of creative work. His writing can be found at doriantaylor.com/.