By Russell McOrmond
Canada’s government is holding consultations until September 13 on updating the country’s copyright laws. As the policy coordinator for CLUE, I authored a summary of our copyright policy, which we hand out to politicians.
CLUE is Canada’s association for free/libre and open-source software (FLOSS). We represent developers and users of FLOSS, which span all sectors of the economy, from the largest commercial companies to individuals.
Our top issues are:
”¢ We disagree with the legalization or legal protection of techniques used by copyright holders to encode their content such that it can only be accessed with “authorized” technology brands.
”¢ We disagree with the legalization or legal protection of techniques used by device manufacturers to lock down devices such that their owners are considered attackers, where someone other than the owner controls the keys, or where owners are otherwise not able to control their technology for lawful use or make their own software choices. Hardware owners must be able to make their own software choices, in order to chose our software.
”¢ We disagree with government promotion or mandating of royalty-based business models over fixed-cost based models used in peer production and peer distribution such as FLOSS.
Focusing on the first two issues, they relate to what are sometimes called digital locks or digital rights/restrictions management (DRM). Most of the discussions of this technology are based in science fiction, not science. To understand the controversies, you need to ask what is scientifically possible, as well as who owns what is being locked. (I have offered longer presentations explaining these locks.)
On August 20, the Georgia Straight published an article by Danielle Parr, executive director of the Entertainment Software Association of Canada, that focused on digital locks. We agree that Canada needs an updated copyright regime that protects our creators and rights holders. Where we disagree is that I feel Parr's proposals oppose those goals.
While the article suggests these locks are used to reduce copyright infringement, I am unaware of studies not sponsored by specific allied industry associations which agree with this claim. What these locks accomplish, however, is they protect some controversial business practices in the entertainment industries.
When Parr writes about digital locks on game consoles, she doesn’t mention this is a lock applied to something which they do not own. Imagine that the builder of your home or the manufacturer of your car put locks on your doors and refused to give you the keys. They used the keys as a way to only allow you into your home when you have gained their permission to do so, and only under conditions they have set. The builder or manufacturer has made arrangements with other companies such that they will protect the interests of these third parties against you, the owner. The builder or manufacturer might also go to various governments to make it illegal for you to remove their locks in order to put your own locks on, so that you can protect your own property rights.
If the housing sector did this, we would recognize this as an assault on the property rights of homeowners. We need governments to protect technology property rights. We should be legislating against foreign locks being added against the interests of technology owners, not providing legal protection for this business practice.
Even if you think locks on game consoles are unimportant, remember that foreign locks are being proposed for all communications technology. If you are a creator, you need to understand that the activities you do as part of your creativity—recording, editing, and copying and distributing content—are the same technological activities that are abused by copyright infringers. There is no way to automatically tell the difference between creative and infringing activities, meaning any technological measure which is aimed at reducing copyright infringement will also reduce creativity. The activities we want to encourage and the infringing activities we want to stop require human intervention from responsible citizens and our legal system to differentiate.
As we become increasingly dependent on communications technology, it is not only the creative sectors that must be protected from these foreign digital locks, but many other aspects of our society.
The locks on content are also harmful. They allow those who lock the content (sometimes copyright holders, but more often content distributors) to choose what brands of technology will be able to unlock and access the content. People choose brands of technology for many different and personal reasons. In my case, I consider software to be the set of rules which computers obey, analogous to how laws are rules which humans obey. This is one of the many reasons I choose FLOSS, which has the transparency and accountability for these rules I demand.
Supporters of these locks claim it is reasonable to impose brands as a condition of accessing “their” content. I consider this as bad as suggesting that as a condition to being allowed to vote in an election that people join a specific political party. Copyright holders or content distributors should have no say in what brands of technology or software I choose. I believe we should be strengthening Canadian competition law to clarify that this business practice is a form of unlawful “tied selling” between the content and technology.
Russell McOrmond is a software author and Internet consultant. He is the volunteer policy coordinator for CLUE, Canada’s association for free/libre and open-source software; co-coordinator of GOSLING (Getting Open Source Logic Into Governments); and host of Digital Copyright Canada. His own draft submission to the copyright consultation can be viewed on his Web site.