Further Copyright talk

So, I have been mostly following Michael Geist’s blog on the proposed Bill C-32.  I find it quite edifying. But I had not found someone who seems to be arguing as authoritatively on the other side of the issue.  I found such a blog this morning.  Yay!

Geist’s views on digital locks (or TPMs) are the key topic on the blog.  Specifically that the locks prohibit the other exceptions in the bill on fair dealing.  That the lock trumps fair dealing.  He argues, quite well, that the bill should be amended to allow circumvention of the lock for the purposes of fair dealing.


So this other fellow – Barry Sookman – argues that the current language in the bill is exactly what is required by the WIPO treaty (here).  He argues that comments made by Geist on his blog (here and here and here) are not in keeping with the language of the treaty nor the intentions of the  countries being signing it.  And he does so in depth – with reference to the actual treaty and the discussions before and proposed amendments to it.  In detail.  I’m not a lawyer, but he seems to crush Geist’s argument.

I’m pretty excited.  Now I can see a real debate on the various sides of the issue.  I think both sides have made good points and I am concerned about the digital locks.  But it doesn’t seem as clear cut to me anymore.

The following argument is one of the places Sookman uses metaphor instead of legalese in his analysis.  I thought it was excellent:

Since the very birth of copyright, there have always been legally controlled forms of getting access to protected works and objects of related rights, such as buying copies of works and records, lending books from libraries, buying entrance fees for cinemas, theaters, concert halls and exhibition halls; paying newspaper, radio and television subscription fees, etc.

Even in the case of exceptions, there have been controlled forms of access also in the “traditional”, analogue environment. For example, nobody was allowed to walk into a book shop, take a book from the shelves and walk out with it without payment just because he wanted to benefit from the exception to the right of reproduction for the purposes of quotations or making a parody, or nobody was able to simply enter a theatre without an entrance ticket referring to his need to see a presentation of ‘Hamlet’ for the purpose of preparing his homework on Shakespeare’s dramas. There were and are other – adequate – ways to benefit from these and other exceptions.

If it were allowed to eliminate these control mechanisms, the copyright system would collapse. This would be the case, since, if there were free access to copies in book shops, record shops, rental shops, etc., free ntrance to cinemas, theaters and concert halls, etc., there would be no income of creators, publishers and producers to recoup their investments and even their operational costs, since no licensees would be able to pay remuneration to them. Such unauthorized acts of access would not qualify as copyright infringements proper, but if there were no legal protection against them, they would undermine the practical applicability of copyright and related right.

In the digital, networked environment the traditional chain of events is transformed: what used to be entering a book shop, buying a copy, bringing it home and reading it – or going to cinema, buying a ticket, entering the movie theater and watch the film – may be concentrated into simple clicks on the keyboard. In the case of these complex condensed acts, control by TPMs has the same role as property protection for copies of books and records in shops or by trespass laws against someone who tries to enter a theatre, cinema or concert hall without buying a ticket, etc.

This means that, there is nothing alien to the copyright paradigm in the application and protection of access controls. In the online environment, such measures may guarantee the kind of control of access to works and objects of related rights that have always existed as an indispensable corollary of copyright protection proper. It is another matter that appropriate balance should be established between the protection of such and other TPMs and the applicability of certain exceptions and limitations important from the viewpoint of public interests.

So is circumventing a TPM (even for legal purposes) like going into a theatre without paying or taking a book from a bookstore without paying? Or is it like being able to photocopy the relevant sections of a book in a library? To me it seems more like the former than the later. So Sookman’s argument seems to have the greater weight. But a TPM would also prevent the later.

I am now deeply divided.  Pretty exciting!


25 thoughts on “Further Copyright talk

  1. I recommend you check out http://BillC32.ca/5156 for a third view, which is different than both Geist and Sookman.

    Geist and Sookman are lawyers, one of which is a law professor and the other who has clients who are special interests in the debate. Neither are technical people, and thus don’t understand the workings of the technologies we are discussing.

    Sookman is incorrect about the TPM provisions in C-32 being from WIPO. In fact, the language in Bill C-32 is from the US delegation and was rejected at WIPO. I quote from both WIPO and Bill C-32 in my letter to provincial representatives, and the language is fundamentally different. The WIPO TPM language doesn’t radically change the contours of copyright law with a new “access” right, while the DMCA and Bill C-32 language does.

    As a technology professional, I think legal protection for TPMs protecting e-commerce and contract law would be appropriate. The legal protection must maintain the balance in these provincial laws, and can not be allowed to circumvent the contours of existing law.

    I’m also a technical person who has read the copyright act more than once. Copyright is a series of activities which, if done with copyrighted works you have access to, require the permission of the copyright holder. Technical measures can deny access to copyrighted works from unauthorised persons, but there is no technology that can prevent an authorised person from doing copyright infringing things. That is science fiction, not science.

    Given this, I believe legal protection for TPMs should never be in federal Copyright law, only in provincial e-commerce and contract law.

    • Thank you. I will check it out.

      • I also wrote a reply to this article at http://BillC32.ca/5176 , if you are interested.

        • I am quite.

          I hadn’t known I had been tweated by Sookman. A shame really since I don’t think my efforts really contribute to a learned and balanced debate.

          I am still reading through your blog…

          • I wouldn’t have known you were tweeted by Sookman except I noticed it on his website. He has blocked me from following him directly on twitter. We’ve met in person a few times, and I thought the relationship was good until recently.

            It is unfortunate that some of the most influential people on this legislation, from a registered CRIA lobbiest to the Heritage Minister, prefer to stick their fingers in their ears rather than participate in informed debate.

            I should ask if Mr. Geist has ever blocked anyone. Given he allows anonymous unmoderated comments (some, myself included, think is often junk) on his website I suspect he doesn’t filter or block anyone.

            I think your comments contribute greatly. It exposes some of the different contrasting positions, and suggests which ring more true to people. It gave me an excuse to be critical of views expressed by both Mr. Sookman and Mr. Geist in the same article. I may think Mr. Geist is a great non-technical ally to technical people like myself, but that doesn’t mean there aren’t some things we disagree on.

  2. Rob Tiessen says:

    This long sentence is Article 11 of the WIPO Copyright Treaty:

    “Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.”

    If you read Bill C-32, the proposed changes to the law go far beyond what needs to happen according to the WCT.

  3. Hi! Thanks for contributing. I’ve posted a reply as a separate post.


    It doesn’t directly address any of the comments made, but I dance around them quite a bit.

    In reading Russell’s (is the informality OK?) site a couple things I wonder about include:
    – Does the inability to separate use (copying being a form of use) from access matter? C-32 makes the distinction. And Russell spends quite a while pointing out that a technical use only control is not possible – access will also always be controlled. If an author wants to use a TPM to enforce copyright (and WIPO supports this) haven’t we then allowed both use and access controls?

    – Could we just let the market sort it out? Allow TPM’d material to coexist with non-TPM’d material. Obviously while the market decides we are in a grey area (which sucks for us) but eventually it should turn out one way or the other… (Note – I am unconvinced by my own argument since I have a fairly deep distrust of the phrase “the market will sort it out”)

    • 1) Yes, the distinction matters. Copyright has never before contemplated the concept of “access”, so creating a new “access” right with the protection of “Access Controls” is a radical rewriting of Copyright law. While the consequences are intended for some (Some oppose the centuries old balance of Copyright, and want that balance eradicated), while very unintended for others who do not yet understand how

      If you look at the technical measures definitions in BillC32 you see:

      ““technological protection measure” means any effective technology, device or component that, in the ordinary course of its operation,

      (a) controls access to a work, to a perform- er’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; or

      (b) restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19”

      (a) is a concept from the US DMCA, while (b) is a concept from WIPO. If we deleted (a), references to (a), references to devices that circumvent (b), and sections of the act that allow (b) to trump fair dealings, then we would have a WIPO implementation bill rather than a DMCA implementing bill.

      2) The issue is not whether TPMs are used or protected, but whether they are protected in Copyright law or the law that is most closely related to the activity being protected.

      If you are using a TPM to protect an e-commerce scenario (access control used to ensure only paying members to an e-commerce site can access), then that should be protected in provincial e-commerce law. If you are using a TPM to protect a contractual relationship, then that should be protected in contract law.

      If the right law is used, then the market can sort things out. If Copyright law is used, then the market can’t sort it out because the market is receiving incorrect information. We never before claimed that going into a store and walking out with a DVD was “copyright infringement”, it was shoplifting. We never before claimed that sneaking into a theatre without paying was copyright infringement, it was trespass. These distinctions are critical both for preserving the rule of law, but also for letting the market decide.

      The invisible hand of the market only works when that market has correct information flow, otherwise it is not a free market at all.

      Longer reply to (b) is here:

      When consumer choice is not enough: Dishonest Relationship Misinformation (DRM)

      • So before I play devil’s advocate I want to say that I think I agree with most of your arguments and conclusions. Especially the argument in your DRM article – I make a similar argument myself this week stating that too much control is moving too far away from the authors/creators and towards the distributors.

        Your argument about the distinction between use and access seems to be as follows. Use is enabled through software and is dependent on their first being access controls. Access controls are measures primarily using encryption, signings and keys to control any access including ‘use’. (I’m likely making mistakes in simplification.)

        WIPO restricts the use – copying specifically. It says nothing about access. Bill C-32 introduces access unnecessarily and detrimentally. (As had the DMCA restrictions before it.)

        OK – my problem is I do not see how a use control can be put on a work without first having an access control. The access control could be written to allow the deactivation of the use control, but I do not see how a use control bypass software can work without also breaking the access control. So for a law to be effective doesn’t it have to protect the access control along with the use control?

        It would be great if the law were written, as you suggest, to just exclude the mentions of the access controls. But to be effectively enforceable wouldn’t it still imply the access control anyway?

        My remedy would be to simply allow bypassing of both controls for purposes of fair dealing. Leaving both types in doesn’t harm the necessity to do so.

        In the article you referred me to, I’ve got a couple concerns. First your argument presumes that a digital lock is essentially the same as a physical lock. Second that either the rental or the owner model should be sufficient. Finally that our paramount concern is not to confuse federal and provincial jurisdictions.

        OK – so a digital lock might not be the same as a physical one at all. And even if it is it might not be a crime to place additional restrictions on ownership. Take my condo for instance. I own it. By that ownership does come with additional conditions. I can’t use just any window coverings, or replace the windows without asking. I can’t do some types of renovations without permission. My ownership of pets is controlled and because it is an adult only building I’ll have to move to conceive a child. All controlled. Why can’t ownership of my e-books and MP3s come with differing but similar restrictions?

        On the models question, why not introduce other models if they seem viable? Why restrict ourselves to just rental and ownership because it has worked to date?

        Finally. my objections the federal vs. provincial concerns goes back to my opening argument. If access controls are implied by use controls, we cannot avoid a conflict of interest here.

        Devil’s advocate arguments aside – I am still concerned by the TPMs. I would prefer they not be in the bill at all. But there is a requirement for some TPM protection based on WIPO. And despite my wishes, I’m not sure that altering the bill will be able to achieve both goals.

        • Here is the distinction:

          WIPO tried to be technologically neutral, and not talk about specific ways to implement technical measures. It defined a technical measure to describe an overall system: hardware, software, and law. What is and is not a technical measure according to WIPO isn’t purely a technological question, but a legal one as well.

          In other words, the identical technology may or may not be a technical measure according to the WIPO treaties depending on how the technology is being used in a copyright context! This tie to how it is being used is how they tried to make this reference to technology consistent with how Copyright has been envisioned for hundreds of years. Copyright has never before regulated technology itself, but very specific uses of a technology.

          It is important to separate the concept of “protected in copyright” from “a tool used by copyright holders protected in law”. This distinction is critical in the debate, and allows Copyright law to remain consistent with established laws and processes.

          When you are talking about a possible need to use access controls in a specific TPM system, you are talking about the latter (used by copyright holders) and not the former (in copyright). The two WIPO treaties focus on copyright law, not other laws which may be critical to protect the interests of copyright holders.

          As soon as you talk about access controls, you are not only diverging from the traditional definition of copyright (see section 3, 15, 18 and 19), but also describing a specific technology.

          Bill C-60 used the WIPO language, which meant that whether a specific system qualified as a technical measure was tied to how it was being used, while Bill C-32 does not. Some people didn’t like this definition specifically because it was consistent with the traditional definitions and contours of copyright, which doesn’t regulate technology regardless of how it is being used, but very specific uses of technology.

        • New models:

          No new model requires that TPMs be protected in copyright — that is a myth pushed forward by people who forget that Copyright law isn’t the only law that exists in Canada. All business models, new and old, that involve copyright involve a combination of laws.

          For a FLOSS developer, copyright law provides the requirement to get permission to do specific activities, and contract law provides the framework for offering that permission under specific conditions set out in a license agreement. The same is true of non-FLOSS with complex EULA’s which are contacts and evaluated in the court as contracts. Copyright law only sets out the contours of activities which require permission when determining offer/acceptance of these contracts.

          In other scenarios property law is used, such as by a theatre owner that requires payment in order for your walking into the theatre not to be considered trespass. Sometimes there are complex combinations of a number of laws, most of which have nothing to do with copyright at all.

          Your condo agreement is also a contract, one that you were both aware of and would have had to sign before you moved in. Your lawyer would have been made aware of all those conditions before a purchase would have been possible.

          In my case I own my home, but the streets surrounding it are private — and managed by a condo corporation. The details of that condo corporation were all set out in an agreement that was signed when we purchased the home.

          All property comes with conditions on how you use that property — you may own a hammer, but can’t use it to murder someone. The important thing to notice is that you don’t read property law to find out that murder is illegal. We do not copy policy that outlaws murder into every other law. People just need to know that murder is illegal, regardless of what tool is used and who may or may not own it.

          “Why can’t ownership of my e-books and MP3s come with differing but similar restrictions?”

          They can, and they will — and just as has been done for hundreds of years, this will be set out in license agreements. Technical measures may help each of the parties of these contracts avoid breaching the contract, and these technologies may even be given additional legal protection as part of modern contract law.

          This is a very different scenario than making a possible breach of contract into a copyright infringement, regardless of the legality and enforceability of the contract. This circumvents contract law, and should not be allowed.

          “First your argument presumes that a digital lock is essentially the same as a physical lock.”

          Nop, not at all. They are quite different. But regardless of whether a lock is digital or analog, we need to ask questions about who owns what is locked. There are 4 rightsholders in digital copyright, not just one, and all 4 of these rightsholders deserve to have their rights protected under the law.

          “Second that either the rental or the owner model should be sufficient.”

          There is a near infinite range of models possible with proper contracts. The point is that people understand these two models well, and any contractual arrangements need to be (enforced in law if necessary) as honest as possible about what type of relationship is being contemplated. Courts often strike down contracts (or specific clauses) for being unclear to those signing them, and there is nothing special about copyright that needs us to diverge from the rule of law.

          “Finally that our paramount concern is not to confuse federal and provincial jurisdictions.”

          This is only true in the case of the constitutionality question. Sections of Bill C-32 may be struck down by the courts, and it is important for the provinces to be aware of this issue and engaged before the law is passed rather than only after.

          “If access controls are implied by use controls, we cannot avoid a conflict of interest here.”

          Yes we can, quite easily, by sticking with traditional definitions of copyright which are technologically neutral and do not regulate technology, but very specific uses of technology with respect to copyrighted works.

          This included rejecting replacing copyright with an “access right”, given once copyright holders (or more likely, technology companies) control access the rest of copyright becomes essentially redundant. (Traditional definitions of copyright talk about activities you need to get permission to do with a copyrighted work once you have access to it).

          Bill C-60 and WIPO avoided the conflict. It is only the DMCA/C-61/C-32 language that creates the conflict. The DMCA is bad law, and there is no reason to import this same bad law into Canada.

    • Oh, ya. Informality is great!

      I’m just some software author who saw my rights greatly threatened by changes in copyright law, and am doing everything I can to protect my creative rights as well as the creator rights of others (software and non-software copyright holders).

  4. I have also posted a response the Dr. Mihály Ficsor essay on the
    Barry Sookman website. I am not sure why your post showed up as a “pingback” but mine didn’t.

    Essentially, I argue that the circumvention of TPMs is required for a free society.

    • In case it is not clear, my response can be found by clicking on my name: I have it posted on my own website.

    • James,

      I am curious what you think about my suggestion that TPMs could be protected in contract and e-commerce law rather than copyright law. This way Canada could ratify the treaties, and yet in my opinion not cause the harm that would be caused if TPMs are inappropriately added to the federal Copyright Act.

      We seem to be under considerable pressure from a number of our trading partners, not only the USA, to ratify those two treaties. This puts Canada in the position of being reactive, rather than forward-facing, in the international political debate. I think we should ratify and then move aggressively forward with new WIPO treaties to clarify the old ones. Having Canada have a responsible implementation would also make it easier for other countries not part of the G8 to follow suit.

      Part of modernising the outdated 1996 WIPO treaties is being stifled by the USA, and part of that relates to the silly politics of the USTR’s Special 301 report. Canada needs to stop being reactive, and stop simply delaying legislation, and become proactive in joining the countries representing the majority of the worlds population in fixing this problem.

      Interested in your thoughts.

      • I think your suggestion is good, in that copyright law would not have a sudden change of scope. However, contract law is a little heavy-handed for many of the cases where DRM is applied.

        It is silly to expect people to enter a contract before reading a book, seeing a movie or listening to a single. There is a reason contract and copyright law are separate. EULAs try to use copyright law to force you to agree to a contract, but I an not sure how enforceable they are if they over-rely on copyright law. For example, my interpretation of the Windows 7 EULA (INAL) is that it is actually a patent, not copyright license.


        My reasoning is that the “copying is not allowed unless we say so” stick does not apply if you don’t actually have to copy the (pre-installed) software to use it. Copying the software to memory from the disk probably counts as “Fair use” or “fair dealing.”

        Another thing to consider is that the other stick, patent law, lasts for only a limited period of time. The reason DVD players enforce DRM is that the manufacturers must agree to specific restrictions in order to get a patent license. Patent law is stronger than copyright law in that you are allowed a monopoly on the use of your patented idea, not just the implementation. With DVD patents expiring within a few years, the only “stick” left would be trademark law, which does not expire.

        I suspect the real reason the prohibition of “circumvention devices” is being pushed so hard is that the copyright lobby wants non-conforming optical disk players (that just happen to play DVDs in a region-free fashion, and don’t disable buttons during playback) declared circumvention devices. The problem, is that whether or not such a player is actually a “circumvention device” would depend on which disk you put in the machine.

        Because the prohibition on circumventing DRM is tied to copyright, circumvention may only be illegal if the work is still protected by copyright. Even more confusing, copyright law has traditionally had exceptions where copying is allowed without the permission of the copyright holder. There is no way to know ahead of time if a generic video player, general-purpose computer, or permanent marker will actually be used as a “circumvention device” when it is sold.

        I think you expressed that sentiment with this quote: “People just need to know that murder is illegal, regardless of what tool is used and who may or may not own it.”

        I agree, that DRM can be helpful in hinting when you may be breaking a law, contract, or local policy. However, unless the play-back device is rented, it must be advice only; much like the copyright page found in printed books. There is no way for the DRM programmer to anticipate every possible situation; even if they did know the law.

        I have been contemplating a P2P streaming video standard. I don’t know if I am all talk, but one thing I have been thinking of implementing is DRM that explicitly does not include any “copy protection.” A video distribution standard implementing both distributed broadcasting and “copy protection” would be a contradiction in terms. I would enforce the optional aspect of the DRM by using the GPLv3 license that states in part:
        “3. Protecting Users’ Legal Rights From Anti-Circumvention Law.

        No covered work shall be deemed part of an effective technological measure under any applicable law fulfilling obligations under article 11 of the WIPO copyright treaty adopted on 20 December 1996, or similar laws prohibiting or restricting circumvention of such measures.”

        • “It is silly to expect people to enter a contract before reading a book, seeing a movie or listening to a single.”

          I agree, but that isn’t in fact where most of the contracts are at the moment. Most of the contracts that common DRM systems protect are between copyright holders and device manufacturers (DVD CSS, Apple Fairplay, etc). If there is an implied contractual arrangement between device manufacturers and device owners, one of the parties (the owners) have never been made adequately aware of it. This is in my mind one of the essential flaws of the “Dishonest Relationship Misinformation” (DRM) system, which is that one of the most critical parties has never even been informed that they have a specific relationship.

          The idea with most DRM systems is that the content isn’t delivered by the copyright to the audience, but to an intermediary. The relationships set up with an Amazon Kindle is far closer to the movie theatre scenario (Content delivered to theatre, theatre allows audience to view but not directly “posses” the content) than it is to a book purchasing experience (Where the audience owns tangible media which contains the content).

          In the theatre experience or the Kindle experience, what is the relationship — if any — that exists between the audience and the copyright holder? Is the audience ever licensed to do anything at all, and do they posses the content in any meaningful way?

          While marketed as similar, downloading a DRM encoded file and downloading a DRM-free file are entirely different legal scenarios, as different as purchasing and owning a VHS copy of a movie (DVD’s complicate the situation) or going to the theatre to watch the movie.

          “but I an not sure how enforceable they”

          That is the essence of the copyright/contract relationship. First you find out what activities required permission (copyright), and then you find out what contracting terms were offered in the contract granting conditional permission. Contracts can have many clauses, each of which may be found enforceable, unenforceable, or possibly even illegal. Being in breach of a contract doesn’t automatically mean you did anything wrong, and it is intended that the courts sort that out.

          Trying to put TPMs protecting contracts into copyright law is being done in a dishonest attempt to circumvent the balance that exists in contract law.

          “Copying the software to memory from the disk probably counts as “Fair use” or “fair dealing.””

          Unfortunately, this isn’t how most lawyers or the courts have interpreted things. There is a presumption that you need to be compliant to the terms of the license agreement in order to run the software. I disagree with this, but I believe it will need clarity in the law to fix — and there will be a lot of opposition.

          I personally believe that private activities should be exempt from Copyright. Unless an activity involves the distribution or communication beyond an individual and their devices/etc, copyright shouldn’t be involved at all. But there are a lot of extremists on the copyright maximalist side that will oppose such a modernisation of copyright law.

          BTW: Copyright terms were as short as Patent terms in some countries. It is politics and not something inherent in the law that has allowed these government granted monopolies to expand beyond anything reasonable.

          “I have been thinking of implementing is DRM that explicitly does not include any “copy protection.””

          Depending on who you talk to they will either know what you are talking about, or think you don’t know what you are talking about.

          Some people use the term DRM as a synonym for “copy protection”.

          Some people recognise that technology can be used in the opposite way, which is that rather than trying to hide the contractual arrangements the technology would be used to better inform all the parties to these terms of the contracts. An example would be http://search.creativecommons.org/ which allows for the searching of content based on the parametric contracting terms offered by some of the Creative Commons licenses. Technology could also read this metadata supplied with content and issue warnings/explanations whenever an activity being asked of the technology may violate the terms encoded in that metadata.

          One is IMHO an appropriate and beneficial use of technology, and the other is a misunderstanding of technology that can only succeed in making things worse.

          BTW: If you proceed with this project, please link in with the existing projects. There are a number of projects to get appropriate licensing metadata standards such that an open interoperable “Digital Rights Management System” (In the way you were using the term) can be built.

          • I disagree with your interpretation that DRM’d works are delivered to an intermediary, rather than an end-user. What is critical is who owns the hardware. Kindles are sold, not rented. same with iPods. If they want all the benefits of contract law (imposing extra conditions above and beyond copyright law), they should take the risks (ownership and maintenance of the display devices).

            I also don’t really think metadata should be considered DRM, though it may qualify as a TPM, as proposed by bill C-32. The key difference is the Technological Protection Measures can exist in the analog domain as well. An extreme interpretation of TPMs (Where ‘effective’ simply means ‘the policy that currently applies’) would be they even include the traditional copyright notice on books, patent notices on old records, or ‘Terms Of Use’ simply linked to on websites.

            As for my project, I was thinking of including some extreme ones like a stream revocation token that deletes the entire disk (or more likely just the cached data) of all devices making use of the stream. Obviously, since the DRM is optional, this would only make sense in an institutional setting where the employees are not allowed to circumvent the DRM by policy. The goal (and corresponding risk) is to point out how DRM can be abused if it is not voluntary. I am not sure we would have had video from Tiananmen Square if the Chinese government had required all video players to obey a video revocation token.

            The reason I think I can succeed, despite not having a lot of experience with video compression is that existing digital back-ends and video streaming services are shockingly bad: even for broadcast. During the Obama inauguration on CBC, the audio lagged the video by nearly a minute. The HDMI standard that sends (HDCP) encrypted video and audio over the same cable did not support video and audio syncing until version 1.3. They thew a lot of hard-learned lessons out the window in the move to ubiquitous DRM.

            • What you describe is one of the miscommunications/misunderstandings. Those who provide and are strong proponents of “DRM” systems used in a manner synonymous with copy control are wanting to have what I described, but people purchasing hardware and (in their mind) purchasing content think an entirely different transaction has happened. This is why I believe that we need to not only avoid but fight any use of the term “DRM” or “technological measures” in the context of copyright, and force into a contractual/e-commerce discussion such that the contractual relationships being envisioned will be compatible between all the parties.

              Note: In the situation where the owner of the computer controls the computer, such as when an employee is using employer provided hardware, what you describe is generally just called “computer security”. No need to use the term “DRM” and confuse people into thinking you are talking about CSS/FairPlay/etc type technology.

              This is one of the problems you run into when discussing the “Trusted Platform Module” embedded inside many modern computers. If the owner of the hardware retains the keys, then it is an advanced computer security tool. If someone other than the owner retains the keys, then it is an entirely different thing which is being used to circumvent the security from the perspective of the owner. Same technology, but an entirely different (opposite) impact.

              Best to avoid using the same language when you are using the same technology, but in a very different usage scenario.

              • The problem with refusing to discuss TPMs in the context of copyright is that the term is meaningless without the legislation and regulations and caselaw that define the term.

                While I understand that Copyright ostensibly puts the “rights” in DRM, I think my stream revocation token is an example of DRM that has nothing to do with copyright. Because the term DRM has such a loose definition, I would be willing to entertain a better term (after checking if the DMCA uses it or not).

                I am not sure if what I describe can be described as computer security. Maybe “computer enforced policy.” The implication is that policies can be changed, and that policies can have exceptions.

  5. […] Further Copyright talk June 2010 24 comments 4 […]

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