Richard Pitt

Media Levy 2005-2006

Richard C. Pitt — Sun, 12 Jul 2009 10:08:08 -0700

The 2005-2006 round of the Media Levy proposal by CPCC (Canadian Private Copying Collective) is now out. According to the copy of the Supplement to the Canada Gazette I received (as a former objector) from the Copyright Board (page 4, top) "The tariffs proposed by CPCC for the year 2005 are identical to the tariffs certified by the Copyright Board for the years 2003 and 2004"

I'll be filing my objection before the deadline of June 9, 2004, and you may think about doing the same. Last round we had 100 objectors initially, which winnowed down to about 30 by the time the hearings actually went ahead - mostly due to the fact that many didn't really understand the objection process and how onerous it might be. The comments of the 70 who dropped out of the formal process were still "heard", and I believe many were taken into consideration - the rest were likely "outside of the jurisdiction of the Board" due to being of the nature of rants against the concept of the levy at all.

This year's round promises to be far different from that of the last one. Last time the increases asked for were downright exorbitant, as was the proposed extension of the levy to media normally used for purposes other than audio (camera flash-cards, etc.)

This year I expect that external factors affecting the market as well as new studies and information on the actual effects of "downloading" on music sales will be the focus of efforts by the objectors to roll back the current levy. I don't think we can rest on our laurels and simply accept the status quo. In addition, there are a number of treaties that Canada is or soon will be signatory to that tilt the playing field farther in the direction of Digital Rights Management facilities and laws that will make private copying all but unfeasible. The CPCC needs to be told (and through them the music industry) "DRM or Levy - pick one." If, as seems to be the case, they are picking DRM and enforcement, then they must back off on the levy. Too bad for CPCC.

My Web Log at blog.pacdat.net has a Media Levy section where I'll be posting items as I find them. If you have information you want to share or opinions on what I have to say (or articles you want to post yourself) please visit me there.

richard

Richard's View of Government

Richard C. Pitt — Sun, 12 Jul 2009 09:55:52 -0700

Originally written in 2003

Government's role is to do for the population as a whole those things that it is not in the best interests (or abilities) of the individual to do.

Thus, government is the solution to "the tragedy of the commons" situation. Anything else is window dressing and should be discounted (and discouraged) in my opinion.

Oooohh... so simple!

Maybe you think it is simplistic too - but read on. I've been thinking about this for quite a few years - probably since I started my business career in the mid '70s. Prior to that I was generally immune to thinking about anything beyond my personal view, somewhat in keeping with many who didn't like history or civics in school.

Some Definitions

Pick your poison - from benevolent dictator to elected representative. Multi-level (local, regional, national) or direct representation.; A dictatorship is not a government since it ignores the precept of doing things in the best interests of the individuals governed. The dictator only does things that are in the dictator's interests. Note that in some instances Kings and Queens were in fact dictators, however most learned that they should in fact be "benevolent dictators" and inject altruism into their governing. The truly benevolent dictator though can be determined because they really don't want the job.; The individual must also include the corporation and other legal forms where groups act as one for specific purposes.

Public Works

A tomb for the emperor is not a beneficial public work. Public works should be done to lower the friction involved in the daily lives of the population. Friction can be anything from bumps in the path they must traverse from dwelling to place of work (roads, railways, transportation in general), to creating places for foreigners to land, meet and do business (airports, shipping ports, etc.)

Public works are of necessity larger than any person can accomplish, so are either the purview of corporations or government. If there is the possibility of competition, then government should encourage it and otherwise keep out of the way.

The concept of "... not in the best interests of the individual to do" means that government should only get involved in public works if the economics (amount of capital, cost/benefit ratio, etc.) doesn't favour corporations getting involved in competitive ways. If there is only room for one entity to do something, then government should either be the one or should ensure that the one that does "get the franchise" does not hold the public up for ransom. This for example is why in some countries the government got into the telephone business (along with the postal system to create the P&T) and in others (notably here in North America) the business was a regulated monopoly for many years.

Policing

In the broad spectrum of a population there are some who will turn to gain at the expense of others. They will steal instead of producing. This friction in the system lowers the overall population's productivity but is next to impossible to deal with by the individual if the society is larger than a few people. A specific policing system is the solution to this problem.

Being able to carry on with daily activities without fear for personal safety allows the individual to be more productive and boosts the overall productivity of the population to the benefit of all. If the cost of providing that secure feeling is less than the gain in productivity, then it is in the population's best interests for the security to be provided. This is the basis for having police (and courts and the rest of the justice system)

At some point the cost of providing "infinite" security approaches the amount that the overall population gains by having security compared to not having it. The cost of policing must be balanced against the cost of not having it. One of the costs of not having security is the cost of mitigating crime. Insurance mitigates crime to some extent by spreading the loss across all those who pay insurance.

Today, my insurance costs are going up faster than my taxes (which pay for policing amongst other things) which leads me to think that we are not spending enough on policing.

Insurance

We here in Western Canada are currently (August 2003) going through the worst forest fire season on record. Hundreds of homes have been burned in "interface fires" where forest meets the city. Government (both provincial and federal) has stated that it will provide relief to those affected which in essence is the same as insurance. We all pay into our governments through taxes and when the time comes, government provides the assistance to those affected by circumstances outside the individuals' control.

Many of the homes had specific fire insurance. At the same time, some of the homes were not insured. Some due to specific decision by their owners and some because private insurance would not provide coverage at a reasonable rate due to lack of local fire fighting facilities in general.

Securing the Country's borders

I can't watch the sea-ports in Nova Scotia to keep thugs and potential conquerors out. The people in New Brunswick can't watch the BC Airport. Someone has to extend security of our chosen land from shore to shore and border to border. The central government's role is to protect the population from outsiders when appropriate. Along the way, a national armed forces can provide a pool of people trained in disaster relief and available as an adjunct to the internal security and civil forces in case of exceptional circumstances - fire (Kelowna/Kamloops this year), flood (Quebec last year), earth quake (any time now). Now that we have world commerce and our diplomats are on foreign soil where they are exposed to other countries' less than civilized behavior, the troops must be called upon to protect there too.

Ensuring the population's economic security

This is a difficult one for me. On the one hand I'm in favour of minimal interference by government in commerce and economics because I believe that anything they do acts as a brake on some part of the economy. On the other hand, sometimes I think the economy needs a brake now and then.

Encouraging the population's longevity

This aspect includes many different areas - from protection against outside forces to inspection of food products to an involvement in the health industry at some level.

This article is a work in progress - I may even move it to a topic of its own - richard

The Content Managed Web Site

Richard C. Pitt — Sat, 11 Jul 2009 13:23:21 -0700

By rights this belongs on either the Digital-Rag or on my Blog. Maybe I'll copy it there too - it is a lesson in the evolution of the internet and web sites but it specifically is about my own personal trek, so here is where it starts.

This (richard.pacdat.net) web site is the latest of many sites I've been involved in to move from one of the first "page generation" web production facilities to one of the latest crop of open-source CMS systems. The old system was Frontpage from Microsoft, starting with Frontpage98 and progressing through to Frontpage 2002. Prior to that I did all sites by hand, crafting HTML with a text editor. The evolution of page creation systems progressed quickly. Today we have things like Adobe's DreamWeaver and all manner of others - but when I started looking there really wasn't much to choose from. In fact, one of the first major sites I was involved in was a re-publishing of material originally set up for a paper catalogue and we had to write software for it from scratch to make it viable.

This one site created about 5000 new pages of content, all interlinked and with menus, etc., each week - real estate listings. The software we put together for this one purpose took in the publisher's file and put out all the new pages in about 2 minutes elapsed time - and this was on hardware that was vintage 1994 - Pentium 90s and such. But this was a "one-off" project - not useable for other sites - but a portent of things to come it turned out. It created a whole site in 2 minutes once per week from a primitive database. Today's CMS systems do individual pages on demand from a SQL database.

I wanted something that would keep the menus straight as pages were added manually, much as the automated system re-built the menus each week. I'd hand-tweeked the old Digital Rag menus each month and was not looking forward to having to teach others how to do them. A couple of years went by where I was too busy with being MIS manager and doing marketing for others. The next time I looked the crop had grown a bit - but most still didn't do what I wanted. Then Microsoft purchased a product from a small company, Vermeer, called FrontPage.

I chose Frontpage because at the time I could not find anything that came even close to the utility it had for allowing otherwise untrained HTML editors (webmasters) to edit and update a site once it was initially laid out. All the hosting I've done of these sites has been on Unix/Linux systems - where the orginal web grew up, and Microsoft had created a kit that allowed Apache to do what was necessary on the server to deal with things like authentication of external editors (without having to add them to the underlying system's password system) and various extra facilities such as indexing and search update without creating special scripts and such. Microsoft's own server, IIS, was only just starting to be created at that time.

You see, even back in the late '90s I was telling people that just having a "static" web site - really nothing more than an online brochure - was not going to be enough to attract and keep the attention of the potential customers and the various methods they would use to find the sites. Search engines were just starting to crawl the web, indexing it for search. The basic premise was that if a site remained the same, then the engine did not come back as frequently. If it had changed each time the crawler came, then the crawler came more often.

Allowing and encouraging people to add content consistently to their site was the intention. By building a "magazine" style of site - similar to my first site, the Digital Rag at Wimsey, the episodic nature of many businesses and organizations built up a huge following and history of information and comment.

This was before the advent of social sites where all and sundry are encouraged to come to the site and contribute.

Today we go much farther...

I guess the first question you might ask is "why move away from Frontpage?" - the second being "why not stay with Microsoft completely?"

Why move from Frontpage?

The first reason is that Microsoft in their infinte wisdom have stopped supporting Frontpage extensions on Unix/Linux systems. I've been able to get them running on Apache 2.0 - but the Apache 2.2 version has some features I want for other things - and Frontpage is problematic on it.

The second reason is that Frontpage in general is just not up to the standards being set by newer content management systems.

Why not stick with Microsoft?

Microsoft has all manner of CMS functionality in their latest offerings - but I just can't justify their cost of ownership. I've written about this in other forums and lots of others have too. Suffice it to say that to me this is simply not an option.

What's out there other than Microsoft?

The answer is "Lots" - both proprietary and open source. I spent quite a bit of time trying various options before I settled on one. Everything from Wordpress to Joomla to Drupal and lots of proprietary offerings that were similar. Some of the proprietary offerings appear to be far more capable than anything else I've seen - but they're also hundreds of thousands to license and ongoing costs are in the tens of thousands/month.

Many of these products I first learned about through my reading of various web and internet security forums and postings - they were the subject of warnings and articles on hackings, etc. Some of them appeared literally daily in some of my reading. Contrast this with Frontpage's history which has only to my knowledge had one major flaw - one which my implementations simply did not come close to as it was related to remotely setting up new sites - which I did by hand instead. I hate to say it, but I was spoiled by Microsoft's security in this product (something I can't say about many of their others) I had to find something that was as easy to maintain, otherwise I'd end up annoying both myself and my customers by having to do (and get paid for) far more maintenance than previously.

I've had all manner of customers and their members tell me that XYZ is better than "what we're running" - or ask for features that are specific to something else and ask why "we" don't have it. The bottom line for most of the answers came down to one of long-term goals and maintenance costs. I've shown over and over that given a long-term set of goals and outlook, the most secure/maintenance free system that has a reasonable following and ongoing support and development is the best choice. Maintenance costs are the killer - either because they cost so much compared to the expected return on investment of the project, or because they're not done and something happens to the site that ends up costing more; bad publicity, extra costs for hosting due to hackers stealing bandwidth, etc.

In the long run features that are a "must" will be added to the successful packages - and this is getting easier as more and more of them start to use standardized tools and add-ons such as layout managers and editors. The "plugin" concept is quickly growing and maturing such that many of them are cross-platform capable now, and the trend is accelerating. It is the underlying core components along with the talent and drive of the developers that makes the system "better" or "poorer" than another similar one. Choose this core wisely and reap the benefits for a long time.

So what did you choose and why?

The new system I use is the open source package called Geeklog - or in this case a "fork" of the project called glFusion. A "Fork" in open source terms is where someone decides that the original code is a good starting point for going off in a direction that the originators either don't want to go, or can't for some reason. In this case glFusion is only one of a couple of such forks of Geeklog - another being Nextide's nexContent.

Geeklog endeared itself to me for several reasons, not the least of which is that it is written by (and largely for) a web security firm for their own internal use. If they can't write secure code, then nobody can. Security to me means that the sites I help create are (far) less likely to suffer from hacking and cracking - activities unwanted by the site owners that can include such things as putting up nasty viruses, changing page contents to confuse or enrage viewers, or using the underlying server for other purposes such as sending out spam, distributing porn, communicating with other hackers, etc. - all of which I've seen and had to deal with in other contexts at one time or another for various reasons.

It also means that there is far less maintenance necessary for any site - so I and my staff can look after far more such sites without fear of losing control or missing updates. Contrast this with some other CMS system that have "critical" updates almost daily - and stories of hackings and crackings almost as frequently.

One of the sites I first used Geeklog on is the www.hancockwildlife.org site. The expectation and design goal was to have viewers of the bald eagle nest cameras they're famous for create an ever increasing amount of content about the foundation's major subjects. This would serve both to keep the cost of creation of the site down, and provide lots of new content to keep the search engines coming back and increasing the exposure - a synergistic circle that has more than proven true. Today the site gets millions of page-views per month, has a viewership of close to a half million/month and a dedicated core of members in the thousands. Together with the discussion forum (which runs on phpBB but will soon be running on glFusion's own forum module) this site is one of the most active nature sites on the planet - and yet it has a budget measured in just $thousands/year rather than $millions as some of the others have. The site has tens of thousands of video and image posts, comments, etc. and hundreds of articles and news items; all added daily from all over the planet.

Another site that I've just started moving from Frontpage to glFusion is the www.centa.com site. The original intent of this site was to build a world-wide following and customer base for CEN-TA's cross-border tax, visa and immigration services. The Frontpage version has undergone several theme and layout changes (done by staff there with little web knowledge) since it was created in 1999, and has had well in excess of 5000 pages of question/answer postings added by David Ingram, the owner, and others in his organization. CEN-TA rates in the top 10 for many of its chosen search terms, typically number 1 in most jurisdictions. This without resorting to tricks or techniques that the search engines might at some point discount.

The key to these sites has been the ability of the staff, principles, members and even the general public to add relevant content - content which keeps the site fresh and the search engines happy; all because they use a content management system.

Of course setting up such a system requires a bit of thought. Just because staff can change a page does not mean they should. Lots of times the system has been set such that only content in a small portion of the overall site can be changed without going through extra steps and hands. The same thing goes for basic look/feel decisions - colors, menus, styles, etc.

The major thing that sets a CMS system apart from other web sites is that adding content to it does not involve copying/"ftp-ing" files from the creator's computer to the host system. A built-in editor allows content to be created interactively or at worst cut/pasted from local files. This means that content creators don't need the latest version of DreamWeaver or other web creation tools. They simply need a web browser. It also means that the underlying server does not have to have new (or worse, shared) accounts added to it, further adding to security) This is in direct contrast to Frontpage and other systems where a client program on the creator's computer does the design work, then either the whole web site or at least the changed pages are uploaded to the host computer. In the case of Frontpage for example it might take several minutes to add a new page to a site that was fairly large (the CEN-TA site being a great example - took 1/2 hour at one point before I split the site up) The software had to go through and adjust the page layout for each and every page that might reference the new one - rebuilding menus and re-laying pages because in the end, all the pages are "static" - no content created "on the fly" when they are viewed.

In contrast, adding a new page via the CMS system is done in seconds, no matter how many other pages there are already on the site. All the pages of the site are created from a database at the time a viewer views them. This means that things like links and menus are created in real time - from the latest information available. Page content itself can be pushed into the database either manually or automatically, and layout can be tailored to the viewer's browser abilities including such things as the iPhone and other smaller, portable viewers. I take advantage of this with one site where items from an e-mail list are also added to the page database. Many other sites do similar things.

The Downside - sort of

The one downside to using a real CMS system (as opposed to a page maintenance system like Frontpage) is that the underlying server hardware has to be MUCH faster.

Contrast one site initially put together with Frontpage - www.vanishingtattoo.com - with the Geeklog site www.hancockwildlife.org

VanishingTattoo.com gets over a million page views/day - about 5-6 Mbytes/second and runs quite nicely on a dual Xeon 2.6GHz with 2 Gigs of RAM along with a number of other sites and facilities. Only twice to my knowledge has the server ever been stressed, and both times a bit of tuning allowed the system to deal with peaks well in excess of 10 times normal - about 40-50Mbytes/second.

The Wildlife.org site was hosted on identical hardware (in the same facility, on the same network) initially, along with the major supporter's own web site and a small number of others of no importance or traffic load. At the beginning of this nesting season the site started to get busy at just 200,000 page views/day, pushing similar bandwidth. At 300,000 pages/day and 10Mbytes/second the machine all but stopped. This site is now hosted on a machine that is about 10 times larger - 8 core 64 bit Xeon with 8 Gigs of RAM - which should do for the next while.

The point is that creating each page "on the fly" causes a bottleneck. The good thing is that the hardware today is so much faster than what was available as little as a couple of years ago (when these sites were originally set up), and at little or no premium, that this should not be an issue for most sites.

The other good thing is that the art of clustering and multiple processor based web sites has also matured to the point where growing a successful site to handle literally millions of members and tens of millions of page-views per hour is well understood.

All in all, the move from individual page generation to content managed systems is a win all around. Less hassles and software on the (untrained) creators' systems - only a browser needed in most cases - and far more flexibility.

I'm happy - and so are my customers.

The 2009 Desktop and Environment

Richard C. Pitt — Sat, 11 Jul 2009 11:34:22 -0700

Today - April 11, 2010 - I'm sitting in front of 4 wide monitors of various sizes (gives me more screen than the 5 smaller ones I had) hooked to an AMD quad-core Phenom system with 8 Gigs of RAM and well in excess of 2 Terabytes of local disk. Networked to the system are several other systems from older 2GHz Intel machines to Core-2 systems with another 20+ Terabytes of disk. All run various flavours of Linux - from an older Red Hat 9 system to the latest Fedora Core 12 (FC-12 on the main desktop at the moment)

I believe in the "paperless" office - and believe that the only way to achieve this is if the computer screen real estate is at least as large as the physical desk real estate. Otherwise you find yourself printing out things just so you can refer to them while working on your computer desktop. The one and only printer in the house (an old Lexmark) is in another room and seldom sees use. A box of paper lasts me a couple of years.

On this system I have 3 dual-head video cards and room for a 4th. I have one spare port (5 used out of the 6 available at the moment) and will likely not use it until I put the 4th card in - at which time I'd go to a 4-wide by 2 high setup with all identical monitors. I don't expect to do this for some time - the current setup works just fine.

I do have a couple of laptops - one of which (Compaq Presario) still runs the Windows XP that came with it, although it also has Cygwin (open source software that runs on Windows) on it. The other (an older Toshiba) I just updated to FC-11. Aside from customer machines that find their way to my hardware table, there are no other Windows machines in the house. I do however have VMware with various flavours of Windows available as virtual machines. These are mostly for diagnosing friend and customer problems and for the odd time when Open Office just can't make sense of a Microsoft Office document of some kind.

I still make use of one of the old IBM keyboards. I have a couple of the Lexmark ones around too - but I'll have to start looking for a replacement at some point if another accident with wine happens :)

Levy Links

Richard C. Pitt — Sat, 11 Jul 2009 10:33:07 -0700

Levy Links

ASAP CD Solutions - Andrea Kopplhuber

Canadian Government Copyright Board web site

CPCC (the bad guys)

Sycorp web site's special levy section

www.sycorp.com Petition Page

Canadian Coalition for Fair Digital Access (some of the good guys)

Canadian Taxpayers Federation (not directly related, but a good place to go)

http://janisian.com/article-internet_debacle.html A great article by an artist caught in the middle of the whole problem

http://janisian.com/article-fallout.html a follow up to the one above, equally as good and informing

And some other related Links

http://lcamtuf.coredump.cx/juggling_with_packets.txt - you'll love this one - it shows how to store information in the "latency" inherent in the Internet and its servers and processes. I made the similar observation that large amounts of data can be stored in a beam of microwave energy bounced from the moon, and that this could lead CPCC to levy on microwave ovens - since they can be made to do this.

http://www.interesting-people.org/archives/interesting-people/200304/msg00129.html very readable link by a musician and Tim O'Reilly (of the book company)

http://www.wipo.org/eng/diplconf/distrib/94dc.htm WIPO Treaty that started all this

http://www.law.cornell.edu/treaties/berne/overview.html The Berne Convention it (WIPO) is based upon

http://strategis.ic.gc.ca/SSG/rp01100e.html The Canadian Copyright Reform web site

	http://strategis.ic.gc.ca/pics/rp/framework.pdf Framework for Copyright reform document (PDF)
	http://strategis.ic.gc.ca/pics/rp/digital.pdf Consultation Document on Digital Copyright (PDF)

Copyright in a Frictionless World by Brendan Scott An excellent dissertation on the origins of copyright opens this eye-opening paper.

http://www.smh.com.au/articles/2003/12/30/1072546532286.html Paper on the (minimal) effects of copying on CD sales.

Technology Related to Storage

http://www.research.ibm.com/resources/news/20020611_millipede.shtml IBM's breakthrough storage technology - using dimples like punch cards but trillions of times smaller

http://sci.newsfactor.com/perl/story/18172.html more on Millipede

Information and Privacy Commissioner of Ontario called "Privacy and Digital Rights
Management (DRM): An Oxymoron?" http://www.ipc.on.ca/english/pubpres/papers/drm.pdf

CRTC Ruling - 2003 - December 12 - Media Levy

Richard C. Pitt — Sat, 11 Jul 2009 10:29:09 -0700

December 12, 2003 - Finally! The ruling - and I have to say it is better than I expected. The old levy is continued unchanged for this 2 years (ending Dec. 31, 2004) but adds a levy on "digital audio recorders" (aka MP3 players) of from $2 to $25 per unit depending on how much storage they have when sold.

	http://www.cb-cda.gc.ca/decisions/c12122003-b.pdf is the full text of the ruling
	http://canadagazette.gc.ca/partI/2003/20031213/html/suppl-e.html is the Gazette version of the ruling
	http://www.cb-cda.gc.ca/news/c20032004nr-e.html is the press release
	http://www.cb-cda.gc.ca/news/c20032004fs-e.html is the Board's "Fact Sheet"
	http://www.cb-cda.gc.ca/news/c20032004list-e.html is the list of participants (including yours truly)

Discussion on the objectors' list and http://www.digital-copyright.ca (another list I subscribe to) currently revolves around the fact that in this ruling the Board has specifically singled out DVD-R/RWs as not being eligible for use for private copying since it is a blank audio medium but the Board has not imposed a levy on it. This ruling brings up all sorts of potential "gotchas" for the future, including things like the Board ruling (it hasn't yet) that standard hard drives (like the ones in your PC) are blank audio media but not leviable and therefore not eligible for use for private copying - i.e. copying music to them would be against the law.

This will take a bit of time to digest the ramifications of. In the mean time we're also wondering when the next round (for the 2005-2006 timeframe) is going to get going since this one is almost a year late and there is only a year left to get the next levy in place.

November 28, 2003 an excellent interview regarding copyright and creator's compensation with some points relevant to the item below. It appears that maybe Canada has the right idea with the Media Levy and the potential to "levy" ISPs in some manner. I'll explore this and get back to you. Jim Griffin was interviewed by Mikael Pawlo

November 27, 2003 Music group (in Canada) aims to charge Internet users

"Canada's songwriters will ask the Supreme Court of Canada next week to force Internet service providers to pay them royalties for the millions of digital music files downloaded each year by Canadians."

The discussion continues. Yesterday (July 7, 2003) two of the talk-show hosts on my favourite talk radio (CKNW.COM) spent time discussing both the RIAA's going after individuals with large shared music directories and the Blank Media Levy. I spoke to Bill Good and followed up by e-mail. Some of the people who phoned in had completely wrong information about the levy.

February 2, 2003 - CRTC Hearing

Richard C. Pitt — Sat, 11 Jul 2009 10:28:12 -0700

Copyright Board Hearing Room 56 Sparks St., Ottawa	It is Sunday, February 2, 2003. I have finished my personal testimony before the Board in Ottawa on Friday, January 31, 2003. The statement of case document and my PowerPoint presentation with notes, (and original ppt file) both submitted as formal evidence to the board, are presented here. I'll also post versions of the other evidentiary items I have sent to the board as soon as I can.
I have to say that the presentation went well, although was a bit rushed for time. I was scheduled to start at 2PM on the Friday afternoon but due to continued questioning of the previous witness, didn't get started until about 2:40 or so.	Tom Trottier

From comments by others in the hearing, there are points that I made that are both new and "interesting" and at least one (the comparison of levy amounts with other Act mandated tariffs such as the $100/year for a community broadcast license) that raised the chair's eyebrows and elicited a "that's interesting" comment.

Social Contracts and Government Sell-outs

Richard C. Pitt — Sat, 11 Jul 2009 10:13:20 -0700

This article was inspired by the Intellectual Property section of the proposed Free Trade Area of the Americas (FTAA) Treaty.

In my readings recently there has been quite a bit about the fight between "rights holders" and their potential customers, including "the general public." The problem is the "disruptive technologies" used today to store, transmit and reproduce creative works such as text, music, photos, etc.

The market for "copies" has changed very quickly. The business that made its money by the fact that it controlled a copying facility (first a record pressing plant and now a CD duplication center) and distribution facility (wholesale CD distribution and/or retail outlets) now finds that the distribution facility is being bypassed (by the Internet) and the copying facility is included on virtually every PC sold today and is no longer unique.

What in fact has happened from an economic standpoint is that the public knows from firsthand experience the cost of production of a copy of a CD so they are "pushing back" at the publisher's prices by going around the old system and using the new one; they're making "private copies" in the terms of the Canadian Copyright Act. In other times the result would be a lowering of prices and a concentration on the benefits of purchasing a "real" copy (the liner notes, production quality, longevity of the pressed CD vs. the recorded one, etc.) At least some of this is happening - the prices for many records in large stores have come down by 30%+ recently.

Unfortunately for the general public and the cause of all the hoopla is that today the publishers have another potential way of enforcing their monopoly on copying and distribution - Digital Rights Management (DRM). The question is, will the use of DRM be a good thing or a bad thing in the long run? Of course the answer will depend upon whether you are a creator, a publisher, or a member of the general public.

When a rich sector of the business world is threatened with major problems, the first thing they seem to do is ask the governments of the day to help them stem the tide and keep them from "putting many people out of work", etc. The Digital Millennium Copyright Act in the US, its brethren in the European Union and now the FTAA are the result of intense lobbying by businesses that have been or think they will be affected by "private copying". So in fact are the changes to the Canadian Copyright Act instituting the Blank Media Levy.

King Canute couldn't turn back the tide and governments should understand that they can't either - and that in fact it is not in the best interests of the governed (i.e., us, the people who elect them) for them to try either. Unfortunately that doesn't stop them from trying. The balance seems to be swinging (back) towards the publishers - with the potential that a P2P (peer to peer) music copier might be put in jail despite the fact that the Canadian law in fact makes the creation of the copy legal and compensated for by the Blank Media Levy. The P2P sender (the person who puts their music into a shared folder for others to copy) is not specifically exempted from prosecution by the current Copyright Act but a case can be made that such sharing is the same as lending a copy; it just happens far faster than dealing with a physical copy. The point is that the FTAA would trump the Canadian law and make both lender and copier liable.

Somewhere we are missing the fact that there is a both an economic solution and a social impact that governments of the past have resolved.

The economic solution is already happening. Musicians are starting to self-publish (those who are not locked into long-term and onerous contracts with big publishers) and publishers are lowering the retail price of their wares. The musicians who are self-publishing are finding that there is a market for quantities of everything they play! This in contrast to the limited amount that the traditional publishers dribbled to the market to keep the prices up.

It appears that the music public will in fact purchase - at a fair price, and the creators can in fact make a living. Given these facts, there is no reason for government to step into the equation any more than it already has - by the fact that the Copyright Act exists.

A brief look at Copyright's Past

Somewhere back in the annals of time (see References for a pictorial list of the evolution), a policy was adopted by a government (1710 - the Statute of Anne) that those who create an expression of art or culture or creativity should be protected from those who would take that expression (be it a song, a book, a drawing or later a movie or computer program) and represent it for their own and copy it (and sell it) for gain. In return for this "Copy Right", the rest of the population was given compensation in the form of a guarantee that this right was not "forever" (was initially 14 years with potential for extension by another 14 years) and that regardless of this overall Copyright, the public could comment on (fair dealing) and participate in the subsequent re-sale of a copy if they initially purchased one (first sale doctrine.)

That policy seems to have been deemed a "good thing" by subsequent governments and has been adopted in some form or other by all. The social contract, now enshrined in laws of the land, struck a balance between the right of a creator to benefit from their creation and the benefits to the general population of wider distribution of the works because of this.

At that time, creating a copy was not easy. Large-scale printing and publishing firms didn't exist and distribution was by horse-drawn wagon. Special businesses called publishing houses did most of the heavy lifting and paid the original creators a royalty.

Today's Digital Environment

Today, we have digital reproduction means on most computers that rival the abilities of facilities costing millions of dollars in decades past. This has the publishers up in arms over the potential (and in some cases real) loss of the need for their business.

Today we also have the means for a Copyright holder (or publisher) to prohibit fair dealing (abstraction of a portion of a work in order to critique it or comment on it or even aid yourself or others in deciding to purchase a copy) view the work (read a book or article) after a particular period, or even re-sell the legally purchased copy of the work.

In my mind, putting a work out in such a fashion is not "publishing" in the sense that the Copyright Act of Canada defines it or the Parliament of Canada intended it. It is more akin to disseminating a trade secret.

2.2 (1) For the purposes of this Act, "publication" means
(a) in relation to works,
(i) making copies of a work available to the public,
(ii) the construction of an architectural work, and
(iii) the incorporation of an artistic work into an architectural work, and
(b) in relation to sound recordings, making copies of a sound recording available to the public,
but does not include
(c) the performance in public, or the communication to the public by telecommunication, of a literary, dramatic, musical or artistic work or a sound recording, or
(d) the exhibition in public of an artistic work.

Hmmm... seems to me that a work with digital rights management attached to it is not "made available to the public" - it is made available to those who accede to the management infrastructure and any other agreements the artist or their agents (in this case you can't call them publishers) have tied to the work.

During my (ongoing) participation in the Blank Media Levy, I asked if there was any license attached to the sale of a music CD; whether there were any restrictions placed (other than in the Copyright law) on what could be done with that CD once it had been purchased. The answer was no, there was no other license. This means to me that the work had been published since the rights were solely those granted by the Copyright Act with no changes.

If "publishing" (in the context of when the copyright act takes effect for a work) were taken (by the courts for instance) to be defined only as that done without any rights management or extra contractual ties, then all works not so published (with DRM) would then become trade secrets (or something to that effect) and would lose (or never gain) the protection of the government via the Copyright act and have to go after civil damages for individual transgressors.

The consequences to the "rights holders" might be interesting. One consequence would be that they'd have to do their own enforcing instead of getting the government to help them.

This in fact might be the exact balancing necessary for the public's acceptance of DRM. "Restrict the public's rights to your work and you lose the public's protection."

I'm interested in your thoughts as this is an ongoing debate in many circles. You can of course contact me at richard@pacdat.net

References:

	http://bill.verity-networks.com/timeline/t_frame.html A graphical representation with links of the evolution of copyright law - must read!
	http://www.opendemocracy.net/debates/debate.jsp?debateId=40&id=8 A discussion of copyright in light of the changes proposed and being put into effect today - us vs. them - excellent reading
	http://www.copyrighthistory.com/ - site devoted to the history of copyright - a copy of the Statute of Anne may be seen there.
	http://law.richmond.edu/jolt/v1i1/hardy.html#para21 There may be some hope - at least in the US. This deals with what is called Copyright Preemption - where one law "trumps" another - in this case the US Federal law trumping a State law.

Software Patents and Freedom of Speech

Richard C. Pitt — Sat, 11 Jul 2009 10:11:16 -0700

I suppose it may seem a bit of a stretch to include the concept of software patents in with a discussion of digital rights management and copyright that was originally spawned due to discussion of the Blank Media Levy, but it actually hangs together for a number of reasons:

	Patents are a legislative tool to foster technological change and growth - they do this by encouraging innovators to create new things by making it possible to make money from innovation through licensing of the patent to competitors.
	Copyright is a legislative tool to foster publication of creative works by protecting the originator of the works' rights to be the only one to make copies of it or allow copies of it to be made (by publishers for example.)
	In my (and many of my peers') opinion, software is the result of a creative process, not an innovative one.

Because software is the result of a creative process, it should be covered under copyright, not patent. Many legislative bodies either have already or are in the process of, making software patents possible.

I've signed the petition at:
petition.eurolinux.org/signatures.html

Please read it and decide for yourself

My writing this section was spurred today by an article in Slashdot pointing to an older article by Phil Salin written in July, 1991 that puts this better than any I've seen to date.

The article got me to thinking about the differences and similarities between copyright and patent from the point of view of the creator, and the fact that the size of the "owner" of copyright and patent actually is what makes these legislative tools realistic or not.

In very broad terms, copyright works best for individuals and patent for large corporations.

Let's look at this in more detail:

Copyright comes into existence as soon as a work is "published" the first time.

Patent must be applied for and requires (at the least) the aid of an expert in patents in the creation of the documentation (claims etc.) as well as the adjudication of bureaucrats as to whether the patent being applied for is innovative and unique.

From these two points we derive the fact that Copyright is inexpensive and Patent is expensive; Copyright is a given and Patent you have to work to get.

"I'm sorry Mr. Heinlein, your story 'Stranger in a Strange Land' is just too similar to Mr. Well's 'The Sleeper Awakes' in its use of the concept of a person becoming wealthy through compound interest over long periods. You don't qualify for Copyright on this book because of it. You of course will still have to pay your lawyer for drafting your application and us for processing it, have a good day."

As a software creator (mostly in my past, but I still succumb to the temptation every now and then ;) I know for a fact that the practicality of either myself or most of the companies I've ever worked for doing a patent search on the possibility that there exists a patent on some aspect of the various programs we've created over the years is non-existent. In fact, I'm absolutely positive that software I've been responsible for infringes on one or more patents!

The fact is, the patents I or my programmers might have infringed should never have been granted in the first place precisely because I or my programmers could and did re-create the patented code with little or no significant effort - thereby invalidating the concept that the patent was the result of "significant effort".

On the other hand, there are probably lots of times when I or we have created something that the Patent office in its infinite wisdom might have deemed to be patentable, both software and "business practice" categories. For example, our company, Wimsey, was the first to send our invoices exclusively by e-mail to our Internet customers (we were selling e-mail addresses so knew that our customers had one.)

We can also take credit for some of the concept of using the DNS system for spam blocking (RBL.)

The problem is, being very busy creating and fixing the world's brand new Internet facilities, we didn't (couldn't) take the time and didn't have the money to pursue our "rights" and get patents on these concepts. I expect that even if we had had the time and money, we wouldn't have done so anyway since the solutions to the problems we saw were "obvious" to us.

On the other hand, I owe my abilities to program at all to the fact that I have had access to others' works and have the right under copyright law to create "derivative works" using the concepts and taking them in different directions from those of the original author. I just can't copy a piece of code character for character for long stretches (tens or hundreds of lines) because that would be copyright violation!

On the other hand, I can rewrite the code, using different variable names and comments, yet achieving the same end. In literature this is done all the time and gave rise to such examples as the Harlequin Romance books.

OK- but what about code based on unique algorithms?

XOR cursor, Compression, Encryption, Indexing, etc.

Here's a thought. If an algorithm must be expressed in assembler (human readable machine language for a particular computer architecture) in order to accomplish its claims, then maybe it should be patentable (maybe).

The means a couple of things:

	A binary search through compiled code looking for an exact match for the patented code will find it (given an expression for a particular computer architecture.) Sample code must then be published in digital form for computer software developers to use in searching, making the patent search as easy as a copyright search is.
	Patented code would be machine architecture specific
	Patents would be much harder to get but much easier to deal with
	Patents on hardware expressions of such algorithms would be more likely since obviously speed (or reliability) would be of the essence in most cases and only with special hardware would the speed be optimized best. Things like ASICs and other specialty chips make far more sense to patent than just the underlying algorithms.

And what about "Business Processes"?

"One click" purchase, international purchase via network with multiple currency conversion, etc.

At the point where it became practical to do international e-commerce amongst strangers (the general public), the Internet industry consisted of literally a world full of software geniuses with background in all types of commercial products and services. To them, the process and concepts of applying their background to this now ubiquitous and wonderful medium were "obvious". They'd been doing such things in private networks for years - admittedly mostly between related companies, but the same things none the less. For one company, not even the first, just the first with a patent lawyer at hand, to claim that all the rest now owe them a royalty for such obvious concepts is "patently" ridiculous.

And if Software Patents are upheld, then what?

Well, if government caves in to big business (and I think I've shown that only big business will gain in the case of software patents) then we should lobby for a change in the term of the patent from the typical 20 years to something like 3 to 5 years - roughly the generational life of computer systems today.

We now get into "Richard's view of the role of government" and how we, the general population, must constantly remind them (governments and our representatives) of the reason we put up with them.

Government's role is to do for the population as a whole those things that it is not in the best interests (or abilities) of the individual to do.

Thus, government is the solution to "the tragedy of the commons" situation. Anything else is window dressing and should be discounted (and discouraged) in my opinion.

So the governments have to figure out whether they are working for big business or the population. Big business can afford to purchase lobbyists. Small business drives the economy, and the population is the final pocket out of which all government funding ultimately comes and to which they have to answer each few years. I wonder which way things will go.

See my WebLog at blog.pacdat.net for more writings on this topic.

richard

DRM - Who is the "Criminal" Anyway?

Richard C. Pitt — Sat, 11 Jul 2009 10:10:10 -0700

Originally written in 2003

In the light of the Canadian Copyright Act (the Act), those who copy music for their own personal use (i.e. private copiers) are not criminals. It doesn't matter what the source of the material copied: Internet, radio, TV, borrowed CDs, moldy-oldy vinyl, 8-track, cassette or whatever. The Blank Audio Media Levy compensates for this copying so there is no criminal.

The Act also specifies that there are "broadcasters" who have to pay royalties and that otherwise, the copyright holder controls who can access their works.

Whether those who have purchased (or "private copied") a copy can offer their copy for copying via the Internet is a question the courts have not yet ruled on as far as I know. Are these P2P (peer to peer) "offers" publishing, broadcasting, or just a case of rapid loaning (since I can loan another individual my copy so they can make their own copy?) How is P2P different from pirating where an individual or company makes many copies of the original and offers them for sale, sometimes complete with liner notes, cover art and imprint on the CD?

What we do all seem to agree is that the pirate is a criminal. The pirate copies wholesale for a profit. The pirate is in it for the money.

Question is, is the P2P sharer in it for the money?

Nope - not that I can see. There are no P2P systems that reward the sharer in money as far as I know.

Are they in it for notches on their virtual belt? Are they rebelling against something? Or are they being altruistic?

The answer is... Yes.

The P2P sharer is doing all of the above; at least some portion of them is doing one or the other of the above. The question is, which is the dominant activity and what can (or should) be done about it?

Some of the problem is social - the guys who want to "notch" their way to stardom by hosting the most MP3s are just the latest round of anti-social phenomenon. They can't possibly listen to everything they have but instead gain some sort of notoriety from their "conquest".

Some of the problem is economic. The general population is now aware of the cost of duplication of a CD. The market that publishing works in is now different from what it was 25 years ago when duplication of music was hard, expensive and imperfect.

Some of the problem is political. It's political in the broad sense of the word, not partisan political. The P2P sharer makes a statement against the "system" by helping to change it. The problem I see is that the changes are not necessarily for the better. The recent passing of the DMCA and more recently the passing in the EU of new copyright legislation (see guardian.co.uk for an article on this) and the threat of the Free Trade Area for the Americas (FTAA) treaty (see my rant) have pushed the rights of the creator to the point where I expect a real backlash from the purchasing public similar to that suffered by software publishers back in the days of distribution on floppy disk. Back then (not all that long ago, but many have obviously forgotten) the publishers started doing all sorts of things to stop people from being able to copy the floppy that software came on. Laser drilled holes, special software, special disk formats, and all sorts of things meant that Joe Average couldn't make a backup copy of the software he'd purchased and had to beg if the original got destroyed.

Joe Average will rebel even more - just watch. Making him criminal won't work, it will only bring down the publishers faster.

richard