ZeroPaid Interviews Russell McOrmond – Part 3 of 3

In part 1 of this three part interview, ZeroPaid and Russell McOrmond discussed a number of issues including privacy, network neutrality and Michael Geist.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

In Part 2, topics such as copyright law, YouTube and open source. This final portion of the interview covers things such as DRM, politics, the CRIA and WIPO

Part 1 of the interview is available here.

Part 2 of the interview is available here.

(Authors Note: This next question was answered on February 27th)

ZeroPaid: Digital Rights Management seems to have taken an interesting turn lately – particularly with music. Before, it seemed to be all about DRM and how, as the industry puts it, ‘offers consumers choice’. Now, the major record labels have dropped DRM a lot more which may be a move that would be thought of as unthinkable about 5 years ago. Do you think DRM plays a role today? What is your opinion of DRM? Is DRM on the way out or is it still proliferating today in your mind?

Russell McOrmond: It is important to understand what the industry meant by “offers consumers choice”. The incumbent content industry was afraid to release the content at all in this new market, so the choice was to accept the content in the way the vendors wanted to offer it, or they wouldn’t offer it at all. Many of the alleged “new” business models were based on taking away rights audiences always had with previous media, and then sell that back to you. Some suggested these business models were based on a form of “theft”.

This tunnel vision thinking is really at the heart of the decline in revenues for these companies. If copyright holders refused to offer content in a format that customers wanted (IE: accessible on the devices which they own) and at a reasonable price, then these audiences will go to unauthorized sources or not acquire the content at all. After creating the crisis themselves with bad business decisions, these legacy content companies then went to governments with their “chicken little” stories asking for radical changes to the law.

This situation upsets me. I wish audiences flocked instead to competitors offering legal alternatives in a format and price that was reasonable, and put these old economy companies out of their misery for continuing to make very stupid business decisions. Unfortunately this is not what happened.

One of the problems with the phrase “DRM” is that it is a phrase that means entirely different things to different people. The same thing with the term “technical measures”. I outlined some of the possible meanings in an article Technical Protection Measures (TPMs) and Educational Use of the Internet.

Is the type of “DRM” that I am opposed to on the way out? I discuss this in Even in the “DRM” debate, Content is not King. In my opinion the key to the discussion isn’t how much content is encoded in formats that tie people to specific access technology, but how many people are using technology that is locked down by the vendor where the owner is not allowed (legally and technologically) to unlock it.

To see where we are in this battle, we only need to look at the cell phone market. More and more people are moving more of their computing off of desktops and onto mobile platforms. These platforms are locked down to disallow their owners to be in control of them. If anything, I see this harm on the rise, not on the decline.

The more people look at “DRM” as something that is only applied to content, rather than primarily something applied to our devices, the more they will simply miss the debate entirely.

(Authors note: the following questions were answered on March 1st.)

ZP: The CRIA has said a few times that they “haven’t sued anyone yet” The criticism is that they have sued a handful of alleged filesharers back in the discovery case a few years ago – and that maybe they mean not successfully. What do you think of this argument? Do you think that this may be a shift in their public relations strategy given that they have previously said how they were supposedly told that people will download until they are told to stop by law a few years back or is this just similar arguments being thrown out there?

RM: CRIA members lost the “BMG vs Doe” case in 2004 at the Federal Court, and then the appeal in 2005 in the Federal Court of Appeals. The primary reason they lost the case was because they didn’t bother to collect evidence of infringing activity. The case went to court because CRIA members needed to have ISPs disclose the names of the customers attached to Internet Protocol (IP) addresses, and our federal privacy law (PIPEDA) requires a court order to disclose this otherwise private information.

A common misconception of the case is that unauthorized P2P filesharing of music is legal in Canada. While it is true that the private copying regime for recorded music is interpreted to allow people to make private copies regardless of whether the source is authorized or not, the Canadian Copyright Act is very clear that any sharing makes any copying no longer considered private. Had BMG actually provided evidence they have received a single song and listened to the file to determine the contents, they would have received a court order and then Canadians would be in the same position as US citizens.

The CRIA members (AKA: RIAA in the USA) haven’t been winning every case in the USA either, and because of the same problem: lack of evidence. In most cases people look at the massive amount of money that could be levied against them in statutory damages (which exist both in Canada and the USA), and settle out of court. No actual evidence is required until the case is in court, and that is extremely rare in the USA.

The shift you see with CRIA is not in public relations, but lobbying tactics. The almost entirely foreign labels that make up CRIA want to pressure the Canadian government to pass draconian laws. The BMG case is misunderstood by most politicians, including cabinet ministers responsible for copyright who incorrectly believe that copyright holders don’t already have all the legal tools they need to sue. Rather than going after those who are actually infringing, the CRIA want go after what they call “enablers” which include Internet service providers and the suppliers of hardware and software. If most people no longer have access to communications tools that they can personally control, then they can’t abuse these tools to infringe copyright.

Those who are infringing CRIA member copyright in Canada are playing right into their hands, and giving them exactly what they want. Infringing CRIA copyright will help CRIA in the long term in their battles against independents in the music, Internet, hardware and software sectors.

It is important to realize that from a technological point of view, creativity and copyright infringement are identical. In both cases you record/create, edit, distribute and access content. Any targeting of “enablers” has a secondary beneficial effect for CRIA, which is that independent and unsigned artists will not be able to use these tools to skip CRIA and make a living. You will either sign with a CRIA label (who won’t need to be “authorized” to control this communications technology), or you will be left in obscurity unable to get beyond doing gigs in largely empty bars.

The best thing music fans can do is to stop accessing CRIA owned music (both legally and illegally), and instead flock to independent musicians who are harnessing authorized P2P to build their careers.

Recommendations: Jonathan Coulton, Fading Ways Music.

A CD cover of one of Jonathan Coulton’s albums. This artist releases his content through a Creative Commons Attribution, Non-Commercial 3.0 license.

ZP: In the same vain, the CRIA have mentioned how the laws that they are pushing for are more to do with WIPO rather than the DMCA. In fact, in an interview, they mention how the DMCA, in their mind, is irrelevant. Yet, looking back on Bill C-60, the similarities between the DMCA and the previously proposed bill are rather apparent with protection of DRM, etc. First of all, how did WIPO come about despite there being the United Nations in existence? How influential is WIPO and can WIPO be influenced? And, of course, what are your thoughts on the notion that this is about WIPO as opposed to the DMCA when it comes to the next copyright bill?

RM: CRIA has noticed that the letters “DMCA” have become a 4-letter word that people instinctively know is bad. WIPO, on the other hand, is a UN agency that has legitimacy in this area as there were 4 treaties before those in 1996 which were generally looked at positively for the balance of interests they offered.

It is an interesting political tactic to separate the two, and it is one that many of us are using.

For instance, if you read the actual words of article 11 of the WCT (WIPO Copyright Treaty) and article 18 of the WPPT (WIPO Performances and Phonograms Treaty) it doesn’t apply to technical measures applied by other than the copyright holder of the content to their content (IE: wouldn’t apply to technical measures applied to our devices by third party hardware manufacturers and software authors), and doesn’t apply to things that are authorized or otherwise permitted by law. This leaves out most “DRM” systems which are primarily applied to devices and largely disallow things permitted by law.

I watch WIPO closely, including things like the Development Agenda and the Broadcast Treaty. I think what happened in 1996 is unlikely to happen again, which is a bunch of fear mongerers able to confuse the largely technologically illiterate bureaucrats from this large number of countries into creating treaties which are so harmful. The more time passes, the more bureaucrats are becoming educated on the issues, and the more likely they are to reject the backward-facing policy from the two 1996 treaties. It is entirely possible that in the next decade or two there might be amendments made to the 2 1996 treaties to get rid of confusing and controversial clauses such as “making available” and “technical protection measures”.

That is at the International level. I challenge everyone reading this to set up a meeting with their MP to talk about copyright and WIPO. What you will find is that in nearly every case the MP has no knowledge on current copyright law, no idea about the nature of the 6 Copyright related treaties administered by WIPO, and no idea what the contents of the 2 1996 treaties were. While I would wish for forward-looking policy that would embrace citizen ownership and control over communications technology (Net neutrality, legal protection from DRM, etc), this is not yet the political climate we live in within Canada. We have a lot of work to do to fix that.

ZP: Any final thoughts?

RM: I think there is a common theme in many of my answers, which is a call for people to get politically involved. Do anything you can to talk to friends, family, creator groups, technology users groups and politicians about this issue. The more people are educated on the real issues, the better chance we have of eventually having sensible copyright law in Canada.

This has been the interview with Russell McOrmond. McOrmond maintains a blog known as CLUEcan.ca.

The first part of this interview can be found here. The second part of this interview can be found here.

Drew Wilson on Twitter: @icecube85 and Google+.



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