Text of my e-mail (via their web interface) to Terence Corcoran's article.
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I don't suppose it matters that the proposed law would make "private copying" illegal - yet would not repeal the levy on blank media.
I also don't suppose it matters that the proposed law would make even those copies necessary in the process of reading a web page illegal unless the web site you are looking at specifically states that it allows you (via a license such as Creative Commons in one of its guises) to make the interim copies of its content via your web browser's cache.
As an internet pioneer - and partner in Canada's first commercial ISP - I gave away web facilities to allow some of our local artists and writers to gain experience with the at that time nascent WEB.
I'm far from a Trotskyite - I believe in Copyright - but I believe in it as a balance between the need for professional creators to earn a living and the need for the populace (and future creators) to be able to grow and learn from the historic perspective expressed by creators, both amature and professional. It is a social contract - and contracts MUST be balanced or they are invalid!
There are already examples of Digital Rights encumbered content sold to (licensed to?) consumers, that no longer works. The central rights server has been shut down and the works no longer can be played.
If you take a read of Spider Robinson's (sorry - he wrote his "Crazy Years" stuff for the Globe) short story "Melancholy Elephant" you'll see the potential end game as the rights holders push to extend their rights "forever" - Soon, nobody can write anything as there is "nothing new" that isn't a rights violation. Only the lawyers win.
In all things "legal" today you need to take things to the farthest "logical conclusion" because you can bet that in today's wired world it will quickly devolve to that point with so many interested parties looking at the problem. Unintended consequences don't creep up after years, they happen in days or maybe months. Making the average Canadian a "crook" by making the default use of the internet illegal will mean we'll be deluged by law suits in similar fashion to those happening in the US via the RIAA - complete with miscarriages of justice out of all proportion to the actual damages suffered - if in fact they were suffered at all.
Just remember - the fact that the music industry (for example - certainly not the only one but by far the loudest at the moment) has suffered a significant loss of sales does not necessarily mean that some other agency is taking away their product via copying. The same thing has happened to the chocolate bar industry - and the effect was eventually traced to the fact that the target market (teenagers) was spending their money on something else - cell phones and text messaging.
If you thought that the chocolate bar industry suffered because somebody was "copying" chocolate you'd have been tagged as nuts. Maybe the same thing should be said of those who think that peer to peer has negatively affected the music industry. There are contemporary studies that are starting to show that in fact it is helping, not hurting.
Note that wholesale piracy is not on the table here - I think the bastards should be stuffed into their duplication machines and the pieces burned, then burried and the ground salted. A completely different story from what is currently called "Private Copying" in Canada.
Note also that without the concept of "Fair Use" you, me, and everyone else on the planet would NOT be able to even report on someone's copyright material with even an included sentence, bar of music, or frame of video, let alone any significant amount of copying. This too needs to be addressed in any new legislation.
If we are to adopt something similar to the US DMCA, then we MUST adopt something that balances the scale - Fair Use. Despite the fact that many large copyright holders are using takedown to freeze out ANY use of their copyright, fair or otherwise, the fact is that without some balance there is no social contract, since a contract must by definition in our laws be balanced.
Ratifying the WIPO 1996 treaty in light of today's technological changes compared to when it was negotiated will introduce an imbalance in the social contract so overweighted in favour of the publishers (not the creators I note!!!) that IMHO it will be struck down by the courts in whole, if not in specific parts; until the social contract is again balanced. The problem is that in the mean time the Canadian public - the taxpayers, you, me - will be persecuted in what can only be termed an insane extention of selfishness beyond any reason.
Richard Pitt
http://blog.pacdat.net
604-644-9265 (cell)
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In the above I refer to whether or not "actual damages suffered" are relevant in litigation by the RIAA in the US against peer-to-peer file sharers. I'd like to amplify a bit on this.
As I note above, there probably are economic reasons that the music and video (not to mention book) publishers are seeing decline in their sales. There are also "new media" reasons that bear looking at too.
The economic reasons include the same ones for chocolate bars - re-directing spending to things that in the past didn't even exist, let alone take a huge chunk of the disposable income of the target market. The cell phone revolution, texting, video blogging, and all removes an incredible amount of money from potential disposition for things like entertainment. The cell phone has become entertainment, along with the gaming computer in particular and the internet in general. The game industry hardly existed 20 years ago and today is a multi-billion dollar industry, just as the wireless communications/cell industry is. The money to support these activities has to come from somewhere - and it seems likely that it has come at least in part from decline in purchases of "traditional" entertainment products.
In addition, the expanded social network these (cell/internet) activities has created has vastly increased the purchasing public's access to opinion on the worth of goods in general and the stuff the traditional media publishers have been pushing on us for years in particular. It takes only a small number of people purchasing (or downloading) a new tune/video to generate a tremendous amount of opinion weight toward whether or not that item is worth acquiring. This polarizes the response to product in such a way that the bad stuff does not sell more than a very small number of copies now, and the good stuff sells huge volumes in short periods of time; despite the potential for numbers of people to acquire it without paying.
Add to this the new technology's move away from "tied selling" (aka the album) where the bad stuff is included in with a smattering of good stuff in many/most cases, toward a sales of individual units (downloads) and it is no wonder that the total value of music sold has gone down - we're cherry picking it with access to incredible amounts of opinion in almost real time! If the publishers/artists want to sell more, they need to produce better product all around. The public in general has shown that where the product is good they will step up to the till and purchase.
The public has also shown high resistance to technological hand-cuffs - DRM that interferes with their enjoyment of the goods they have paid for. This too has suffered opinion that has put people off and in some (many?) cases driven them to the "illegal" practice of downloading unlocked versions just so they can play what they've purchased where and when they want. The backlash generated from the fact that Major League Baseball has turned off a DRM rights management server "because we've moved to a new supplier" has created incredible amounts of bad feeling not only toward MLB, but against any similarly encumbered products from others. It is this type of thing that the Canadian (minority) government was proposing to enshrine in a law that would have made it illegal for these customers to seek any way to recover their right to watch the programs they'd paid for by for example bypassing the DRM. For this they'd go to jail! For this, whoever figured out how would go to jail!
The public knows that the cost of copying is insignificant today. Everyone has the facility to copy digital media, so the publishers no longer control the only facility through the economic size of the investment necessary that used to exist in the past. The public now controls the distribution process. Even so, they still pay for songs - they know that only in this way will the artists they like continue to create. The fact that the publishers might cease to exist doesn't concern them. The free market is working just fine it seems; artists that sell directly are getting paid what the public thinks their art is worth - and some of them are selling any/everything and doing quite well.
So the "actual damages" referred to above comes down to whether or not a person downloading a song or video would have spent real money for that item or not. The fact that I have a copy of a particular song on my computer/MP3 player may simply mean that I have not troubled to delete it, having decided that I really don't like it. On the other hand, having downloaded and liked something I may well have gone out of my way to support the artist by purchasing a legitimate copy of their work if what I purchased could be used in the same way as the download - but since that particular artist's materials are only available for download with DRM attached - and my player won't play that type of DRM'd item, I probably won't purchase it - or maybe if their CD that contains the item also contains enough other good items, I'll purchase (and rip) it.
The perceived value of an item includes the perception of how hard it is to use the item. DRM'd songs are a pain in the butt if you want to have them available to you in your car, home, office - and don't want to (or can't) purchase a music player with enough storage for everything digital you own.
The perceived value also includes your opinion of whether the item is good or bad - and this is something you have to judge for yourself in some cases. I don't know about you, but I have a fairly large collection of older media (records and CDs) that contains tracks I simply don't want to listen to - ever! Only by making a compilation after ripping them can I ensure that only the tracks I like will ever get played. Yes, today's music players when loaded with purchased and downloaded songs generally don't have this problem, but some people still purchase CDs.
For the entertainment industry to put a "retail" value on every shared song that one might have brought into one's system while deciding whether or not it was something worthwhile is akin to charging everyone who listened to music at the music store on headphones in the 60's through 90's. The technology today has obviated the need for the record store - and most of them are going out of business. We are left without any means of sampling - there is no "Fair Use" in Canada, and the new law would not have addressed this it seems. A rigid application of yesterday's retail mentality to today's online environment simply does not make sense - and I for one am not playing that game. How about you?
Richard's Digital Rag Daily
http://blog.pacdat.net/article.php/20071222063501612