Monday, October 31, 2011

Are paywalls a Copyright issue?

We should answer the question of whether a paywall is a copyright issue, before we dive into the question of the importance of this question for the debate around the Paracopyright provisions in Bill C-11.

I am familiar with paywalls from the perspective of both a user and a provider of such services. I will offer two specific examples of paywalls to illustrate the issues.

I have been a paid subscriber to The Hill Times since 2005. This is an example of a service that offers some access to anonymous browsers on the Internet, but offers advanced services (full access to search through considerable archives, access to all new articles, etc) only to paid subscribers. You use a simple username and password to log in to prove you are a subscribe.

My current job is as a software author and system administrator for We offer anonymous access to some content, while other content is only available to paid subscribers. All the content is in the public domain, so copyright isn't relevant to our service. What is being paid for is access to this content as a method to fund the work we do in digitizing and organizing this information. We have individual and institutional subscribers, with individual users able to subscribe quickly making use of a simple PayPal payment system. While institutional subscribers are given access based on their internet address, individual subscribers use a simple username and password to indicate they are a subscriber.

These two services equally use of a paywall to differentiate between anonymous access and subscribers. While The Hill Time is offering access to copyrighted works, is not. From a legal standpoint these paywalls should be treated the same, with each being offered the same level of legal protection against people who might want to gain unauthorized access to our services.

There has been suggestions from some people that paywalls are inadequately legally protected in Canada. This is often being claimed by proponents of the Paracopyright ("digital locks") provisions in Bill C-11. I don't know for certain whether paywalls are offered adequate legal protection under existing Canadian federal or provincial laws, including whether existing criminal code is sufficient.

I will state that the Copyright act is exactly the wrong law to provide this legal protection. It would make very bad law if legal protection for a paywall was dependent on the specifics of what is offered behind the paywall rather than protecting all paywalls equally and fairly. While I agree with the suggestion that paywalls should be offered legal protection, it must be in the correct law.

While it is true that some copyright holders make use of paywalls in support of their businesses, it is also true that even more copyright holders use electricity in support of their businesses. Suggesting that legal protection for paywalls must be in C-11 makes about as much sense as suggesting that a national energy strategy must also be included in Bill C-11.

The question of whether paywalls are a copyright question came up in a twitter conversation where a proponent of Bill C-11 style Paracopyright was trying to be critical of Postmedia for considering paywalls. He was trying to suggest this conflicted with other articles on the Globe and Mail which were critical of the Paracopyright provisions of Bill C-11.

I hope it is obvious that there is no conflict with supporting, subscribing to or even providing paywall services and being strongly opposed to the Paracopyright provisions of Bill C-11. My primary motivation for my involvement in the copyright revision process is as an opponent to abuses of these provisions to infringe owners rights which Paracopyright provisions may enable.

Trying to conflate different issues like this is a common political tactic of those trying to promote these provisions. They take a non-controvercial technology like paywalls, claim that this is all that is meant by "technological measures" or "digital locks" in C-11, and then try to shove under the rug all the opposition to these highly controversial measures.

What most stakeholders are asking for is that any Paracopyright contained within Canadian copyright law should be tied strongly to otherwise copyright infringing acts. This is what the two 1996 WIPO treaties were calling for, given they are tied to "technological measures that are used by authors in connection with the exercise of " copyright related rights "that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law".

The further protection for "technological measures" added to copyright law strays from copyright infringing activities, the easier it is for providers of these technologies (the holders of the keys to these "digital locks") can abuse these provisions to circumvent laws including (but not limited to) contract, e-commerce, property, competition, trade as well as copyright.

One really has to wonder the motivation of those who want legal protection for "technological measures" added to copyright law to have little or no connection to otherwise copyright infringing activities. In some cases it is a lack of understanding of the underlying technology.

In some cases there may be ulterior motives. Some companies may want their circumvention of existing laws protected by beyond-WIPO Paracopyright provisions. There are some popular hardware brands in the game console, cell phone and other mobile computing space which have been outright hostile to the property rights of technology owners. Some of the representatives of these hardware manufacturers, including some representatives of the Entertainment Software Association of Canada, have made some of the most extreme claims.

Saturday, October 8, 2011

Spectrum from software/computing freedom to imprisonment

I had a heated conversation at GOSLING last evening about just how friendly to FLOSS or "good" that Google is compared to Apple.   I have personally disliked Apple and their products since the 1980's when I was first introduced to the Lisa and Mac, with the closest I ever came to Apple was having an Apple II clone in the mid 1980's.  This Apple II clone came with schematics in the manual, so a very different type of computer than the locked-down devices that people purchase from Apple today.

This conversation is one where different people will have different opinions.  I've seen a lot of Mac's at Linux events over the years, from the same people who scream at Microsoft for their business practises.   I think it would be interesting to others for me to publish my own concept of the spectrum, even knowing there will be (sometimes quite strong) disagreement.

A few select individuals and organisations, ordered from Freedom to imprisonment :

Richard Stallman

If any individual represents what I consider to be the ideal for protecting the rights of technology owners, it is Richard Stallman.   He believes that all software should come with the 4 freedoms.  According to Wikipedia, his only computer at the moment is a  Lemote Yeeloong netbook which he chose because it can run with 100% free software even at the BIOS level, stating "freedom is my priority. I've campaigned for freedom since 1983, and I am not going to surrender that freedom for the sake of a more convenient computer."

There are other people at and associated with the FSF, the Software Freedom Conservancy or other such organisations  which are more willing to surrender freedom for the sake of a more convenient computer.  In general these folks have stayed pretty close to their ideals, and for this I congratulate them!

Russell McOrmond

While I understand the importance of freedom, and the fight to protect the rights of technology owners and all the human rights that are impacted by digital technology, I have made a number of sacrifices and compromises.  I have purchased a Boxee Box, which I consider a lesser evil than the service I am getting from Rogers Cable -- and the impact of the lobbying of Rogers against our technology interests.  I have a Google Nexus 1 and an ASUS transformer, both that run Android which is based on FLOSS (including Copyleft), but where there are proprietary components.  I don't have a FLOSS BIOS in any of my computers (that I am aware of), and even have some pretty ugly application choices such as Adobe Flash and Skype on various computers.

Many of these choices relate to access to multimedia content than about the computer themselves.  I am not willing (and not being single, able :-) to just cut myself from mainstream culture and not access any content not made legally available to me in vendor-neutral and unlocked formats.  I am willing to do this for music and books, where I will only purchase or otherwise access unlocked content.  This choice is quite different for movies/television where there really are no options that aren't politically compromised in some way.

I have become a subscriber to Netflix as a lesser of the evils way to move away from BDU's such as Rogers Cable. Netflix is only available on "authorised" devices, so I have been investigating some of the "lest offensive" of the authorised options such as the Boxee Box and various options running a Google OS (Chrome, Android).

I have uncomfortable choices imposed on me by others.  I can compromise on software freedom, I can compromise on copyright (access more unlocked content, where it wasn't the copyright holder who made that available to me), or I can disengage from mainstream culture.  At least for the moment while I'm actively involved in copyright revision policy, I'm temporarily accepting the first option.


Google has its flaws, and makes some choices I am not comfortable with.  There are various justifications/excuses offered for each of these decisions, and while I may not like them I am still a "customer" partly because I seem them as a lesser of the mainstream evils.

Most Android devices have non-owner locks on them, with the same being true of Chromebooks.  Google doesn't disallow third-party applications not authorized from them from being installed, and there is a thriving third-party community maintaining things like CyanogenMod.   There are problems where Google delays the public release of non-copyleft components of the Android stack: something they aren't obligated to do, but which have raised the eyebrows of nearly every FLOSS supporter watching Google.

On the political front, Google lobbies hard for more sensible technology law (copyright, patent, etc).  They have expressed opposition to technical measures policy in the various countries who have passed it, or are considering passing such as Canada.   They may allow hardware manufacturers to place non-owner locks on devices running their operating system, and even sell anti-interoperability locked content from their marketplace, but they are not expressing support for legally protecting these locks under Copyright law.

Google is a major contributor to many publicly licensed (including copyleft) projects, and even helps fund students direct participation in projects as part of their Google Summer of Code program.  This is a global program which I wish were harnessed by our provincial education ministries (additional funding, better coordination with co-op programs, etc).


When we move down the imprisonment scale to Microsoft, we have passed that magic line where I'm willing to be a customer.   While I have various coasters (CDs/DVDs/Floppies) that came with computers I bought that have a Microsoft logo on them, I am not a customer or user of any of their software.   Well, at least not any software that they haven't released as FLOSS and are incorporated in FLOSS projects I happen to use where their contributions don't affect the overall project.

I have been observing Microsoft since the late 1980's, when Windows 2.x was what they offered.  They were already on the rise, being seen by many as being a "more open" alternative to Apple's MacOS as far as choices offered to hardware and software developers, as well as end users.

I have to admit that I didn't take Microsoft very seriously until Windows for Workgroups and NT back in 1992.  I was an Amiga user about to abandon that platform as I found it to be a little to freedom-restrictive.  I already felt Apple was the most restrictive platform that I figured had long-term viability, and I was looking into NetBSD (running on my Amiga 3000) and this new oddball thing called Linux that ran on cheaper hardware that existed in a more competitive hardware marketplace.

While I was wrong to largely dismiss Microsoft as not being serious, I believe I remained correct in seeing them as a far more open alternative when compared to Apple.  While Microsoft gained massive market share (I believe largely due to that comparative openness), they have abused that market share in more ways than I think appropriate to discuss here.  Because of their monopoly-scale market share size in the legacy desktop marketplace, the costs of their policy blunders are enormous.  They, however, were never really blindly trusted and to think of them as being a harmful corporation is a pretty mainstream viewpoint.

As an individual, I have disagreed with the political philosophy of Bill Gates.  His ideological blinders around thinking of knowledge as equivalent to tangible physical products has caused harm far beyond the information technology sector to global health.   I see the Bill and Melinda Gates foundation as being a tax-deductible lobbying arm for this ideology, working to block the use of live saving generic drugs or non-tangible-property based methods to fund the expansion of human knowledge.


The centralised control that Apple wishes to exert goes far beyond wanting to own and/or control the hardware and software marketplace.  What they do on the lobbying front is what has kept them as being the worst IT/software company in my mind.

More than any other individual corporate member of the Business Software Alliance or the International Intellectual Property Institute (IIPI), they have been lobbying against the otherwise legally protected rights of technology owners.   This is not to say that the non-software members of the IIPI that have been duped by the BSA members have no responsibility.  This is also not a suggestion that other BSA members like Adobe and Microsoft are somehow pawns of Apple, but that as bad as they are I still consider them to be lesser evils.

As an individual, the evil-genius of Steve Jobs somehow made imprisonment sexy and cool.  While there were always people on the fringes of their customer base that complained about the legality of things like jailbreaking/etc, Apple under Jobs had a loyal fan-base that fought any suggestion that they were actively engaged in this attack on a variety of otherwise legally protected rights and freedoms.  I know many people within and outside the FLOSS movement who will gripe about Microsoft, the BSA, and other such organisations, while typing away on their Mac or iOS devices.  They will even argue with you when you point out various anti-rights political activities carried out by Apple, or the fact that Steve Jobs (while at Next) was the first violator of the GNU General Public License.

It wasn't only dismantling the rights of computer owners where the evil-genius of Mr Jobs was applied.  What Apple was able to do to the recording industry was amazing, with the transfer of control of the music industry from major recording labels to Apple ongoing.  While some individuals in the recording industry recognise this threat to their very existance, not everyone in that sector does.  A foe of a political foe is not an ally, but I do have to feel sorry for recording industry executives and lobbiests who continue to fight for policies (such as TPMs in Copyright law) which in reality threaten their very existance.

It is likely that the anti-rights political and economic activism will continue post Steve Jobs.   I do wonder if Richard Stallman's hope will come true, which is that  "his successors, as they attempt to carry on his legacy, will be less effective."

Friday, October 7, 2011

Will you explain why DRM is bad?

I was asked on twitter to explain why DRM is bad.  Given I have spent more than a decade talking about this topic, you would think there is a simple twitter-length answer: but there isn't.

Whether you believe the acronym expands to Digital Rights Management, Digital Restrictions Management, or Dishonest Relationship Misinformation, it doesn't define a specific technology or technique.  The acronym is used to refer to non-controversial technologies such as databases describing content and eCommerce websites, to highly controversial things such as digital locks which lock out the owners of what is locked.

We can't entirely avoid using confusing terms, as people will immediately say "Aren't you talking about DRM" when you want to speak about specific harmful activities.  It is very useful to be clear whenever the time is available.

When some people are concerned about DRM they are concerned about the inability to loan electronic books, or to exercise their fair dealing rights.  While that is peripherally interesting to me, and I agree with some and disagree with other of these ideas, my main concern is impacts which are entirely outside of copyright.  I am happy to discuss (including in comments below, or on the site) copyright related topics, but for the purpose of this article I am going to talk about things which are unrelated to copyright.

The two techniques I have been fighting against are anti-interoperability locks on content, and non-owner locks on devices.

I believe it should be obvious why having a lock, digital or otherwise, which locks the owner out of what they own is wrong.  In our society most people have at least a minimum of respect for the concept of property rights, and believe that if locks exist it should be the owner that controls them.  Locks should certainly never be allowed to be abused to lock the owner out of what they own, and our laws should protect the owner against such scenarios.  I would be happy to discuss this more if people want, but I am honest in saying that I can't understand why people demonstrate such a lack of respect for or understanding why governments property rights in these discussions.

It shouldn't matter if what is locked is our homes, our cars, or our computers: we should never allow for digital exceptionalism where we ignore basic property rights if the property happens to be digital technology.

The anti-interoperability lock on content ties the ability to access the content to specific brands of devices.   This is harmful in a variety of ways, including being what I consider to be a textbook example of tied selling as described in section 77 of our competition act.   Governments have competition and anti-trust laws for a reason, and again we should not throw away this body of law simply because the tied selling includes something digital.

I don't believe that copyright holders should have the right to decide what brands of technology I use, or what features should exist in the technology that is created and sold.  That said, those who support this policy should recognize that in the vast majority of real-world scenarios it is not the copyright holder that controls the keys to these digital locks.  It is the vendor of the DRM system, a technology company, that controls the keys.  Any digital lock, analog or digital, protects the interests of the key-holder and not necessarily the owner.  I have observed many copyright holders switch their position from being in strong support of technological measures being added to copyright law to being strong opponents once they realized that they as copyright holders would not have the keys or any real-world control over these digital locks.

More important to me, these anti-interoperability locks tie people to non-owner locked devices, something I believe should be prohibited in law.  My primary issue in this debate is the protection of the tangible property rights of technology owners.  Even if it were copyright holders that held the keys to the digital locks on their content, and even if there was a shred of evidence that these locks reduced copyright infringement (most evidence suggests increases), I would still disagree that this justified the legalization of non-owner locks on our devices or anti-competitive behaviour that encouraged the use of non-owner locked devices.

While I believe that these two controversial locks should be prohibited in law,  Bill C-11 (and C-32 and C-61 before them) provide legal protection for them.   While these bills are called "An Act to amend the Copyright Act", the digital locks provisions are not related to the subject matter of copyright law.  In fact, these digital locks have been and will continue to be abused to circumvent the contours of existing laws including contract, e-commerce, property, competition, trade and even copyright.

We have a long way to go in this conversation.  In my mind anyone who respects contract, e-commerce, property, competition, trade, and/or copyright should be opposed to "technological measures" being added to the copyright act.  Legal protection for "technological measures" must be added to the correct law in order for them not to be abused to circumvent the law.

If a technical measure is protecting contracting terms, including a copyright license agreement, then the legal protection should be in provincial contract law.

If a technical measure is protecting electronic commerce, then the legal protection should be in provincial e-commerce law.

And so on...

Hope this helps, and sorry that there isn't a twitter-sized response to this question.  There is a lack of clarity in what the acronym means, which add to the confusion that most of the impacts of adding "technological measures" to copyright law have nothing to do with copyright.