Category — Legal Reform

Version of 30 Days of DRM
Canadian Copyright reform is in the air. In anticipation of possible legislative action this fall, Michael Geist’s 30 day series of daily articles “30 Days of DRM” has come to an end. While he ultimately argues, as I do, that it would be preferable NOT to adopt DMCA-like anti-circumvention legislation in Canada, the Conservative government may succumb to the copyright lobby. These articles, which are quite good, propose limitations that should be included in any such Canadian DMCA-like legislation to fairly protect Canadian consumers and to guard against the multitude of problems created by the U.S.’s enactment of anti-circumvention measures in the U.S. Digital Millennium Copyright Act.

30 Days of DRM:
- Day 1 – Linking Copyright and Anti-Circumvention (Markets)
- Day 2 – Region Coding (Markets)
- Day 3 – Oversite of DRM Misuse (Markets)
- Day 4 – DRM Misuse Sanctions (Markets)
- Day 5 – DRM Labeling and Consumer Awareness (Public Protection)
- Day 6 – Interoperability (Public Protection and Markets)
- Day 7 – DRM-Free Library Deposits (Public Protection)
- Day 8 – Privacy (Circumvention Rights)
- Day 9 – Reverse Engineering (Circumvention Rights)
- Day 10 – Security Research(Circumvention Rights)
- Day 11 – Involuntary Installation of Software (Circumvention Rights)
- Day 12 – Research and Private Study (Circumvention Rights)
- Day 13 – Criticism, Review and News Reporting (Circumvention Rights)
- Day 14 – Private Copying (Circumvention Rights)
- Day 15 – Artistic Access (Circumvention Rights)
- Day 16 – System Repair (Circumvention Rights)
- Day 17 – Broken or Obsolete Technology (Circumvention Rights)
- Day 18 – Backup Copies of Software (Circumvention Rights)
- Day 19 – Backup Copies of Digital Consumer Products (Circumvention Rights)
- Day 20 – Public Domain (Circumvention Rights)
- Day 21 – Print Disabilities Circumvention Rights)
- Day 22 – Libraries (Circumvention Rights)
- Day 23 – Education Institutions (Circumvention Rights)
- Day 24 – Time Shifting (Circumvention Rights)
- Day 25 – Statutory Obligations (Circumvention Rights)
- Day 26 – Investigation of Concealed Code (Circumvention Rights)
- Day 27 – Government Works (DRM Policy)
- Day 28 – Review of New Circumvention Rights (Circumvention Rights)
- Day 29 – No Ban on Circumvention Devices (Foundation Issue)
- Day 30 – Prohibition on Contractual Circumvention of Rights (Foundation Issue)
- 30 Things You Can Do

Source: Michael Geist’s 30 Days of DRM Page

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The July 3rd “This Week in Tech” podcast includes (at time index 2:39) a clip of the Senator Ted Stevens, Chairman of the Senate Commerce Committee, explaining his [mis]understanding of the ‘Net Neutrality issue and now the Internet works. Amusingly, he blames commercial video downloading for causing his e-mail to take 5 days for delivery. Leo and his guests have an interesting discussion/debate on “Net Neutrality” for the next 25 minutes or so of the podcast. For a more entertaining, and surprisingly understandable, description of the ‘Net Neutrality issue, see this amusing AskNinja.com skit on Net Neutrality.

Sources: Episode 60 of This Week in Tech (MP3) | Full 10 Minute Sen Stevens “speech” here (Public Knowledge) | PC Magazine – John C. Dvorak | Technology Evangelist | Wired Blogs | New York Times (July 17, 2006)

Note: See a similarly out-of-touch Senator Joe Pitts speaking on the affects of video game violence on children posted on my video game law page on June 22, 2006.

Dale’s Comment: It’s scary that aging Senators like Senator Stevens, who have a limited comprehension of how the Internet works, are responsible for the laws that regulate it. While there are almost daily news stories on ‘net neutrality, I rarely cover it here. Congressional committee debates on this topic mean very little at the moment. My sense is that if the Democrats are able to take control of the Senate (and a greater share of the House) this fall, reasonable ‘net neutrality legislation may stand a chance. Until then, while interesting, my sense is that the continuous Congressional committee discussions/debates on the topic won’t amount to any changes in the law.

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In another mostly partisan 24-22 vote, the House Committee on Energy and Commerce rejected another Democratic bid yesterday to include strong network neutrality protections in a telecommunications reform bill that is slated for a vote in the House in May. Net neutrality lobbyists seem to be gaining ground somewhat as the earlier vote against net neutrality on April 6 was much more lopsided at 23-8.

Sources: PC World  |  PC Magazine  |  L.A. Times  |  Boston Herald  |  ZDNet  |  Red Herring  |  San Francisco Chronicle  |  CIO Today  |  Information Week  |  MSNBC/FT.com  |  CNet News  |  Ms Magazine  |  Inquirer  |  The Register

Dale’s Comment: As I mentioned in my comments to the prior April 6 coverage, there is a strong possibility that one or both houses of Congress will return to Democratic control (or at least become more balanced) after the fall 2006 elections. As the Democrats pledge to fight on, hopefully, they’ll have another kick at the net neutrality issue then.

Related Posts:

• Setback for Net Neutrality (April 6, 2006)

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Text of Proposed Perform Act
The PERFORM Act (“Platform Equality and Remedies for Rights Holders in Music Act of 2006“) was introduced into Congress yesterday. The bill prohibits satellite radio from offering its subscribers devices capable of recording off the air unless royalties are paid and content is locked with DRM. The catalyst for the bill was new devices XM Radio is bringing to the market that allow customers to save songs on the receivers. Sirius had already made deals with the major record companies that compensate them for downloads on its S-50 receiver.

Also in the bill is a provision that would effectively require music webcasters to use DRM-laden streaming formats, rather than the MP3 streaming.

Sources: EFF Deep Links | ars technica | BBC | TMCNet | Reuters | Billboard | CNet | Tech News – HRCC’s response | Red Herring | Hollywood Reporter | Washintgon Times | Techdirt | PublicKnowledge | Cathy Kirkman

Dale’s Comment: Aspects of this bill have merit. I agree that anyone wishing a permanent, transferable copy of a song broadcast through XM or Sirius should pay for it. If, however, the device does not permit the user to copy the song to an external device, then the concept is more akin to a PVR such as TiVo and fair use rights should allow the user to enjoy the song within the specific device for a reasonable period of time without an additional royalty payment – remember, XM and Sirius subscribers already pay compulsory royalties via their subscriptions to these services. To the extent an additional royalty payment is made to purchase a song, the user should have the right to copy/transmit the song off the XM/Sirius device to any other device owned by the user and, of course, all the other incidents of fair use for purchased music that I advocate for on this site should apply – the right to of the owner to transcode it to any other format, the right to play it on any device owned by the consumer, the right to sell/give-away/alienate the purchased copy (without retaining a copy) etc. If, however, this bill results in an obligation to pay for music that can’t be removed from the device or otherwise fairly used by the user, it should not be adopted.

Related Posts:

• Music Labels Sue XM Over its Inno/Helix Recording Capabilities (May 17, 2006)
  
• RIAA Negotiates DRM with XM and Other Digital Radio Operators (January 16, 2006)
• Sirius S50 has been (siriusly) crippled by the RIAA (December 2, 2005)
  

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Text of Bill
According to CNET, Rep. Lamar Smith, and Rep. Jim Sensenbrenner, Jr. (R-WI), backed by the content industry, is about to introduce the Intellectual Property Protection Act of 2006 which would expand the DMCA’s restrictions on software that can bypass copy protections and grant federal police more wiretapping and enforcement powers. Loosely, quoting from the article, the proposed law:

• Creates a new federal crime of just trying to commit copyright infringement. Such willful attempts at piracy, even if they fail, could be punished by up to 10 years in prison.
• Boosts criminal penalties for copyright infringement from five years to 10 years (and 10 years to 20 years for subsequent offenses). The Act targets noncommercial piracy including posting copyrighted photos, videos or news articles on a Web site if the value exceeds $1,000.
• Creates civil asset forfeiture penalties for anything used in copyright piracy. Computers or other equipment seized must be “destroyed” or otherwise disposed of, for instance at a government auction. Criminal asset forfeiture will be done following the rules established by federal drug laws.
• Says copyright holders can impound “records documenting the manufacture, sale or receipt of items involved in” infringements.
• Permits wiretaps in investigations of copyright crimes, trade secret theft and economic espionage. It would establish a new copyright unit inside the FBI and budgets $20 million on topics including creating “advanced tools of forensic science to investigate” copyright crimes.
• Amends existing law to permit criminal enforcement of copyright violations even if the work was not registered with the U.S. Copyright Office.

Source: CNet | ars technica | Professor Ed Felton | IPAC

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The failure of some Internet service providers to retain user logs for a "reasonable amount of time" is hampering investigations into gruesome online sex crimes, U.S. Attorney General Alberto Gonzales said Thursday, indicating that new data retention rules may be on the way.

Sources: ZDNet | CNet | Jurist | Red Herring

Dale's Comment: What isn't being said by Gonzales is that such "reasonable" retention would almost assuredly be used by the government for government sanctioned spying programs and the "reasonably" retained information could be used to subpoenaed by the RIAA and the MPAA to more efficiently prosecute P2P file-sharing users.

Related Posts: 

• RIAA Wants U.S. ISPs to Offer Discounted Settlements to Alleged P2P Users (February 14, 2007)
• Lawyer who Fights the RIAA Speaks Out (July 21, 2006)
• Dutch Court Rules ISPs Need Not Disclose File Swapper IDs (July 17, 2006)
• British ISP, Tiscali, Refuses BPI Request to Disconnect 17 Users (July 12, 2006)
• RIAA to Students: 'Drop out of College to Pay Settlement'
• Gonzales Calls for 'Reasonable' Data Retention (April 21, 2006)
• Warner/RIAA vs. The John Does Trial to Start May 19 (April 20, 2006)
• One Man's First Hand Account of Being Put Through Hell by the RIAA (April 14, 2006)
• How the RIAA Litigation Process Works (April 5, 2006)
• Canadian Federal Court of Appeal Reaches a Stalemate as to Whether and How Discovery of P2P Users' Identity can be compelled (May 19, 2005)
• Canadian Federal Court Rejects CRIA Motion to Disclose IP Addresses of P2P Users (March 31, 2004)

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Web site operators posting sexually explicit information must place official government warning labels on their pages or risk being imprisoned for up to five years, the Bush administration proposed Thursday.

Sources: CNet | ZDNet | Computer World | Red Herring | ars technica

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In this CBC ‘The Hour’ episode Michael Geist is interviewed about the recent proposed French National Assembly Bill. If passed by the French Senate, the law would require companies such as Apple, Sony and Microsoft to open their DRM/TPM so that competitive media player manufacturers can make their products interoperable. With this law, just as CDs can be played on any CD player, regardless of the manufacture, digital content (eg: movies and music ) purchased online would be playable on any media player. Consumers would be assured that the thousands of dollars spent to purchase music online from, say Apple’s iTunes, will be playable on any competitive media player purchased in the future. Online music consumers would not be locked into using only the hardware provided by the music vendor. Michael argues, as do I, that Canada should consider following the more consumer friendly, ‘fair use’ copyright trends in France, Australia and Denmark rather than the overly restrictive RIAA/MPAA-lobbied-for DMCA/DRM approach adopted by the U.S. and Britain.

Source: CBC’s ‘The Hour’ Show <-- Note: Follow this link and select the first “France Tunes Apple out; Apple Bites Back” segment (dated March 22, 2006) to play the interview in Windows Media Player or Real Player.

Related Posts:

• France’s Diluted iTunes Plan Becomes Law (August 4, 2006)
• France Rolls Over on DRM Rights Law – Fails to Mandate Interoperability as Hoped (June 23, 2006)
• French Pro-Consumer DRM Law Reportedly Gutted by Senate Committee (May 1, 2006)
• What Might Conservative Copyright Look Like? (April 2, 2006)
• Denmark May Follow France to Challenge Apple DRM (March 26, 2006)
• Apple Responds to Proposed French Legislation (March 22, 2006)
• French National Assembly Passes Bill to open iTunes (March 21, 2006)
  

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The highly charged populist uprising over who owns the Internet lost its first significant battle when a U.S. House of Representatives committee voted down legislation that would block phone companies from establishing an Internet toll system for companies such as Google and Skype. Instead, the committee adopted compromise provisions, authorizing the FCC to investigate violations of network neutrality after the fact and levy fines of up to $500,000 on a case-by-case basis.
Sources: Red Herring  |  ars technica  |  PC Magazine  |  InfoWorld  |  ZDNet  |  CNet  |  TMC Net  |  CIO  |  Beta News  |  SF Chronicle  |  Michael Geist on Canadian “Net Neutrality” Telcom Reform
 
Dale’s Comment: Few things, it seems to me, are more important to the continued growth of the Internet than ‘net neutrality.

Net neutrality is the concept that Internet users should have unfettered access to all the Internet has to offer, and that network operators should be prohibited from blocking or degrading signals or content traversing their networks. Without ‘net neutrality, carriers such as AT&T could charge companies like Skype, Vonage and Google (or their customers) additional tiered fees to guarantee their services won’t be eroded or blocked when provided to end-user customers like you.

Because the fees charged by telcos such as AT&T, Verizon and Quest for data carriage are not enough to cover their losses from declining voice carriage rates, they are now floating the idea that tiered Internet access fees should be charged for access to specialized Internet services. This is absurd! Consumers already pay higher fees for the bandwidth needed to access broadband-intensive services. Charging additional tiered fees is simply double-dipping.

One would have thought that the Abermoth scandle-ridden Republican-controlled Senate would be less-likely to pander to special interest lobbyists through this mid-term election cycle. But in voting this bill down, they’ve done just that.

Alas, the Democrats appear to stand a fighting chance to take back the Senate this fall. ‘Net neutrality legislation will have to wait until then.
 
Related Story: Net Neutrality Not An Optional Feature of Internet

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What Might Conservative Copyright Look Like?
April 2, 2006
With the new Harper/Conservative Parliamentary session starting in Canada this week, Michael suggests that the new conservative government approach to copyright reform should include the following three elements: (i) enshrined fair dealing/use rights should be illustrative (as in the U.S.) rather than a comprehensive list; (ii) eliminate the stricture of Crown copyrights; and (iii) legal protection for digital locks (ie: technological protection measures (TPMs) and digital rights management (DRM) schemes) should be approached with trepidation to guard against how TPMs are frequently used to limit interoperability of new technologies, impede new market entrants, and foreclose competition”.

Sources: Michael Geist’s Blog | The Hill Times Related Story: Tom Flanagan’s Creators vs. Consumers – Windsor Star

Dale’s Comment: I agree with these proposals and would add the following additional recommendations:

1. Canada should adopt legislation similar to that currently under consideration in France, whereby consumers of legally purchased content would be explicitly permitted to: (i) circumvent any TPM to make copies of purchased content interoperable with any media player; and (ii) convert digital content into alternative emerging formats for personal use and playback (eg: convert CDs, to MP3s). [See related articles posted on March 21, 2006 and March 22, 2006]
2. Content providers should be legally required to work with others seeking interoperability to ensure that all content can be played-back using competitive products.
3. The first-sale doctrine should apply to all digital content marketed to consumers so that such consumers will have the unfettered right to transfer/give-away/sell their legal copy of content (without retaining copies) as can be done with books, records, CDs, DVDs, video games etc. Canadian and U.S. copyright law should explicitly pre-empt any EULA provisions attempting to override such first-sale rights.

Once these measures, the very measures the music industry is fighting, are universally adopted, I believe the first serious dent into online piracy will be made. Treat honest people fairly and they will purchase music online in droves. Treat them like criminals and, well, you know.

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Text of Report
The CATO Institute has prepared a timely report where its author argues that while historically the courts have a proven track record of fashioning balanced remedies for the copyright challenges created by new technologies, the DMCA has cut the courts out of this role and instead banned any devices that “circumvent” digital rights management (DRM) technologies, which control access to copyrighted content and thereby limits or removes altogether consumers’ traditional fair use/fair dealing rights.

Sources: CATO Institute | The Inquirer | Corante

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Text of DMCRA, HR 1201
The EFF is championing the proposed Digital Media Consumers’ Rights Act (DMCRA, HR 1201). As with the recently passed bill in France, HR 1201 would give citizens the right to circumvent copy-protection measures as long as what they’re doing is otherwise legal.

Sources: EFF | DailyTech.com | WebProNews.com | CD Freaks

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Michael Geist chronicles the broadcast lobby’s funding of Canadian federal candidates and urges party leaders to take the following pledge:

No Member of Parliament who has accepted financial contributions or other benefits from (i) a copyright lobby group, (ii) its corporate members, or (iii) senior executives as well as (iv) a copyright collective shall serve as Minister of Canadian Heritage or as Parliamentary Secretary to the Minister of Canadian Heritage, nor sit on any legislative committee (parliamentary or standing committees) conducting hearings or deliberations on copyright matters.

Source: Michael Geist

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The tariff Canadians pay on recordable compact discs and other recordable media to compensate recording companies for loss of music sales will remain in place, unchanged, beyond the deadline of Dec. 31.

Source: Globe and Mail

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Legislation passed by the Senate would require broadcasters to end their traditional analog transmissions by Feb. 17, 2009, and send their signals digitally. Back to Conference with the House to resolve discrepancies then on to the President’s desk for signing into law.

Sources: Washington Post | ZDNet | San Jose Mercury News | Business Week | Reuters | San Francisco Chronicle | Broadcasting and Cable

Related Posts:

• Bush Signs Digital TV Transition Bill – Setting February 17, 2009 Deadline (February 8, 2006)
  
• Broadcasters to Move to Digital Television by February 17, 2009 Under Senate Bill (December 21, 2005)
  
• U.S. Digital Switchover on Feb 17, 2009? (December 19, 2005)
  
• FCC modifies Digital Tuner requirements to advance DTV transition (November 3, 2005)
• House Approves All-Digital OTA Deadline by 2008 (October 27, 2005)

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