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Songwriters and musicians disappointed with Bill C-61

I’m proud to be a member of both the Songwriters Association of Canada (SAC) and the Canadian Music Creators Coalition (CMCC). Both organizations have expressed their disappointment with Bill C-61. It’s not that hard, really, but it’s noteworthy since the bill is supposed to be “protecting artists.”

The SAC is concerned about their proposal to monetize peer-to-peer file sharing (aka the music tax), which I’ve described as a forward thinking approach from backward thinking minds. The proposal has the right idea (to embrace the technology), it just goes about things the wrong way (namely, the fee is involuntary). Bill C-61 would completely undermine any attempt to accommodate the technology. The SAC’s response to the bill is quite critical:

C-61’s intent to halt [unauthorized file sharing] will be very expensive, will erode the good relationships we have with music lovers and will not be effective…

Where the SAC music file sharing proposal is consumer friendly in that it embraces file sharing… bill C-61 is unfriendly to music file sharing and would make this very popular activity clearly illegal;

Where our proposal is economically viable and is designed to generate income for creators and rights holders, the bill C-61 approach to file sharing is not economic for rights holders. Money generated through lawsuits would simply go to legal costs;

Where our proposal is practical and sensible in that it builds on existing activities… the bill C-61 regime would be impractical relying as it does on enforcement and punishment to reverse how many consumers access our music.

The CMCC’s response is even harsher:

It’s all locks and lawsuits… Suing fans won’t make it 1992 again. It’s a new world for the music business and this is an old approach… The question is, who gains from this bill? It’s not musicians. Musicians don’t need lawsuits, we don’t need DRM protection. These aren’t the things that help us or our careers.

If artists are against Bill C-61, who is it supposed to be protecting?

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What the Canadian DMCA means in practical terms

Given the tabing of Bill C-61 this week (aka “the Canadian DMCA”), I’ve decided to put the coverage in context with some practical examples and questions.

Under the new legislation:

  • It will be illegal for anyone in my house to watch a DVD on a computer, since we run GNU/Linux (courtesy of the digital lock provision which outlaws “unauthorized” DVD decoders)
  • I would be liable for $500 in damages ($6000 if it’s per song, which isn’t clear) for loading A Perfect Circle’s Thirteenth Step — which I own — onto my computer, an album that problem sells for $9.99 on iTunes (courtesy of the digital lock provision and limitations to statutory damages). If I share that album with my younger brother, I may be liable for up to $20,000 in damages (again, assuming it’s not per song) because it ceases to be for private use.
  • It will be explicitly illegal for my parents to share their digital music collection with each other, even though they share their physical music collection (courtesy of the limitations of the private copying of music provision)
  • Canadians are finally explicitly allowed to time shift broadcasts. Except, if someone tells us that we’re not allowed to time shift broadcasts. The time shifting provision is completely undermined by the digital lock provision
  • The time shifting provision has the following limitation: “29.23 (d) the individual keeps the recording no longer than necessary in order to listen to or watch the program at a more convenient time;” I guess my family may have to destroy the old VHS recordings we have of Christmas specials from when we were kids or television shows my mom has appeared on in the past, less we be hit with $500 a piece damages for keeping these recordings “longer than necessary.” Nevermind the episode of Canadian Idol from last week, that (*gasp*) may still be sitting on your DVR
  • What exactly qualifies as making available? (See New Rights and Protections for Copyright Owners) If I have music in a shared folder on my local network, but my WiFi is unencrypted, am I making it available? The $20,000 upper limit for damages applies to making available.
  • Posting a copyrighted photo on the Internet? Up to $20,000 in damages, thanks to the limitations of the limitations on statutory damages.
  • Posting a copyrighted video on the YouTube? Up to $20,000 in damages, thanks to the limitations of the limitations on statutory damages
  • Educational institutions can now make use of content on the Internet, unless someone says they can’t make use of content on the Internet (courtesy of the digital lock provision).

There is some good news, but it’s largely made irrelevant by the bad. For example, things like time shifting or format shifting are, at best, in a legal gray area at present. Bill C-61 would permit these actions explicitly… unless someone says they aren’t permitted. Without the digital lock provisions, this might actually be a step forward. Too bad those anti-circumvention measures are central to the bill.

Michael Geist feels betrayed. Darryl Moore examines some of the negative effects on everyday activities. The Canadian Music Creators Coalition says the bill doesn’t help Canadian artists. 10,000 more Canadians have joined the Fair Copyright for Canada Facebook group. I’m flat out angry.

At least the CRIA is happy. This would give it the ability to sue music fans.

Join the protest.

Other coverage:

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Analyzing the Songwriters Association of Canada’s proposal to legalize file sharing

Since the Songwriters Association of Canada (SAC) proposed to legalize file sharing, many Canadian groups have responded, both positively and negatively. The Canadian Music Creators Coalition called it a “forward thinking approach” that ought to be discussed, while foreign corporations’ Canadian representatives (such as the Canadian Recording Industry Assocation) slammed it as a “pipe dream.”

I first heard about this proposal in November, a few weeks before it was finalized and announced, through the Songwriters Magazine I receive as a SAC member. My initial reaction was a negative one, but as I contacted them and exchanged a few emails with Eddie Schwartz – the proposal’s architect, or at least overseer – I warmed up to the idea a little bit. There were still some concerns left lingering though.

Now that I’ve had some time to think about it, I’m going to revisit and review the proposal to outline what I consider its strengths and weaknesses, as well as remaing questions I have.

(Numbers refer to the points listed in the proposal.)

What I like

I strongly support the SAC in bring forth this proposal. This is certainly the type of thing we need. It considers artists rights and freedoms as well as the rights and freedoms of music fans without taking a position to suggest that there needs to be a conflict between those varying interests.

The proposal looks at ways to legalize the act of file sharing rather than pretending it can be stomped out of existence and viewing it as a negative thing. It acknowledges that “file sharing is both a revolution in music distribution and a very positive phenomenon.” (2)

The proposal covers all types of file sharing from one individual to another for non-commercial purposes, regardless of the medium (ie. LAN, hard drives, CDs, DVDs, email, etc.). (5)

The new “Right to Equitable Remuneration for Music File Sharing” would not conflict with commercial music services, which could still continue to provide “value added” services for a fee. (9) One example would be security, in paying for a track from a commercial store, listeners could be assured that the files they download won’t contain any malware. Other examples could include digital album art, videos, etc. There would still be a market for additional and professional services. Take bottled water for example. In a country like Canada, we are fortunate enough to have easy access to water for essentially no cost, yet the bottled water industry is extremely profitable.

What bugs me

The fee is to be collected by ISPs, when it’s not really their responsibility. It does feel like a tax. There’s no way to opt-out included in the proposal, so my grandparents – who are surprisingly computer savvy, but don’t download music – would be paying the fee, as well as my office. Society doesn’t owe artists some sort of social welfare. Also, this makes the proposal difficult to implement if it requires cooperation from other groups to collect this fee.

I don’t trust Big Champagne (or other similar companies) and I don’t want a company, or a collective for that matter, deciding to which artists my money goes. Big Champagne uses all sorts of proprietary software to do their analysis, so there’s little chance for transparency or review of their methods. More importantly, the decentralized nature of file sharing makes it extremely difficult to measure. They may be able to monitor peer-to-peer networks, but they have no hope of monitoring songs shared via email or flash drives. I’d much rather play an active role in financially supporting artists. If I like an artist, I will buy their CD or go to their concerts. I’d like an opportunity to be able to support an artist when downloading music (e.g. Radiohead’s pay-what-you-can experiment), rather than relying on some organization to sent them pennies in the mail for my download.

Even if a minority of music listeners compensate artists in some way after downloading music (though the latest government study suggests that music downloaders buy more music), there are a wide variety of business models that can make a ton of economic sense. But that’s for another post…

Also, I find downloading much more useful for sampling purposes than as a substitution for purchases. How is it going to be determined whether a track I downloaded was listened to once and then deleted, or whether it became a favourite of mine? If it were a favourite, I’d gladly pay money for it. If I had to pay to sample it, I probably wouldn’t download it in the first place.

Most Importantly…

This is a free culture issue to me (free as in freedom). The laws should be based on respecting people’s freedoms and creating incentives for artists to produce songs. There is no natural right to a monopoly over works you produce as an artist; an artificial monopoly is granted, only insofar as it benefits society as a whole.

What sorts of things should people be allowed to do with music files they have obtained legally? That’s the fundamental question.

I believe they ought to be able to do virtually anything for personal use, which includes creating backup copies and format shifting. I also believe that people ought to be able to share things they own with their friends. If I like a song, I should be able to share it with a friend who might also like it. The fact that I can keep a copy for myself while doing this is a blessing, not a curse.

In a way, peer-to-peer file sharing is just that. But… does scale change the nature of the act? If I want to share a file with a stranger, that should be within my rights. But when millions of strangers get together and make virtually any songs available, does that change the nature of the act of sharing?

I don’t believe so. I’m not entirely convinced, but I can’t seem to grasp how the difference in scale would change the fundamental nature of the act.

If people should be allowed to share things they own with other people, they why should anyone owe money for file sharing anyways? It would be great to develop a way, a system, for interested music listeners to support artists financially, but if it’s reasonable for me to be allowed to share my possessions with others, then it would be wrong to force me to pay to exercise that freedom.

The Creative Commons Music Sharing License – which I’ve been using for my music – allows music files to be shared (copied, transmitted, distributed) so long as its for non-commercial purposes, with attribution and “as is” (ie. no derivatives). That seems to me a reasonable basis for true fair dealing of audio files. If that’s the case, why should we pay a fee for those rights?

I applaud the SAC for their proposal and believe it is certainly the type of thing we need to be discussing. I’ve signed on as a supporter. However, I’m a bit hesitant about making some special exception in the copyright act (with a fee attached) rather than re-examining fair dealing provisions.

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On treating people like criminals

I recently came across Bill Gates’ Open Letter to Hobbyists (1976). Although new to me, it’s by no means news. However, since reading it I can’t help but think about how connected it is with the current software landscape and, in particular, Microsoft’s business practices over the last three decades, especially when taken in contrast with the GNU Manifesto (1985).

The letter is a tirade against the widespread sharing of authorized copies of his company’s software, namely Altair BASIC – Microsoft’s first product. Gates was angry with the fact that the developers of the software were not being paid for the work they had done, that the majority of users had obtained the copy without paying.

The letter raises an important point regarding the economic question of sharing software. If copies are being widely circulated, how are the developers to make a living? There are two main sentiments that I detected upon reading the letter. They are that hobbyists and “users” (Gates used the quotes himself) are amateurs and thieves, respectively. First, without real professional programmers they wouldn’t have any good software. Gates completely dismisses any contribution that volunteers can make. Second, users of the software are looked upon and treated like criminals. Rather than recognize that the users are “fans” of the software, that they are helping increase it’s popularity, and trying to find a way to capitalize and monetize that, the users are treated as criminals.

In contrast, the GNU Manifesto (which was written separately from the Open Letter to Hobbyists – Richard Stallman had not read the letter at the time) takes a radically different approach. Richard Stallman considers the freedoms to study, modify and distribute software as absolutely essential freedoms for the computer user, and he sets out to find a way to protect those freedoms. He too addresses the question of “how will programmers make money?” with some suggestions that have been proven to be effective over the last two decades (such as customizing software or providing services and technical support for free software projects).

Let’s take some quotes from the two documents.

Who can afford to do professional work for nothing? What hobbyist can put 3-man years into programming, finding all bugs, documenting his product and distribute for free? The fact is, no one besides us has invested a lot of money in hobby software. We have written 6800 BASIC, and are writing 8080 APL and 6800 APL, but there is very little incentive to make this software available to hobbyists. Most directly, the thing you do is theft.

– Bill Gates

“Won’t everyone stop programming without a monetary incentive?”

Actually, many people will program with absolutely no monetary incentive. Programming has an irresistible fascination for some people, usually the people who are best at it. There is no shortage of professional musicians who keep at it even though they have no hope of making a living that way.

– from the GNU Manifesto

Both the proprietary and free software mentalities have developed greatly over the past few decades, as our world becomes increasing run by software. The free software movement and open source movement have proven that volunteers can build powerful (often the most powerful) software. Take a look at Firefox, or the LAMP web server environment (GNU/Linux, Apache, MySQL, PHP/Python/Perl). Large companies like Google and IBM run on free and open source software. Companies such as Red Hat and MySQL are extremely profitable developing, selling and providing services for free software. Many start-ups, like Google in the early days, or Facebook just a few years ago, rely on widely available inexpensive and powerful free and open source software. Without it, they might not have had the means to begin.

But proprietary software is still the norm, and Microsoft still treats it’s users like criminals. A friend of mine pointed this out to me the other day, as I was trying to explain what it was that I disliked about Microsoft’s mentality. His computer has been calling him a criminal for a while now, as Windows Genuine Advantage is accusing him of using an authorized copy of Windows. He certainly didn’t copy it himself, so there’s one of two possibilities: either the distributor he purchased his computer from used an unauthorized copy, or Windows Genuine advantage is wrong (it’s been wrong at least a few hundred thousand times already). It displays notices when he boots his computer and periodically while running. It’s withholding certain updates from his machine. And it took away his Windows Media Player (I know, I know, no big loss, but that was what he had been using). Mistrust breeds mistrust, and rightfully so.

I can’t help but look at the parallels in the music industry. Record labels have really been treating fans like criminals since the RIAA begin its indiscriminate lawsuits against music fans (or their dead grandparents) several years ago. The record industry is all but dead. There are large lay-offs and cutbacks, a huge decline in CD sales. Many insiders believe it’s already over, for the majors. But the music industry is still very much alive, and groups of artist, like the Canadian Music Creators Coalition (CMCC), have formed to combat the “treat the fan as a criminal” mentality which has lead to disaster for the major labels. Groups like the CMCC and many independent record labels have been developing new business models, rather than using draconian measures to protect outdated ones. The Barenaked Ladies are a great example of this, as is Dispatch (an independent band that embraced Napster instead of rebelling against it).

The movie industry, unfortunately, seems to be making the same mistakes that the record companies made. It seems as if they believe that the record industry just didn’t come down hard enough or early enough on new technology. The new video formats are increasingly loaded with Digital Restrictions Management, even to the point of building it into the hardware. They’ve cracked down on camcordering, as if that’s eroding the core of their business and is a replacement for going to the movies rather than simply creating hype for them. Want to feel like you’re being treated like a criminal? Try going to the movie theatres, where after paying for a ticket, you have to walk by posters and sit through trailers that are increasingly headed in this direction:

I believe that the only effective “anti-piracy” policy involves recognizing that the word “piracy” is being misused. People who share music are music fans. People who share software are computer enthusiasts. In the digital world, we can easily make copies of songs or programs to share with other people without having to take them away from someone else. This is fundamentally different from the concept of stealing material objects that proprietary software developers and major record labels want us to associate with sharing. The only thing that makes this type of sharing illegal is the present copyright system, which is just a legal construct and has no basis in natural law. Copyright isn’t an inherent right; it’s simply a system of incentives. The system can be changed if it’s not serving it’s purpose to society. In today’s world, copyright is a weapon used by large corporations to restrict people’s freedom for the sake of increased profits. We are more connected today than ever before in human history as a result of technology, yet so much of our effort goes into building digital walls.

Fear, uncertainty, anger and greed on behalf of corporations in the face of social cooperation produce things like Windows Genuine Advantage and the record industry’s demise. On the other hand, the flexibility, adaptation and innovation of the free/open source software movement and the independent music scene produce software/music that is more plentiful, quite often better quality and more widely available.

Which are you interested in supporting?

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