[discuss] Reply to Barry Sookman's Hill Times OpEd

http://www.digital-copyright.ca/node/2768

I sent the following as a letter to the editor of the Hill Times.
Unfortunately Mr. Sookman's article is not available on the Web, but
only to subscribers (I am a subscriber).

As a bit of background, I have met Mr. Sookman a number of times in
the past. Most recently he attended CopyCamp, including my session on
DRM http://www.digital-copyright.ca/node/2700 .

Many of his clients are those in the telecommunications, broadcasting
or software manufacturing industries which see FLOSS as a threat to
their centralized control of the telecommunications "platform" (See:
CLUE policy coordinator at the Alternative Telecommunications Policy
Forum http://www.cluecan.ca/node/444 ) . He will be more familiar as
an individual with the perspective of these incumbents.

He has critiqued FLOSS and promoted DRM in the past, with some of the
publications referenced from his personal homepage:
http://www.mccarthy.ca/en/lawyerprofiles/new_micro_query.asp?Employee_CD=1174

His critique "The Law and Politics of Open Source" has statements
that I believe are incorrect (Examples on P22), which makes me wonder
what the context of these slides are -- is he presenting these
incorrect statements as his own, or of someone else (and if so, who)?

The most obvious is the false claim that "The GPL is not time limited
and imposes restrictions on use of copyright works after they have
fallen into public domain". This would be impossible for a bare license
like the GPL to do, given it only gives permission required under
copyright law under specific conditions. Those conditions simply don't
apply if the activity doesn't require permission under copyright (IE:
for "fair dealings", works that expired into the public domain -- at
life+50 there are no such software works yet, etc). The entire slide is
based on a "Copyright Misuse" conversation which doesn't apply to the GPL.

I also believe the misuse doctrine doesn't exist in Canada, although
like a more full Fair Use right I wish it did. There are aspects of US
copyright law which is better than current Canadian law, just as there
are aspects where US law is worse.

Letter to Hill Times follows:
----

Mr. Sookman's opinion piece is quite misleading. He starts by talking
about things most Canadians agree are good, such as protecting the
rights and economic interests of artists. He then describes specific
policies which the reader is intended to presume might protect those
rights. As a Canadian software author and activist working to protect
the rights of all authors, as well as all users of information
technology, I disagree with most of Mr. Sookan's claims.

The Copyright revision debate mirrors a classic "innovators dilemma",
where there are incumbent industries vs. innovators. The incumbents,
their associations, and the lawyers who often work for them, are
proposing rules which will protect current market positions against
competition.

Mr. Sookman quotes from highly controversial BSA studies. These studies
don't adequately differentiate between people who are illegally
infringing the copyright of BSA members, from people who have chosen
legal alternatives to BSA member software. As a person who only
produces, uses and commercially supports Free/Libre and Open Source
Software (FLOSS), the BSA studies have never adequately differentiated
me or my customers from copyright infringers.

The highly controversial 1996 WIPO treaties include legal protection for
specific abuses of technical protection measures. Copyright holders
would be protected in their desire to encode their content in ways such
that they are only interoperable with an "authorized" subset of access
devices. This circumvents the intent of competition law which is
necessary to protect the broader free market economy from the harm of
monopolies. It is also a massive expansion of copyright law into areas
that have nothing to do with copyright.

This is coupled with technical measures applied by device manufacturers
to communications tools which treat their owners as "attackers" of these
devices. Most of the attacks to the rights of Canadians (including
authors) that Michael Geist speaks about are derivatives of this this
attack on basic tangible property rights.

Mr. Sookman and his clients are proposing a marketplace that excludes
FLOSS, where FLOSS represents the greatest competitive threat to BSA
members. FLOSS protects the rights of owners of computers to "run, copy,
distribute, study, change and improve software". It is obvious that
content will be encoded such that it is not interoperable with this
transparent and accountable type of software.

The abuse of these technologies to protect copyright is based on science
fiction, and not science. Cryptographic theory, the strongest of the
technical measures, describes why you can't use these technologies to
protect copyright given the encrypted content and the decryption key are
in the attackers home.

It is only law abiding citizens that are impacted by these technologies,
not those who wish to infringe copyright. I can only conclude that
copyright infringement is being used as a scare tactic to introduce
legal protection for technologies being abused to bypass other laws that
protect Canadians.

Mr. Sookman ignores much of the debate that is happening outside of
Canada, including how controversial the DMCA legislation is within the
USA. This includes many of the industries that were proponents of these
laws in the past and are recognizing that they misunderstood the
consequences. While the USTR, the largest political lobbiest
manipulating Canadian copyright reform, is still lobbying based on
decade-old ideology, many in the USA have moved forward. We should be
learning from this experience.

I also urge political parties of all stripes to support reforms that
will usher in a new era of innovation, cultural advancement and economic
growth for Canada. This means a rejection of the backward-facing
reforms proposed by the incumbent industries that Mr. Sookman
commercially represents.

Russell McOrmond
Ottawa, Ontario, Canada
Policy coordinator for CLUE: Canada's Association for Open Source
http://cluecan.ca

--
Russell McOrmond, Internet Consultant:
Please help us tell the Canadian Parliament to protect our property
rights as owners of Information Technology. Sign the petition!
http://www.digital-copyright.ca/petition/ict/

"The government, lobbied by legacy copyright holders and hardware
manufacturers, can pry my camcorder, computer, home theatre, or
portable media player from my cold dead hands!"
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