Sunday, February 24, 2008

Epilogue: Publishers v. Writers, 2-1. Prospects for Tie?


In Part 1 and Part 2 of my blogging on this report, I covered the presentation of the report, and the facts as we could discern them from the Friedland report in context of the Boards comments pre, during, and post that report.

To this analysis in Part 1, we found some rather unusual "properties" engaged in this Report as released by Access Copyright, in context of its websites' TOS. Thankfully we discovered two new things since that writing.

The “Friedland report”, without the Board's "spin", was to be a public document as a condition of the engagement per the Writer's Union, a constituent member of the Canadian "CCC," Creators Copyright Coalition. This has an obvious conclusion reinforcing the recommendation made for independent Directors by Professor Friedland that I focus in on in Part 3 on its own.

The second discovery was the “clean” copy of the report made available by Christopher Moore, a writer of some rather interesting books on Canada's history, published columns drawing extensively from historical facts, and a former Board member of Access Copyright. This DRM and comment free version enabled a quieter read and thought as to what the Fact Finder found and recommended. Comparatively, Access Copyright added new information not available elsewhere but still failed to disclose information that we had to derive in Part 2 from their document and public information.

A Burning Question: The Views on Reprography v. Reproduction

One other item that seems of burning contention from reading both reports, is the differing views on reprography v. reproduction, in the case of the missing terms in a publishing contract over who deserves a share from any reprography expressly. This presents itself in the core arguments of accounting for a “contract override” v. just a ‘clean’ straight split on the royalties collected by the collective for each of its two distinct groups of member categories. This even ‘split’ is what most collectives appear to do in existing for the mutual benefit of members, recognizing the claim on their behalf, to the “micro” use of rights otherwise either unenforceable or uncollectible, at present, that can in argument to date, can be claimed on a “macro” scale to exist.

Professor Friedland in his report concluded as if prescient that a grave misinterpretation of a “reprographic right” could be present, to a claim of rights that were not expressly provided for in contracts between writer and publisher, by the publisher. The Board did obtain a legal opinion on this, but this may not have directly addressed what the writers could claim in light of the Heather Robertson Supreme Court of Canada case (Ed. note: linked here is a rather unusual 'translation' of the case by Christopher Moore, a provocative read IMHO) versus what the publishers had already claimed. That case illustrated an over claim of copyright by a Publisher where the right of use was found to infringe the original authors retained interests as it was not explicitly conveyed in terms of an agreed compilation of a work v. the distinct de-compiled use of a work the publisher was alleged to claim. All told, this is a major difference of opinion not to be glossed over, core to the collective’s reason for being, and likely its future which I could express a longer term doubt over.

As I understand “reprography” to be the making of private physical copies of published works in print form, it certainly engages a different set of rights than merely the reproduction right, the right to make copies of a work in any material form, at subsection 3(1) of the Copyright Act [Ed. note: there is no "interpretation" to "reprography" in the Copyright Act or the Regulations; it is referred to as "reprographic reproduction."]

Who is right? Here Comes Da Judge

I lean to the Professor’s views as he provides caution in context of the current interpretation of the Copyright Act, expressing reasonable doubts.

The other side appears to state the matter in conclusive tones in contrast, such of the type that usually sets in motion a change in venue to a Court of Law for any further progression.

To me, I *sigh* thinking this latter view as very uphill by ignoring the apparent flow of rights involved, absent the necessary rights to establish a narrow case of infringement resting on “reproduction” alone, making that view unpersuasive, and also ultimately divisive.

To be fair, the legal opinion has only been referred to, rather than released by the Board. However it was not an unknown view to the law Professor, who admitted the consultation of his colleagues, not known to be the lightest of thinkers without resources on such matters. It is in fact a necessary view he had to overcome, to support the whole idea of the 50/50 ‘split’ between the members group on this issue that was rejected. This has great traction and history with many in the publishing field but so did the failing position of the publishers of the Globe & Mail against the views of Ms. Robertson.

I believe that the publication right has to be considered and that it is in the combination of rights to make the “reprographic” case in first instance, to collect upon versus merely a “reproduction” right infringement. In my view, if the view of Access Copyright were correct, there would be no need for a publication right expressed, in full context of Canadian copyright law. The US concept of a distinct distribution right has no similarity in Canadian law, and yet this lack of intrusion appears to confuse many in Canada, in my opinion, as they fail to read past a specific right to the entire section applicable to the right, including its contextual rights, and the authorization right. With the divisible nature of rights, a package of rights is ordinarily required to do business, particularly so the publication right, the right to make public a work.

Having the right to make a reproduction is valuable in itself, without the necessary condition to publish or attach such a right casually to publish those copies, or in U.S. terms "copying" is distinct from “distribution.” In the case of reprography, in my view it would be impossible to have reprography occurring without the use of the publication right. Without a publication right coincidently applying, such a reproduction would be not be of a work made public and be rather a private work which has its own reproduction right. This is not something that Access Copyright apparently has a right to collect over.

In other words, to sue for infringement of copyright over non-commercial photocopying of a printed work, in the case of a published work, you would have to demonstrate a) you still own the right to make it public, b) the act of reproduction of such published work occurred, and c) it was unauthorized. Lose on one and you seem to be quite out of luck.

That is the bundle of rights analysis. But does that bundle view, where clearly the publishers should have acquired the separate rights, include what could be specifically expressed in a contract as "reprographic reproduction" in a direct reference to the Copyright Act?

Further, is "reprographic reproduction" that lacks "interpretation" from the Copyright Act itself, a right itself as it appears granted in reference to a use? Or is it an expression implicit in a construction of a bundle of rights elsewhere provided for?

To me, Canadian copyright scholars would have a picnic here, and this is the point: there is reasonable doubt from the "Academics." The practitioners say no. The Canadian courts have yet to consider it.

Closer to Home

For a closer to home example, think of a photograph you take. You own the picture, not the subject of the picture. You may infringe the rights of the subject so cautiously or not, you snap away. You take the undeveloped film or send the digital form to Black's, and Blacks asks from you before developing your film and/or printing your paper prints, i.e. producing or making copies of your work, if you have copyright to order such work and make such copies, and may ask you to agree in the 8,000+ word TOS, to holding it harmless in doing any of the above. It does not ask if you have publication rights. In person there may be something stuck under glass or on the wall or on the receipt of the order, saying the same thing to get itself out of being sued as the “licensed” manufacturer of your claimed work, where you may not own all the rights to produce or reproduce it.

If your photos are good, and someone wants to buy them for publication, they obtain that right, and as part of that deal, they must make copies of your work. Do they expressly tell you that if someone makes a copy of their published copies, that you can sue for copyright infringement? Likely no, but if you suspect this is going to go on, you would expect the publisher to pay you part of whatever it is they get for this use as part of your royalties. Or pay you more for the outright ownership of the copyright if this is to occur expressly.

Let's Get Together

Seeing however that copies can be made and the practicality of enforcing such use in the case of the published photos, with the right of reproduction here is claimed as owned by the publisher, do the publishers ask for a collective rights management scheme to compensate only publishers? No, they ask for a collective rights management scheme to compensate publishers and creators of those works unlawfully used, argued as reproduced, under the publishers management. See performance rights societies, 1800's ...

So why don't authors get an equal benefit on this matter? That is the dispute that still exists thanks to the Board's reticence, and it likely won't go away easily. I cannot see in my final analysis why the publishers benefit solely here from something they enforce jointly with the writers group, sharing equally in the cost of administration and enforcement against other user groups. With the writers upfront with the publishers before the Copyright Board of Canada and the Canadian public, this is not something in my opinion that should require a court to resolve on the distribution of the gains both groups as a single entity come forward in claiming.

If a Court does have to resolve this, it should have special words to state in the matter that are not kind in nature when matters such as these exist that seem on some rather basic grounds to be unfair. Could they as the contracts in question may not expressly cover "reprographic reproduction" award the entire spoils to date to the authors? Winning today, could mean losing tomorrow everything.

Redux: The Uneven Division of Spoils

In Part 2, we also found that the Canadian writer is not too hard done here by this collectives' existence. They get 20% of everything and if they measure success comparatively to the Canadian domestic publisher, they win by at least twice as much. To the foreign publisher, and its authors, goes the cake here, with a good chunk of money eaten by the establishment, collection and distribution royalties (about 1/3 in the Friedland report’s 2005 year).

This more refined result was not something unexpected by the structure of this industry, when including the critical "who owns the publisher" business, and the state of the Canadian owned publishing industry. From what I have read to date (one notable is by Roy MacSkimming "A Perilous Trade: Book Publishing in Canada, 1946-2006"), what has happened here in Part 2, is only difficult to put together. When a person who reads stuff like this from David Vaver "Publishers and Copyright: Rights Without Duties?" (2006), likes exercises like this, and gets annoyed at an apparent injustice we see, we work the "puzzle" to the resolution we see. While the result may actually appear as more 'grief' piled on the Canadian owned publisher's plate, tritely said it is a perilous trade indeed.

But why do the Canadian writers get more than the Canadian owned publishers? Simply they can and do freely sign deals with the foreign owned publishers in Canada. The foreign companies can likely trot out the examples of Canadian development just as the dominant foreign music interests can, hopefully without the same trend we have demonstrated elsewhere.

Canadian Publishers: Hither and 'Yond

The smaller Canadian publishers, at their own risk of capital, editing, printing and distributing, and otherwise making known their authors, also must know that one day the author they were smart enough to sign today, may have to go on to someone else to get proper worldwide distribution tomorrow, just as in the past. Its a business with no doubt a lot of heartache and joy, to have discovered someone, and to have to let them go (or cherry picked depending on your view), cause you can no longer do justice to their work, retaining only the initial publishing interest. The trenches may be filled with these bittersweet stories to read, some whom no doubt profit greatly, quietly, as their former author succeeds and the new orders get filled on older works under their publishing rights. Most as Roy's work would show you, do not share such stories, as the business moves on always to the next book project, if there is a next, with the margin too thin, the risk high, and the headaches otherwise too strong. They continue to strive and must, by that continuance, be successful at what they bring to the authors they serve.

A Final Word

Professor Friedland must reflect back and hope that the Canadian publishers and Canadian authors represented by this collective, can indeed work it out on their own, in their own best interest, ending the divergence made public. I am not optimistic that the Canadian publishers and Canadian authors can amidst the foreign interests I understand to exist, but hope that they may bury passions for a while, reaping the rewards they did get from the airing and sustaining of some of the writer's suspicions. The Board clearly has rolled up its sleeves but it still has to answer to all of its members, continually, as any organization must. I would hope to those interested, that they mind find some answers here or elsewhere to some of the continuing angst I feel they will have and are justified in having. In business and in life, it ordinarily is not a case of all or nothing, or the scales of justice being perfectly in balance. Yes, some 'high stakes poker' is evident here to play, in cue to my own interesting reading of late. But so is the option of sitting out the game, and taking the small losses over a lapse in foresight to established 'industry practices' to your unawares. A person to know here is Heather Robertson, who lead the class action suit, and the whole enchilada around her story, of likely ups and downs of such a long case. In looking elsewhere, and to the future, one could look to "Canada's versatile historian" odd peak forward, in Christopher Moore's article to only partially comprehend where tomorrow might be.

For me, where my blog is ranked about 1,526,876th, this lengthy series if the rank were calculated by word, might make it even more remote: I don't mind a bit! Its been an exercise of trying to write clearly, in rather obtuse matters requiring considered analysis, that I truly enjoy as a private pastime. I seek to refine my written communications and the only way to do this, is to write. I have my compliments sufficient to encourage more of the same in the future here at Northworthy, and who knows, maybe one day a publisher is in my future on a tomb in progress.

Music 2.0 Book "Pay What you Want"

Media Futurist Gerd Leonhard did the "unthinkable."

He released his new book in three forms: one a hard copy from a publisher ordered from his website, one version in a PDF download, with a Creative Commons license, and third with a pay-what-you-want option if you prefer to do so.

His writings are very thoughtful, with a European view to the Global market. Always provocative and original.

The Music2.0 Book is here!

  • To order the book, or download the pay-what-you-want pdf, visit

    Music2.0: Gerd Leonhards Essays on the Future of The Music Industry

YouTube video he posted used here as an example of his thinking: "3 Ways to Pay for Content"

Thursday, February 21, 2008

Some Other Treaties the US has not Ratified

While Canada gets pushed by the US into the laws necessary to ratify the WIPO Internet treaties as they have chosen to do so, we find some additional cannon fodder for those indignant purveyors of the DMCA to consider, perhaps first before the ultimate embrace and extend.

This came from a goodwill hunt, researching the prior winners of the EFF Pioneer Award and their contributions for the vain attempt to find out if the intrepid, inspiring magniloquent Dr. Micheal Geist was the first Canadian to win the honour.

Up the list I went seeing some rather amazing daring do's and brilliance of engineering to ensure privacy was at the table amongst things like freedom, to find the likely first Canadian, Stephanie Perrin, whose work in the government of Canada has been extensive in opening it up to citizens, including things like "PIPEDA" Personal Information Protection and Electronic Documents Act.

Up I went getting stuck in a fascinating look at Dr. Patrick Ball's achievements "as a leading innovator in applying scientific measurement to human rights."

He co-authored an article with Miguel Cruz called "Human freedom and free software: Why choices about technology matter to human rights advocates" that I could not dig out too easily, sort of :-). It is a short read with a sharp pointed message to it. Might be time to dual boot my Vista laptop to start the process of living the talk. If only Ubuntu was $300 and I could get it free ...

In searching for the article though, I found it referenced in this article by Deborah Hurley:

Human Rights in the Information Society

This is a very interesting article on its own on the matters of information and human rights, and likely a core read for those interested in privacy, information, copyright, and of course human rights.

The Appendix however says the following in preamble:

"This appendix identifies those countries that have not ratified the major international human rights treaties. Some of the countries listed have signed the respective conventions, but they have not yet taken the additional necessary step of ratifying them. (In a few cases, a country may have ratified a treaty, but may have made reservations with respect to it, which run counter to the purpose of the treaty. This has been the case, for example, with the CEDAW. The appendix does not include these reservations)."


Miscellaneous states with dubious human rights records to this line:


So what is ICESCR, CEDAW and the CRC?

The International Convenant on Economic, Social and Cultural Rights (ICESCR) 1966
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979
Convention on the Rights of the Child (CRC) 1989

The CRC status in this table is shared by only one other state: Somalia.

Now before people pile on the USA, lots of countries have reservations, objections posted, in the brief look I made. Arguably the USA figures its laws are in line and it does not need to ratify any of these as its busy (it may owe the United Nations some money too still).

But oddly, some pretty smart Canadians feel our laws our pretty in line too without going to far into extremes. We may have a few less United Nations ratifications to do too.

Now before someone pounces here, I could have mentioned the Performers treaty, but that one everyone knows about, but do they know why the US did not sign or ratify this one? That is a long story of profit making at the disadvantage of everyone else.

Congratulations to Dr. Michael Geist, 3rd Canadian EFF Pioneer Award winner!

While this is a picture of Cory Doctorow's award, one like it is coming to Dr. Michael Geist, Canada's third such award winner!!!!

The Electronic Freedom Foundation's motto certainly epitomizes the words and deeds of this inspired Canadian "Defending Freedom in the Digital Age." He has caused many to know their freedoms in the digital age, reminding them of their rights, and in the ardent defence of them, inspires many to remember what freedom is and of the necessary fights to preserve it lawfully.

Congratulations and thank you
Dr. Michael Geist.

PS Stephanie Perrin apears to be the first Canadian to achieve this honour. And DOH! Cory Doctorow number 2! Of course being a Canadian is a not exactly something too boasty but I did try to find out if Michael was the first.

Update: The EFF has replied to my query confirming Stephanie Perrin was the first Canadian winner.

"for her her instrumental and long-term role in advancing understanding and protection of privacy internationally and in her home country of Canada."

(CC) Photo by Scott Beale @

Tuesday, February 19, 2008

Access Copyright Board of Directors' Report: Part 3: the Most Egregious Finding

Professor Friedland, who was hired by Access Copyright ‘to undertake a full review of the distribution policy and methodology currently in practice at Access Copyright,' is far from an ordinary person to conduct this work.

Some have dismissed his work as just another consultant, just another lawyer. For those, I dare the reading of this link.

To the 20 recommendations he made in his report, the last one for a new composition to the Board itself to provide for independent Directors appeared quietly stated yet very wise, and has created what has to be a case study for what I would call a time paradox. The recommendation to add these independent Directors was not accepted by the membership of this organization, as implied by the actions of the Board, causing further evidence to come forth justifying the very recommendation.

This makes the actions of the Board here egregious to an observer that can use this episode as a case study of what not to do when you are on a Board and you have an outside consultant challenge your Boards’ composition, recommending independent Directors.

For a small corporation run for profit, it would be easy to reject this. For public corporations it is no longer a choice. For a private corporation, operated on a not-for-profit basis, with significant trust extended to it by the government of Canada, it presents an ethical challenge, that itself cannot be addressed logically without taking some significant steps.

From my perch at Northworthy where we aspire to the higher grounds, I would have to call this egregious conduct. There is no other word that comes to me that would attach to the sin of commission here. For a Board to make this decision itself, it appears to be a Board with greater control over its membership than it ought to have.

To justify it, to tightly control the message on it and to reject it, to refer the matter to and receive a recommendation from a subcommittee of the same Board, lacking independent Directors, this has obvious reek. When an independent consultant comes in and says something is wrong with your Board, it appears that this is the time to bring in specialists for a second opinion, and put it to the membership, if indeed you do not have independent Directors for this type of matter. This is the dilemma that Professor Friedland presented: what does a Board do if it does not have any independent Directors, and someone it hired says it should have had them in the past to prevent the otherwise accepted and acknowledged problems found from reoccurring?

Why did Professor Friedland venture into this subject area?

To argue the governance of the organization is beyond the fact finder's scope, is not realistic in that the Board’s decisions made on distribution policy and the rules incorporating them, in the past lead to the hiring of this independent fact finder. This was the Board itself that had approved the cumulative policy decisions known as its distribution rules that were found sufficiently problematic by its membership to hire this person.

Professor Friedland stated frankly at recommendation 20:

"Although the governing structure may not be directly within my terms of reference, I believe its structure has contributed to the present problems."
My emphasis above is on his use of the words “may not” and "I believe."

I believe he was being very political here in his choice of the term “may not” that could lead to a doubt arising to this question of task, knowing that this recommendation would not be readily appreciated. The discussion of the draft report for about one month prior to its finalization may have lead to this defensively stated but otherwise strong and sound recommendation in our opinion. To my analysis, the policy choices and how they are made could not be excluded by the express mandate he was given; to just look at the methodology, he would appear a unaware vassal instead of one highly proficient in all of his work.

Here is a problem. Here is the cause of it. Here is how to fix it.
Read em and Weap!

To the issue he raises, independent board members can provide greater assurance to all members, and members seeking to join, using a not-for-profit framework of analysis. They can also give a greater assurance to those who listen to their demands for tariffs and changes in laws to their benefit, giving greater credence to the conveyed public interest in taking such actions.

We remind in the public corporation sphere, there is no longer a question of the value of the independent Director: they are mandatory (Ed. Note: issues also arise as to social responsibility). So much so there is a Chartered Board of Director designation available for such purposes.

Lessons to Learn

Other non-governmental member organizations, operated on a not for profit basis, dependent on statutory laws passed by the government for their existence, might want to consider the Friedland report's recommendations and its discoveries, as a case study for their own governance. We can only guess as 'likely' what would have been found previously had there been independent board members, with no specific membership interests to consider above the whole of the membership. The publisher-creator even split into two equal groups with competing interests, on this Board, invites rather divergent debates and cabal like behaviours, without the necessary consideration of the other group’ interest. Worse, it may play to those known interests. Likely there were times after meetings, where each group met separately, overjoyed for what it thought it got away with on the other group.

The impact of independent Directors on this apparent conflict, to work for both interests, and what that impact may have been, is conjectural. It is however likely that some of the actions the Board took in 2007 from the Friedland report would have been accomplished sooner. Further, the more difficult areas that ought to have received prior recognition may have been subjected to earlier scrutiny, and the benefits of any such actions, would likely have been in the hands of the membership sooner. One can think of the cost savings too from not needing such an independent report with the now known suspicions to cause its commissioning, addressable by independent Directors.

Public Impact: What Does the K-12 Issue Really Say?

As to public impact, it appears quite apparent that the tariff put forth by Access Copyright for the K-12 educational group should have been made exempt by Canada on the basis of "national treatment." If Canada provides a benefit to its nationals, we cannot discriminate to deny that benefit to non-nationals who are treaty partners (see subsection 73(2) of the Copyright Act). When a large international discriminator is known to specialists in this area, the options and impacts ought to be considered. The misspent advocacy for tariffs omitting consideration of this lack of a reciprocal benefit to domestic copyright holders (if in fact Access Copyright does unfairly compensate the US holders who do not provide a similar benefit to Canadian holders), is just the type of matter than an independent Board member would put full consideration to, we would hope. By not letting this pass, in greater benefits to the foreign partners of the publishers, for small domestic gains to the writers, if any, the higher ground available to obtain in this type of matter would have been an option.

As is, the government and the Copyright Board of Canada may have questions to ask in this matter from the chief protagonist here, in the future. Instead of authorizing tariffs on internationally non reciprocal royalties, could we not have had higher tariffs on items subject to reciprocal royalties, without the unfair gains of the foreign controlled publishers apparent?

Surrendering such higher ground is not something an independent Director would likely do in any endeavour, behind otherwise the cloak of a private not-for-profit company. Revealing a possible low ground taken, and the losses to Canada unnecessarily on service royalties here, just cannot be in the long term interests of any actor in the Canadian copyright sector.

A legitimate question to ask: what if the same money was collected by Access Copyright but instead of the 31% of revenues from the K-12 sector, it got $0, in parallel to the United States, our largest trade partner, and obtained revenues from other sources equally? The outflows to foreign interests without reciprocal compensation, is stopped. The writers would appear to lose nothing from this, at worse, and potentially gain but the publishers of all stripes appear on first examination, to keep more, right in Canada.

An excerpt from the 2006 Annual Report of Access Copyright, with a final question, asked before the quote from Page 7 (two can play at that game!): to whom is any of this fair?

Copyright Board Filing

In 2006 we completed the school study that was initiated in March of 2004, when Access Copyright filed an application with the Copyright Board of Canada asking the board to determine the value of our Pan Canadian Licence Agreement with K-12 schools. In order to determine the value of the licence, the Copyright Board requires information on both what is being copied in schools, and the volume of that copying. Through the school study, which took place between February 2005 and March 2006, data was collected on more than 10 billion pages of materials that had been photocopied in schools across Canada. Analysis of those pages was completed in late 2006 and the final data was filed with the Copyright Board in November. The Copyright Board hearing will take place in 2007 and we are confident that the data collected through the school study will lead to a decision that is fair to both copyright owners and licensees.

Monday, February 18, 2008

Access Copyright Board of Director's Report: Part 2, The Findings of the Fact Finder

Professor Friedland (incredible credentials) prepared a report for the Access Copyright collective, that was finalized February 15, 2007. The Board of Directors considered that report and its 20 recommendations. On February 15, 2008, a version of the Board's report was made public, with redactions, pre and post statements to the included Friedland report. The Friedland report itself was revealed with many interjections and comments, potentially distorting its message v. being read on its own.

To this, we were not pleased in having to read this report with these comments combining with the lack of pagination and DRM in the published document, making fair use of this document difficult. For example, the report could not be overtly printed.

To this mixed pleasure, its rare for a private organization to reveal its warts and difficulties in such an open manner. In 2008, post-Enron, this is also the "nice" thing to do and they should be applauded here, in sharing how they themselves see these problems and how they have chosen to fix them, for anyone to second guess to their wits end (a Blog of this may be a wits end!).

Lack of Reciprocity in International Royalty Disbursements: K-12 Group

12% of the revenues gathered by the equivalent US organization, the Copyright Clearinghouse Center, "CCC", are from educational uses, excluding the K-12 group. Access Copyright's Board Report says 77% of the collective's royalty collections in 2005 are from educational uses, with no such exclusion (31% K-12). The fact finder says the US has an educational exemption that we do not have.

A fair question to ask is why does this collective pay the US apparently for this use in Canada, but it does not collect from them for this use in the United States? Are there reciprocal national treatment rights here in the Copyright Act, and if not, should there be an amendment for this, or should the similar exemption of the K-12 sector provided in US law be accomplished here, to balance against the US situation?

Creation of Creator/Publisher Splits ex of Foreign Rights Distributions: the Subpublisher Problem

Effect of Contract Overrides and Prof Friedland

The fact finder, as Prof Friedland is referred to, with no audit trail to follow and a great many assumptions, concludes on what creators may get directly and from publishers indirectly at 40% and the publishers net of these indirect payments at 60%, of the domestic royalties paid. This is stated at page 29 of the Board's report, per the PDF readers' identification (there is no pagination in the fact finders report section of the document).

To Truer Splits: Beyond Friedland

This is clearly a difficult area, as there are foreign subpublishers who may pay domestic publishers monies subject to contract overrides, from their receipts of the foreign reproductive rights organization (RRO), that ultimately is paid to the Canadian creator and publisher. 5% is stated as direct money received by Access Copyright from the RRO's in the overall royalties collected. What else is then received by domestic publishers and creators from this source was otherwise unknown, to date.

However in the opposite direction, from the fact finder discoveries, was that the domestic publisher acting as a subpublisher for a foreign parent, paid amounts to US publishers that exceeded the amounts that Access Copyright paid directly to the US RRO, the CCC, directly. The CCC is indicated as getting 60% of the RRO's payments from Access Copyright, $3.4 million in 2005.

So US publishers and creators get directly via the CCC $3.4 million, and indirectly from their branch plant publishers, "at least" another $3.4 million.

The potential "split," supplementing Prof. Friedlands' calculations on indirect payments:

  • Canadian creators, direct and indirect royalties: at least $5.9 million
  • Domestic publishers, minus indirect royalties paid: "at most" $5.6 million
  • US publishers and creators: more than $6.8 million
  • UK and other country publishers indirectly: ?
  • Other direct RRO's: $2.3 million
What About Indirect Royalties Received by Domestic Publishers, outside the Collective? Beyond Friedland Again

On the foreign payments and receipts, foreign sources are only 5% of royalty revenues, approximately $1.5 million (from $30 million a year in royalties and interest collected). They get at least $9.1 million, 6 times as much as they provide directly, or just about 50% more than the Canadian creator directly and indirectly.

In the related goods that would be subject to reprographic use royalty examinations, Canada imported $2,570,215,000 in books, newspapers and periodicals, in 2005. We exported $609,957,000 according to Statistics Canada, for a trade deficit of such goods at almost $2 Billion (1,960,258,000). Taking the "at least" figure of what is exported indirectly in royalties that was disclosed by the fact finder, less than 1/4 of that would be expected in return from foreign subpublishers from their RRO's receipts using the goods trade as a proxy (for the publication sub licenses including the right to print plus the physical goods).

Estimating those indirect royalties received at around $1,000,000 (if "only" $4,000,000 is paid from Canada indirectly, a figure we 'feel' as low due to the high foreign ownership we suspect but have not recently researched), this additional amount would be available to domestic publishers, for distribution to creators and for their own account, outside the flows from the collective.

Including these indirect royalties received assuming the same 18.8% pass-through to creators, as used by the fact finder:
  • Canadian creators: $6.1 million
  • Domestic publishers: at most $6.4 million (less "Y" + less ("X" - "more than" $3.4 m))
  • US publishers and creators: more than $6.8 million
  • UK and other country publishers indirectly: "Y"
  • Other direct RRO's: $2.3 million

What if the Publishers were 80% Controlled by Foreign Publishers?

With only 2/3 of revenues distributed, it also means that only a bit more than 1/2 of that is paid to domestic publishers and creators, directly and indirectly. The domestic publishers get to keep much less than the Canadian creators in our analysis from reprographic royalties when factoring in the expected indirect payment and receipt flows, that should be occurring outside the scope of the collective (domestic subpublishers to all foreign publishers, foreign subpublishers to all domestic publishers). This may explain some reticence on changing anything to favour the creator group inside the collective, in spite of what may appear as distributional disparities against the creators within the collective (this is read as a battle lost in the Board Report).

The payments potentially outside the scope of the collective, that Prof Friedland only starts into discovery, appear to make domestic publishers, foreign controlled or not, rather a "grisly" bunch relative to the domestic creator class on closer examination over the spoils here.

If Canada's publishing industry is as dominated by foreign ownership as we suspect but don't know (not in the mind at this time but I am sure I read it somewhere ...), and if a very large share of the royalties collected by domestic publishers are subpublishing in nature and going to foreign parent publishers indirectly (the RRO payments would be independent of any domestic publishing relationship), the Canadian creators clearly would retain much more money than the domestic publishers here.

Example of 80% foreign ownership level with subpublisher agreements between subsidiary and parent publisher:
  • Canadian creators: $6.1 million
  • Canadian controlled publishers: $2.6 million
  • Foreign publishers and creators: $7.3 million
  • Other direct RRO's: $5.7 million
This foreign ownership factor skews the calculations significantly (removing the "more than" and eliminating "UK and others" to be subsumed with "foreign"). It also pushes to mind how much in fact the domestically controlled industry including creators actually get from the $30 million collected on their behalf. The system is benefiting the writer class here but for every dollar they are paid, more than $2 go out of the country. The Canadian controlled publishers meantime are hurting by this system. Less than 9% of what is collected goes to them. The writers who appear to complain plenty, are at least getting 20% of all collected, well double what their domestic publishers are getting from this system.

This dimension of course adds to the mystique on one very interesting recommendation the Board of Access Copyright rejected: the Independent Directors as recommended by the fact finder.

Part 3, the Most Egregious Finding IMHO

Saturday, February 16, 2008

Access Copyright Board of Director's Report: Part 1, Its Hard to Get to the Beef!

On occasion Dr. Michael Geist gets a report of a report and posts the information up in advance of the report being publicly available. Snippets of content are posted and then inevitable the evidence arrives.

With baited delight, I come back later, to whisk over to the new hyperlink to obtain the report, in this case downloading directly from the Access Copyright site (this is called "bandwidth stealing," Dr. Geist!).

Seeing the report download before "I" pop it open (I do this with PDF files), I open a tab and go over to the Access website and hunt down the public report.

Before doing so I read their terms of service (TOS) and privacy statements, as those have become of interest lately (I was using the free plugin for Firefox, the Canadian Collaborative Privacy Protection and Accountability toolbar for a while, to automatically scan for the Privacy information from any website: an interesting exercise itself).

In Access Copyright's case, they appear to have a TOS that in a word is complex. Why so complex?

They give rights then they take them away, condition what they take away, then make various offers of grant, then go into UPPERCASE typing ... any UPPERCASE typing I have seen is impolite on the Internet (clue time), and is an indicator of "older" legal advice that in the norm of public behavior on the Internet is to be classified both "Ignorant" and "Rude" at the same time. Every EULA that uses BOLD typefaces, is très gauche. Even MS limits its use to what it must specifically repeat on instructions of its licensors. Its wised up.

So Strike 1. UPPERCASE

What you can do with the content: Authorized and limited licence
Access Copyright grants you a royalty-free, non-exclusive and non-transferable licence to view and display the Content on your computer, and to download and print all or any part of the Content. Unless you have a separate written agreement with Access Copyright that permits further uses, you may only use the Content for personal or educational purposes.
Copyright (c) 2007 ACCESS COPYRIGHT
Nice, simply stated at first glance, but the following 728 words before "Links to Other Websites"?

What does this actually imply, like I need this permission, and if its not stated, I do not have it otherwise? Huh?

I do not have otherwise the right to view your site on the public portion of the Internet? Display its content (ephemeral copy in RAM), and to download (permanent copy of a public website and any of its content) and print anything of what I see?

Strike 2. For requiring EULAYZER to take a peak at your "licence" and making this an issue.

Socan, the copyright collective the fact finder pointed to as a positive model, uses 696 words for its entire TOS; Access Copyright's is 1349 words.

Next pitch ...

This one get the apoplectic award and strike 3: the report of Access Copyright's Board of Directors on the report of the Fact Finder, Professor Friedland, is DRM'd so that you cannot print it, you cannot copy from it, you cannot comment on it, you cannot well do much with it but read it. No fair dealing here at all or fair use readily.

In a sense, this Content appears to violate the grant to me, that I do not think I need. Of course somewhere in the 728 words following its likely excused, but it all seems so unnecessary.

There is a lot there to talk about here, and I hope it gets talked about at a public inquiry, not a committee. Why not a committee? A committee won't get it, but an inquiry would, and would not let go of certain issues, like ...

In Part 2.

Tuesday, February 12, 2008

Bits and Bytes 1

In the travels of late, I have come across things that deserve some mention.

Item: The Canadian Library Association has asked its 2,366 members in its constituent groups, to put forth advocacy at this time to the politicians. It claims to represent on copyright reform the perceived best interests of its professional librarians and their 21 million library patrons.

  • Canadian Association for School Libraries (CASL), including the School Library Administrators' (SLAS) section (approx. 225 members)
  • Canadian Association of College and University Libraries (CACUL), including the Community and Technical College (CTCL) section (approx. 775 members)
  • Canadian Association of Public Libraries (CAPL), including the Canadian Association of Childrens' Librarians (CACL) section (approx. 630 members)
  • Canadian Association of Special Libraries and Information Services (CASLIS), with chapters in Calgary, Edmonton, Manitoba, Ottawa, Toronto and Atlantic Canada (appro. 585 members)
  • Canadian Library Trustees Association (approx. 170 members)
Some reform concerns (with my thoughts added afterwards in red):
  • punishes copyright-infringing behaviour, but does not ban devices that might be used to circumvent technological prevention measures for legal purposes => what about research on TPM's?
  • government documents and government data belong to all Canadians and that all Canadians should have access to these materials => Kill crown copyright?
  • Persons with perceptual disabilities must have the same right to access copyrighted materials as all Canadians
    • This right should apply regardless of format in order to accommodate their particular needs => need to break the TPM to conform to known solutions, unserviced by "professional publishers"?
  • Libraries oppose legislation that repeats the same mistakes as the American Digital Millennium Copyright Act. American law does not adequately differentiate in penalties between a counterfeiter circumventing technical protection measures for illegal profit and an individual circumventing technical protection measures to make a single legal copy.
More on their position and kit is here.

Item: I am seeing too often the claim that P2P is taking up 95% of the bandwidth on the Internet. Something appears wrong with that. P2P also includes Skype (2%). Some studies seem to indicate 65% of the bytes downloaded are P2P files. Most studies seem to indicate that HTTP webpage requests, including VPN's, are still actually dominant in terms of traffic flows. More on this to come: I like reading network engineering studies.

Item: Interesting charts here on how small the North American Internet Market is becoming, by users, at just 18% in relation to the world. According to InternetWorldStats, at December 31, 2007, there were 1,319,872,109 users. Canada ranked 14th in broadband penetration and the US 19th based on varied sources of data and periods. Bermuda is #1.

Item: I saw Minister Josée Verner on CPAC at the Status of Women Committee the other day, and I confess I have never seen a Minister read so much from their briefing book. She looked terrible reading answers to questions, with the answers at times apparently from the wrong page. Très inconfortable. Even the "slow pitch" questioners from the same political party, appeared visibly to show disdain, disgust, impatience, and/or disappointment in their faces with this Minister, demonstrating that there may be a larger issue here with this appointment (she could have had an off day too). The questioning seemed to become "merciful" near the end, but for several MP's that wanted their concerns responded to with the unscripted thoughts of the Minister. A hotter issue of how this Department represented Canada overseas with out of date publications arose. No script for that. I cannot see her reappointed here and understand why Minister Jim Prentice is taking the lead on Copyright reform in this Parliament. Her confidence appeared shot both personally, and with her own members. I think all the members wished it was just stonewalling. For "real" TV it was a sad performance to watch. Thankfully I picked it up half way through where it became interesting to see a Minister read all their replies. Is that what her more than $242,000 salary per annum gets us?

We Will Never Know What the Tories Were Going to Do on Copyright

Howard Knopf has a good post on what the Industry Minister said in Calgary that may have been over the line on what signing a treaty actually obliges a country to do.

While Howard also says that there is some debate over what constitutes a minimal level, he did say that the maximalist demands are not in Canada's interest.

I wish for everyone paying attention at the moment, that the Conservatives Bill was put to first reading (sharing this opinion with Russell McOrmand). We do not know really what the Conservative's view is in proposed law and without that, it cannot be differentiated well from the Liberal's prior views in their bill. The Liberals in a minority parliament at least had the guts to present a bill, that was widely panned. The nouveau Tories cum Reformers? They are playing poker with us at the moment.

The election game strategy is on in Ottawa and one bill hanging in the balance is the Act to Reform the Copyright Act, lately seen as an untabled "Bill C-2" on the current agenda. If there was a book on this, I would bet that Act is now tied up in election strategies, and this Bill is highly unlikely of ever being seen, in the House, or elsewhere.

It leaves a mysterious abyss, on what the Conservatives' were actually going to do in light of their stated "promises" and by removing the issue from an election, ensures that the Fair Copyright for Canada Facebook group does not get any extra energy with "just" 40,000 members to date. With the wrong words in any reforming Act, that group could double or triple and who knows where it could stop. Simply, no bright minded minority government would risk this. And they do seem to know of the Facebook group, thanks to those pesky Calgary members who braced a white out, to again see Minister Prentice and ask questions [Kempton Lam, Fair Copyright for Canada, "Order of Fair Copyright" Medalist Northworthy Nominee!].

The Conservatives are supposed to be bright but watching the House of Commons debates today, that brightness may be a perceptual overstatement. The bottom line for a minority government is that it must govern, and the House is far too ornery on both sides for it to get any real work done. If there is no work, its election time [Did Harper eat too much on holidays? Will he colour his hair, again? Has Dion gotten taller, and a new barber? Has he gotten English elocution lessons so the ROC can understand what he is saying?]

All I can say is, pity the new bureaucrats who were close to closing this file for the government, with the latest unknown spin, after the Minister of Industry took charge of the file from the Canadian Heritage Minister. Who knows, in a Liberal minority government, will it go back to the Canadian Heritage Minister?

This is tough too on the lobbyists (big tears), to know where to send their people and money to help elect the right folks. For them, especially the known foreign interests, this will be a very interesting Web 2.0 election, with 40,000 Facebooker's well able to do the digging to find out what they do, and who they support, probably at about the same time as they do.

Update: Michael Geist's sources indicate the imminent arrival of the "Business Coalition for Balanced Copyright" - a who's who in Canadian Business (including some foreign controlled entities). If this is not a mirage, this is just another reason why we can expect the use of an election for the Tories to escape saying a "Canadian DMCA" is their plan in legislation. Certainly not before an election with this kind of opposition, and if that is their plan, they should make it public as part of their election campaign, squarely. After this development, I personally cannot see a chance of this bill hitting the house now till after the Budget, if this House makes it that far.

Update 2: No mirage. A storm is a brewing as more members have come forward than indicated in its original title. The full document titled "The Balanced Copyright Coalition is a coalition of telecommunications, broadcasting, Internet, technology, research and security organizations interested in the development of Canada’s Copyright Act" has morphed into including the Retail Council of Canada, and who knows who else, when the group goes "Gold" in public. Google also has a blog on this group and what it wants.

The list of members at February 12, 2008:

Canadian Association of Broadcasters (CAB)
Canadian Association of Internet Providers, a division of CATAlliance (CAIP)
Canadian Cable Systems Alliance (CCSA)
Canadian Wireless and Telecommunications Association (CWTA)
Computer and Communications Industry Association (CCIA)
Retail Council of Canada (RCC)
Third Brigade
Yahoo! Canada
Cogeco Cable
MTS Allstream
Rogers Communications Inc.

Friday, February 08, 2008

The St. Valentines Day Massacre of Google

There is an old article on the Internet, 16 months back or so, a decade it seems in Internet Time. I bring it forward to now, as it contains the insights of what I think is required today to make sense of the Microsoft hostile takeover of Yahoo! started Feb 1, 2008.

The article: What's The Score With Search? - 10/24/2006 by Warren Cowan.

See, about 2/3 of the way down, here:

The three giants of the Web--the unstoppable Google, Yahoo and Microsoft-- continue to fight daily to gain the hearts and minds with their online audiences, and ensure search remains on the daily news agenda.
And next, is the answer to the why of this takeover attempt. Warren originally looked at something inhouse but with Yahoo! Microsoft will have a
a new search engine offering that has the potential to be integrated into each of its applications such as Word or Excel.
Call that new search engine, "Yahoo! with MSN" (friendlier to the lay Internet folk).

Ok, so who owns the market for the Office Suite, and the OS of today? Microsoft with 90% + shares in each.

Integrate the search cleverly (cannot be unbundled said with straight face, in MS Office 2009 and Windows 7) with only 2/3 of the competitors left that count and you have Microsoft v. Google, for "search" advertising.

Who wins?

Check history. This has been done before. See Netscape Navigator, multiplatform browser application. See Internet Explorer browser made free and integrated into the OS on the front pages. Cannot be unbundled said with a straight face in court. See Netscape stock near $72 fall to $4, bought by AOL (for Netscape "portal" eyeballs).

See Google now. Say goodbye Google. Microsoft is coming for you. And only you. It wants your oxygen, your destination, as the choicest search engine. Nothing free this time. Only embrace and extend.

Mr Brin, ask Jim Barksdale and James Clark if they thought the DOJ was going to save them at any point in time? If they thought that Judge Thomas Penfield Jackson could at least vindicate them as not being sitting ducks and 'stupid business people' as the lore goes now? I don't want to watch another company burn for nothing. I like Google just as much as I liked Netscape, relatively. Both had a huge jump on Microsoft, till Microsoft woke up.

It was dramatic, on a December 7, 1995 for Netscape, and what day for Google? Not that dramatic, February 1, 2008, but then if Gates was leading the charge, he might have waited for Valentines Day, not for love, but the massacre, with a similar smirk to the date's relevance in history. While announcing to great fanfare that IE Explorer was to be free (the major announcement), the *real*
Netscape oxygen killer was in the server announcement, in the details, that is was also to be also free and integrated into each OS server sale (where Netscape was cashing in v. MS's standalone IIS).

But Sergey Bryn and co, you have your days numbered here (for your survival strategy sessions, use the date of Feb 14 as in the 1929 Chicago gangland massacre) and unless you can do the things that Netscape didn't or couldn't do, you will go down in lore as 'stupid business people' too.

See you made the same mistake as Netscape: awake the Giant. Netscape announced Netscape ONE, an application development framework that was OS independent, aimed squarely at Microsoft's turf. Google, you put "Word" and "Excel" equivalents out on the Internet for free and promise more of the same.

Too bad, behind the corporate wall, you are shut out, as Microsoft owns that space, and FLOSS/OpenOffice is not getting traction in that environment or in government circles, even for free. Microsoft is betting the company on retaining that space, and they will, at any cost. You made the mistake of threatening Microsoft just as Netscape did. While they might have been slow to react to your firing shot, Netscape ONE was something that also "seemed" to be beyond Microsofts' public notice outside of the MS evangelists who got the threat immediately.

Now with $44 billion of cash on the table, for Yahoo!, do you think they are going to spell it out for you and the DOJ, that this is directly aimed at your necks, your relevance as a starting point, in search?

What are your financial results going to look like if 90% of people use MS' Yahoo! Search, instead of Google Search? How does that impact your AdSense program and the advertising revenue you get now? How is that going to be on your cash of today, your stock? You feel a little tightness in your chest, looking for oxygen?

Time for radical thinking, Sergey. Cause if Microsoft gets Yahoo! out of the way, and once search goes integrated into Microsoft core turf, you will be hard pressed to get into that "integrated" application and OS space, and with it being too tough to get rid of, or out of the way, you are toast.

Did any complaint get anyone really anywhere against MS? Did the DOJ case help? Too late for them. Do the Europeans really think they count on the US' own turf?

A tip: get 24 hour protection on all your companies lawns. Your workers may wake with a MS logo on the front lawn coming into work one day, probably the RTM day of Windows 7 and Office 2009. That day is on the horizon for you, if they get Yahoo! Guaran-Google-teed.

RIAA wants content filters and proposes spyware too [VIDEO] | Public Knowledge

RIAA wants content filters and proposes spyware too [VIDEO] | Public Knowledge

Neat video extract of the U.S.'s RIAA's Cary Sherman on content filtering, encryption, fair use, ISP filtering in law, and last but not least a tightly stated "how to" that in law there are problems with format shifting and private copying but the music industry won't use it against people, in certain circumstances.

That is my conclusion from his 'dance' of saying in a long 'yeah but' that also exclaims the virtue of the music industry v. other copyright industries like movies and software, in this matter. The question though is what happens if they change their mind in the future on this issue? The 'I am not going to do this but in law I can do this' sounds like a public easement but frankly I don't think that works in copyright law. I do not know: its a negative right at the election of the owner of the rights to attempt to enforce or not. I would suspect choosing not to enforce a right here, would not make it go away.

Note, they seem to need the linkage legally of an unauthorized copy (said with jowls shaking), in a shared folder (said with jowls shaking), to get juries to convict. Without that connection, can they get a guilty verdict? That is beyond me: I would look to William Patry on the issue in the future.

Note the YouTube video of the excerpts here anyway, appear struggling. The source author at Public Knowledge may be in a struggle of sorts, or YouTube is becoming too popular. Probably sucks 98% of the Internet bandwidth ...

So if that feed does not work, you can watch or listen (VLC Media Player) to the full panel here Internet Copyright Filters: Finding the Balance [Real Video] January 30, 2008. From the State of the Net Conference 2008 in Washington, DC.

My conclusion on this matter is more of what I have said before: if "they" can get others to do the enforcement work, they like that very much. Copyright though is mainly a private right conferred on a monopoly holder of a copyright protected work, who if they have the means, should take care of their enforcement business, you would think. They make the money.

All this meandering with the governments in all lands, appears to be just a dance to get other people to pay for their enforcement costs, letting them keep more of their money, as if they could not do the job themselves. Is that fairly stated?

"They" seem well able to do what they wish here, particularly in Canada, where the Federal Court of Appeals gave them the roadmap to follow, that they do not wish to pay for, and pick on some of our kids, grandma's and dead people. I think that is one of the good decisions of the CRIA to at least find out what they can and cannot do. If they don't do this in this sphere, why should we do it for them? Where is "our" cut? All I can see is hiring more police or taking them away from other good things that the police do, for an economic crime that appears to be victimless in the try-before-you-buy P2P world.

For perfect accuracy the digital world is still different from that physical world. This here is not the counterfeit goods world in physical distribution. For that counterfeit, physical world: Go CBSA go! Go RCMP go! As much as this could spoil the MSM messages, that Canada does not do this kind of thing just as the Mounties announced December 19, 2007, I ask any reader to honestly say they saw this *bust* in their MSM? Near the obits?

In the interest of public service:

The Royal Canadian Mounted Police encourages consumers to be cautious. Counterfeit DVDs are usually of inferior quality. The RCMP invites every person believing to have been misled into purchasing a counterfeit DVD instead of an original copy to report it to the RCMP at 514-939-8307, or to contact the Canadian Motion Picture Distributors Association at 1 800 363-9166 to verify the legitimacy of Web sites.

That is "goods." Bad goods. Very bad in fact in the linkage to some bad stuff going on around the world, that I can believe in terms of money laundering, tax evasion and corruption of public officials somewhere, plus the screwing of manufacturers with licenses for legit copies, and the rightsholders out of legit money. For this type of thing, personally, no mercy will ever be found on my bloggin space. Its a crime, do the time!

But in the digital world, I ask this question: do you really want to watch a camcorded video of a film with a wonky soundtrack? Even a screener cut or a Region 5 version? I like the big screen myself. The popcorn is a little expensive but my local theatre is doing fine I believe. And if the DVD version has added value, and I buy one of those, from trying a P2P variant, I think its going to be the same answer as in the music biz: for every 17 films downloaded, people go to the theatre 3 times (once more than otherwise), buy the DVD 3 times (once more than otherwise), and vow never to watch or record 5 of them on TV *ever.* The other 6? They would have never known of, never have been interested in, to part their real cash for or time, and very likely sit in a digital format on a hard drive, never to be seen (have you ever downloaded something you never used or opened? Storage is real cheap these days).

That P2P movie 'result' is what my gut would say and future credit card bills would say if I engaged in P2P movie stuff: I am not sure if I can afford that 'sport' or waste the time! Industry Canada can pay for a study to confirm it. Talk about a Redux. (PS I like "old movie musicals").

And yes, in the small record of my thoughts developing on this blog, content filtering has to be the dumbest answer I could think of to their problem. Cap on downloads? Monthly charge for extra Gigs? Split it with the affected collectives for the 'advertising' on some reasonable basis? Maybe. But I note, rather tersely, you do not need the Copyright Act or any other legal statute changed to negotiate that deal on your own, to get the permisions not to enforce on that basis. Listen to Cary Sherman.

Frankly I would like to see proof of the economic loss (IDG studies don't cut it) and the bandwidth use issue, Chretien style: when you prove the proof is a proof, the proof is a proof. Got it! (miss the fella big time: have to read his book for the laughs and joy of life)

The public though will never consciously buy into "Big Brother" content filtering in Canada in my opinion. Its not "fair" copyright law. Its not "sufficient adherence." Its "absurd" law in a free country. No way.

Now maybe in the USA it could fly ... Lawrence Lessig though will be studying it for sure. From bidding adieu to Copyright issues, for Corruption issues, that man is ahead of the curve. Will Michael Geist follow? Hard to say he has not been there and done that, and is doing that too right now, at least informally through some of the thoughts throughout his blogging "voice" that I read.

My own voice picks up a corruption issue, or three dozen, of a partial disclosure or full use of unscientific information disclosure techniques in speech and in writing, that is very selective on the information chosen to make a point, rather than straight rhetoric abounding in truth. Cary Sherman in the video is actually straight goods on his version of the truth, good or bad, and actually somewhat refreshingly forward. Perrin Beaty, President of the Canadian Chamber of Commerce, OTOH clings to a $22 Billion piracy figure in the cost to the economy that strikes me as one of these claims that just does not add up ("Hold wahder" My Cousin Viny ...). What freaking $22 billion? What was the economic multiplier of the real opportunity lost? Lost sales or lost profits (big difference). Lost jobs (in (c) branch plant Canada)? Was MS going to double its staff from 900 workers and didn't because of what? Arguable for what that firm takes from this country, it should have a research outfit here +++, and maybe something proportional to IBM Canada and IBM. Lets not go there. Bill prefers Washington State (remember this, that or the other buyout of Canadian outfits, whose principals then needed Green Cards? This was cool though as those people who stayed behind found no shortage of good jobs or started new companies to repeat the cycle with more cash in their pockets, and presumable are still making a decent living).

At our current unemployment rate, talk of missing jobs and activity can get a little humourous, minus the current troubles of the manufacturing sector. Of course that sector is hurt by IP Piracy ...

I somehow do not diminish my actual message to clearly state that some small tweaks of IP protection would not hurt the innovative opportunities facing Canadian businesses, but sometimes rolling out a service without any risk to any investment is just too "Canadian." Like the Telus argument of what it would like to do but can't because we cannot use a PVR in Canada legally, that we could get sued for format shifting cause, in analysis, the Canadian Copyright Act does not explicitly state we have this right or permission. Yes we do not have the famous US Sony Betamax case in our courts yet but so what? If it was here, would the result be different?

Telus I got a few more things for you: Go see Rogers or Bell for PVR services. Maybe you can subcontract any contributory infringement/liability issue you are scared of? For the rest of us, I side with the lawyers on the flexibility of even the current Copyright Act (last changed in 2004 with a slight tweak) and our courts ability to find fair results within it at present.

But really, lets sit down for a second: your January 8, 2008 MSM statements. Is it really too big a legal risk, or plainly stated, what is really going on here? Are you afraid of risk? Has what you wanted in Copyright Reform from here in 2001, changed? Maybe you would agree you should have input again, publicly? Or have you had input privately, and now you are assisting to set someone else's "plate"?

This issue area is one mess of private interests working behind the scenes in my opinion, and now laying down the PR side of doubt for what is to come, to build a palatable MSM momentum of doubt over what the academics (the scientists, in law) figure out. Its smells not unlike what the other Lawrence has going on now in his new line of work (see the Corruption "Alpha" Video) where in one clear case of a scientific research consensus of "0" disagreeing with global climate change, 54% of MSM articles in an overlapping time period, indicate doubts over the scientific research on Climate Change (the UN report is an amazing read BTW). Can this whole area brought up "Copyright" and "Corruption" make citizens more ornery here? For me, I somehow doubt it. I am without doubt, downright ornery at the moment and I don't like it a bit. Have you joined the Fair Copyright for Canada Facebook group? That is one of the few positive channels I can think of outside of getting your own blog and raising your own opinions to the issues that bug you, to get rid of the doubts you see in your "background" of what it is you are living through and seeing.

For MSM regulars, hard copy types, read the old James Fallows' book "Breaking the News" and look what that book started in the all the derivatives and resurfacing of the same thoughts since ... see you can use someone else's ideas. Not their expression of it. James Fallows a hero of mine, would not mind the sale or the use of his ideas BTW. His exact prose? Frightening the line you cross in integrity, a very old fashioned word in some corners. I got to get me some popcorn, and a DVD!

Thursday, February 07, 2008

Dissecting DRM Issues

Digital Locks - Thursday, 07 February 2008

On my independent search on the question of sufficient adherence, this above resource is a must start.

At the technological level, Russell McOrmond,, has written a very good explanation of the technical protective measures, the TPM's, and their different forms, that are the "guts" of the Digital Rights Management (DRM) implementation, in technology. Highly understandable, readable by lay people, and recommended. It appears summative in nature after considerable work over the years on these issues, tirelessly. A *must* read if you are interested in DRM/TPM: Click here.

David Berlind, an excellent technology writer for many years, from his days at PC Week (now eWeek), is now the Executive Editor of ZDNet, has also produced a video that spells out some problems with DRM that he refers to in the video as C.R.A.P. Content, Restriction, Annulment, and Protection. He makes an excellent illustration that may explain well why Microsoft's views arrived in the Hill Times this week, FUD and all. Its all about C.R.A.P. and the other element, the lock-in. Who controls the C.R.A.P. is a battle for market share and retaining relevance.

Lastly on this technical side, this You Tube video below explains well why some people worldwide are none too happy to consider any "DRM/TPM" as an answer within "Fair" copyright law. This of course becomes problematic to determining what "sufficient adherence" would be possible at this time, if it meant including the wrong kind of TPM. Its kind of like throwing out the baby with the bathwater.

Did I really say "kind" of TPM? See, you have to read the *must* read Russell McOrmond article to know the battlefield.

The awareness of this issue is still relatively low, with many young people growing up, finding they are "stuck" and lacking empowerment. The parents in Canada are getting messages from their kids. Are their parents going to do something about it? The Fair Copyright for Canada Group on Facebook is a starting point, for parents to get some help, find they are not alone, and maybe work to getting some satisfaction for their kids, if not themselves. The kids should be welcome too as they are going to have to live with this!

On the subject of kids, my kids are not yet voters, but they have had enough experience bouncing into barriers and subscription schemes in trying to stay lawful, that most definitely more barriers are not the answer. If their stories are very similar within the families of all of our MP's themselves, with younger families, those MP's actually may already have gotten the message before something goes too far. For sure, if those MP's listen to their own kids, this issue has been at their own dinner tables, let alone in their mail.

Mr. or Mrs. MP, no disrespect intended, but have your kids been forced to P2P to "fairly access" music? At least to try before they buy with your money? Industry Canada studied the issue and found this relationship, though its one of those that when you read it, it becomes one of those that you "already knew." Nice to get the research done that your gut and credit cards say is true.

And while I ask this, just in case any MP does cruise by, did you happen to buy some Sony/BMG Music CD's in 2005 or early 2006, and stick them in your computer at work? Click on a box about agreeing to use something you just blinked at cause the reading time is sparse? Was the music good? Your IT staff may want to talk to you, or worse, your security staff. Or even worse ... Don't ya love "DRM" or "TPM" now?

And just in case, Mr. or Mrs. Member of Parliament, you want to know a small bit more about the Rootkit story here is part of the story from the CBC. Small? Part? The public news source missed reporting that security researchers knew of this Rootkit that Microsoft itself had troubles with, as a security risk to Windows PC's (see your computer) almost one month prior to Mr. Russinovich. But they had to obtain legal council to release information on the TPM employed. Nice eh? (they were threatened before) Now think of a fine fellow like Russell chomping at the bit wanting to tell us "Told ya so!" about some TPM , that he can't talk about, that might impair the security of Windows PC's everywhere ... Canada or the US or anywhere else, government computers too, cause of that DMCA chilling effect. The Princeton University Professors were chilled (could not speak publicly) and that is not a small institution without legal resources. Might just take a guy who says "Canadian DMCA? I don't give a crap. No one messes with my PC!" to break the news, and if the Copyright Act says the 'hero' must go to jail, so be it I guess. The hero's right now in the U.S. are somewhat still chilled. Is that chilling in a different dimension for ya? See this list of links related to information technology and what can go wrong. I am chilled by some thoughts of discoveries that cannot reach the light of day on a timely basis.

Has Microsoft, with over a 90% share of PC's gotten the security religion? You bet. I use Vista cause it is the best security they can come up with. Its idiot proof almost (ouch). How many MS OS "zombie" computer networks are there controlled by "bots"? I am afraid to look at the credible numbers here, in the known universe.
I want a good nights sleep, thank you very much.

You starting to think like me, that more than the 40,000 Fair Copyright for Canada Facebook members are going to be paying attention soon? As in people who use computers who wish them free from security risks? And people concerned with National Security? And people concerned with freedom of speech? Yada, yada. Its a long list. I got a bad feeling on this one for any government not proceeding with the utmost care. Might just be worth getting an election called for something else, eh.

UPDATE: Nice bust. In Quebec with "as many as one million computers around the world" saying also that "government computers were also compromised, but investigators will not say in which country."
See: "International hacking network busted, Quebec Police Say"
When more details come out, it might be interesting to know exactly how they carried out their mischief ... but some of us already know how they did it. Just ask Steve Gibson at