Letter To Raymond Simard

From low-art Gloominati

December 9, 2007

The Honourable Raymond Simard
House of Commons
Parliament Buildings
Ottawa, Ontario K1A 0A6

Dear Sir,
I am one of your constituents and I am 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, there has been strong indication that it will closely resemble the Digital Millennium Copyright Act (DMCA) in the United States. I sincerely hope that while my letter is long, you will read it in its entirety. I have taken care to include references and links to where you can obtain further information if you want it. There are several truly disturbing aspects of creating a Canadian DMCA that I do not think a lot of people realize because the consequences tend to be technical in nature. The true ramifications of several aspects of the DMCA are often obfuscated from the regular non-technical person by excessive jargon and specialized information. I hope that this letter will make that jargon and specialized information clear, but if it does not, please contact me with any questions you have. It is imperative that this decision be made by people who are fully informed of the very disturbing consequences this bill can have for Canadians. I believe once you understand what is at stake, you will understand why I am asking that you vote against this bill. Please understand, I am asking you to vote against it, not abstain. In this situation, abstention is identical to a vote for the bill and such a vote could have very negative effects upon all Canadians. Please also understand, I am not asking you to vote against Copyright reform itself, just this bill. 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.

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 in the United States. In the US, 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 US 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 believe that DMCA will not properly balance the needs of the record and movie industry against the needs and rights of Canadians.

One of the dangers of DMCA stems from the fact that DMCA states specific exemptions of what is legal, rather than specific actions which are illegal. The broad language and the lack of necessary exemptions in this inclusive rather than exclusive approach 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 in the US [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 from 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 dealing 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 "Technological 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 dealing". "Fair dealing" 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 dealing includes activities undertaken for purposes such as criticism, comment, news reporting, teaching, scholarship or research.

TPMs also, 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 strike a 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 our government is committed to implementing the WIPO Internet treaties, those treaties feature considerable flexibility. We should continue to improve on the many strengths of our existing copyright law [11] and bring it into treaty compliance, rather than exceeding treaty requirements in ways which would impede the competitiveness of Canadian industry on the global market.

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 landscape since then and the significant potential for this bill to cause harm to Canadians, I 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.

I appreciate the time you have taken to read this letter and I look forward to hearing what you may be able to do to address my concerns.

Sincerely,

Val Blant, Bachelor of Computer Science
74 Huppe Bay, Winnipeg, MB, R3X 1H7, (204) 999-7523