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Grooveshark Wants To Judge Your Soul

This post originally appeared on Techdirt.

Dante Cullari made an observation on the Music Think Tank Open blog last month that seems to have gone unnoticed: Grooveshark’s privacy policy has a “soul” clause. Unlike other “immortal soul” clauses, I don’t think Grooveshark’s is intentional.

“This [personally identifiable] information may also be kept longer than 6 months by EMG if a user is found by EMG’s soul judgment to be suspect of carrying out illegal, unlawful, or dangerous actions with or in this service. Prior to keeping IP address information for more than 6 months, the user will be notified via email about their suspect status.”

The privacy policy still says that, though Dante also grabbed a screenshot.

grooveshark-soul-judgement-11

Somehow, I don’t think Grooveshark actually intends to judge a person’s immaterial soul for evidence of suspicious activity. But, lest you think it’s a lone typo, the phrase “soul purpose” also appears later in the policy.

“EMG may allow 3d parties to place cookies and other tracking technologies, such as web beacons, clear GIFs, web bugs, tracking pixels on the Site for the soul purpose of allowing that 3d party to record that a User has visited the Site and/or used the Service.”

grooveshark-soul-purpose1

I think they meant “sole.” Somewhere, in the depths of my own soul, it feels like somebody was relying on spell check a bit too much…

Read the comments on Techdirt.

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Lawsuit Averted As WordPress and Thesis Settle Differences Over Themes And The GPL

This post originally appeared on Techdirt.

Free (libre) and open source software is one of the best examples of an alternative to restrictive copyright, but even within these communities there can be heated debates about licensing. The WordPress community just witnessed such a debate between the founder of WordPress, Matt Mullenweg, and the developer of a popular premium WordPress theme, Chris Pearson, over whether or not themes are subject to the GPL (WordPress’ license). The GPL applies to derivative works of a program—requiring that they, too, must be licensed freely—but Pearson maintained quite publicly that he wasn’t subject to it and could use a proprietary license for his theme. This caused tension between him and Mullenweg, until last week, when Pearson gave in and switched to a split GPL license.

Without getting too bogged down in the legal details and community politics, the dispute is of interest for a couple reasons. Although some open source developers believe the GPL is too restrictive, copyright enforcement is approached in a very different way by free software projects than proprietary software companies or the entertainment industry. Mullenweg had sought a legal opinion from the Software Freedom Law Center over a year ago, and they agreed that the PHP part of a WordPress theme (which interfaces directly with WordPress code) is subject to the GPL, while JavaScript and CSS are not. Pearson disagreed, relying on some pretty novel legal arguments, but those were countered by others in the community. Mullenweg began to put more social and business pressure on Pearson, offering to pay for people to move away from Thesis to premium WordPress themes fully available under the GPL, and speaking publicly about how he felt Thesis was hurting the community by violating the license. Things became pretty heated, and the two squared off in a joint interview, failing to reach any visible consensus. It seemed like a lawsuit from Mullenweg would be the only way to resolve things—something he’d been trying to avoid at all costs—but a week later, the legal conflict was averted as Pearson switched to a split GPL license (i.e. PHP is GPL, as required; proprietary license for the rest). It was messy, but very different from the sue-first-ask-questions-later approach of so many copyright holders, and a lot less messy than a lawsuit could have been. The business and social pressure caused some tension in the short-term, for sure, but ultimately led to a resolution without nearly as much pain or division as a lawsuit within the community might have caused.

This kind of disagreement also highlights the fact that free software licenses (like the GPL) and the free culture licenses they’ve inspired (like some of those offered by Creative Commons) are ultimately hacks on a restrictive copyright system; they’re merely tactics to reverse the negative effects of overly restrictive copyright, but not at all the ideal scenario. For example, we’ve seen concerns over how Creative Commons licenses act as a contractual layer on top of copyright, and non-commercial restrictions can also be a source of tension. Sometimes these disputes help a community to better develop its position on copyright and licensing, but other times, they’re a sign that these licenses are still just a hack on a less than ideal system.

It’ll be interesting to see how Thesis fares in the long-run with a split licensing approach compared to other premium themes that are 100% GPL. Regardless, it’s nice to have a more or less happy ending where the community was able to resolve things without getting the courts involved.

Read the comments on Techdirt.

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The future of electronic publishing and reading

Last Wednesday, I had the opportunity to sit on a panel for an event put on by the Society of Internet Professionals: The Future of E-Publishing and E-Reading. The following is a rough approximation of my presentation.

Digital technology has a disruptive effect on traditional content industries in many ways, but this is especially true when it comes to copyright and the law. We’re at the beginning of a struggle between traditional and new media in the space of electronic publishing, and much like the past decade has been for the record industry and newspapers, the transition from analog to digital isn’t going to be easy.

Patents

First, there’s an unfortunately predictable area of legal conflict for any emerging technology: patents. Winners innovate, losers litigate. We see it again and again, with the most heated battles taking place right now in the mobile computing space between companies like Apple, Nokia and HTC. To mention just a couple of patent lawsuits related to e-books:

  • In March 2009, Apple was sued by a Swiss communications company, MONEC, for distributing digital book reading applications through the iPhone App Store. MONEC believes that Apple violated a 2002 patent, which describes a “light-weight” electronic device with a “touch-screen” LCD-display having the “dimensions such that […] approximately one page of a book can be illustrated at normal size, this display being integrated in a flat, frame-like housing.”
  • That same month, the Discovery Channel sued Amazon claiming that the Kindle violated a patent held by its CEO for technology that “provides for secure distribution of electronic text and graphics to subscribers and secure storage.” When asked whether Discovery would build an e-book reader, the company’s spokeswoman said, “we are only focused on the Kindle at this time.” So, they aren’t interested in making anything, just in suing people who make things.

Even though these broad reaching patents are patently obvious to anyone who understands technology, the lawsuits happen time and time again because they’re profitable. As more companies get involved in the e-reader market, expect more patent lawsuits, just as Apple, Nokia, and HTC have started suing each other over smartphone patents. Because of problems in the patent system, this is the price that innovative technology companies pay to step through a patent thicket and get involved in the market.

Copyright

Copyright law, however, has many more implications for all parties involved when it comes to electronic publishing. The issue is fundamentally about freedom, and the economics of digital goods, as copyright law gets used and abused as a crutch and a hammer.

Economics of Abundance

The problem stems from a misunderstanding of scarcity. As we move from atoms to bits, we also move from scarcity to abundance. Traditional business models are built on scarcity—selling copies, for example. Windowing systems are used to milk money from hardcovers before the paperbacks are released. Basic economics tells us that, in a competitive market, price gets set at the marginal cost of reproduction, at the cost of producing one more copy. When books become digital, the marginal cost of reproduction is essentially zero. And there are no hardcover and softcover e-books. Publishers are terrified by what Napster did to the record industry, worried that consumers won’t want to pay for books, so they’re trying to keep content locked down and with high prices, to keep the audience passive and consuming—and copyright law is often the tool for the job.

Anti-features

How many people are familiar with the Amazon Kindle Big Brother mishap? In its best impersonation of big brother and the most ironic tech event of 2009, Amazon deleted all of the copies of 1984 and Animal Farm from every single Kindle last July because the publisher changed its mind about offering an electronic edition. Just like that, people who legitimately purchased (well, more like “rented”), those books lost them in an instant.

Amazon backtracked on the deletion, restored the books and promised it would never happen again, but why do devices like the Kindle have such a kill switch to begin with? As Andrew Moshirnia from the Citizen Law and Media Project later explained,

Amazon used its power to delete entire volumes, a tactic with all the subtlety of carpet bombing. But this technology could be used like a sniper rifle, replacing small portions of an offending work and leaving the reader none the wiser.

When you buy a physical book, the retailer or publishing doesn’t have the right to enter your home and confiscate it, or rip out a page. Yet, that’s the functionality that’s being built right in to these e-readers.

This is an example of an anti-feature—a “feature” that no user would ever request or desire.

The reason these digital locks are appearing is that many publishers and authors don’t feel that they can protect their copyright interests without them. And, the technology companies often don’t mind the monopoly they wind up with when consumers can’t easily move their content from their device to a competitor’s, as they become the new gatekeepers (e.g. Apple and iTunes), but at other times they’re under intense pressure from publishers and authors to limit the functionality of their devices.

For example, in February 2009, Paul Aitken, as executive director of the Authors’ Guild, made an extraordinary statement when he discovered that the Kindle had an experimental text-to-speech feature. He insisted that it was illegal, claiming,

They don’t have the right to read a book out loud. That’s an audio right, which is derivative under copyright law.

Notice that no one, at least no one I’m aware of, would claim that, if you purchase a dead-tree book, you need the publisher’s permission to read it out loud. I don’t believe the Author’s Guild is knocking down on people’s doors for reading to their kid at night. But, the second that process is automated as part of electronic reader, they claim it’s a violation of copyright. Amazon caved, and allowed rights holders the ability to disable the text-to-speech feature, something that would have been useful to many, and even essential for some (such as the blind).

The real concern is audiobook sales. If text-to-speech technology can read a book for you, why would you need an audiobook? This is an instance where authors threatened to use copyright law to shut down a new technology, the sort of feature that would help to transform the book and create it anew in electronic form. The new potential was stifled because it might affect the old sales model.

Mike Masnick of Floor64 describes it as being “like the ‘horseless carriage’ or ‘talking pictures,’ rather than focusing on what the new technology allows, the focus is on bringing the old offerings onto a new platform and assuming it’ll be just like the old…

Here’s an example of a copyright license for an eBook on the Secrets of Digital Photography (admittedly from 6 years ago, but the same fear is present today). It’s presentation in a FAQ format:

Q: Can I sell it?

A: Yes you can, as long as you do four things (five if you sell it in a public forum such as eBay) then you can sell the eBook original with its package intact when you have outgrown it or no longer need it. Here is the list of things you MUST do, otherwise you have not lived up to the law:

  1. (Only if selling it on a public sales site such as, but not limited to, eBay.) Inform the publisher that the sale will be appearing on days x through y. That will alert them of your legal sale and prevent you from looking like a software pirate. You’ll get no hassle from them if you simply let them know what’s going on.

    eBay has had a policy for years of not allowing CDR materials to be sold through their site unless the seller is the original copyright holder. Both eBay and we know that software pirates are plentiful and eBay knows that they cannot legally be a willing party to software piracy. Now eBay allows resale of original material if the seller has permission from the copyright holder to do so.

    Permission costs nothing. Ask first.

  2. Remove every shred of eBook software and files from all of your computers. All of them.
  3. Destroy every hard copy print-out you have made from any and all of the files.
  4. Trash all of your iNovaFX Photoshop actions.
  5. Destroy all traces of the original serial number that you may have kept as a record for upgrades and sidegrade purchases at a discount, and inform the recipient that upgrade privileges do NOT transfer with the transaction. Upgrade and sidegrade privileges only are granted to the original first recipient of each eBook.

And my favourite part was the post-amble:

Copyright in the digital age is evolving. Perhaps some future system can be developed without onerous conditions that would allow you to sell it and not have to live up to today’s conditions.

But for now, our eBooks are the legal equivalent of an object. You can buy a book, then sell it when you’re finished with it. But if you were to run off a copy of it–just for reference, mind–then you could NOT sell the original without destroying your copy. Nor could you sell that copy to a friend.

We endeavor to only expect the same equivalent procedures from buyers of our eBooks. We want you to buy it and enjoy it and learn from it and use its included software and example files to your great benefit.

But we are merciless with people who steal it.

Of course, that isn’t you, so this whole discussion is academic.

There is a fear of the potential for digital books that causes rights holders to treat them like physical objects, to use copyright to impose these restrictions, to impose artificial scarcity. It’s an all stick no carrot approach, and copyright law is the stick.

Anti-circumvention

And rights holders have been pushing for more and more draconian copyright laws. The Digital Millenium Copyright Act, a 1998 update to copyright law in the States, contains many troubling expansions to the law, but one of the most troubling has to do with anti-circumvention provisions. The DMCA makes it illegal to circumvent a digital lock, even if what you are doing would otherwise not be considered copyright infringement.

For example, to watch a DVD that you’ve lawfully purchased is not copyright infringement. But, it would be copyright infringement for me to use my laptop to watch a DVD in the US, because DVDs contain digital locks, and with the GNU/Linux operating system I use, my DVD software has to break those digital locks in order to show me my movie. Watching a DVD you own would not normally be copyright infringement, but if you have to break a digital lock to see it, it becomes infringement.

These troubling anti-circumvention provisions essentially allow rights holders to rewrite copyright law with a digital lock. It’s this sort of thing that caused law professor Lawrence Lessig to proclaim that “code is law.” With electronic books that have digital locks, things that might normally be considered fair use—like copying and pasting a couple paragraphs, or transferring an electronic book from one device to another—can become infringement if the action requires breaking a digital lock.

There are no anti-circumvention provisions in Canadian copyright law, but anti-circumvention has been an issue in the last two (failed) copyright bills, and in the copyright consultation conducted by the government last summer. Anti-circumvention provisions are required in order to ratify the WIPO treaties, but there’s flexibility—anti-circumvention could be linked to copyright infringement, so that circumventing a digital lock for something that would be considered fair dealing would not be considered infringement.

The government expects to table a new copyright bill this Spring, and anti-circumvention will certainly be one of the contentious issues. Whether or not it allows rights holders to invent new rights, with a broad ban on circumvention, or whether it protects fair dealing will remain to be seen.

Fair dealing

Fair dealing is another contentious issue. Uses that are considered fair dealing under the copyright act do not require permission from the rights holder. Canadian currently has a limited fair dealing provision that only applies to research, private study, criticism, review, and news reporting. A recent proposal to expand that into a more flexible concept was met with criticism from the Writers’ Union of Canada, which claimed that more flexible fair dealing would “legalize theft.” These debates have been a heated part of Canadian copyright reform.

The Potential for Electronic Reading—When is the future coming?

When faced with a fear that old sources of income will disappear with new technology, people are understandably concerned, but they too often turn to copyright law to prop up old business models and avoid the necessity of exploring new ones. The real tragedy is that the potential of electronic readers is not being met. Consumers are confronted with anti-features—readers that can’t copy/paste, that allow books to be deleted against their will, that prevent an easy transfer from device to device—and rights holders focus on trying to replicate the physical world in the digital.

I don’t think we’ll see the future of electronic publishing anytime soon. So far, we’ve only seen attempts to recreate the scarcity and limitations of the physical word—and then some. With physical books, you can buy them, keep them, mash them up, share, photocopy, as opposed to device-specific rentals, bogged down by digital locks and people who think you need their permission to read a book out loud.

The really exciting things about electronic books are the things you can’t do with paper books. Like, having a text-to-speech feature. Or sharing things you’re reading with others. Or commenting on it. Is there an electronic reader out there yet that can host a conversation thread inside of a book? Because of copyright-related fears, the focus has been on using readers as a sort of broadcast, consumption medium. They’re called “readers.” I personally don’t have any desire for a dedicated electronic device, just for reading a particular kind of text. I read Plato and Aristotle, and Aquinas and JPII, but I also read blogs and news articles and other forms of content online. Why would I want a single device for “books?”

Content comes out of its container when it goes digital, but efforts so far have centred on using copyright law to try and build containers, through locks and legislation. To let text come out of its container would unlock the real opportunities that the technology allows. A paper copy of Brittanica has to be linear; Wikipedia isn’t—it’s hyperlinked. Blog posts are as much about the conversation as they are about the initial “content,” but how many electronic books are being designed with conversation in mind?

Until we get beyond this tendency to impose artificial scarcity and digital locks on electronic books and media, we won’t see the full potential of electronic publishing.

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Charlie Angus brings copyright reform back into the spotlight

This post originally appeared at RootsMusic.ca

NDP MP Charlie Angus
Credit: mgifford [CC BY-SA]

Last month, NDP MP (and former member of the Grievous Angels) Charlie Angus shook up Canada’s copyright debate by proposing two reforms. Angus was outspoken against the government’s last copyright bill, but he’s attracted criticism from all sides with this latest move. But that was basically his goal—more debate on copyright reform. For musicians and other copyright holders dealing with shifts in technology, this debate is a crucial one

Flexible Fair Dealing

Fair dealing permits the use of copyrighted works for certain purposes without permission. Currently, there are only five categories that qualify: research, private study, criticism, review, and news reporting. Noticeably absent are things like parody, sampling, time or format shifting, etc. However, the Supreme Court ruled that “[fair dealing] must not be interpreted restrictively” and introduced six factors to consider. Angus’ motion (M-105) would add the words “such as” to make the list of fair dealing categories illustrative rather than exhaustive, and it would put those six factors right into the act.

Flexible fair dealing has been called for by many groups, but others still characterize it as the “legalization of theft”. Nevermind that copyright infringement isn’t theft, but American law has long since had a similar principle in the doctrine of fair use—initially common law, but incorporated in the U.S. Copyright Act of 1976, much like Angus proposes for Canada. Fair dealing/use isn’t “theft,” but part of the copyright bargain.

Flexible fair dealing would help to future-proof copyright law by accommodating new technologies, practices, and forms of expression. Fair dealing isn’t free dealing either, since the factual tests of fairness must still be met, but the worry expressed by creator groups is that it will affect royalties—hence, Angus’ other proposal.

Expanding the Levy

Angus’ private members’ bill (Bill C-499) would expand the levy on blank media (such as CDs) to include potentially any “audio recording device,” defined as:

a device that contains a permanently embedded data storage medium, including solid state or hard disk, designed, manufactured and advertised for the purpose of copying sound recordings, excluding any prescribed kind of recording device

Yet, dedicated digital audio players are quickly being replaced by multi-purpose mobile computers. Should the levy apply to iPhones as well as iPods? This definition could potentially include Blackberry, Android and even laptop or desktop computers as well. This has attracted criticism from many, including Industry Minister Tony Clement and Canadian Heritage Minister James Moore, the cabinet ministers responsible for copyright. Beyond the wide spectrum of devices, what about the variety of works? What about movies, TV shows, electronic books, and other copyrighted works that are increasingly available on electronic devices?

This reform is short-sighted. The initial levy proposed for digital audio players in 2002 (struck down by the courts—hence a bill to make it legal) was $21/GB, which would leave a 120 GB iPod (less than $300 today) with a $2520 tax. How much would this levy be, and how long until that amount becomes absurd? Of course, the levies could be lowered (though, the CD levy has increased…), but imagine how quickly legislators would adapt, compared to the effect on consumers, innovation, culture and the music business in the meantime.

The “Nuance-Free” Zone

Angus criticizes the Tories for living in a “nuance-free zone,” either being “tough on crime” (Bill C-61) or “fighting against taxes” (Moore’s comments on Bill C-499). Yet, Angus has his own two-dimensional approach to copyright. He claims,

“There are only two possible options for protecting artistic property: either you lock down and sue or you compensate.”

Angus seems to conflate two separate issues—fair dealing and remuneration. It’s as if he thinks that the levy would justify—even pay for—more flexible fair dealing. Fair dealing isn’t something to be purchased; the Supreme Court affirms it as a “user’s right.” Likewise, the compensation problem would still exist even if flexible fair dealing was already around (see: the U.S. and fair use). This isn’t about crime/tax reduction, but it isn’t about “compensation for access” either. It’s about adapting copyright law to a world where copying is the norm.

Business models based on selling and restricting copies are struggling because the Internet is a copying machine, while those who are successful aren’t relying on copyright. Leveraging technology and consumer behaviour is an alternative to litigation, locks and levies, and effective copyright reform should enable that. This bill would just set up toll booths on computers. An iTax won’t solve anyone’s problems.

What’s Next?

Private members’ bills rarely become law, and the Tories plan to table new copyright legislation this Spring. The levy expansion has been rejected by Clement and Moore, though they haven’t taken sides on flexible fair dealing. Angus wanted to kick-start the next round of conversation, and that he did. Now it’s the government’s turn.

Read the comments at RootsMusic.ca

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Copyright Infringement and the Theft Metaphor

I’ve got a new post up at Roots Music Canada, why copyright infringement isn’t theft, which draws on William Patry’s book, Moral Panics and the Copyright Wars, to explain that theft is a poor metaphor for copyright infringement.

Canadian law professor Stephen Waddams, in a well-regarded book about how we think about law, wrote that when a dispute arises about intangibles, such as copyrighted works, information, or… time,

“[T]he claimant is always eager to categorize the claim as proprietary. Thus, the conduct of the defendant is apt to be described by claimants as piracy, highway robbery, and brazen theft. This is rhetoric: the taking of a photograph, the re-broadcasting of television signals, the use of confidential information, or the copying of a design cannot, in fact or law, be piracy, robbery (on or off the highway), or theft, and if it were any of these things, the rhetoric would be unnecessary…

[…] Describing someone as a thief or trespasser is a metaphoric step in gaining property rights, and not the result of having a property right in the first place. If one already had a property right, the property owner would sue for violation of that right and would not have to strut around… blaring loudly about “piracy.”

[…]

Copyright owners [describe] their right as “intellectual property.” The purpose of advocating something as a property right is to take it outside of the need for any empirical, social justification. As a property right we do not ask about incentives, and we do not ask whether the property interest benefits the public. Property simply is and need not be justified. Those who own property rights are entitled to hunt down unauthorized users as free-riders, as criminals, as a threat to polite society just as surely as who break into our homes and steal our cars.

Copyright law isn’t about theft and clearly fenced-off property. It’s a set of social relationships between creators and the public, granting creators certain exclusive rights, for a limited time, for the benefit of everyone. Abusing the theft metaphor shifts the focus away from the fundamentals of copyright, making it difficult to have any sort of meaningful or fruitful discussion about copyright.

I think it’s possible to present an informed and intellectually honest case for stricter copyright laws, but table-thumping about how copying is stealing is neither of those things.

The post was in response to table-thumping by some members of the community that, “there’s no grey area, it’s theft,” and that “it is now completely possible for ISPs to identify and eliminate illegal file sharing.” It could be interesting if those folks show up in the comments

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Is There A Better Word Than “Balance” In The Copyright Debate?

Mike Masnick questions the word “balance” in the copyright debate:

I’ve long thought that balance is the wrong way to look at it. The purpose of copyright law is to incentivize the creation of new content, and thus the standard on which copyright law should be judged is one where the [benefits of the] creation of content is maximized. As such, there shouldn’t be a question of balance, because the ideal situation where content is maximized should make everyone better off. Talking about balance is figuring out how both sides should compromise to meet in the middle. Talking about maximizing content creation, on the other hand, is talking about ways to improve the marketplace of options for everyone.

He links to a paper by Abraham Drassinower of the U of T Law School arguing that balance is the wrong way to view copyright policy. “Balance” as a concept in copyright suggests that the law is designed to reward a content creator for their labour (the “sweat of the brow” argument), Drassinower argues, though Masnick has to tease out the main point: “Balance” falsely implies that this is a zero sum game, when “the goal of copyright should be maximizing the [benefits of the] creation of content overall, such that everyone is better off.

I’m sold. I tried to use this point at the Toronto Copyright Townhall and in my submission to the consultation.

But, if not balance, then what?

Words like “balance” are used often to make sure that the interests of the public aren’t forgotten in the face of copyright holders’ interests. I strongly support the group, Fair Copyright for Canada, but “fair” has similar problems to “balance.” What words might serve to include the public interest without suggesting a zero sum game? Mike described it as “maximizing [the benefits of] content creation,” but that seems more useful in explanation than at the sound bite stage.

What about “calibrate?” I notice that Mike used the word in a subsequent post on why morality isn’t relevant in copyright: “A properly calibrated system is one where there’s the greatest overall economic good and everyone has the greatest opportunity to benefit” (strongly related — if it’s an economic question rather than a moral one, rights holders interests are not necessarily opposed to the public interest). “Calibrate” seems like the most accurate word. It doesn’t directly conjure up the notion of the public interest, but it does so indirectly by suggesting an approach that’s about more than “protection.” But it’s too technical for a mainstream audience.

Is there a more accessible synonym for “calibrate?” Optimize? It works, but “optimizing copyright law” seems a bit too vague, and doesn’t really capture the non-zero sum game and the public interest. Thesaurus.com doesn’t help much either.

So what else? I’m not sure. I like “calibrate,” but it won’t work with all audiences. “Optimize” is nice to use in passing to reinforce the point, but it doesn’t introduce it. “Balance” and “fair” are still useful for drawing attention to the interests beyond that of rights holders, but I won’t offer those terms without a caveat or disclaimer.

Other suggestions?

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Copyright Consultation Submission

I submitted the following to the Canadian Copyright Consultation, a little hastily as midnight approached on the initial deadline. It’s built off the same notes I used to speak from at the townhall.


Copyright matters to me for a variety of reasons. I’m a musician, writer and programming. I was recently a student at the University of Toronto. I’m a consumer, a computer user. In my work and leisure I interact with the Copyright Act in hundreds of ways each day.

Copyright is a set of social relationships, an incentive that the government provides to creators on behalf of the public, for the benefit of all (including creators). Talk about balance can be misleading, if we consider it a zero sum game. In reality, with the right approach to copyright law, everyone should be better off (like any good economic transaction) — creators for having tools available which they can use to earn an income, the public for having more works created.

Copyright isn’t inherently good. It’s not simply, “the more copyright, the better.” The right approach to copyright depends on keeping these broader goals and interests in mind.

Some specific suggestions:

1. Abolish Crown Copyright.

The government doesn’t need to hold copyright on the works it creates. The government already has an incentive to create those works. It’s called an election.

2. Don’t extend copyright any further.

Copyright term should not be extended. There are already legitimate questions as to whether it is too long in many respects now. That’s a discussion and debate for another time. For now, we should commit to not extending it any further.

3. Flexible fair dealing.

Simply adding the words “such as” to the Copyright Act, making the categories of fair dealing non-exhaustive, would be a huge step forward. The Supreme Court has already ruled that fair dealing should be interpreted broadly, and this would allow for things like parody or satire under fair dealing, making the law in tune with how many creators operate in this country already.

4. Technology Neutral Approach.

Don’t ban specific tools or technologies. I use peer-to-peer file sharing technologies to access and distribute materials — both music and software — released under free licences, like the GNU GPL or the Creative Commons Attribution Share-Alike licence. There are artists and creators who use these technologies to legitimately distribute their works and reach a wider audience (even the CBC has distributed content through BitTorrent). If the record and movie industry had their way, technologies like the VCR would illegal. Clearly, these technologies can prove to be useful to both creators and the public over time, and can create new business opportunities as well.

Any changes to copyright law should focus on the act of infringement, rather than banning tools which may or may not be used to infringe copyright.

5. Any anti-circumvention laws should be tied to actual infringement.

There are plenty of problems with anti-circumvention laws, but if we are going to introduce them in Canada, they must be tied to actual infringement of copyright. Breaking a digital lock for an activity that would otherwise not be considered an infringement of copyright should not be an infringement of copyright. I need to break digital locks to access materials all the time. For example, I’m a GNU/Linux user, and I need to circumvent the digital lock inherent in the DVD format just to watch a movie on my computer.

Don’t ban circumvention tools — there are plenty of legitimate uses, and plenty of uses for them within the realm of fair dealing. Any anti-circumvention restrictions should be tied explicitly to acts of infringement.

6. Don’t implement an ISP levy.

I’m a member of the Songwriters Association of Canada. They do great work for Canadian songwriters. But don’t implement their proposal to “monetize file sharing.” It’s untenable and undesirable on a variety of levels: what if someone doesn’t download unauthorized content? what about movies, poetry, newspapers, and other content that’s shared online? how would money be distributed fairly (the internet is much different than radio, with a long tail of artists producing content)?

Plus, artists are already monetizing file sharing. Artists and companies are doing it right now. Canadian songwriter and musician Brad Turcotte, for example, uses the promotion he gets through Frostwire (a peer-to-peer file sharing application) to connect with fans, grow his audience so that he can book shows and sell merchandise.

Also, why would we increase the cost of connecting to the internet in a country that already suffers from limited broadband competition, and when broadband penetration is another important technological concern?

7. Don’t extend the levy to digital audio players.

Many creator groups have called for the levy to be extended to digital audio players. That would be a huge mistake, and it would be in direct contradiction to “withstanding the test of time.”

For example, the proposed levy on digital audio players in 2002 was $21/GB. That would make a levy on an 120 GB iPod today $2520! Certainly, the Canadian Private Copying Collective could lower the cost over time, but that would likely be in reaction to an increased absurdity. Adding a levy on digital audio players would discourage investment in that sort of technology in Canada, and inhibit the ability of Canadian creators to offer new business models (if it’s less affordable for Canadian consumers to acquire digital audio players, how are Canadian artists supposed to implement digital business models?).

Also, the digital audio player space is rapidly converging with other areas of computing. With Android devices and iPhones, the distinction between digital audio players and cell phones is quickly becoming a thing of the past, and netbooks and tablet computers are rapidly blurring the lines between mobile and laptop computing. To imposed a levy on “digital audio players” — whatever that will include 5 years from now — would be extremely short-sighted from the perspective of encouraging innovation and investment in new technologies in Canada, and all the new business opportunities which can be had from their widespread adoption.

8. Don’t legislate business models.

On that note, as a broader point, the Copyright Act should not legislate specific business models. Copyright can provide tools for creators to build a business model on, but, for example, in the area of music, much success in the digital environment has been had by ignoring rights granted by copyright (e.g. letting fans distribute music or remix it), rather than following the route copyright law would suggest (e.g. excluding others from those rights).

In order to foster innovation and creativity, the Copyright Act must not stand as a barrier to new ways of doing business and to new business models in the digital era. We don’t yet know what sort of system will support artists going forward. Rather than trying to build one into the law, the law should enabled creators and entrepreneurs to experiment with new business models suited for a digital environment — whether that means providing tools, or simply getting out of the way. A copyright law that is too prescriptive, with too many restrictions and too many assumptions about a particular business model (e.g. selling copies) runs the risk of impeding innovative business models that may take a different approach.

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Canadian Human Rights Tribunal Declares Internet Hate Speech Law Unconstitutional

This post originally appeared on Techdirt.

The Canadian Human Rights Tribunal has refused to enforce a controversial internet hate speech law, claiming that it’s unconstitutional. The tribunal adjudicator, Athanasios Hadjis, expressed worry back in March about the “chilling effects” that Section 13 of the Canada Human Rights Act would have on the internet. In his ruling Wednesday, he decided that the restriction imposed by Section 13 “is not a reasonable limit” within the meaning of the Canadian Charter of Rights and Freedoms, and thus, unconstitutional. Since the tribunal isn’t a real court, it can’t actually strike down the law, so Hadjis just refused to impose any penalty.

Section 13 prohibits the repeated communication of “any matter that is likely to expose a person or persons to hatred or contempt” via telephone or — since 2001 anti-terrorism measures — the internet. The section is quite controversial; neither truth nor intent are a defense, and it’s not part of the criminal code, so it tends to become a vehicle for cases that wouldn’t stand a chance in a real court. Last fall, an independent review commissioned by the Canadian Human Rights Commission itself called for Section 13 to be repealed (an epic whitewash fail), and some politicians have begun to ask for the same. For serious issues, there are other hate speech provisions in the criminal code with real defenses, handled in real courts. Section 13 makes it too easy for someone to be “dragged through the process,” as Hadjis puts it.

Not only is the section controversial, but its application to the web has been clumsy at best. Hadjis said, when applied to speech online, “suddenly, the chilling effect catches not only individuals who set up telephone messages… but just about everyone who posts anything on the internet.” Hadjis notes that telephone hate messages tend to be overt, while opinions on the internet include many borderline cases. Part of the problem is that there are no safe harbors in Canadian law (or “safe harbours,” as we Canadians would call them). Hadjis was concerned that website owners could be charged under Section 13 for user comments on message boards and blog posts. While this particular website owner doesn’t seem like all that nice of a guy (to be charitable…), twisting the law to make a site owner responsible for user posts would have set a terrible precedent. Hadjis, thankfully, had the common sense to avoid that error. Hopefully Section 13 is repealed soon, and other tribunal adjudicators take note of Hadjis’ ruling in the meantime.

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Toronto Copyright Townhall: Canadian Record Industry Mobilizes In Panic, Everyone Loses Out

This post originally appeared on Techdirt.

Last Thursday, I attended the Canadian Copyright Consultation Toronto Town Hall (video). Despite the stated intention of soliciting a “breadth of perspectives,” the record industry dominated the event. Michael Geist described it as the “Toronto Music Industry Town Hall” and a local publication called it the “town hall that didn’t invite the town”. Tickets were limited and speakers chosen by lottery, yet half the speakers were from the entertainment industry — collection societies, record labels, industry lawyers. Twice as many industry representatives spoke as artists or creators. There was the odd librarian, student or programmer (and I had a chance to speak), but otherwise the participants seemed so skewed towards the same perspective that one person greeted the audience, “hello, music industry,” and some non-industry (though admittedly not very eloquent) speakers were heckled towards the end. When asked afterwards about the strong music industry presence, the Minister who ran the town hall joked, “I guess they had the night off.” There are lots of questions about the sincerity and efficacy of the consultations (though, also some indication that the government might take the time to try and get things right), but what was most disappointing, albeit least surprising, was what the entertainment industry actually had to say.

Most industry speakers presented emotional pleas, with little in the way of serious suggestions. They focused on a “right to get paid” and “fair compensation” (without talk of providing a reason to buy), while Canada was portrayed as a “lawless society,” rampant with property “theft” and hostile to “legitimate” business (despite evidence to the contrary). A writer stunningly declared that “[more flexible] fair dealing would be a disaster for creators,” while SOCAN claimed that adding “unwarranted” fair dealing provisions would be asking creators “work for nothing” (even though flexible fair dealing would be a lot like fair use in the US — hardly a disaster). The President of Warner Music Canada talked about disappearing jobs, and many industry employees painted a dire picture of colleagues and artists struggling to make ends meet (with little mention of any success stories). Yet, when the occasional concrete recommendation was made, it was to implement a notice-and-takedown system (ripe for abuse), extend the “you must be a criminal” tax blank media levy to digital audio players (an idea that’s been struck down twice), or enshrine an inducement doctrine into law — extreme measures which have provided little solace to failing businesses elsewhere.

It wasn’t argument. It was the language of moral panics.

The Canadian record industry was demanding to be lied to, to be told that more restrictive copyright laws will save their business. Though fewer and fewer people can convincingly tell the lie, they seemed perfectly capable of convincing each other that restrictive copyright legislation might somehow stop the market from changing (even with a decade of hindsight on the DMCA). It’s tragic, because hard working people who love music and love working for artists are losing their jobs, but the industry continues to block the sort of innovations that could provide it with a way forward. A lawyer described the music industry as a “copyright industry,” even though most artists and companies who are figuring out how to make money in the digital economy are successful despite copyright — not because of it.

Artist voices were few (nevermind consumer voices), which is disappointing because many Canadian creator groups are adopting more forward thinking approaches, proposing solutions that don’t involve criminalizing common consumer behaviour. Now… most creators echoed the industry in supporting the levy and its expansion to digital audio players and even ISPs, and some asked for new royalties and more collective licensing, but that’s much better than demanding stricter laws and enforcement mechanisms. The problem remains though, that although collective licensing may be a move in the right direction, short-term revenue from additional royalties and levies also increases barriers to innovation, making it harder for new sustainable long-term business models to emerge. Artists and creators need to find a way to earn money that’s based on a solid economic ground, instead of depending on levies that can quickly become absurd. That’s where the record industry should be able to help them out.

Artists and creators need to be able to experiment with new business models, but the copyright crutch gets in the way. They turn to levies and licensing because they can’t imagine how else to make money, but successes have been outside of the copyright system. Canada needs innovative companies to help artists and creators find digital business models, not to chase fictive legislative solutions. If the Canadian record industry isn’t willing to help creators with what’s next, they need to clear out of the way.

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My Comments at the Copyright Consultation Toronto Town Hall

Thursday night, I had a chance to speak at the government’s Copyright Consultation Toronto Townhall. I’ll post more detailed thoughts shortly, but in the meantime, Nick Dynice was kind enough to upload a video of my comments to YouTube.

I wasn’t expecting a chance to speak and hadn’t prepared much, but my name came up in the lottery in the last half hour or so. I’m not particularly happy with how I spoke — some parts felt awkward, and I had to cut other points due to time — but I’m glad could provide a different perspective compared to the ~80% of speakers who were folks from the music industry arguing for some combination of locks, levies and legislative responses to their business model problems.

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