In a struggle to be happy and free

Drystone Wall

Category: piracy Page 1 of 3

Theft and property

I rented a movie the other day. For the zillionth time, my senses were assaulted by a movie industry ad telling me not to steal their products:

You wouldn’t steal a car, you wouldn’t steal a handbag, you wouldn’t steal a television.

Downloading pirated films is stealing, stealing is against the law. PIRACY, IT’S A CRIME.

It always amuses me that those who download the movie will not see this ad. Only the people who haven’t done what they’re trying to tell us not to do will see the message. Talk about poorly targeting the appropriate demographic!

We all know that stealing is wrong. Stealing a car, handbag, or television is clearly wrong. The ad is clearly trying to equate the stealing we know is wrong with downloading films. They do this because we don’t see the downloading of a film as being wrong in the same way as stealing a television. The reason is because one is tangible property and the other is intellectual property. We don’t see them as the same because they aren’t the same.

With how easy copying has become in the past two decades, the entertainment industry is at a disadvantage in a way that the automobile industry is not. If I go to a car dealer and steal a car, not only do I have something I haven’t paid for, but the dealer no longer has what I’ve taken. If I download a movie for free, I have something that I didn’t pay for, but the movie studio isn’t missing any property. They don’t have the money I should have paid for the movie, but they’re not missing a DVD or a film print. This is how intellectual property differs from tangible property.

I read an interesting comment on a news story about intellectual property theft. It said that we tend to look at theft from the thief’s point of view. They took something that doesn’t belong to them, therefore a theft has occurred. The comment writer suggested that we instead look at theft from the owner’s point of view. In the case of intellectual property, the thief makes a copy, but the rights-holder/owner is not deprived of any property. The writer suggested that unlawful enrichment isn’t what defines theft, but rather the victim being deprived of the property that has been stolen. This doesn’t happen with illegal downloading, and therefore it’s not theft. It’s copyright infringement and still illegal and wrong, but it’s not stealing in the same way as taking a car.

Although it was only a few lines long, the comment was a real eye-opener. It was one of those rare times when someone else crystallizes your thoughts so clearly that surprises you, and leaves you wondering why you didn’t see it so clearly yourself.

In this case, it’s a subtle distinction, and that’s why I think it eluded me. Make no mistake, I’m not claiming that this distinction makes illegal copying okay. It doesn’t. But calling it ‘stealing’ is a strategy on the part of the entertainment industry. It’s also entirely disingenuous and purely manipulative if you follow my line of reasoning.

I wondered to myself whether I was subscribing to a distinction that isn’t really there. Theft is a concept deeply enshrined in the law so I decided to see what the law had to say about theft.

According to the Criminal Code of Canada, Part IX (Offences Against Rights of Property), statute 322, theft is defined in this way:

322. (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

© to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

I’m not a lawyer, nor to I play one on television, but every one of the four subsections references how the rightful owner no longer has the item in question. It’s not just about the unjust enrichment of the taker, but depriving the owner of the item is a requirement as well. I’m the first to admit that my interpretation of the statute may be incorrect. If it is, I hope you’ll enlighten me!

If I am correct, downloading a movie isn’t theft, but copyright infringement … and copyright infringement is not merely a type of theft. They’re entirely different things. Both wrong, but different from each other just as tangible and intellectual property are both property, but different from each other.

There…I fixed it.

I read about the latest Special 301 Report issued by the Office of the United States Trade Representative. Briefly, the report puts Canada on the Priority Watch List, alongside other countries like China and Russia. The priority watch list is for the worst of the worst copyright offenders. But despite this report being issued by a government body, you can bet it’s merely a bullying tactic and the U.S. entertainment industry is behind it. Analysis comparing reality to their claims will show as much.

But they’re missing a blatantly obvious solution to the problem. I wrote to the Office of the United States Trade Representative in hopes that he’ll pass my idea along to the entertainment industry in his country:

Mr. Kirk, United States Trade Representative,

I read with interest that Canada has again made the Special 301 Report watch list as one of the worst of the worst offenders. I’m not entirely surprised given the process involved in generating the report and what information is considered … and what information is not.

You may be making this far more complicated than it needs to be, however. I sympathize with how governmental rules and procedures sometimes makes it difficult to see the forest with all those pesky trees in the way. With this in mind, I come to you with a suggestion.

If Canada is so bad, and piracy so rampant, it sounds as if the U.S entertainment industry isn’t making enough money here to bother with Canada at all. My thought is that you might suggest to the entertainment industry in your country that perhaps the easiest, simplest, and best solution would be to stop trying to sell their wares in Canada. Stop the CDs, movies, TV shows, books … all of it.

If it’s so bad for them, why keep trying when it’s such a headache? Their huge problem would instantly evaporate and everyone would be happy. And don’t worry about us. Although the withdrawal symptoms will be intense, they will fade. We will somehow manage to do without Friends repeats and that dreamy Adam Lambert. Somehow.

Your friend from up north,

Rick.

See? Easy-peasy!

CBC disappointment

I’ve written before about how the CBC, our publicly funded national broadcaster seems entirely unaware of the intellectual properly rights we have in Canada. The CBC’s own Reuse and Permissions FAQ page claims,

Do I need permission to use CBC.ca content?

Yes. Any content (text, photos, interactives, graphs, audio and video) found on CBC.ca can only be reused elsewhere with the permission of CBC.

The fact of the matter is that the Fair Dealing provision in the Canada Copyright Act allows an exception under certain circumstances:

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

(a) the source; and

(b) if given in the source, the name of the

(i) author, in the case of a work,

(ii) performer, in the case of a performer’s performance,

(iii) maker, in the case of a sound recording, or

(iv) broadcaster, in the case of a communication signal.

The subsequent section, 29.2, is a verbatim duplication of 29.1, except ‘news reporting’ replaces ‘criticism.’

There are issues with fair dealing that go beyond this stipulation. I do believe that you’re not free to quote an entire article for the purpose of criticism. The point at which it becomes infringement is not exactly clear, as is with Fair Use in the United States.

Take for example my post named “We are the unimaginative.” I wrote this and quoted two sentences from a CBC article. I did credit the CBC as well as link the source article. No author is credited in the article itself so I couldn’t credit the writer. Did I violate the CBC’s copyright or does my quote fall under Fair Dealing? I believe the latter. Whether my comments are criticism or news reporting, I quoted a short passage and gave the proper attribution.

The CBC does the same thing. An article from Saturday, “Etta James battles Alzheimer’s, superbug: son” includes this paragraph:

“Right now she is very confused,” Donto James said on CNN, adding that she was very combative, too.

Did the CBC contact CNN and wait for permission to use this quote and the others in the same article? I’d bet a large sum against it.

But that’s all old news. I’m writing this because the CBC has cranked it up a notch.

They’ve contracted with iCopyright, of Issaquah, Washington, to allow users of CBC.ca to quickly and easily licence CBC content. Go to any article and you’ll see a ‘Licence’ link above the article. Click it and you’ll be presented with the option to post the article on your site, republish the content in print, in a presentation or on a DVD, print the article yourself or have printed copies sent to you, or e‑mail copies of the article to people you know.

It all seems nice and easy until you investigate the terms. It’s still easy to do, but not to easy to swallow.

For example, if you want to post the article, you have the option of posting a PDF or including the article in a frame within your site. Don’t look for any information on Fair Dealing, however. They charge  $250 a month or $500 if you pay in advance for a year. Printing the article yourself or sending copies by e‑mail is free for up to five copies.

There’s a note at the bottom of the licence page that states, “Please honour copyright! Piracy hurts creators, devalues their works, and puts you and your employer at risk. Learn more.” It should be amended to ask everyone to honour only the part of copyright that requires payment. Fair Dealing is certainly part of the Copyright Act but they make no mention of it.

To help you learn about copyright, you can click the ‘Learn more’ link. You’re whisked off to an iCopyright page that’s heavy on the propaganda and light on details. Even better is a “Know the facts about copyright” link there. It sends you to a site called http://www.askbeforeyouact.com/ that’s based in the United States and it’s full of information and news about U.S. copyright.

How does this relate to the CBC and dealings with them in Canada? It doesn’t. At all.

Thanks for selling us up the river, CBC.

News from my MP regarding Bill C‑61

My Member of Parliament, David McGuinty, replied to my concerns about Bill C‑61. Here’s the good stuff:

In June, the Conservative Government introduced its copyright legislation, Bill C‑61. This is a highly technical bill that requires careful study to ensure it strikes the right balance between consumers and creators. As well, we are concerned with how this bill treats technological protection measures.

We are also concerned with the Government’s failure to properly consult Canadians to ensure that the final bill fosters innovation, fairly compensates creators and treats consumers with respect. We need wide consultation — with consumers, creators and the business community — to ensure that we properly understand all of the impacts of the legislation. Based on the results of these consultations, my Liberal colleagues and I are committed to amending the bill as required.

Even though it’s a form letter and makes it sound like the Liberals are the only ones against the bill, I did appreciate the acknowledgement of my message as well as his having the same basic opinion of C‑61.

Something doesn’t seem right about this, however. Oh, that’s it. I didn’t write my MP about Bill C‑61. How’s that for strange? Thinking back, I wrote him about the Liberal copyright bill, C‑60. I imagine he believes that correspondence means I’m interested in the Conservative bill as well. He’s correct, but his message certainly took me by surprise.

If you’re interested, the full text of his message appears below:

Best weasel impression!

Oh. My. God.

Industry Minister Jim Prentice agreed to be interviewed on the CBC Radio One program, Search Engine. Prentice is the man behind the new copyright reform bill C‑61. That he agreed to be interviewed surprised me, but it got weirder and weirder.

The host was very explicit about how the interview was structured. People sent in scenarios questioning how the bill will affect them in what they do. They received hundreds of responses. Prentice promised 10 minutes of his time so the questions were very concise. For example, the first question was:

My grandfather had a vast collection of rare jazz records. When vinyl became obsolete, he repurchased most of them on CD. Now, CDs are on the way out and I was to transfer the music onto a new iPod I bought him. Some of these CDs have digital locks on them that I can easily bypass. Is that legal, or does my grandfather now have to buy the same music for a third time?

According to the bill, bypassing the DRM in this scenario is certainly illegal. On the other hand, recording the grandfather’s vinyl with the computer and turning those into MP3 files to copy to the iPod would be completely legal. There is no protection with vinyl so no DRM is being bypassed and the copies are for his own personal use, therefore there is no infringement.

Prentice managed to waste three minutes thrashing about like a fish out of water and finally latching on to claiming that very few CDs in Canada are protected so he’d be surprised if the grandfather had any. Dude, listen to the question much? Even after the interviewer refreshed his memory by stating explicitly that the grandfather does indeed have protected CDs, he continued on about how the recording industry is moving away from using DRM. He then went on to say that the record companies aren’t going to hunt down individual infringers so there’s little chance of having to pay statutory damages. So is he trying to say that since the chances of being caught are so low that there really is no reason to worry about breaking the law? The wildebeest defence?

The other answers were no better. He sounded like he was barely familiar with the bill. Just after the 7 minute mark he said he had to leave for a meeting but the host kept talking. Prentice began to talk over him and hung up after having devoted less than 8 minutes of the 10 minutes he promised.

This was the time line:

  • 0:00 — Podcast start
  • 2:48 — Interview starts with first question
  • 6:48 — Second question
  • 8:04 — Third question
  • 10:00 — “I have to go to a meeting”
  • 10:34 — “I have to go to a meeting, bye!” Click [dial tone]

I have to keep reminding myself that Prentice is part of the government representing me and not a slimy used-car salesman. It’s a pathetic performance.


Hat tip to Micheal Geist for posting the podcast link.

Page 1 of 3

Powered by WordPress & Theme by Anders Norén