The Privacy Policy Paradox - Census and Copyright Contrasted

(Slyck)

There is a certain paradoxical irony in the coincidence of the debate over abolishing the mandatory long form census form and Bill C-32 on copyright revision in Canada.

The current census proposal reflects a commendable desire, in principle, to cut back on the “nanny state” notion of society, with a “less is more” approach to the role of Government. Interestingly, many groups are resisting this initiative in this instance, calling for the keeping of the long form because the minor inconvenience and the minimal privacy implications are, in their view, worth the benefit of the important information that will be collected.

Moreover, according to Jennifer Stoddart, the Federal Privacy Commissioner, only three complaints have been filed in the last decade about the long form census.

Likewise, most Canadians favour strict regulation of banks and the environment, because the costs and interference with “property” are well worth the benefits. Even Alan Greenspan now believes in regulation.

Segue to Bill C-32, which ironically is clearly an example of major Government intervention and regulation. The air tight “digital locks” provisions that will sooner rather than later override all users’ rights have received enormous criticism and even backlash. Not only will these provisions enable the micro-management, if not absolute control, over what consumers can do with their expensive Blue Ray discs, software and other bought-and-paid-for property consisting of content media and hardware (from smart phones to cameras to computers) in terms of where, when and how they can be used. These provisions will enable the elimination of users’ fair dealing rights in DRMed and TPMed material, if the content owner so decrees, and even access to material in the public domain.

Moreover, there is an enormous potential for invasion of privacy - since DRM and TPM can be programmed to “phone home” or to report to third parties on users’ reading, research, listening, viewing, photo, video, webcam, browsing and who knows what other activities to whoever is interested and willing to pay for such information. The proposed privacy protection measures in Bill C-32 (s. 41.14) are simply not adequate to safeguard the legitimate privacy concerns of Canadians.

Bill C-32 would not only enable third party corporations to collect such personal information. It would make it illegal to circumvent such technology if the user is notified in presumably small print in a click through contract of adhesions that this is being done and a means is provided - which may be far from easy or practical - to opt out of the data collection. Just think about how tricky is it is to protect your privacy on Facebook - and nobody is forcing anyone to have a page on Facebook.

Canadians should be able to assume that their default status is that their privacy is being strongly protected. They should not have to take active, complex and quite likely ineffective steps to constantly ensure that this is the case in ordinary and often inevitably necessary daily and activity.

If the Government believes that questions to Canadians about “the number of bedrooms in their homes and what time they leave for work” are too privacy invasive, and are not the business of disinterested professional civil service statisticians, why would the Government enable collection of the most intimate personal information for commercial and who knows what other purposes about what consumers are doing with their computers, smart phones, TV sets, and other electronic devices and content and what information these consumers are obtaining?

The digital lock measures in Bill C-32 are an extreme example of government intervention not only in the market place and the R&D labs and educational institutions of this country but in the innermost realms of Canadian privacy. Apart from certain paid lobbyists and trade associations largely serving the American entertainment industry, and organizations controlled or created by them, there is little if any support for these digital lock measures.

A Canadian compromise style solution would be to allow for protection of anticircumvention measures consistent with but not beyond what is required by the 1996 WIPO treaties - and to also allow protection from such measures when they interfere with users’ fair dealing and any other rights provided by copyright, privacy and generally applicable law. There is nothing in international law to prevent such an approach.

The digital locks provisions of Bill C-32 are clearly the most controversial issue in this reform package - which is otherwise potentially promising. Without a compromise, Bill C-32 will almost certainly be doomed and all of the many supporters of constructive copyright reform will definitely be disappointed.

HK

DRM, TPM, WIPO, GDP, & G20

Speaking of some well known acronyms. HT to MG re Brazil's proposed measure to protect users and consumers FROM excessive anti circumvention measures by punishing those who would hinder or prevent otherwise lawful activity, access to the public domain, etc.

Here's a table from 2008 indicating GDP performance of G20 countries. Look at Brazil and Canada - in a virtual tie in GDP, but Brazil having the higher growth rate.

Do we want to shoot ourselves in the foot with copyright policies that will hinder rather than encourage innovation and sustainable economic growth?

Or do we want to preserve obsolete and failed business models for the supposed benefit - but more likely the ultimate harm - of the American entertainment industry.

Never forget Jack Valenti in 1982 telling Congress on behalf of the motion picture industry that"I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

It was a good thing nobody listened to him then. Why would we do so now?

HK

DRM and the Demise of Textbooks?

Here's a provocative article in today's New York Times, showing that classic printed text books may be on route to extinction sooner rather than later, and there is a lot of money to be saved in this evolution:

In California, Gov. Arnold Schwarzenegger this summer announced an initiative that would replace some high school science and math texts with free, “open source” digital versions.

With California in dire straits, the governor hopes free textbooks could save hundreds of millions of dollars a year.

(emphasis added)

And that's just in California - where, as it happens, copyright ownership and "exploitation", as they call it, are considered virtually sacred.

And this is not just going to happen in K-12. The NY Times goes on:

Around the world, hundreds of universities, including M.I.T. and King Fahd University of Petroleum and Minerals in Saudi Arabia, now use and share open-source courses. Connexions, a Rice University nonprofit organization devoted to open-source learning, submitted an algebra text to California.

The better publishers will have to adapt. The less adaptable will probably resort to litigation and, in Canada, greater reliance on collective licensing - even when there's little or no basis for it. Don't except Access Copyright in Canada to go gently into the night as "open source" electronic resources in the educational and other sectors threaten their photocopy based foundation, which was never very solid anyway.

One great worry, of course, is that the promise of better and and cheaper text books and resources could be turned into an Orwellian nightmare if DRM is deployed in ways that could allow for censorship, revisionism, "memory hole" deletion, and other means of control by state or private interests. Other means could include the prevention of fair use (fair dealing in Canada), the prevention of cutting and pasting, the prevention of "read aloud" features (as Amazon has also recently done), the prevention of access to the public domain, and other excessive exercises of copyright.

The recent Kindle fiasco shows that all of this this is not only possible but probable.

This once again shows how we need protection from DRM much more than we need protection for it.

HK

Obama and Diplomatic DRM

Wow - the USA does seem to take DRM and TPM seriously!

It seems that President Obama gave UK PM Gordon Brown a gift of 25 classic American movies on DVD. The trouble is that they were region coded for North America only.

So Gordon Brown couldn't watch Psycho or any of the others.

Presumably, Prime Minister Brown isn't going to engage in any illegal circumvention. That might upset the MPAA and cause who knows what international ramifications. Not to mention litigation. On the other hand, the Brits not only invented the concept of the Crown but also that of Crown immunity...

Who knows where this will lead?

HT to Cory Doctorow at Boing Boing and a prominent Washington lawyer.

HK

Kindling Copyight Controversy

The L.A. Times, which is hardly an anti-copyright publication, has a good editorial today that comes down against the Authors Guild position and Amazon's "capitulation."

It concludes:

Innovators such as Amazon are and should be free to create devices that help consumers exploit all of the rights they obtain when they purchase books and other copyrighted material. And by the way, Authors Guild: Amazon sells e-books. The Kindle makes those products more appealing to consumers, which makes them more valuable to authors and publishers. If authors hope to compete in the digital era, they need the e-book market to succeed. Stripping features from the Kindle 2 won't help.

The real issue here is that the Authors Guild is forcing Amazon, which is not exactly a weakling, NOT to innovate and to deny users' rights. The Authors Guild argument is based upon specious legal arguments for rights that do not exist. Amazon caved for its own business reasons.

This is yet another example of users' rights being blocked off by TPM and DRM, imposed for "business" and not legal reasons. That's why its very difficult for most non techie people to snip out portions of DVDs for perfectly legal purposes - such as research or criticism.

If antitrust enforcers ever awake from their long sleep filled with dreams that IP owners rarely if ever do more than merely enforce their IP rights, things might get better before they get worse. In any event, Canada must consider legislation that expressly enables the circumvention for legal purposes of DRM and TPM locks.

Otherwise, we will sooner rather than later live in a world of perpetual copyright, with no effective fair use/dealing rights and no ability to copy insubstantial portions of works. These are users rights that have been enjoyed since the earliest days of technoloy. New legislation should guarantee these rights - not guarantee their elimination, as Bill C-61 would have done.

HK

End of Music DRM in Sight

Warner has now dumped DRM and made its entire catalog available DRM free on Amazon. Smart move, Edgar. See the very cutting edge Red Herring report:

"Give it four more days and we can finally say that 'DRM is so 2007,'" said Michael Goodman, an analyst with Yankee Group. "Music history will document the transformation from DRMed music to DRM-free music as occurring in 2007. I can't imagine anybody doing a DRM deal in 2008."

The article goes on to state:

The deal further marks the death knell for digital rights management, or DRM, a controversial technology that restricts the usage of music purchased online. New York City-based WMG and Sony BMG were the last two of the Big Four labels to hold out on DRM-free downloads.

So - that leaves only SONY BMG (who brought us the "rootkit" DRM disaster) as the last of the big four holdouts so doggedly represented by the RIAA and the CRIA.

And it suggests yet again the necessity of asking why any government would now consider providing protection for DRM, rather than from it. Maybe the best thing now would be strike a Canadian balance and just forget it. DRM's time as a legislative issue appears to have already come and gone.

HK

Richard Stallman on CDN DRM ("Digitial Restrictions Management")

The legendary “free software” ("free" refers to “liberty, not price”) proponent, Richard Stallman, has contacted me and expressed his appreciation of my post about how Canadian copyright law is already stronger and better in many ways than American law.

He has pointed out that hat "DRM" also stands for “Digital Restrictions Management” and has warned Canadians to take action to stop it. He has also written a letter to the editor of the Hill Times about this and about my piece in that publication dated November 26, 2007.

Canada should listen carefully to American experts such as Richard Stallman We must learn from American excesses and errors. Even Bruce Lehman, architect of the DMCA, has effectively told Canada so more than once.

What Richard Stallman says is very important and is watched and admired by many influential people. He is one of the illustrious pantheon of EFF Pioneeer Awards Recipients and recipient of many other honors and honorary doctorate degrees.

HK

Demise of DRM and Moving On

More evidence of that the rumors of the death of DRM in the record business are not being excessively exaggerated can be found here at Reuters and here at Ars Technica.

So - one wonders whether the Canadian Government will really try to etch into stone a maximalist form of protection for a minimally useful and - more to the point - largely unworkable and dysfunctional technology that the industry itself is leaving behind as fast as it can. And as fast as one can spell C-R-I-A.

When automobiles came into being, the horse and buggy industry learned to adapt.

The rail industry adapted to airplanes.

IBM moved beyond typewriters and main frames - though their delay was extremely costly.

But the record industry remains stuck on a a one hundred year old model that maxed out in the 1980's with the $25 dollar CD.

Those days are over - and the Canadian government should let the fertile and creative part of the music industry and Canadian citizens, consumers and music fans move on.

We don't need legislated protection for harnesses and buggy whips.

HK