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Sunday, June 15, 2008
Copyrights – Qui Bono?
The Government has it all wrong on their new copyright bill. They are blowing a historic opportunity to reach out to young voters over an issue they actually care about and to put the left in a horrible bind. There’s still time – some – to reverse course and make a historic, bold, and utterly ruthless move. Not that I expect it to happen – this government hasn’t shown itself to be much in any of those departments.
Let’s talk about copyright law for the moment – why it exists and why the government wants to strengthen it. Copyright laws were instituted to give authors and creators the exclusive rights to their work in order to make sure that they could make money off of it. These laws, historically, have been far weaker than they are at the present time – a result of intensive lobbying by the entertainment industry over the years. It’s worth remembering that, had they gotten their way in the 1970’s, the VCR would have been banned. The entertainment industry wants restrictive copyright laws which prevent people from stealing their work. That’s an impulse I can understand. They also want to prevent people from modifying the form of their work, so that people are forced to purchase multiple copies of the same – for example, forcing you to buy a song once on a CD and once in MP3 format. That, I would argue, is less defensible.
Now, why does this government want to strengthen copyright laws? The short answer is two-sided. First, they’re under some degree of international pressure to do so, as Canada’s copyright laws are notably weaker than the global average. The second is that, in general, the average age of the Ministers and Bureaucrats in this government (in all governments, for that matter) is high enough that they simply don’t get this stuff and, thus, their natural law and order instincts drive them towards a tougher response to “piracy.”
What this debate misses altogether is the key question about this law – qui bono? Who benefits? Who is seeking these sorts of laws? The answer is: the big entertainment conglomerates, specifically the lazy and disoriented ones.
Internet piracy of media is time-intensive, bandwidth hogging, and places its practitioners at risk for any number of internet-related maladies. I buy my music from iTunes because it is reasonably priced, easy-to-do, and quick. I – and most other people – don’t have the time or inclination to venture either through the Torrents or the aging remnants of the old peer-to-peer networks in search of a song that could otherwise be had for $1.
The same is true for movies and television, though in Canada the alternatives are still in their infancy (iTunes movies having become available only last week with the television selection still limited and with Amazon Unbox and Hulu being inaccessible). I, for one, use a TiVo imported from the United States – a simple, no-fuss solution which delivers the media I want at a reasonable price.
Who will benefit the most from a crackdown on illegal downloading? The answer is obvious – the old-line entertainment bosses who don’t want the world to change. The morons who spend $200 Million making movies that no one wants to watch and millions more signing musicians who no one wants to listen to. A crackdown will slow the impetus on the content providers to sign deals which bring people media the way that they want when they want and instead encourage them to hold-fast to their old strategy of delivering it the way the bosses want when the bosses want.
After all, let’s get real here – the actual evidence that any of this stuff has a major effect on Hollywood’s bottom line is minimal, at best. I have a hard time believing that Evan Almighty tanked because ten million people watched a copy shot by some guy with a handicam in Montreal rather than spending $12 to see it in the theatres. A lot of this whining is a fig leaf to cover up the fact that the entertainment industry spends most of its time lavishing obscene amounts of money on projects without any obvious commercial viability.
More to the point – big entertainment doesn’t support conservatives (small or big C). They don’t give them their votes, their voices, or their money. Screw them.
On the other hand, the left does rely on the entertainment industry for money and support. Less so here in Canada – but that element is still there. Let the left carry water for the MPAA and the RIAA at the risk of alienating the young.
Instead of this nonsense, the government should scrap the copyright bill and replace it on the docket with one which tears down the barriers to Canada’s full ascension to the 21st Century in terms of technology and entertainment. Do away with the laws which prevent international telecommunications providers from entering the market. Let us have HBO, Showtime, and so forth direct from the source. Let Barnes and Noble open up a new mega-store in Vancouver. Let me finally buy the damned Kindle that I’ve been lusting after.
Posted by Adam T. Yoshida on June 15, 2008 in Web/Tech | Permalink
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Comments
I disgree with you Adam. I'd like to explain, but, you see, my essay on the matter is copyrighted by me, so as you can imagine, I'm not particularly interested in posting it at a site that is in favour of theft of my property.
Posted by: Vitruvius | 2008-06-15 7:56:35 PM
Great post. Ditch the technological protections and this might work. The Conservatives are hurting themselves if they stubbornly persist in taking up the cause of foreign media conglomerates.
Posted by: Steve | 2008-06-15 9:10:24 PM
Imagine my pleasure, Yoshida, when I read an entire post of yours and agreed with both your premises and your conclusions.
What do you think of Michael Geist?
Posted by: Kalim Kassam | 2008-06-15 10:47:19 PM
Kalim - I'm pretty much in agreement with him, from what I've read, on the direction I'd like to head in, even if our motivations are different.
I mean, let's get real here - a bunch of middle-aged bureaucrats and politicians sitting around and trying to design copyright laws which reflect the modern digital reality is likely to produce a product with as much reference to the reality of end-users as a tampon ad written by a thirty-seven year old male copywriter in 1954.
Posted by: Adam Yoshida | 2008-06-15 11:08:14 PM
Wow. Speaking as a charter subscriber to the original Western Standard magazine, and one who first commented here in the first week of the Shotgun, April '04 if memory serves, and then as one who for a couple years commented quite vociferously in favour of Ezra's campaign of freedom of speach (which I still support, now elsewhere), I must say that I never thought this place would become a den of thieves. Don't like the free-market contract offered by the property owner? Hey, no problem, steal it. And you wonder why there isn't an effective micro-payments market? Because immoral greedy children and anti-property marxists won't even cough up the micro-payment, they'll just steal it. Throw 'em in jail, I say.
Posted by: Vitruvius | 2008-06-15 11:25:23 PM
We went through the same bullshit when recordable cassette tapes came out. Did'nt work then..wont work now,wont work in the future. At least they can say they tried.
Posted by: peterj | 2008-06-15 11:45:15 PM
First of all, this law would effectively make illegal many presently legal and legimitate activities. For example, it would make anything which required circumventing any sort of lock illegal.
Which would include, for example, Tivo'ing a program which had a "No Record" broadcast flag over it. Or using any of a hundred programs you can buy in the stores (or one of the better ones you can download for free) to make a copy of a DVD you own to watch on your iPod. What this law seeks - and what Big Entertainment seeks - is to regulate what you do with things that you've already paid for and own.
I like buying stuff. I own several hundred DVD's, two thousand books, and more. Hell, I already own a dozen Blu-Ray discs, half of them copies of movies that I already own that I bought to watch the improved HD version of. (Patton, Almost Famous, The Searchers, Terminator 2, Independence Day). I'll be buying plenty more in the years to some - and some of them in whatever format comes after that too. (In particular, I've already bought Patton four times and I expect to buy it at least that many times again - ditto Star Trek 2).
But I don't like being ripped off. I don't think that, in a legal sense, I should pay for the exact same thing - if they want to sell me something new, I just might buy it (and in some case, there's no "might" about it), but they have no moral claim to restrict my usage of my own property in order to force me to pay again for an identical item.
It'd be like a car company selling me a car which I could only use on the Trans-Canada Highway, not because I couldn't use it otherwise but because they added a locking feature to it, and demanding that I buy a second car for city driving. Not because the car was physically incapable of doing so, but simply because they could manipulate the law to make more money for themselves.
Laws must be based on something more than legislative will. A just law is rooted in a basic sense of justice - there's nothing just about restricting people's legitimate uses of their own property so that failing companies can try to extort them for a few more dollars.
Posted by: Adam Yoshida | 2008-06-15 11:49:36 PM
Vitruvius,
While it pains me to agree with Adam about anything -- he being a blowhard and thug and all -- in this case, he makes a few decent points. And you seem to have a curious and incorrect (if not uncommon) view of copyright law.
Intellectual property is not protected by a free market contract, but by a number of statutes that delineate the relative rights of creators and users during the limited period of time that the IP is subject to copyright or patent protection. During that period, the creator has a monopoly, subject to the exception of fair use or fair dealing. After that period expires, the IP is available for anyone to use.
For most of the last 100 years, copyright and patent law has been written (effectively and, in some cases, literally) by the people who own copyrights and patents. The result is that the term of protection has grown longer, the exceptions for fair use or fair dealing have grown narrower and the penalties for infringement stiffer. We have lived through nonsense such as the "Home-taping is killing music" campaign, record companies suing teenagers and grandmothers for file-sharing and, recently, a campaign by some to make copyright protection permanant.
The advent of digital media, however, has made the distribution of copyright material simpler and cheaper. And a whole generation of non-profit copyright users -- consumers -- have made it clear that they think that the monopolies created by copyright law in particular last too long, contain few exceptions and favour giant entertainment congolomerates over both consumers and front-line creators. They are demanding a seat at the table and a say in the bargain and they are doing so in large numbers. (For example, there are nearly 60,000 members in the Fair Copyright for Canada group on Facebook).
The goal of copyright is to encourage the creation of work and ensure that it is widely circulated. Copyright laws that are too restrictive defeat both these goals. And copyright laws that are written without public participation - now that the public is so obviously interested in the arcana of copyright law -- aren't worth the paper they're written on.
Posted by: truewest | 2008-06-16 12:20:02 AM
And that's the problem, Truewest, intellectual property is no longer worth the paper it is written on, beacuse of marauding bands of theives. I generally eschew entertainment conglomerates, and trendy fashion in general, yet I find there is plenty of delightful out-of-copyright or otherwise public domain or free use content on the Internet.
And occasionally I do purchase in-copyright material such as my set of the 17 DVDs of 51 episodes of Emma Peel in The Avengers (which I would never consider uploading to YouTube, I think that would be criminal). I tried playing it on my Linux box, and it complained about a content lock, so I bought a $100 TV with built in DVD player and put it in my bedroom (it has no broadcast reception, I threw out my broadcast reception TV 2.5 years ago). Does me good to get away for my desk anyway, and at least I didn't violate any contractual agreements.
Thirthy-five years I've been on line, working in this new medium, and I've never violated a content or software lock. Perhaps it's just me.
Posted by: Vitruvius | 2008-06-16 1:03:02 AM
Two words come to mind. "Live performance". It's far too easy to manufacture a performance, and demand revenue online. Woody Guthrie wrote hundreds of songs, and never had a copyright on any of them.
As Adam pointed out, he's willing to pay full price for quality products. The only reason some of these products make it, at all, is the easy access. Marginal performances will always have trouble wrestling money from consumers.
Posted by: dp | 2008-06-16 5:28:29 AM
I'm curious Vitruvius. What sort of arrangement do you have that allows you to rebroadcast songs on a well known blog site? These rules get a bit too complicated for me to follow sometimes.
Posted by: dp | 2008-06-16 6:08:31 AM
[ I tried playing it on my Linux box . . .]
You do know that Microsoft contends that Linux contains code that intrinsically violates Microsoft's patents and copyrights, you pirating bastard!
Posted by: Anonymous | 2008-06-16 7:54:59 AM
Does me good to get away for my desk anyway, and at least I didn't violate any contractual agreements.
Posted by: Vitruvius | 16-Jun-08 1:03:02 AM
I was just wondering if the photographers whose pictures are on your website, " The Top 8 Automobiles Ever" had given you the right to use them?
I would also be interested to hear what you think about the blank media levy, introduced in Canada in 1997? When I buy blank media to back up my computer HD do you think that it's fair that Celine Dion or any other musician should get part of the levy even though I don't have any of their music?
Thirthy-five years I've been on line, working in this new medium, and I've never violated a content or software lock. Perhaps it's just me.
Posted by: Vitruvius | 16-Jun-08 1:03:02 AM
As I'm sure you are aware most countries in Europe allow purchasers of CD's and DVD's to make personal non-commercial back up copies. Yet in the case of the film studio's they continue to put encryption on their DVD's which means they are restricting consumers legal rights. Do you think that the rights that consumers have by law should be protected, or that the only rights that matter are those of the content holder?
Posted by: The Stig | 2008-06-16 8:40:17 AM
I'm an over 50, software executive for a medium sized software company whose product is the market leader in its product categories and sold around the world. We protect our product with "digital locks". I'm sure that in spite of that some of product is used without proper payment or licensing.
Those who break our copy protection (digital locks) likely wouldn't have paid for our software in any event. The good news is that many learn to use our product, and become a future customer. I'd also point out to Vitruvius that this isn't theft of property (nothing has been stolen), it is breaking of copyright laws.
The amendments in Bill C-61 do nothing for us. We don't want the "digital lock" laws (fines for breaking digital copy protection) and are in fact concerned they will inhibit technological innovation.
Speaking for myself, there is nothing in Bill C-61 for Corporate Canada, and the Bill itself was clearly engineered to placate US interests. The Government caved in to US interests, rather than thinking for themselves and their constituents; directly contrary to the Adam's common sense approach.
I agree with your analysis Adam, but the Government is too worried about what the US may think.
Posted by: Corp Canada | 2008-06-16 8:44:56 AM
Thanks for the post Corp Canada. It's a good point. I remember "way back in the day" how Adobe had (maybe still has) an unwritten policy of looking the other way on unpaid copies of Photoshop or Illustrator, because those unpaid copies helped Adobe to become the defacto software standard for graphic design, taking that crown away from CorelDraw.
Today, Adobe's prime competition isn't Corel (which always surprises me when I discover CorelDraw is still being manufactured). Instead, the software that could take away the Photoshop and Illustrator crowns is GIMP (the Gnu Image Manipulation Program) and Inkscape. I uninstalled my copy of Photoshop once GIMP started supporting CMYK, and once Inkscape follows suit it'll be the same fate for Illustrator.
Posted by: Anonymous | 2008-06-16 8:53:28 AM
Vitruvius,
I'm afraid dp makes a good point. Radio stations pay thousands of dollars a year on licences that allow them to use copyright music, as do restaurants, hair salons, etc. I suspect that Small Dead Animals does not have such a licnences. Which means that, to borrow you words, that you are also a thief when yhou post copyright material as part of SDA Late Night Radio.
But you're really not. When a thief takes a thing from you, you no longer have it. When someone uses copyright material without paying, the copyright holder may not benefit directly and may believe that he should have been paid for the use, but he still has the copyright and can still exploit it in other ways. It may be misappropriation, it may be infringement, it probably isn't fair use or fair dealing (but arbuably should be) but it most certainly is not theft.
Posted by: truewest | 2008-06-16 8:58:14 AM
Cui bono. Not qui bono.
Posted by: Small Typo | 2008-06-16 9:04:27 AM
Vitruvius;
regarding public domain material. How are you accessing this material? I believe if you look at the proposed s. 29.21(1) of the new bill this would make it illegal to transfer even public domain material to another medium or device.
Posted by: Abby | 2008-06-16 9:04:35 AM
Vitruvius: IP is virtually worthless not because of "marauding bands of theives" but because the cost of reproducing and distributing it is next to zero. For someone who purports to be a free market supporter, you seem unable to wrap your head around the idea of the marginal cost being close to or at zero. A zero marginal cost means it is time to find a new business model.
Content providers want to artificially create scarcity where scarcity does not exist. And they do that not through free-market contracts, but through government-mandated monopolies. Since when do free market supporters favour government intervention?
By including DRM the content providers are reducing, not increasing, the value of the product to the end consumer. The large media companies have become so afraid of digital content that instead of improving their product and adapting to the new reality, they would rather shoot themselves in the foot.
You seem to be an honest person, yet the media companies assume you to be a thief and prevent you from playing media on your Linux box. You don't copy and distribute copyrighted material nor do you download it. Instead of buying a $100 TV/DVD combo, you should be asking "why can't I watch this DVD on my Linux box?"
Posted by: Vincent Clement | 2008-06-16 9:09:42 AM
"Yet in the case of the film studio's they continue to put encryption on their DVD's which means they are restricting consumers legal rights."
The catch with DRM and other copy-blocking is that you've entered a contract of sorts with the seller when you buy the product. Everyone who's watched a DVD has seen that long block of text outlining the license agreement, and if you haven't seen the text on screen, it's there on the package too. If national laws were to override those contracts I'm not sure what kind of a Chavez-esque precedent that opens up. For example if you hire me for $20 an hour, but this afternoon a law passes declaring my services are worth $35 an hour, am I in my rights to send you a supplemental bill for $15?
Posted by: Pattern Recognition | 2008-06-16 9:13:40 AM
VIt:
I'm with you.
Why anybody would get into a line of business where their work can be stolen and the theft justified is beyond me.
The brave new world our dope-smoking, music-stealing hosts of this site purport can only end up with a state-approved state-subsidized entertainment industry.
Just like the good ol' Soviet Union, patriotic songs will be our future on the national broadcaster and members of the ‘arts community" may actually have to find real job instead of the current system of handouts to the mediocre.
In that sense ie the shrinkage of the ‘needs" community (from each according to their ability to those according to their needs) may be a good development.
The foolish youth need to be careful what they wish for.
Posted by: set you free | 2008-06-16 9:17:51 AM
"you should be asking 'why can't I watch this DVD on my Linux box?'"
Answer: Because Linux suffers from the same behind-the-curve-that-matters problems that every collectivist culture gets stuck in. They sidestep the market and then whine when the market sidesteps them; in this case your Linux 'vendor' didn't pay licensing fees for codecs, too bad, so sad. Get a haircut and a $650 Mac Mini. Throw on an iPod and an AppleTV and you've got media everywhere, and you have your time back.
http://www.apple.com/appletv/ads/
Posted by: Pattern Recognition | 2008-06-16 9:59:38 AM
Pattern Recognition: Fine, so two parties enter into a mutual private contract where both parties had full knowledge of the contract before agreeing to said contract.
That does not explain why the content providers require additional laws and regulations to enforce a matter that is already handled under contract law in civil courts.
DRM has been shown to be a complete and utter failure. Blu-Ray and HD-DVD were supposed to be the next level in content protection. Both formats have been cracked. Oh well, so long as the MPAA and RIAA have their laws, all will be okay.
So instead of wasting money on lobbying, on suing potential and existing customers, on DRM that will never work and on laws that shift the protection of an out-of-date business model from the media companies to everyone else, the media companies should have been looking at ways to improve their product/service, to increase the value of the product/service or leverage the non-scarce good with a scarce good/service.
But why work for a living, when the government can make your life easier?
Posted by: Vincent Clement | 2008-06-16 10:05:49 AM
Pattern Recognition:
DVDs will work just fine with open source codecs. It isn't an issue of the codecs. Codecs are regularly reverse engineered. It is the DVD copy protection. To run the DVD you have to have to 1) have codecs; and 2) break the DVD copy protection.
A consumer should be allowed to break copy protection to run the DVD that they purchased on hardware they own. The only thing being "sidestepped" is the copy protection, and why not?!
Posted by: Corp Canada | 2008-06-16 10:12:02 AM
"Why anybody would get into a line of business where their work can be stolen and the theft justified is beyond me."
Why anybody *wouldn't* get into a business where te product of their effort can be reproduced ad-infinitum at zero cost so they can work once and reap the rewards for the rest of their life is beyond me.
Clearly there has to be some sort of balance.
Posted by: K Stricker | 2008-06-16 10:55:57 AM
"The catch with DRM and other copy-blocking is that you've entered a contract of sorts with the seller when you buy the product."
Usually when I enter into a contract I sign a document (e.g. my mortgage); at a minimum I click a computer pop-up (e.g. office software). Neither happens when I buy a DVD. So how exactly did I consent to this contract?
Additionally, I'm a firm believer in private property. So it seems to me that if I want to break the electronic lock on *my* legally purchased DVD, then I should be allowed to. It's *my* DVD - bought and paid for by my hard-earned after-tax dollars. And, if I want to make a copy for *my* *personal* use then it's really nobody's (least of all the government's) business.
For crying out loud, do we really need the government sticking their noses into what we *privately* do with *our legally purchased private property*? The *real* Telecom Trotskyites are the ones that say "yes". They're the ones that think that taking away our property rights and giving the government more control are great ideas.
Posted by: Jim Robinson | 2008-06-16 11:39:37 AM
And to answer your title question, Bono is the singer for the band U2.
Posted by: ebt | 2008-06-16 11:41:06 AM
"Additionally, I'm a firm believer in private property. So it seems to me that if I want to break the electronic lock on *my* legally purchased DVD, then I should be allowed to. It's *my* DVD - bought and paid for by my hard-earned after-tax dollars. And, if I want to make a copy for *my* *personal* use then it's really nobody's (least of all the government's) business."
Also don't forget that if you buy a blank media somewhere down the line you've already paid the music industry for the "loss" you've caused them due to our tariffs (Regardless of whether you use the media for music or something else). Now they want to be able to charge you another $500-$20,000 for the loss you caused them for putting that DRM-d mp3 onto said media so you can play it in the device of your choosing.
Posted by: K Stricker | 2008-06-16 11:57:24 AM
Corp Canada: Hear hear.
I rip all my legally-purchased DVDs to hard drive. Kids can be tough on DVDs and CDs, so I make a copy and put away the original. I usually strip the extraneous material so that when my kids put the DVD in, the movie begins playing right away.
I also convert the movies to xvid/divx format and burn 10 to 12 hours of movies onto one DVD. That way I don't have to change the DVD in the portable DVD players every 90 to 120 minutes. Makes long trips very enjoyable.
Once I get a media extender, I'll be able to watch movies on my big screen TV. I won't have to fumble through a bunch of DVD boxes to find the disc. I'll just flip through my media library instead.
All of this will become illegal if this legislation passed. Further, the software I purchased and downloaded that lets me do this will also become illegal.
I'll just end up buying fewer, if any, DVDs. Why bother being treated like a criminal for legally purchasing a product?
Posted by: Vincent Clement | 2008-06-16 12:00:47 PM
"For crying out loud, do we really need the government sticking their noses into what we *privately* do with *our legally purchased private property*? The *real* Telecom Trotskyites are the ones that say "yes". They're the ones that think that taking away our property rights and giving the government more control are great ideas."
So, because this blog is in my browser cache I now own it, and the rights to resell articles to AP?
Because I bought a bottle of coke I own the rights to reverse engineer the formula and sell my own version?
Because I bought a print copy of Atlas Shrugged, and have a scanner and OCR software I own the rights to post it on my blog?
Give it a rest. The only property you own when you buy a DVD is the case, the disc, and the crappy little insert booklet. You don't own the rights to the movie and you know it. Enough with the Chavez-esque champion of the people nonsense.
The state IS protecting property rights when it enacts good copyright protection (now whether this bill is good copyright protection is a different discussion). You can't arbitrarily redefine your property rights overtop existing property rights any more than you can arbitrarily alter the rest of the body of law to your own liking. "I can handle my car, so my limit is 150 km/h. Don't you dare trample my rights!"
Posted by: Pattern Recognition | 2008-06-16 1:14:02 PM
"So, because this blog is in my browser cache I now own it, and the rights to resell articles to AP?
Because I bought a bottle of coke I own the rights to reverse engineer the formula and sell my own version?
Because I bought a print copy of Atlas Shrugged, and have a scanner and OCR software I own the rights to post it on my blog?"
And I explicitly talked about *my* *personal* use of *my* legally purchased DVD. I at no time claimed a desire or right to make copies available to others, either for a profit or not for a profit. Please read carefully and do not manufacture straw men. Or do you have a problem with that as well? If so, please speak up.
Posted by: Jim Robinson | 2008-06-16 1:26:43 PM
You still haven't explained how the program on the DVD is your property, how your $21 purchase of a plastic disc with limited play rights to a program somehow includes the copy & production rights to the intellectual property accessible on the disc.
Posted by: Pattern Recognition | 2008-06-16 1:41:35 PM
PR:
Under this law the *only* thing which allows you to even legally play a DVD you've purchased for yourself in private is the 'reasonable person' assumption that any DVD player is an authorized 'circumvention device'.
Yet there's nothing to stop Sony from deciding they only want their catalog played on Sony DVD players, since all DVD players *must* decrypt the movie in order to play them.
If Sony decided to implement such a 'licensing agreement' that would make all other brands of DVD players a 'circumvention device' wouldn't it?
You may say that sounds absurd, but it isn't any different from Apple (for instance) saying your downloaded music can only be played in an iPod or in iTunes.
Posted by: K Stricker | 2008-06-16 2:00:46 PM
Patter Recognition: You still haven't explained how restricting customers rights for personal use, DRM or limited play rights accomplishes anything positive for the customer, the content creator or content distributor?
Posted by: Vincent Clement | 2008-06-16 2:03:59 PM
"You still haven't explained how the program on the DVD is your property, how your $21 purchase of a plastic disc with limited play rights to a program somehow includes the copy & production rights to the intellectual property accessible on the disc."
Technically, it's not a program, or at the least the interesting part of it isn't, but I digress. At any rate, as explained earlier, I did not explicitly enter into a contract when I purchased the DVD. Therefore no contract exists. Therefore the limitations imposed by this non-existent contract do not apply. That does not mean that the laws of Canada don't apply, but that's a different animal.
So, do the laws of Canada prevent me from making a copy of my legally purchased DVD for my personal use? I believe they do not. Equally importantly, should the laws of Canada prevent me from using my private property as I see fit as long as it's for personal use? Well, it's really hard to see why that should be case. Am I hurting or endangering anyone by doing so? No (unlike the ludicrous counter-example right to drive at 150 km/h, presumably on a public road). Did I legally purchase the original copy? Yes. Do the copyright holders have a moral right to make me pay again and again and again for the same exact information for my personal use. IMO, no. Indeed, what does a person have to be smoking that they can possibly think that to be fair? Do the copyright holders have a legal right to make me pay again and again and again for the same exact information for my personal use? That will depend on bill C-61.
Posted by: Jim Robinson | 2008-06-16 2:24:12 PM
The "pure" libertarian position on this subject is that the creator of intellectual property (IP) has the right to set whatever terms of use he or she wishes, at least until his or her death, at which point the right is transferred to someone else by bequest or intestate succession laws.
So if an IP creator sells content on the premise that it not be copied in any manner, including for personal use at home, then your rightful choice is to abide by the restriction or not buy the product. Compare: When you buy a ticket to a movie theatre, you are not allowed to record the show and play it again at home at your pleasure; everyone understands and accepts that, so what is the problem with similar restrictions being imposed by CD and DVD sellers?
It is a completely separate question whether or not the kinds of restrictions and locks that some companies place on their products makes economic sense. Presumably, IP creators who don't give as good value for money as others by placing too-onerous restrictions on the use of the IP content will lose sales and profits, to their detriment. That raises no interesting issues that the market can't sort out on its own.
If IP creators wish to rely on licencing agreements to protect their interests, the agreements need to be clear before the product is purchased. It is no good to have a very non-standard licence agreement flash on the screen after the product has been purchased and installed. On the other hand, if the government legislates a default "standard contact," the user has no excuse to claim that he didn't know what the licencing terms were before he purchased the product.
The lack of a written contract signed by both the IP creator and the purchaser does not mean that no contract exists. Compare making an order at a very expensive restaurant -- the kind that doesn't put prices beside the menu items: you can't legally claim that you didn't enter into a contract to pay the restaurateur when you ordered.
Does the government have any role to play in copyright protection? Probaly the same role as the government plays in the protection of regular property. Just because the IP creator's property rights are contractually defined does not mean that this is purely a civil matter. Common-law torts are frequently replicated as criminal offenses: the tort of battery is also criminal assault; the tort of interference with chattels is also criminal theft; etc.
Few libertarians are "purists" when it comes to IP protection. Most libertarians advocate a limitation period on the protection of IP, at least. And of course "fair use" exceptions are frequently defended, even by libertarians. I'm not sure what might justify this, but presumably it has something to do with the immaterial nature of IP as opposed to other forms of property.
Whereas there can only be one possible discoverer of previously unowned tangible property to stake a claim, there could in principle be any number of people who independently come up with any given IP content. Not allowing subsequent independent discoverers of IP content to benefit from the fruits of their labours because someone else has got there first isn't quite as compelling an argument as it would be with respect to tangible property. That's the only tricky issue in this area, from a libertarian point of view.
Posted by: Grant Brown | 2008-06-16 3:36:21 PM
"Yet there's nothing to stop Sony from deciding they only want their catalog played on Sony DVD players, since all DVD players *must* decrypt the movie in order to play them."
The market would stop Sony in that case. They may be in their rights to say this player will only play Sony studio productions, but if that limitation were too much for the market to bear (we won't know until it happens), the next vendor in line would eat up their lost sales.
In the case of iTunes it runs a different direction. There's almost no limit on the content I can play. The market has spoken on the iPod/iTUnes/iPhone trinity and said they're not bothered by the supposed limitations there. CDs are ripped, Amazon-purchased MP3s are cataloged, and iTunes Music Store Purchases and iTunes collected Podcasts work just fine on my Apple hardware and even on a Zune if I were to lose all sense of taste and buy one. (iTunes Plus tracks are unlocked).
While no one can stop Sony from making a brand-locked device, no one can force us to buy one either.
Posted by: Pattern Recognition | 2008-06-16 3:54:48 PM
"The "pure" libertarian position on this subject is that the creator of intellectual property (IP) has the right to set whatever terms of use he or she wishes, at least until his or her death, at which point the right is transferred to someone else by bequest or intestate succession laws."
I disagree. A "pure" libertarian position would not have limits on what an individual could do with the IP privately. As long as it is kept private it does not hurt the creator's interests. In order for some private activities to be realistically prohibited there has to be someone monitoring them. I'm fairly sure libertarians are against any involuntary monitoring of private activities.
"The market has spoken on the iPod/iTUnes/iPhone trinity and said they're not bothered by the supposed limitations there."
That's mainly due to the fact iPods are a quality product. Also, iTunes allows a user to burn a DRMd music file to an unprotected CD. Using the copy from the unprotected CD you can create in any other private way can't possibly be construed as circumventing a digital lock. It is a bad example to make my point with but a well known example nonetheless.
Posted by: K Stricker | 2008-06-16 4:52:57 PM
"While no one can stop Sony from making a brand-locked device, no one can force us to buy one either."
Both the DVD vs. Beta and the Blu-Ray vs. HD-DVD format battles have shown that content is king.
If you followed the HD-DVD vs. Blu-Ray war you would know that Warner Bros has a lot of clout when it comes to content people want.
Given the choice between a DVD player which plays everything BUT Warner Brothers and a WB sanctioned alternative which plays everything most people would choose the latter. IP law should have no place encouraging anticompetitive practices in manufactured goods industries.
Posted by: K Stricker | 2008-06-16 4:57:24 PM
Grant Brown said - Compare: When you buy a ticket to a movie theatre, you are not allowed to record the show and play it again at home at your pleasure; everyone understands and accepts that, so what is the problem with similar restrictions being imposed by CD and DVD sellers?
Uh, the whole point of owning a CD or DVD is that you can play it again at home at your pleasure. Over and over, if one so chooses. These restrictions are not similar at all.
CDs and DVDs come in handy portable form. When you put it that way, I wonder what the limit to the restrictions really could be. Could I buy a DVD and then bring it to a friend's house and watch it there? Or is the DVD really like the movie theater - you can only watch it in one place, at one time? Maybe we should have to burn the DVD after watching it. Then there really wouldn't be much difference between owning a DVD and watching a movie in the theater, would there?
To me, banning format-shifting - which would be the practical result of the bill, IMO - is nothing less than corporate control of your own property, and I would have thought that libertarians would be emphatically against such a thing.
Posted by: Ron | 2008-06-16 5:04:45 PM
"Compare: When you buy a ticket to a movie theatre, you are not allowed to record the show and play it again at home at your pleasure; everyone understands and accepts that."
The movie theatre is private property. They have a right to refuse admittance if you have a recording device. Completely different.
Posted by: K Stricker | 2008-06-16 5:07:02 PM
Brilliantly argued, Grant Brown. I wish I'd said that. I do also agree with your closing note on the limititaions of first inventor protection, as far as I'm concerned, if I come up with it independently, it is the independent fruit of my brow.
Posted by: Vitruvius | 2008-06-16 7:13:58 PM
The "pure libertarian" position advocated by Mr. Brown reveals a profound ignorance of the history and development of intellectual property law and the nature of creation.
Under the "pure libertarian" scheme he proposes, we would have no West Side Story, since Shakespeare's heirs would have jumped into court for an injunction once word got out that there were traces of Romeo and Juliet in the script. Of course, Romeo and Juliet might never have been written if Arthur Brooke had heard that Shakespeare was going make a play out of his poem and William Painter got wind that the Bard had eyes on his story about the ill-fated couple. Of course, the poem and the story would never have been written if the three Italian authors had access to good legal counsel to enforce their contractual rights.
Unlike Brown and Vitruvius, most thoughtful people recognize that, in creative matters, we stand on the shoulder of those who came before. We build on their ideas - improving them, overturning them, adapting them to changing time. If the heirs of the long-dead could lock up those ideas and prevent this process, we would all be the poorer for it.
The absurdity of Brown's position and his ignorance of the law is nicely captured in this bit of nonsense:
"Does the government have any role to play in copyright protection? Probaly the same role as the government plays in the protection of regular property. Just because the IP creator's property rights are contractually defined does not mean that this is purely a civil matter. Common-law torts are frequently replicated as criminal offenses: the tort of battery is also criminal assault; the tort of interference with chattels is also criminal theft; etc"
Here's a little exercise you might try. Next time you go through a holiday season roadblock and the officer asks what you've been doing this evening, tell him you've been at a friend's place downloading songs and making mix CDs. If Brown is correct, your confession should result you being led away in cuffs, just as if you had responded that you'd the spent the evening breaking into people's houses and stealing their televisions. I suspect, however, that if you're sober, the officer will wish a good evening and send you on your way.
BTW Grant, how did the hearing before the Law Society go?
Posted by: truewest | 2008-06-16 9:01:12 PM
The "pure libertarian" position advocated by Mr. Brown reveals a profound ignorance of the history and development of intellectual property law and the nature of creation.
Under the "pure libertarian" scheme he proposes, we would have no West Side Story, since Shakespeare's heirs would have jumped into court for an injunction once word got out that there were traces of Romeo and Juliet in the script. Of course, Romeo and Juliet might never have been written if Arthur Brooke had heard that Shakespeare was going make a play out of his poem and William Painter got wind that the Bard had eyes on his story about the ill-fated couple. Of course, the poem and the story would never have been written if the three Italian authors had access to good legal counsel to enforce their contractual rights.
Unlike Brown and Vitruvius, most thoughtful people recognize that, in creative matters, we stand on the shoulder of those who came before. We build on their ideas - improving them, overturning them, adapting them to changing time. If the heirs of the long-dead could lock up those ideas and prevent this process, we would all be the poorer for it.
The absurdity of Brown's position and his ignorance of the law is nicely captured in this bit of nonsense:
"Does the government have any role to play in copyright protection? Probaly the same role as the government plays in the protection of regular property. Just because the IP creator's property rights are contractually defined does not mean that this is purely a civil matter. Common-law torts are frequently replicated as criminal offenses: the tort of battery is also criminal assault; the tort of interference with chattels is also criminal theft; etc"
Here's a little exercise you might try. Next time you go through a holiday season roadblock and the officer asks what you've been doing this evening, tell him you've been at a friend's place downloading songs and making mix CDs. If Brown is correct, your confession should result you being led away in cuffs, just as if you had responded that you'd the spent the evening breaking into people's houses and stealing their televisions. I suspect, however, that if you're sober, the officer will wish a good evening and send you on your way.
BTW Grant, how did the hearing before the Law Society go?
Posted by: truewest | 2008-06-16 9:01:14 PM
No matter how you slice it, we will download whatever we want and the government can kiss our collective asses.
Posted by: peterj | 2008-06-17 12:12:04 AM
I have a couple of questions as someone who has not read the language of the actual legislation:
The Canadian Independent Music Producers Association (I think that's their name) says that they are not interested in going after individuals who make copies, and are really only interested in the large-scale pirates. They say that they do not intend to use the law to go after 14 year old kids like the RIAA does in the USA. And, actually, I tend to believe them considering the nature of the recording industry in Canada vs. the USA.
So, my first question is this: Would the new law allow the American RIAA to target individuals, or would it be up to Canadian plaintifs to do that sort of heavy lifting?
I support government action to prosecute large-scale IP pirates to protect the rights of creators, while believing that individuals should be allowed to make copies of their own content for personal use, with reasonable exceptions made for software like MS Office, or whatever.
So, my second question is this: Beyond imposing fines for copying content, does the new law provide the state with any new powers to conduct electronic surveillance on individual citizens to ensure they aren't copying content privately?
If it's up to Canadian producers to prosecute content pirates, and the new legislation doesn't create new powers to frivolously violate individual privacy, I'm not terribly concerned. While in principle it's a pain-in-the-ass law, practically I don't see how I'm going to be personally inconvenienced.
Having not read the actual legislation, I fully acknowledge I may be completely wrong here.
Posted by: Anonymous | 2008-06-17 7:00:08 AM
Anon, my understanding isn't that this bill itself creates new powers to frivolously violate individual piracy but that taken in conjunction with ACTA (which doesn't need approval from the house for PMSH to ratify) it de facto enables customs agents to act as copyright police. (Using their search and seizure rights which already exist. Although I'm sure they have better things to do than rifle through your iPod, I'd still prefer they didn't have the option.)
Posted by: K Stricker | 2008-06-17 8:09:52 AM
"tell him you've been at a friend's place downloading songs and making mix CDs. If Brown is correct, your confession should result you being led away in cuffs"
At the very least, you haven't read the bill.
This is civil law. You can download the entire bill and do a word search, the words criminal, and crime do not appear anywhere in the bill.
Copyright protection law is about seeking remedies for breaching a contract, or circumventing the means by which creators may protect the value of their contract. It has absolutely nothing to do with Freedom™.
You are not Free™ to jam a company's telephone lines, DDOS their servers, pour glue into the card-readers on their cash register, or stuff toothpicks onto the locks in a retail display case just because you disagree with their prices & practices. Neither are you Free™ to disrupt a content creator's business by circumventing their DRM, repurposing their work, or otherwise violating the terms they post as conditions of sale.
You know that. No lofty poetry or spin will change the truth that you are free to decline doing business with someone, but you are not free to disrupt their freedom or opportunity to do legal business with someone else.
When regulatory bodies disrupt commerce, there's a bloody wailing of white hot fury for weeks. "Terrorists! Bandits! Reds! Child molesting devil humping leftist taliban glue sniffing hippy jackboot brownshirt pinko closetcase Nazo-marxi-lamic-zukians!"
When you yourselves disrupt commerce for your own convenience, it's in the name of liberty, freedom, and truth. "Freedom! Information wants to be free! Liberty!"
Posted by: Pattern Recognition | 2008-06-17 12:30:06 PM
After removing the childish rhetoric, what truecolours says is captured thus:
'Under the "pure libertarian" scheme he proposes, we would have no West Side Story, since Shakespeare's heirs would have jumped into court for an injunction once word got out that there were traces of Romeo and Juliet in the script.'
This raises a completely different issue that I did not begin to address, because it isn't relevant to this discussion thread. The new issue is "What counts as the copyright property? At what level of abstraction is the protected IP to be described?"
That's a question that will exist no matter what the copyright laws are. But it is generally recognized (truecolours notwithstanding), that mere plots or ideas or scientific formulae or musical notes or words in common usage or a whole host of other things cannot be copyright. Only the concrete expression of a plot or an idea can be copyright. There will always be grey areas of interpretation -- just how different or novel does a concrete expression of an idea or plot of combination of musical notes have to be to escape copyright protection?
Posted by: Grant Brown | 2008-06-17 4:54:47 PM
Ron and Stricker seem to misunderstand the point of my movie theatre analogy.
When you buy a ticket to a movie, or a theatre production, you are (and you understand that you are) purchasing the viewing of one particular showing -- you are not purchasing anything more of the IP content. That illustrates (what everyone acknowledges) that it is justifiable for IP creators to set very severe limits on the use of their IP content. If they can limit use to one viewing, why not to one format for viewing, one medium, one decryption device....? Why can't you structure your contracts with IP users however you wish -- including putting it into the public domain?
Don't get sidetracked by the red herrings about what is or is not practical, or what is or is not in the IP creator's own interests. It might be impossible to catch a breach of a contract that takes place in the privacy of your home; and it might even be self-defeating for an IP creator to place some kinds of restrictions on the use of the IP content. So what? The issue is whether or not they are entitled to place contractual limits on the use of their creations, and libertarians should say "yes" on principle.
Posted by: Grant Brown | 2008-06-17 5:17:30 PM
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