Letter To Jim Prentice

From low-art Gloominati

(note: this was the first letter I sent. A number of improvements have been made in Letter To Raymond Simard)

December 8, 2007

The Honourable Jim Prentice
105-1318 Centre St NE
Calgary, Alberta
T2E 2R7

We, the undersigned, are writing to you with urgent concern regarding the upcoming proposed revisions to Canadian copyright law. While the wording of the upcoming bill is unknown at this time (which is cause for concern in itself), there has been strong indication that it will closely resemble the Digital Millenium Copyright Act (DMCA) in the United States. Following its introduction in 1998, the DMCA has been used to facilitate anti-competitive practices, legal intimidation, undermine "fair use", and create a chilling effect upon scientific research and free speech. Canadians need to develop their own model to comply with World Intellectual Property Organization (WIPO) copyright treaties rather than working off of the unbalanced, unethical, and ineffective DMCA.

In the United States, the DMCA is widely thought of as a failure due to its ineffectiveness at curtailing software and media piracy, and to the ever growing list of unintended consequences [1] within the United States and abroad [2][3]. Speaking at McGill University in March 2007, Bruce Lehman, widely acknowledged as the architect of the WIPO treaty and the DMCA, and current President and CEO of the International Intellectual Property Institute, stated that "our Clinton administration policies didn't work out very well" and "our attempts at copyright control have not been successful" [4]. In light of DMCA's unfavourable track record, many Canadians are asking if a Canadian DMCA is merely the result of U.S. record and movie industry coercing our government into supporting their out-of-date and crumbling business model.

The DMCA states specific exemptions of what is legal, rather than specific actions which are illegal. This inclusive rather than exclusive approach is too broad and has in the past been used to silence online critics, security researchers, news sites, artists and whistle blowers, thus compromising the fundamental right to free speech [5].

The DMCA requires that alleged copyright-infringing content be removed upon receipt of a form-letter infringement notice, silencing the author before any violation is proven. No formal legal action is necessary on the part of the copyright holder. Although the recipient of the take-down notice can take legal action to challenge the infringement allegation, the costs involved in doing so are prohibitive to many individuals. The relative ease of issuing a take-down notice compared with the high cost involved in mounting a challenge make the DMCA an effective censorship-enabling mechanism prone to misuse. A Canadian DMCA will add nothing to protecting copyright owners (as it hasn't in the US - file sharing has increased since DMCA was enacted), but it will provide powerful organizations with the ability to decrease the information diversity available to the public, as the broad application of terms like "copy protection" and "circumvention" is used to the ends of corporate intimidation of unwanted information sources such as websites or blogs.

The DMCA enshrines Technological Protection Measures (TPMs) in legal protection against scrutiny. The purpose of this technology is to prevent access to or copying of data. Unlike any other application of technology, under the DMCA, TPMs are illegal to disable, even for non copyright-infringing fair use such as backup and archival purposes. Going beyond the act of disabling TPMs, it is illegal to create, or make available technology to disable or circumvent TPMs. This is problematic because of the broad interpretation of what constitutes "Techological Protection Measures", and "circumvention". The DMCA has been applied in several high-profile incidents to silence security researchers [6]. The climate created by the DMCA is generally considered as hazardous to scientific and technological research into security, cryptography and certain branches of mathematics because of the potential of revealing a TPM shortcoming, thus falling under the definition of a TPM circumvention technology.

Due to DMCA liability fears, online service providers have begun to censor discussions of copy-protection systems, programmers have removed computer security programs from their websites, and students, scientists and security experts have stopped publishing details of their research. These developments will ultimately result in weakened security for all computer users (including, ironically, for copyright owners counting on technical measures to protect their works), as security researchers shy away from research that might run afoul of the anti-circumvention clauses. Prominent security conferences have been relocated from the United States for fear of exposing international presenters to prosecution under the DMCA [7] [8].

By employing TPMs to control access to, and use of, copyrighted works, and by using the DMCA anti-circumvention clauses against anyone who tampers with those measures, copyright owners can unilaterally eliminate "fair use". Fair use is a crucial element in Canadian copyright law. It states that the public is entitled, without having to ask permission, to use copyrighted works in ways that do not unduly interfere with the copyright owner's market for a work. Fair uses include activities undertaken for purposes such as criticism, comment, news reporting, teaching, parody, scholarship or research.

TPMs, by their very nature have the potential to compromise the consumer's privacy. This technology typically uses surveillance to monitor and collect detailed information about people’s access to and use of creative works. Information about people’s private browsing, reading, listening and viewing habits collected by TPMs is highly sensitive "core biographical" information, which should not be available to copyright owners [9]. Copyright should not be a license to invade privacy.

In the software industry, defeating TPMs is often necessary for the legitimate purpose of building a product interoperable with the TPM-enabled device. Small Canadian technology companies will encounter particular hardship as they will face barriers to innovation due to the prospect of costly litigation in the area of interoperability with existing devices that contain anti-circumvention measures. A Canadian DMCA will deter legitimate competition and innovation, leaving Canadian small business vulnerable to legal intimidation and putting them in a position where they have to defend their right to innovate, even when they are entitled to it [10].

The purpose of copyright is to balance between the interests of copyright owners and the interests of the general public. It is important to ensure that the decisions made regarding copyright reform reflect the need for this balance. While the government is clearly committed to implementing the WIPO Internet treaties, those treaties feature considerable flexibility. We are not required to exceed treaty requirements in order to placate powerful industry trade groups, especially when it might cause considerable harm to Canadians. In fact, there are many areas where Canada's copyright law is already stronger than what is in the U.S [11].

In conclusion, we would like to point out that many consumer, privacy, technology, academic and even some copyright owner groups have already spoken out against the DMCA. For example, the Canada’s Privacy Community [12], the Digital Security Coalition [13], The Association of Universities and Colleges of Canada [14] and The Songwriters Association of Canada [15] have all published detailed material that explains why DMCA would be harmful to Canadians. The public was last consulted on digital copyright reform more than six years ago in 2001. Given the dramatic change of digital market landcape since then and the significant potential for this bill to cause harm to Canadians, we urge that you do everything in your power to stop this bill from being passed until it is subjected to proper public scrutiny and debate.

Sincerely,

Val Blant
Daria Patrie
Dan Barklon
Olga Graifer