Predictable positions from subset of stakeholders at Brussels telecommunication/copyright event.

(First published on IT World Canada blog)

Michael Geist has posted an article “The Battle Over Internet Filtering” where he discusses a seminar in Brussels on the “telecoms package” currently before the European Parliament. He listed out some of the views of the stakeholders on issues like DRM, “three strikes and you’re out” policies (”graduated response”) , “technical mandates”, ISP filtering/blocking of infringing content, and stronger cross-border enforcement initiatives (ACTA).

With the “three strikes you’re out” policy there is obvious dishonesty by proponents. In many countries the statutory damages if found guilty of infringement are so high that it is really “one trike you’re out”. Gaining access to an ISP will be the least of your troubles given the excessive financial implications of statutory damages.

What we are really talking about is three unfounded allegations of infringement, not cases of actual infringement. These lazy dishonest copyright holders don’t want to have to spend a moment of their time collecting evidence of infringing activity. Part of the problem seems to be that they can’t seem to hire above-board investigators.

This subset of copyright holders (major labels and studios, etc) seem to be able to be summarized as having a chicken little “sky is falling” mentality, and are not the slightest bit interested in the unintended consequences (including the harm they seem to continuously inflict on themselves) from their poorly thought out policy proposals.

The ISP filtering/blocking problem has similar issues to DRM in that it transfers too much control over critical communications infrastructure to third parties/intermediaries. We know the phone/cable companies will abuse the filtering technology for their own special interests. The Network Neutrality debate would effectively be over and won by the opponents to neutrality with mandatory filtering.

Determining copyright infringement is a question that well informed copyright lawyers can’t agree on in many circumstances, and sometimes higher judges overturn lower court judges, so obviously can’t be automated in software. The problem of stopping SPAM is far easier and far less subjective, and we should all have realized by now that there is no easy technological solution to this social problem. The only real solution is of enforcement of appropriate laws that target the actual proven perpetrators (and not innocent bystanders or technology providers).

I’ve written about the difference between DRM and “technology mandates” (Example: Broadcast Flag) in the past, and want to focus on these two again. With an appropriate understanding of these issues, it is easy to understand the positions of the narrow subset of stakeholders allowed to participate in these events.

With DRM you have a lock on content (encryption) and anti-circumvention laws which legally tie the ability to access this content to specific “authorized” devices (”access control technological measures”). The content companies and the device manufacturers then negotiate features of the devices which will be locked down and then authorized. Over time we end up with a situation where the platform to deliver content to audiences becomes more valuable than the content, putting device manufacturers in the more powerful position for negotiation. The major recording labels and motion picture studios have already observed this with apple, and their desire to create an “open” DRM platform is entirely about getting out from under a near platform monopoly.

With “technology mandates” you have the government imposing features onto device manufacturers where the device must be locked down, but the content doesn’t have to be. (See: Is it possible to have a ‘use control’ without an ‘access control’?.)

Major label/studio copyright holders

They are recognizing part of the harm of DRM and their support for this is reducing. They are strongly supportive of “technology mandates” which gives them what they believe they want (locked down hardware/software) without the platform monopolies of DRM. They seem oblivious to the harm that locked down hardware/software will have to their sector and its ability to innovate. I’ve seen some references that suggest they are promoting the idea that “authorized” labels/studios should have exceptions to use unlocked hardware, a clear anti-competitive policy proposal.

Other copyright holders (not asked)

There isn’t consistency in the message you hear from creator copyright holders. If you look in Canada you see groups like the Creators Copyright Coalition largely aligned with the majors, with some of their own members breaking out and forming groups like Appropriation Art and the Canadian Music Creators Coalition which appear to oppose digital locks of any type (on their content, or on devices).

Before this group of copyright holders can really influence the debate there needs to be modernization and renewal in the organizations that make up the CCC. Otherwise creator copyright holders will continue to be politically lumped in with the non-creator copyright holding intermediaries.

Hardware and incumbent proprietary software companies

They want the monopoly creating aspects of DRM, and believe that they (and not any competitors also represented in some of the same associations) will be the winners of this “Russian roulette” platform monopolist game.

They are opposed to “technology mandates” claiming that this reduces their ability to innovate. The reality is that DRM and “technology mandates” are similar in this respect as both reduce the ability of hardware manufacturers and software authors to innovate. If they were honest they would state that the key difference between DRM and “technology mandates” is whether they gain a platform monopoly.

Independent software companies, including FLOSS developers (not asked)

If hardware is locked down to mandate “no user modifiable parts inside”, meaning they can’t choose their own software, they can’t possibly choose our software. We are effectively forced out of this marketplace, with independent companies most often representing the greatest innovation.

There is little difference between DRM and “technology mandates” for us given our issue is the locked down hardware and any incentives to force customers to purchase locked down hardware. In the case of DRM the new exclusive “access right” granted to copyright holders in anti-circumvention legislation becomes the incentive for people to purchase locked down hardware (If you want to access this movie, you need to buy one of this subset of devices). With “technology mandates” it is the government disallowing the production or importing of unlocked devices, meaning “if you want to access any movie, you need to buy one of this subset of devices”.

Hardware owners (not asked)

In a “DRM” world someone who wants to protect their hardware property rights has the option of simply “opting out” of (legally) accessing any content that is infected with DRM. There will be very few of these people protecting their property rights as most people will be duped by the incentives ( If you want to access this movie, you need to buy one of this subset of devices). With a “technology mandate” their ability to actually express basic ownership rights are legislated away. Sounds like a government taking of property without justification or just compensation to me. Ironically if we take Bill C-61 as an indication, the alleged “Conservative” party of Canada may be the party most likely to wipe out tangible information technology property rights.

We appear to have an election coming up soon, and I hope everyone will ask their candidates their views on these important issues. Our elected representatives should be representing us, an important stakeholder not adequately consulted on these policy issues.

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Russell McOrmond is a self employed consultant, policy coordinator for CLUE: Canada’s Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING), and host for Digital Copyright Canada.