Parliament in Review: November 24, 2011

The main topic of debate in the House of Commons on Thursday, November 24 was again copyright - and once more, the Cons couldn't be bothered to try to defend their own legislation.

The Big Issue

But that left plenty of time for opposition speakers to raise the level of debate while pointing out that the Cons' choices figure to cause serious problems for creators and consumers alike. Marc-Andre Morin, Denis Blanchette, Helene Laverdiere and Francois Lapointe all noted that media conglomerates look to be the sole beneficiaries of a regime built around the supremacy of digital locks. Mylene Freeman noted that the new legislation would take us from a grey area as to consumer rights, to a black-and-white system where many seemingly ordinary activities would be criminalized. Mike Sullivan revisited the history of copyright, and particularly how the licensing-for-airplay model developed. Isabelle Morin expressed disbelief that the sentences the Cons want to impose for copyright violations are far more severe than those applicable to serious crimes. Charlie Angus discussed the dangers of locking down content, then noted that the Cons' attack on royalties amounts to taking away the capacity of many artists to earn a living. And Jonathan Tremblay raised the point that increased public reliance on electronic storage of information makes it all the more problematic for media giants to be able to control access.

Meanwhile, a couple of Cons did get involved in asking questions of NDP MPs. MP Joyce Bateman asked an eminently reasonable question about the plus side of providing for mandatory licensing for the perceptually disabled. But particularly considering their obstinate refusal to consider a levy-based model in general, one has to wonder whether the Cons would have met exactly the same response from an opposition party by alleging that the result is a "braille tax" (particularly since Mike Lake raised the "iPod tax" talking point yet again). And Brad Trost responded to Pat Martin's musing about allowing income averaging for artists in particular by locking onto the concept as a general means of cutting government revenue.

Trade-Offs

The other government bill discussed was C-14, dealing with the Agreement on Internal Trade. Lake deigned to speak to the content of the bill, but somehow dismissed Guy Caron's valid questions about the effect of the AIT as irrelevant to a bill designed to alter it. Caron then discussed the difference between desirable harmonization of standards and unacceptable intrusion on a province's ability to legislate in the interest of its citizens, while Dennis Bevington noted that northern regions are particularly vulnerable to having easy work skimmed off by outside bidders (leaving no local capacity to do needed work).

In Brief

Chris Charlton introduced one private member's bill to allow CPP claimants to receive arrears for more than the current limit of 11 months, and another to make public information about Stelco's acquisition by US Steel. Charlie Angus highlighted the information commissioner's warnings about the Cons' interference in access to what should be public information. Nycole Turmel raised a proposal for health-care discussions with the provinces which the Cons obviously decided to ignore, while Libby Davies wondered why no progress has been made on prescription drugs as promised when the last 10-year agreement was signed. Jack Harris pointed out that the lone source the Cons have pointed to in support of their train wreck of an omnibus crime bill had in fact criticized their heavy-headed approach. Alexandre Boulerice compared the patronage appointment of Jean-Pierre Blackburn to the history of Alfonso Gagliano and other Lib outrages. Yvon Godin questioned Con MP Bernard Valcourt's position that any worker without a grade 12 education should be ineligible for EI benefits. Joe Comartin called for the answer to the traditional Thursday scheduling question to be less politicized - to no avail based on Peter Van Loan's spin-heavy response. Leon Benoit introduced a motion on CCSVI treatment for MS, with Anne Minh-Thu Quach taking care to ensure any further action is based on evidence before indicating the NDP's agreement. Rathika Sitsabaiesan asked what the Cons are doing to try to rein in student debt, and was informed by Kellie Leitch that the plan is...to raise the amount of debt permitted under the federal student loan program. And John McKay questioned whether the Cons cared in the slightest about the rule of law when it came to the execution of Moammar Gadhafi - with Deepak Obhrai's response raising more questions than it answered.

Burning question

Sure, it's been fairly obvious that the Harper Cons have spent their time in office asking the world to think less of Canada. But did anybody suspect them to have done so quite this literally?

On feigned helplessness

Michael Geist rightly notes that there's little reason to buy the argument that Canada's current laws don't provide adequate protection against file-sharing sites:

The claims in the isoHunt lawsuit must still be proven in court (as would any case using the new powers contemplated by Bill C-32). But past cases suggest Canadian law is hardly toothless. In 2008, the recording industry filed a lawsuit against QuebecTorrent, a Quebec-based BitTorrent site. Within months, the Superior Court of Quebec handed down a permanent injunction against the site and it discontinued operation. Soon after, the industry targeted other sites with cease-and-desist letters, relying on existing law to demand that they stop operating.

Foreign organizations have also successfully used Canadian copyright law to counter alleged online infringement. Last month, the Dutch anti-piracy group BREIN announced that it had quietly shut down dozens of BitTorrent sites by filing copyright violation complaints with the sites' hosting providers. While BREIN keeps the names of the sites secret, it notes that Canada is one of the countries where it brings legal action.

The reality is that all major countries are home to some BitTorrent sites, including Canada. The question is not whether Canadian law is equipped to deal with these sites — recent history and the latest lawsuit demonstrate that it is — but rather why the industry has opted for a strategy of damaging Canada's reputation by loudly claiming that it is unable to address online infringement using existing law while it quietly files court documents that suggest that the opposite is true.

But that reality shouldn't be used to understate the difference between the status quo and the Cons' plan under C-32 (bolstered by the attempt to paint Canada as lacking the enforcement mechanisms already in place). And indeed, the fact that copyright holders are complaining despite the existence of mechanisms to deal with peer-to-peer sites should offer a compelling signal that it's the peers themselves who are the targets of the Cons' legislation.

On failed consultations

ShamWow Minister Tony Clement tries to reassure one of his Twitter questioners that he'll look into the question of whether his government's copyright legislation effectively outlaws open-source software:

Relax-looking into it RT @abramh @TonyClement_MP refuses to acknowledge that #C32 bans Linux/Android/OpenSource/FreeSoftware

And of course it's completely to be expected that Clement would have absolutely no clue what impact C-32 might have on open-source content. After all, it's not as if the bill was drafted following a consultation process where that exact question was front and centre.

On commercial significance

As expected, Michael Geist's first response to the Cons' new DMCA is worth a read (and some followup action). And Geist is right to draw primarily a distinction between a needlessly complex series of exemptions, and a single, strict rule about digital locks which trumps any consumer-based considerations. But let's note another aspect of the bill - and in fact the digital lock provision - which truly gives away the Cons' priorities:

41.1 (1) No person shall
...
(b) offer services to the public or provide services if
...
(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological protection measure...

A similar standard applies to the provision of any "technology, device or component" under the proposed section 41.1(c)(ii).

So what makes that wording important? In order to escape prosecution for making available any product or service which has any potential to circumvent a "technological protection measure", an individual has to demonstrate that the product or service has some "commercially significant" uses or purposes. And that means in effect that any defence based on the fact that a product or service has valid, legal purposes other than infringement is available only to business interests - as a product or service which is made available freely rather than for profit wouldn't seem to fit the definition of "commercially significant".

In other words, the Cons' bill turns the development of freeware or open-source software into a source of potential legal liability, even if it's developed and distributed for a generally valid purpose which only has incidental potential for infringement. But the development and distribution of the exact same software for profit is considered to be above reproach.

So C-32 reflects a stark division between commercial interests which are given top priority, and all other interests which are seen as insufficient to justify any relaxation of the media industry's demand for total control over content. And the fact that the same theme is pervasive throughout the bill should offer reason for this latest attack on consumer interests to be met with just as much outcry as the previous ones that have been stopped in their tracks.

Sham. Wow. Tony.

Shorter Tony Clement:

Can we agree that we won't be able to have any useful discussion about our new copyright legislation until we've all had a chance to see it? Good. With that in mind...Hi, it's Tony with DMCA! You’ll be saying "eh" every time you try to get at your favourite content!

Pressure time

And speaking of policy choices that seem to be based largely on protecting monopolies at public expense, Michael Geist reports that the Harper Cons plan to introduce yet another copyright bill that attacks consumers for the benefit of corporate distributors.

I'm less surprised than some that the Cons' "consultations" have led them back to exactly where they started: if anything, the time period since the consultations ended probably gave them a reprieve from the pressure that forced them to back off in the first place. And the fact that the Cons have gone back to the anti-consumer model should send a strong signal as to whose interests they'd most like to favour.

But it's worth remembering that it was the Cons themselves who chose not to push their first DMCA clone due to the resulting public outcry. So in addition to the entirely reasonable prospect that the opposition parties could team up to kill the bill, it shouldn't be beyond the realm of possibility that the Cons themselves will at least seek to buy time again in the face of another backlash.

Deep thought

If the International Intellectual Property Alliance really wants to prove its dedication to defending copyrights, we should expect a claim against the Conference Board of Canada any day now.

Unbalanced

I won't go into detail about the Cons' copyright legislation for now, as Michael Geist and others are thoroughly eviscerating it already. But I'll take a moment to point out what strikes me as the most obvious sign of the bill's complete lack of balance between consumers and copyright owners.

The excuse for a personal-use exemption within C-61 is found in section 17, which provides for an extensive laundry list of factors which a consumer has to prove in order to be entitled to transfer a work to a different medium for their own use. Among those is a requirement that no "technological measures" be circumvented to enable the copying to take place.

Now, one could make the case that consumers have a choice as to what works to buy, such that anybody concerned about being able to make use of the personal use exemption in order to copy works to a different medium can simply make sure not to buy protected works.

But that depends on some information being available as to what technological measures are - and aren't - included on a given work. And glaringly lacking from the bill is any obligation on distributors of copyrighted works to actually give notice of any technological measures before a consumer buys the work to begin with. (Indeed, the only part of the bill which discusses notice to consumers is with respect to media which collect a consumer's personal information - and even then the consumer's only remedy is statutory permission to try to find an otherwise-banned means of circumventing the technology involved to stop the data from being collected.)

As a result, consumers don't figure to have any opportunity to make an informed choice. Instead, distributors can put copy protection on a product without any warning, and then rely on the hidden restrictions to prevent the consumer from legally making even personal use of the work in another medium.

Now, that particular imbalance is far from the biggest issue with C-61: merely requiring some notice of any technological measures on a work would be a relatively small fix compared to the size of the general problems with the bill. But from what I can tell, it offers a perfect symbol for the mindset behind the bill: while consumers are faced with onerous obligations to avoid doing anything which could possibly infringe on copyright, the beneficiaries of those obligations aren't required to even let consumers know which of the restrictions apply before taking their money. Which is why C-61 shouldn't be headed anywhere other than back to the drawing board.