While some of the feed-back on bill C-32 (Copyright reform) seems to be constructive, much of it has become a foray of personal attacks on Conservative MP and Minister of Canadian Heritage and Official Languages, James Moore, who tabled the legislation with Tony Clement, Minister of Industry, on June 2. Of course, his remarks on the subject weren’t very welcome either, calling opponents of the bill “radical extremists”. So, the debate is on on what should probably be one of the more boring subjects in Ottawa: copyright legislation.

Heated debate

According to Michael Geist, law professor at the University of Ottawa, those radical extremists would include Liberal, NDP and Bloc MPs - meaning they constitute the majority of the House of Commons. In the fall, the bill is going to go through the House committee, where those very MPs will be debating the bill and amending it in order for a majority of the House to support it. This is, after all, a parliamentary democracy: if you have something to take up with the government w.r.t. proposed legislation, you do so through your representative in parliament - the MP of your particular riding.

Of course, that doesn’t mean Twitter isn’t a good forum as well: the last few days, there’s been quite a bit of noise on twitter about C32 (enough to coax me into putting a hash tag in this post’s title). Some of these, again, were just personal attacks on MP James Moore - which is perhaps part of the reason why he made his “radical extremist” remark. Some are pretty insightful, though. Most of them, however, attack only one thing: the digital locks provisions in the bill.

The subject of the debate

Let’s have a look at the principles underlying the bill before we get to that: the first principle would be “thou shalt not copy” - i.e. the creator of a work holds the rights to that work, whether it be music, software, a performance, … etc. Other people have no rights to that work whatsoever, except as provided by copyright law or provided by the owner of the work. In fact, if I write a piece of software on my computer, you have no claim on that software: no licence to use it, distribute it, etc., unless I give you such a licence or decide to publish my work. If I decide to publish my work with no other licence attached to it, copyright law applies to it.

So the basic principle of copyright law as I see it is to provide a set of exemptions to the basic principle that no-one but the owner of the work has a right to the work. Those exemptions include the right to broadcast, the copy, to loan, etc. under certain conditions. Anything that is not implicitly allowed by me making the content available without further licensing (implicitly allowed by the fact that the copyright act explicitly allows it and I do not say otherwise), is not allowed.

Now imagine I’m a publisher: an author comes to me and wants to make a bit of money from their content, by publishing that content using my services. Say the content in question is a collection of short stories written by the author. We decide to publish the short stories as a paper book, an eBook and an audiobook, and to create packages of the tree (e.g. a version of the book that comes with a CD with the audiobook and/or the eBook on it; different versions of the eBook for the iPad, the Kindle, etc.). Each of these is brought to market as a different product for a slightly different audience, and with competitive pricing for each. Each of these involves work from the publisher, who has to invest in creating the eBook, the audio book (hiring an actor, etc.), etc.

The competitive pricing part is important: if the author and the publisher are to make any money from the work, the work has to sell. In order to sell it, it shouldn’t be too expensive to the consumer. One way to bring down the price is to put DRM on the digital versions of the book: if you want both the iPad and the Kindle version, that means you will have to buy both. If you want to have a CD with the audiobook and you want to be able to listen to it on your iPod, again, you have to buy both. This is a deliberate choice on the part of the publisher, whose business is to make money off the work of an author buy marketing that work. In order for this scheme to work, though, the DRM must protect the rights on the work from piracy, which is what the law allows. In fact, while for non-locked works it is perfectly legal to “format-shift” the work, for locked versions it isn’t. If you’d want to buy the work in a format that allows you to use it on your iPod, iPad, Kindle, CD player and book shelf, contact the publisher and try to get a package deal. If enough people do that (i.e. there is a demonstrable market for it) the publisher will sell it.

Now, let’s see some of the arguments against this (from A Canadian author’s perspective on “radical extremism” and copyright by Cary Doctorow):

They don't work. Even the most sophisticated digital locks are usually broken in a matter of hours or days. And where they're not broken, it's mainly because you can get the same works by another means -- rather than breaking the iTunes lock, you break the easier Zune lock (or vice-versa), because you can get the same songs either way.

In my opinion, this is all the more reason to make breaking the locks illegal. I’ll go back to my example from my previous post on this subject: just because it’s really easy to pick a lock on a door (and believe me, it is really easy) doesn’t mean it should be legal. If that argument would hold, breaking and entering would be legal just because lock-picking is easy!

They transfer power to technology firms at the expense of copyright holders. The proposed Canadian rules on digital locks mirror the US version in that they ban breaking a digital lock for virtually any reason. So even if you're trying to do something legal (say, ripping a CD to put it on your MP3 player), you're still on the wrong side of the law if you break a digital lock to do it.

The whole point of putting a digital lock on something is to disallow such “legitimate” ripping - e.g. to bring the price down. Note, though, that there are no sanctions for ripping the CD anyway, unless you do it for other than personal use.

Here's what that means for creators: if Apple, or Microsoft, or Google, or TiVo, or any other tech company happens to sell my works with a digital lock, only they can give you permission to take the digital lock off. The person who created the work and the company that published it have no say in the matter.

That really depends on the contract that the person who created the work has with the company: if he signed off his rights to the work, he indeed no longer has a say in the matter. However, if he’s any good at all at negotiating, there will have been a clause in the contract saying that access to the work will not unreasonably be denied. But let’s also take a look at what the bill says:

41.1 (1) No person shall
(a) circumvent a technological protection measure (...);
(b) offer services to the public or provide services (...)
(c) manufacture, import, distribute, offer for sale or rental(...)
(2) The owner of the copyright in a work, (...) has been contravened is (...) entitled to all remedies (...) that are or may be conferred by law for the infringement of copyright against the person who contravened that paragraph.

If you apply the strict letter of the law, no person shall (…) would include the person that put the lock on there - i.e. it would prevent anyone from unlocking the work. That should be OK, though, as a non-locked version of the work would normally still exist (it would be rather silly to destroy the master copy). Note, though, that it is the owner of the copyright that is entitled to remedies - not the person who sold the lock. That does mean that the copyright holder can’t give you the right to remove the lock, but it also means that they can give you an unlocked of the work - which amounts to the same thing.

This means that an author who may have put a lot of energy into his/her work does not lose any of his/her rights if a DRM-tech giant decides to ship the work with a lock on it unless they have a contract with that DRM-tech giant that says otherwise.

A more level-headed response

I must hand it to Michael Geist: his first response to C-32 was to propose amendments to it which is probably the most constructive way to go about criticizing the bill and in any case a better idea than simply attacking the messenger. The proposed amendment would be a good thing, in my opinion, as it allows for an easier way for a copyright holder to provide a consumer with an unlocked copy. However, as long as the manufacture, import, distribution, etc. of tools that allow breaking the locks is illegal, allowing breaking the locks with those tools doesn’t help much either: if you’re allowed to pick a lock with tools that you are not allowed to have, it still amounts to not being allowed to pick the lock. He does ask for the provisions that ban the tools to be dropped in the full version of the document.

Even though I support the bill in general, including the provisions banning the breaking of the digital locks, I would tend to agree that the ban on the tools should be dropped. The bill bans the tools if

(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological protection measure,
(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a technolog- ical protection measure, or
(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

I have argued that this means that a media player which primary purpose is to play media but which “happens to allow” playing media with digital locks on it would still be legal. However, though I have not changed my mind on this argument, I must concede that it would mean that software architecture would ultimately be dictated by the law, which in this case is not beneficial either to the community as a whole, or to the industry (be it the software industry or the industry the copyright holders belong to). Furthermore, it is unnecessary if the breaking of the locks is already illegal.

In a way, putting DRM on content should make it sufficiently more difficult to access the work in unintended ways to get the consumer to buy a second copy of the work. That is what the DRM is there for. Requiring notices on the work, and perhaps on the tools, to advise the consumer that what he/she is about to do might be illegal should be sufficient to dissuade a law-abiding citizen from doing anything illegal. Criminalizing the creators of the tools used by criminals doesn’t make much sense to me.

The tone of the debate

Has anyone noticed that most of the bill is actually being welcomed as an improvement on what was there before? The one thing that so many people differ on is the part that talks about the digital locks. Granted, it is an important part of the bill, but it is perhaps less important than it is made out to be. The music industry, for example, is moving away from DRM use.

Sadly, the debate has turned into a flame-war directed at James Moore. Comments like these “Dear @mpjamesmoore it’s not that all of C-32 is bad. It’s just that all the balanced fair use support is trumped by the digital locks clause” by digitaldolphin are, sadly, rare. By far most are upset by the “radical extremist” remark, but even before that remark there were already personal attacks on the minister on Twitter.

Of course, that doesn’t warrant his “extremists” remark.

Personally, I think letters like these (second letter in the post) by Ann Douglas are much more helpful than rants on twitter calling the minister a liar.