ARCHIVÉE — Travis Beals (En anglais seulement)
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Processus de réforme du droit d'auteur
SUGGESTIONS REÇUES RELATIVEMENT AUX DOCUMENTS DE CONSULTATION
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Suggestion de Travis Beals reçue le 9 septembre 2001 par courriel
Objet : CommentsI am very concerned by the restrictive and unbalanced provisions discussed in the Consultation Paper on Digital Copyright Issues (CPDCI). These measures, similar in many respects to the US Digital Millennium Copyright Act (DMCA), do not preserve the balance between individual rights and promotion of innovation that has always been the goal of copyright law. In addition, I submit that such measures are ineffective in protecting rights holders from "piracy", as demonstrated by several cases in the United States, which I will discuss later.
Without the means for legal circumvention, Technological Access Control Mechanisms (TACMs) limit or destroy fair use rights and other rights typically enjoyed by the public with respect to copyrighted materials. TACMs also effectively extend the term of copyright protection indefinitely, preventing material from ever truly entering the public domain, since, without the right to make backup copies, most or all digital copies would have decayed or become obsolete and inaccessible.
The case of DeCSS is an excellent example of how the DMCA and other similar laws fail to protect rights holders from piracy. DeCSS is a program for circumventing the TACM found on most DVDs. As with most other circumvention devices, DeCSS has both legitimate and illegitimate uses. The Motion Picture Association of America (MPAA) sued Eric Corely, editor of the electronic magazine "2600", for distributing DeCSS, claiming it violated the DMCA. While the MPAA won their initial lawsuit, their attempts to enforce the DMCA seem only to have increased the availability of DeCSS. A search on Google, a popular internet search engine, turned up over 85,000 hits for "DeCSS", with many of the hits having copies of DeCSS available for download. The source code for DeCSS was printed on T-shirts, converted into poems, and distributed so widely that limiting access to it is now impossible.
Napster and Gnutella provide another example of how the DMCA fails to protect rights holders. While Napster has effectively been shut down, most Napster users interested in illegally trading copyrighted music have simply switched to Gnutella or other networks. Since Gnutella has no central server or authority, the Recording Industry Association of America (RIAA) cannot employ similar legal tactics to shut down Gnutella. Instead, they are forced to pursue individual Gnutella users for traditional copyright violations‹a measure that does not require or benefit from the supposed protections offered by the DMCA.
Clearly, legal measures are not effective in controlling the spread of circumvention devices. Unfortunately, such measures cast a chill over legitimate uses of digital works. The MPAA's lawsuit has halted or slowed a number of legitimate uses of DeCSS, such as "LiViD", a project to create a DVD player based on DeCSS for Linux systems. The LiViD player would not have been useful for creating unauthorized reproductions of DVDs or for violating traditional copyright law in any way, but is threatened by the anti-circumvention provisions of the DMCA.
Laws similar to the DMCA also have the potential to chill and restrict free speech. The RIAA created a contest to test its proposed Secure Digital Music Initiative (SDMI) technologies. The RIAA invited people to "crack" the SDMI technologies, and offered a prize to anybody successful in doing so. When Professor Felten of Princeton announced that he had successfully defeated four of the encryption technologies, and intended to publish his results in scientific journals, the RIAA threatened a lawsuit under the anti-circumvention provisions of the DMCA, even though the DMCA expressly permits encryption research. While Professor Felten ultimately did publish his work, he was delayed in doing so, and a substantial chill was cast over the encryption research community by the threat of prosecution under the DMCA.
In addition, I believe the right to reverse-engineer copyrighted products should be protected. Reverse engineering allows software and hardware companies to make products that are compatible and interoperable with products produced by other companies. Such interoperability benefits consumers, while reducing the ability of companies to gain monopolies through the use of closed standards. Reverse engineering does not erode motivation for innovation, as innovators can still profit through patent licensing and other means.
With regards to the CPDCI's discussion of "notice and take down" provisions of the DMCA, I am in general agreement, but have a few reservations. While it is important that rights holders have a quick and effective method of removing infringing material from the internet, this must be balanced against the potential harm done by such "take down" action. Individuals and small businesses are increasingly reliant on the internet for communication and access to vital services, and the harm done through termination of internet access by incorrect or fraudulent accusations of copyright violation must be considered. The "notice and take down" provision should be designed with at least one of the following three considerations:
€ That ISPs be required to make reasonable efforts to contact users about
alleged copyright violation before terminating or restricting service,
and that ISPs be given sufficient time to do so before being required to
€ That rights holders be required to present proof of ownership of rights for the concerned copyrighted work, and present evidence that an infringement has taken place. € That those requesting ISPs to remove material under the "take down" provision be liable for incorrect or fraudulent requests.
In addition, it seems unnecessary to require ISPs to display contact information with regards to the "take down" provision. Such contact information is generally available through the ISP's DNS registration information, which is readily accessible to the public.
I believe the arguments presented by some supporters of the DMCA and similar laws to be disingenuous. The DMCA does little to hamper commercial "pirates" or reduce piracy, but does serve to reinforce monopolies and restrict fair use. Through TACMs, some rights holders are attempting to destroy the "first sale doctrine", and eliminate many of the rights traditionally enjoyed by individuals.
By and large, the current Copyright Act is fair, and needs only minor changes to adapt to the internet and other new technologies. I urge you to craft balanced copyright legislation for Canada, and be wary of making drastic changes. Sweeping changes and unbalanced legislation in the United States have already resulted in great controversy and numerous lawsuits, and it would terribly unfortunate if Canada failed to learn from the lessons of the DMCA.
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