Striking a balance on Copyright protection


An open response to Michael Geist’s blog on copyright reform…Seven Copyright Questions for Canadian Heritage Minister James Moore

I have been following Michael’s blog more intensely recently as the date of the new Canadian copyright bill approaches. While I tend to agree with most of his opinions I would offer some alternative views.

To give you some of my background (not that this makes me an expert, it simply gives me reason to have an opinion ;-)…I am a software developer and have worked in both the open source and closed source worlds. I have a fair amount of experience implementing DRM (and basic cryptographic) technologies both at the hardware and software levels, as a result I also have experience with various DRM-circumvention technologies. I have helped develop everything from a low level hardware based encryption module for streaming video to a mobile content distribution platform. Having been in the industry I am very sympathetic to content creators as they are the anchor for the entire content distribution pipeline. At the same time I am quite familiar with the double talk that comes out of content producers, content distributors, fair-use proponents and content pirates alike.

My view on content distribution and fair use usually falls back on the rules of business…the tighter you hold on to something the less money you are likely to make from it. If I make a film, create a single copy and only show my friends in my private viewing room in the basement of my house then I shouldn’t expect to make a whole lot of money from it.

The reverse situation does not, sadly, make me lots of money either. If I make a video, post it on the internet and ask people to pay for it as they see fit I will likely not make as much money as I would when it is distributed in the normal, controlled, highly marketed Hollywood way. The content distributors are in this game for money and will do anything to protect their next dollar. This will always be done at the expense of consumer convenience and with the expectation of being able to squeeze one more dollar from the pockets of the paying public.

As a consumer I also have rights and expectations…If I pay for a song, video or eBook I expect to be able to enjoy it on any device I own in my home, iPod, XBox, DVD player, computer etc. I expect to be able to transfer the content onto different media, as required, to use on other devices. I expect to be able to back up all of my digital content, videos, music, books, games, and applications in a way that I can restore and continue to use if the original is destroyed or damaged.

So here is my basic issue…

The reliance on the fair use concept as an excuse for DRM circumvention is wrong, and it puts the emphasis on the wrong problem.

Fair use is legal, no argument. Currently, the only way to guarantee fair use of my legally purchased content is by using DRM circumvention technologies. However the same DRM circumvention technologies that enable fair use are being used to illegally copy and distribute content in violation of the content creators rights, both by “pirates” and the general public.

One impediment to a creative solution to this problem is that consumers have no idea what constitutes a fair price for content, mainly because the content owners set pricing for content at all levels to try to maximize revenue without ever really explaining the different access and use rights to the consumer.

Let’s look at an example…

  • A band offers a DRM-free version of a song for $2, which is  free and clear of any restrictive technology, can be copied anywhere, to any device as long as it is for my own personal use.
  • The band offer the same song in a DRM-protected version for $1 and explains that use is restricted to a single protected playback device.

Question…

  • Does this give me the right to remove the DRM from the lower priced version and claim fair use, in violation of the license agreement? I would say no.
  • Does the band have the right to restrict access to it’s content? I would say yes.
  • Is it even possible to define a generic price point that implicitly allows me to apply DRM circumvention technologies in violation of a license agreement (or a law) in order to exercise my fair use rights? I would say no.
  • Is it possible to adequately explain the different licensing models to the consumer in a way that allows them to make an informed decision between different priced alternatives? I would suggest that it is almost impossible.

It seems to me that the content owner always has the ultimate control over their content, if they are too restrictive they risk losing revenue, if they are too open they risk losing revenue as well due to illegal copies that will surface on the Internet. Just because you paid for access to their content does not imply that you paid enough to enable unlimited access to the content in violation of the license agreement. When I go see a movie in a theater I do not automatically get the right to download the same movie from the Internet and watch it on my computer. When I attend a concert I do not get the right to download all the songs from Limewire and load them on my iPod. I must specifically pay for different versions of the digital content and am bound my the restrictions placed on that version.

You, as a consumer always have the option of not purchasing the content…vote with your wallet if you find the restrictions on use of the content too restrictive.

So what does our government do to try to solve this problem? They take the low road, lobbied heavily by content distributors, and crack down on the 99.99% of people that are not using the DRM circumvention technology for illegal purposes in order try to solve the problem created by the small minority of people that are. This approach demands no creativity or investment on the part of the content distributor and puts in place legislation that punishes the law abiding consumer by making it hard to enjoy their purchases.

So here is my proposal…

  • Define fair use, plainly and simply so everyone understands.
  • Define illegal copying, plainly and simply so everyone understands.
  • Establish fines for illegal copying, make them reasonable, understandable and enforceable.
  • Define content licenses, in a broad sense, that allow the consumer to understand, before they purchase content, what they are allowed to do with it.
  • Establish branding for content licensing (like the rating system) that informs the consumer of the type of digital license that is present.
  • Stop trying to control technologies that enable the average citizen to protect their digital investments.
  • Insist that content distrubutors develop DRM technologies that allow consumers to copy content within their home, for fair use and protection of investment.
  • Make the illegal copying provisions of the legislation null and void if the content distributor does not follow the rules.

It is possible to create this technology but it is cheaper to lobby governments to make laws and bully the average citizen with lawsuits than it is to make the correct technology to properly protect content. And Canada is falling head over heals to create exactly this type of legislation.

As a citizen you can also help force the distributor’s hand and promote accessible fair use by only purchasing content that is DRM free or copy friendly. If you are concerned about fair use pay the extra 30% to get the DRM-free versions of songs, only buy eBooks that can be read anywhere, on any device. Don’t download videos or songs off the Internet, just because you can, stand up for the content producer by paying for their work.

A provision in the law that allows DRM circumvention for fair use of content would be great but a better solution is to avoid the DRM arms race all together. It is getting harder and harder to circumvent the DRM that is being placed on content, eventually the normal citizen will not have access to the necessary technology to exercise their fair use rights. Without access to the technology the guarantee of fair use of content provided by this provision will be useless.

It is important that any legislation protect all of the parties involved, content owners and consumers. Putting either of these groups at a disadvantage to protect the other does not solve the problem:

  • DRM-free content guarantees lost revenue, illegal copying and lost of control for the content owner.
  • DRM-restrictive technology guarantees lost of fair use rights for the consumer.

Instead of simply pushing for one side of the equation let’s come up with something that is fair for everyone.

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