Death of an Internet Freedom Fighter

“We are heartbroken to share the news that Bassel Khartabil was executed by the Syrian government some time after his disappearance in October 2015 in Damascus, Syria.

“Bassel Khartabil, also known as Bassel Safadi, was born in Damascus, Syria on May 22, 1981. He grew up to pursue an education and career in computer engineering. He was the co-founder of the collaborative research company Aiki Lab, and the CTO of the publisher Al-Aous. He served as the first project lead and public affiliate for Creative Commons Syria, and contributed to numerous Internet projects, such as Mozilla Firefox and Wikipedia.

“On March 15, 2012, Bassel Khartabil was arrested in the Mazzeh district of Damascus. For more than three years he was detained by the Syrian government at Adra Prison in Damascus. On October 3, 2015, Bassel was removed from his prison cell, and was sentenced to death by a Military Tribunal. We know now for a fact that Bassel Khartabil was executed by the Syrian government some time in October 2015, and we are demanding to know the exact date he was tried and then executed. No information at all was provided to his family until July 2017. The details of his sentencing and execution, and the whereabouts of his remains, are unknown at this time.

“Bassel Khartabil is survived by his wife, Noura Ghazi Safadi, as well as his mother and father.

The Free Bassel Campaign: STATEMENT ON THE DEATH OF BASSEL KHARTABIL

Creative Commons Bassel Khartabil Memorial Fund

“At the request of Bassel’s family, Creative Commons is announcing today that it has established the Bassel Khartabil Memorial Fund to support projects in the spirit of Bassel’s work. Creative Commons is accepting donations, and has seeded the fund with $10,000. Bassel was our friend and colleague, and CC invites the public to celebrate Bassel’s legacy and support the continuation of his powerful work and open values in a global community.

Contributions to the fund will go towards projects, programs, and grants to support individuals advancing collaboration, community building, and leadership development in the open communities of the Arab world. The fund will also support the digital preservation, sharing, and remix of creative works and historical artifacts. All of these projects are deeply intertwined with CC’s core mission and values, and those of other communities to which Bassel contributed.

Visit the Bassel Khartabil Memorial Fund page for more on how to get involved. Learn more about Bassel and his work at Wikipedia, FreeBassel.org, EFF, BBC, CNN, and Al Jazeera.”

— Announcing the Bassel Khartabil Memorial Fund

Here in the “free world,” extraordinary efforts to silence and shut down free software and free culture by large corporations are ongoing.  If software freedom was the unquestioned norm I have to wonder: would Bassel even have been arrested?

Today the EFF released these letters Bassel wrote from jail before he disappeared.

What an extraordinary young man.  My heart goes out to his family.

“Around the world, activists and advocates seek the sharing of culture, and open knowledge.

Creative Commons, and the global commons of art, history, and knowledge, are stronger because of Bassel’s contributions, and our community is better because of his work and his friendship.  His death is a terrible reminder of what many individuals and families risk in order to make a better society.”

— Creative Commons Statement on the death of CC friend and colleague Bassel Khartabil


Image Credit: Bassel Safadi by Joi Ito is released under a Creative Commons Attribution License

Happy Public Domain Day!

Happy New Year from the Public Domain

In the beginning, everything was in the Public Domain. But that all changed when the English Queen Anne put an end to public ownership of our shared culture by passing the first Copyright Law in 1710. The idea was that this would encourage creators to create. Initially this Intellectual Property monopoly applied exclusively to the printed word. The term was limited to a few years to ensure creative works would return to the Public Domain.

As time went by, however, the scope of copyright has expanded to include most of the creative realms, and what were once limited terms (ostensibly intended to encourage creators to create) now extends decades past the death of the author. (So far no one has explained how this can possibly encourage dead creators to create new art.)

Because copyright terms have been extended so long, and sometimes even retroactively, works going into the Public Domain have flowed to a trickle, and in some cases to a halt. Those works that are emancipated from copyright bondage are scheduled to enter the Public Domain on January 1st every year, so on this day we celebrate the expiry of the monopoly over the works that return to the Public Domain.

Happy Public Domain Day!

Happy Public Domain Day!

Wishing You a Very Merry Saturnalia


My lovely Rudolph card would not have been possible without Per Harald Olsen’s gorgeous Svalbardrein pho which he has released on Wikimedia Commons under a Creative Commons Attribution-Share Alike 3.0 Unported license.

“Happy Holidays” by Laurel L. Russwurm is likewise released under a Creative Commons Attribution-Share Alike 3.0 Unported license.

Free Culture Film Festival #SFD

Never_WeakenBANNER

cover2I’ve been asked to put together a Free Culture Film Festival as part of Waterloo Region’s Software Freedom Day Celebration this Saturday.  This year Software Freedom Day is brought to you by the KWLUG in co-operation with The Working Centre.
Approved for Free Cultural Works symbol
I wasn’t sure what I would be able to find, and as it turns out, my biggest problem wasn’t how little was available, but how much.

I wanted to present a varied selection of films that qualify as Free Culture for different reasons.

 

Rama drops Sita ~ from Nina Paley's brilliant "Sita Sings The Blues"amaSaturday, 20 September 2014 (iCal)
10am-4pm
The Working Centre
43 Queen Street South and 58 Queen Street South (Map)
Kitchener

For information about the #SFD Presentations, Workshops and Installfest visit the KWLUG Software Freedom Day page.
All activities are free of charge unless you are purchasing computer equipment during the Installfest.

 

 

FREE CULTURE FILM FESTIVAL

10:00am “Charade” (1963) ~ Copyright Never Happened

Cary Grant/Audrey Hepburn (113 min)
In 1963 American copyright required registration. One of the requirements was that any work to be protected by copyright had to be properly identified as such. What should have been the copyright notice included in the opening credits of the movie Charade failed to include the word “copyright” or the abbreviation “copr” or the © symbol, which meant Charade was inadvertently published directly into the public domain the moment it was released.
But although the film itself is in the Public Domain, any artwork and publicity material may or may not be, so for the purposes if this screening, it was safer for not to use an official movie poster, but to instead cobble together my own with images taken directly from the film. I have in turn released my poster directly into the Public Domain with the Creative Commons CC0 license.
My DVD copy of Charade was a bonus feature included with one of the the Charade remakes, The Truth About Charlie. Since Charade is in the public domain, no royalties would be required for a film that choses to do this. In fact, when I bought the DVD I had no idea if I would like the remake, but it was worth risking because to replace my Charade VHS with a DVD.

12:00pm Harold Lloyd: “Never Weaken” ~ Copyright Expired

Harold Lloyd, Mildred Davis ~ running time: 29 minutes
Silent screen film maker and movie star Harold Lloyd co-starring with his leading lady (and later wife) Mildred Davis in Never Weaken. This was the last short film he ever – all his subsequent films were feature films.
Harold Lloyd continued making films even when they started talking, and he retained copyright to his work. Lloyd’s films enjoyed only very limited re-release due to his stringent demands: he insisted his silent movies had to be accompanied by organ, not piano; he demanded $300,000 for 2 showings of his films on television. This had the effect of pulling his work out of the public eye, with the result his work is largely forgotten today.
American films released prior to 1923 have expired which is why all his early works are in the Public Domain. Lloyd was careful to keep all his work under copyright, so his subsequent work is protected by copyright for 95 years due to the Sonny Bono copyright extension.

12:30pm “His Girl Friday” ~ Cary Grant/Rosalind Russell (92 min) Copyright Expired

Cary Grant, Rosalind Russell ~ running time: 92 min
His Girl Friday is a derivative work; this is one of many remakes of the successful stage play, “The Front Page.” The original story was about two men; this version made Hildie and Walter an ex-wife and husband. Although it failed to be a huge hit, apparently because audiences thought Cary Grant too much of a light weight for the part, for me, this is the version I like best.

As a result, the studio couldn’t be bothered to renew its copyright. I think at least part of His Girl Friday’s later success on television, video and now DVD formats may well be due to urs Public Domain status. Judging by images on the Internet, it has also enjoyed no small success as a live theatre production. In many ways, this version resonates better with modern audiences.

2:00pm The Fleischer Animated “Superman” ~ Copyright Expired

Fleischer Studios animated Superman short ~ running time: 11 minutes
To my mind, the best film animation of the early part of the 20th Century was produced by the Fleischer Studios Inc., who were also responsible for technical innovations like the rotoscope and sync sound animation. Although Betty Boop and Popeye are their most famous creations, Brothers Max (producer) and Dave (director) Fleischer produced 9 Superman shorts in 1941 and 1942. Unfortunately there was a huge personal falling out between the brothers (ostensibly begun over Dave’s adulterous affair with a secretary) which resulted in their distributor Paramount taking over their business. With Dave Fleischer out of the picture, the remaining Superman films in the series were directed by Dan Gordon, I. Sparber and Max Fleisher’s son-in-law Seymour Kneitel and produced by the re-branded Famous Studios.

2:15pm Sintel ~ Creative Commons Attribution 3.0

The Durian Open Movie Project ~ running time: 14 min
Blender began as 3D animation proprietary software, but a few years ago the corporation that developed it decided to free the software, and they haven’t looked back since. Sintel is the third Blender film made to demonstrate the capabilities of the software. This one is my personal favorite, both because it’ gorgeous and I like dragons. Since the Blender software has benefited from emancipation, it is hardly surprising to find these films were released with a Free Culture license (Creative Commons Attribution 3.0) right from the start.

2:30pm “Sita Sings The Blues“~ emancipated by Nina Paley

Nina Paley‘s classical animation feature film ~ running time: 82 min
Nina Paley’s original vision for Sita Sings The Blues included the public domain recordings by Annette Hanshaw to form the musical score. As it turned out, big media driven “copyright reforms” retroactively extended the copyright term for the sync rights (the particular rights necessary when using recorded music in a film). The long and the short of it is that Nina Paley had to pay gigantic sums to acquire these rights to release her film.

“Having paid these extortionate fees, I could have gone with conventional distribution, and was invited to. I chose to free the film because I could see that would be most beneficial to me, my film, and culture at large. A CC-SA license does not absolve a creator of compliance with copyright law. The law could have sent me to prison for non-commercial copyright infringement. I was forced to borrow $70,000 to decriminalize my film, regardless of how I chose to release it.”
~ Nina Paley, “Correction

As Nina continued to question copyright, she decided to take it to the next level, and so she has since released this wonderful film into the Public Domain.

3:50pm Superman:“The Billion Dollar Limited” ~ Copyright Expired


Why we need Free Culture (in case you didn’t know…)

In the beginning human beings lived in a Free Culture world. If a writer published a play, or an author a novel, this new creative work left his private domain (his mind, home or working space) and entered the Public Domain. Anyone who saw the play performed was free to be inspired to remake it as a new creative work, or to mount their own production of it as is. Anyone who read a book could quote from it or copy it and even sell their own copies if they wanted to.

The grandmother of copyright law was the “Statute of Anne” enacted by Queen Anne in 1710. In spite of the name, “copyright” is a state imposed monopoly, not a “right.” In exchange for limiting the public’s right to copy, learn and share our culture, the copyright monopoly was supposed to encourage good creators to create works to benefit our culture. And maybe it worked that way once. Although originally limited to books, the scope of copyright has spread like cancer to nearly every form of human creativity, and the “limited” terms are so long most of my own culture will be “protected” until long after I am dead. And creators still can’t make a living from their work.

Today’s technology makes it possible for anyone to create our own digital work. Every cell phone is a camera, every school child has access to computers; that’s all you need to make movies. But the minefield of potential copyright infringement and criminalization is enormous. Copyright law is a tangled mess of law written differently in every country, and it can be used against anyone who uses any digital device. We must understand copyright basics for our own protection. Because today copyright law is used to “protect” our own culture from us.

Anything we are free to use as we like is all that remains of Free Culture; everything else is a legal risk. In today’s copyright mad world, creative works that have been Licensed To Share and works in the Public Domain are two sources of Free Culture that we can use legally.

 


UPDATE: I’ve provided links to all the Free Culture films I presented in LibreTea and Free Culture
 

Happy GNU Year

Happy GNU Year!


This virtual card is the best gift I can give my readers and online friends this holiday season. Not just because its the best and most awesome Happy GNU Year card you’re likely to find online, but because I created it entirely using free culture and free software.

The Free Software Foundation‘s GNU operating system led to the adoption of the gnu as its symbol.  Free software is incredibly important for a host of reasons, and yet I very much suspect it wouldn’t exist at all any more but for the efforts of Richard Stallman and the FSF.  I highly recommend that you use free software as much as possible, not just because it’s usually free of charge (gratis) but far more importantly, because it respects our personal freedom (libre).

The penguin “Tux” is the mascot of the Linux kernel, is the heart of the free and open source software operating systems we use today. (MacOS and Windows are the non-free software used in personal computing devices (computers, cell phones, tablets, PVRs &tc.)

Creative Commons Attribution-Sharealike 3.0 Unported (CC BY 3.0)) LicenseIf you click on the card, you’ll find a higher definition version suitable for printing.  And you are allowed to print it, because this card carries a free culture license, specifically a Creative Commons  Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0) License  This license gives you the freedom to use this creative work in any way you like, even commercially, with only 2 restrictions.

  1. The “Attribution” restriction means you must credit the creator(s) as specified.
  2. Second, whether printing it out and selling physical copies, mailing it to you your friends, or modifying it to create something completely different, it must carry the Creative Commons Attribution-Sharealike License, or a similar license that requires attribution perpetuation of the license terms.

Attribution is simply giving credit where credit is due. I try to provide attribution for everything I use, even work in the public domain. The “share-alike” part of the license exists to prevent creative works from being removed from free culture and locked behind copyright.

Below you can see the steps that led to this card. Click on any of the images below for a larger/printable version.

Happy GNU Year Green (cc by-sa)Modified "Powered By GNU/Linux" Free Software  sticker set Happy GNU Year STENCIL

On the left is my first try, which I like a lot. It could make a good poster, but it’s too difficult to see and read in small formats because it’s too cluttered.

In the centre is the “wallpaper” background I devised. I modified the Powered by GNU-Linux sticker set originally created by deviantdark and published on deviantArt  under a Creative Commons Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0) License.  There are many free software operating systems not included, so I added Trisquel and centOS when I made up the wallpaper background. You can download the printable sticker sets from the deviantART Powered by GNU-Linux page and make your own sticker for your computer.

On the right is the first draft of the red card. I loved the simplicity of Rasmus Olsen‘s gnu meets penguin titled GNU/Linux licensed Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0) that I found on Flickr.  I altered the image by bringing the penguin close enough to touch noses with the gnu, and stood them both on the lettering. In the final version, I changed the lettering because it was hard to read when the wallpaper was added.

CORRECTION: Rui Damas is the originator of the GNU/Linux artwork I reused, and it was actually released under the GNU Public License. I’m not entirely sure what that does to my licensed usage. [Thanks to Mike Linksvayer for pointing that out!]

Free Software & Free Culture

It’s no harder to learn to use free software than it is to learn to use a windows computer or a Mac.  Many Apple and Windows users are already using free software with Firefox or OpenOffice (I prefer LibreOffice).  The coolest and best ebook conversion software is called Calibre (it comes with a good e-reader so you can read eBooks on your computer).  And of course my favorite blogging software, WordPress is free software.  Wikipedia runs on free wiki software (which is why there are wikis popping up all over) and if you’re into video production, you could so worse than the amazing Blender 3D animation software or Kdenlive for video editing.  You can use social networking with GNUsocial and Friendica.   If you do switch to free software, the biggest difference you’ll notice is that you don’t have to pay for things again and again and again.  Other advantages include better security and a much lower incidence of spyware and other malware.

It was difficult for me to unlearn Photoshop so I can learn to use GIMP, but I keep trying.  I still look for a lot of the features where they would be in photoshop, but its getting easier.  I have yet to find anything Photoshop can do that can’t be done in GIMP; the challenge is finding out how to do it.   That’s why I’m so pleased I made this card entirely with GNU Image Manipulation Program (GIMP) on my computer, which is currently runs on Linux Mint in a MATE desktop environment that has the  Ubuntu Studio plug-in.

As the copyright maximalists successfully lobby to lock up more and more of our culture for longer and longer terms, the importance of free culture has become more apparent.   Sites like the Flickr photosharing site and deviantArt make it easy for users to give their work Creative Commons licenses, so they are often the easiest places to find images licensed to share.

All versions of my GNU year card are licensed Creative Commons Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0) License.  If you’re interested in finding out what free culture is out there, I’ve been growing a list of Free Culture resources (in the right sidebar).    And if you have some spare cash left over from last year, please consider making a donation to the two non-profit organizations that have been instrumental in ensuring the continued existence of free software and free culture:

The Free Software Foundation and Creative Commons

And have a Happy GNU Year!

Owning A Copy Does Not Confer Copyright

Photograph
William Lyon Mackenzie King and friend on railway platform, Montreal, QC, about 1930
Anonyme – Anonymous
About 1930, 20th century
Silver salts on glass – Gelatin dry plate process
12 x 17 cm
Purchase from Napoleon Antiques
MP-1978.107.216
© McCord Museum



An anonymous person took this vintage photograph, which found its way to Napoleon Antiques.

Because one of the subjects of the photograph was a Canadian Prime Minister, William Lyon Mackenzie King, the photograph has some instrinsic value. It certainly isn’t a Karsh portrait, but either the photographer or the person who commissioned the photograph would be the copyright holder under Canadian law.

The fact we don’t know who that was makes this an “orphan work”.

When this photograph was sold to the McCord Museum, the antique shop had the right to sell the physical property of the photograph, but did not own the copyright.

The fact that the photograph wound up in an antique shop suggests an estate sale, so there is reason to believe the work may be in the public domain. 1930 was over eighty years ago, after all.

Clearly, though, Napoleon Antiques would have bought the physical photograph. The name of the photographer would most certainly been known had there been an assignment of copyright. And in 1930, Canadian copyright terms were much shorter than they are now.

Wikipedia tells us that the Canadian copyright term:

“For anonymous works, 50 years from publication
or 75 years from creation,
whichever is shorter.”

So how does the McCord Museum come to own copyright in this work? Clearly a photograph taken by an anonymous photographer in 1930 would be in the public domain now, so the McCord Museum can’t own the copyright.

If owning a physical copy of a work conferred copyright, well, anyone who bought a CD would be able to take down the recording artist’s MySpace page…

I really don’t have any problem with McCord, or any museum, educational facility or even private individual selling copies of historic works that they physically possess. This is an acceptable business model. But I do take issue when they lay claim to copyright of public domain images.

Because work in the public domain belongs to all of us. As our history belongs to all of us.

If McCord actually owned the copyright in these works, then placing a Creative Commons Attribution-NonCommercial-NoDerivs 2.5 Canada (CC BY-NC-ND 2.5) would be reasonable, perhaps even generous.

But the museum does not own the intellectual property in this work. Since the image is in the public domain, placing such a notice is horrendously and unreasonably restrictive, and the McCord has absolutely no legal or moral right to impose such restrictions.

Worse, this is actually a case of copyfraud. I don’t think that is the McCord’s intent, considering that its founder:

“David Ross McCord wanted to make history accessible to all. His dream has become the McCord’s mission – a mission whose importance is reaffirmed each year by thousands of visitors.”

McCord Museum: A Museum for all Montrealers

Locking up our history in copyright, preventing us from using historic works — works in the public domain — whether to create derivative works, or even commercially, is the very antithesis of making history “accessible to all”.

I don’t think David Ross McCord would approve, do you?

#Bill C-11 : Transcription: Jesse Brown’s “Digital Lockdown” Podcast

The impending Bill C-11, “the Copyright Modernization Act” makes me very nervous. I’m a writer, not not a lawyer, nor a reporter, but I’m sure I will be blogging about this in the days to come.

Naturally I was very interested in Jesse Brown’s interview with the University of Ottawa’s Professor Michael Geist, who is unquestionably an authority on Canadian Copyright Law. I started put to transcribe this podcast for myself, but then it seemed silly not to share, since Jesse Brown is cool enough to license his podcasts with a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada (CC BY-NC-SA 2.5).

I have added links where appropriate, and I cleaned it up (expunging “ums” not expletives). Feel free to listen to the original Podcast at TVO while reading along. [Note: Any transcription errors are my own.]

title card from podcast

Search Engine
Hosted By Jesse Brown

Digital Lockdown

[cue music]

Jesse Brown
Okay, quick show of hands… Who is against the part of bill C-11 where it says that if you break a digital lock for any reason you are breaking the law?

Ahhh.
Okay we’ve got the Liberal Party,
we’ve got The NDP,
we’ve got a bunch of Associations,
The Canadian Association of Research Libraries,
The Business Coalition for Balanced Copyright,
The Council of Ministers of Education,
Documentary Organization of Canada,
Canadian Library Association,
The Canadian Civil Liberties Association,
The Canadian Federation of Students,
The Canadian Teachers Federation,
The Canadian Council of Archives,
The Retail Council of Canada,
The Canadian Consumer Initiative,
The Provincial Resource Center for the Visually Impaired,
The Canadian Historical Association, and, oh yeah, Canadians.
Just about every Canadian who bothered to chime in about this said they did not like the digital locks provision.

Okay. So that’s one side of it.

Now put up your hand if you like the idea that breaking a digital lock for any reason should be a crime.

Just The Conservative Party of Canada.

The thing is, that’s sort of the only hand that matters.

They have a majority, they can kind of do what they want. And they’re gonna.

Bill C-11 as it stands, is probably going to be a law pretty soon. And now it’s time to talk about what that means.

And who better to help out with that than Professor Michael Geist. Michael, welcome back to the show.

Michael Geist
Hi Jesse.

Jesse Brown
Bill C-11 is being debated in parliament, we’ve got the other parties coming out against it, we’ve got the Canadian Coalition for Electronic Rights encouraging people to come out against this… is it just too late? I mean, you heard Minister Moore on this program. He did not sound like a man who is going to change anything fundamental about this. Is the digital locks issue set in stone?

Michael Geist
I think pretty close to that. At least that’s certainly what the minister has been saying, and you know it’s a new environment of course politically where we’ve got a majority government. And while it’s heartening to see how the opposition parties have coalesced around the digital lock issue, unequivocally, that they can’t support the bill with the digital lock provisions in the way that they are currently structured, it seems to me at this point in time that it may be past the point of no return. The Government making clear that its not looking to make fundamental changes to digital lock provisions, or frankly much else in the law.

Jesse Brown
It’s kind of bittersweet, isn’t it? I mean the other parties have never been clearer, they’ve never understood the issues better… they’ve never been more forthright in what they don’t like about it and what they can’t support — at the moment when their opinion matters least.

Michael Geist

I think that’s right. I mean I think it is good there is that growing recognition within the Canadian Public, where you see so many groups that have come out to express concern, as well as politically, at the same time if we hold the government to their word that they’re not gonna make any big changes, there are of course some good things in Bill C-11 as well.

Around fair dealing, around the role of Internet providers, around statutory damages, some of those issues have been subject to very misleading attacks by a number of groups, and so I think it’s heartening that they haven’t resonated. In fact, I’d go even further, its clear if you see the reaction from the opposition parties, that they really haven’t picked up on many of those issues either. I think they recognize that the government actually does strike a pretty good balance on many of those other issues. The one place where the government hasn’t done so is on the digital locks and its disappointing we’ve come this far and there is that opportunity with so much awareness of the problem, frankly its just as disappointing that a fix here is relatively easy. One that would allow for compliance with our international obligations that would be consistent with what we’ve seen in a lot of other countries that would give legal protection for digital locks for those that want it, but at the same time would respect the rights of users, whether we’re talking about consumers, educators, or even other businesses.

Jesse Brown
I brought it up directly with the minister. I said why not just make it illegal to break a digital lock if you’re breaking it for the purpose of infringing, and he pretty much ignored the point.

Michael Geist
well, there isn’t a solid answer to it. As you may know, I was able to obtain under the Access To Information Act, both the internal clause review of the bill, as well as well as fifty pages of government speaking points. And what you find is there isn’t a good answer from the government, other than ‘we think it’s the right balance’. But when you start pointing to significant issues that exist within the bill, real problems, there isn’t a good answer, you know.

Is there a good answer to why those with perceptual disabilities – the blind – may find themselves locked out of works where there is a digital lock, because the current exception that’s in Bill C-11 is so restrictive talking about not being able to unduly impair a TPM – a technological protection measure – such that the blind find themselves locked out. We’ve seen a number of those groups speak out about that issue. I don’t think there is a good answer for that.

Is there a good answer for why researchers who aren’t in the narrow scope of security research, may find themselves locked out, because there’s an exception for security research, but not research more generally. I don’t think there’s a good answer for that.

Is there a good answer for why, in the United States there’s now an exception, specifically for picking the digital lock on a DVD in certain circumstances, but we don’t find something similar in Canada. I don’t think there’s a good answer for that.

And I guess ultimately if there a good answer why many countries New Zealand. Switzerland, and many others that have recognized that you can be compliant with the WIPO Internet treaties and link it directly to actual copyright infringement, well no, there isn’t a good answer for that either. Which is why the government typically simply goes back to talking points which said this is our balance, take it or leave it.

Jesse Brown
We needn’t play naive here; we know what the real reason is. It may satisfy WIPO to have a more lenient approach to legitimate breaking of digital locks, but clearly our government does not believe that it will satisfy the Americans and they’re going to bully forth with this.

Lets assume that they do, it’s pretty likely that’s gonna be the case, what happens next. What are the copyright implications of the Supreme Court of Canada finding that linking is not publishing. What happens when you talk about an ISO Hunt type website that links to torrent files that might be infringing, but itself does no infringing. Or for that matter Google through which you can find a lot of torrent files that contain copyright infringing material.

Michael Geist
Right. well, let’s start by saying that I think this decision that involved p2p.net and the potential liability for linking was a great decision from the Supreme Court of Canada and I think one of the things that we’re seeing from the court is a recognition of the real critical nature that the Internet plays for freedom of expression more generally, and what it’s willing to do, and we certainly see it in this case and I think we see it in some of the court’s other discussion, is that they are really willing to give specific protection for the speech that can occur online because it recognizes just how integral it has become for so many people, certainly for communications for culture and commerce but for basic freedom of expression and to protect those rights that are so central and fundamental within a democratic society. In recognizing that the Internet itself and that activity on the Internet has to be protected.

There are some pretty big implications there. I mean when you think for example of some of the proposals in other countries that have sought to kick people off the Internet based on a number of allegations of infringement. That’s to say you take that kind of proposal which is not on the table right now in Canada, but we know some of the rights holders would like to see it brought to Canada, this is a Supreme Court of Canada that you get the sense they would simply laugh that out of court. That it would not withstand any sort of Charter scrutiny given the strong link that it sees between the Internet itself and freedom of expression. So I think in that sense it’s very good.

More directly or more immediately we’ve had a number of proposals put forward that seek compensation for essentially the act of linking to copyright content. Through Access Copyright for example. Their proposal has argued that linking to content may fall within its tariff, as though we’re dealing with some sort of reproduction of the work. I think if you take a look at the analysis that we’ve had from the Supreme Court here, where it’s very clear that it does not believe that a link amounts to a reproduction, or a republication rather, in the context of defamation , I think a similar kind of analysis might well come into play if you start talking about if from a copyright context.

Jesse Brown
I mean, they were really explicit. You know, like (A) Linking is not publishing and (B) if you were to deem it so, the Internet wouldn’t work. How can you hold people accountable for what lies on the other side of a link, it can change and people have no control over that.

Michael Geist
The Court totally understood both how information is disseminated online,how the Internet functions, and that central role that linking plays. So in that sense it was very good. And note that there are three decisions, there’s the one that’s adopted by the majority of the court, and then there are two concurring decisions each actually adopts different standards when it comes to potential liability for linking. So all agree that as a basic premise linking shouldn’t bring liability but then they get into the question of what if. Under what circumstances might linking rise to the level of potential liability, and the one that the Supreme Court ultimately adopts or that the majority of the court adopts is the one that has by far the highest threshold. One that seeks to protect as much as possible that freedom of expression online, saying yes at the end of the day you still go after the person who is responsible for the defamatory speech, that’s where responsibility lies, not with someone who has linked to this content.

Jesse Brown
Okay, but how do we reconcile that with Bill C-11 which states that if a website’s primary purpose is to enable copyright infringement it doesn’t matter whether or not that site itself infringes, it is subject, it’s breaking the law, it’s breaking Bill C-11. So I mean it seems that the precedent that’s just been set is in some sort of conflict with that piece of legislation.

Michael Geist
I don’t know if its in conflict, but obviously its not wholly consistent. I mean what the government is trying to do in C-11 is establish a very tough rule that goes after these sites, the so-called ‘enabler’ sites.

I’ve argued that we already may have laws that can deal effectively with those sites. In fact there is already an ongoing lawsuit the Industry has brought against ISO Hunt and so there is still issues around authorizing infringement which apply whether or not we’re dealing per se with a link We could get into a debate as to whether or not links alone are enough to authorize infringement, but where you’ve got a site that seems to be by its design designed to support infringing activities, the case that would be brought would probably involve more than just pointing to the linking activity but rather the structure of the search, the way in which it has been designed to try to rise to the level of authorizing others to infringe. The truth is, we don’t fully know yet where courts would land on these issues. On the enabler provision it’s still not a part of the law, and in the cases against ISO Hunt the Industry has for so long dragged its feet seeming content to score points for the politicians by saying Canadian Law is Weak, we need legal changes, although quietly on the side, continuing to pursue legislative legal remedies using the law as it currently stands.

Jesse Brown

Now, there’s another part of this where the courts may find issue with C-11. There’s a possibility if a case were to be brought to the Supreme Court of Canada that was arguing that the prohibition on breaking digital locks is a violation of our Charter Rights, the court might find that is true. Is there any indication of where they would stand on that? Do you think that a precedent setting case like that is likely once this bill becomes law?

Michael Geist

It’s an interesting issue and I don’t think so much that it is a matter of Charter Rights but rather a violation if the Constitution in terms of the division of powers. And the argument here, and I think its a good one, is that the way the Constitution is structured, Copyright is the responsibility of the Federal Government but Property and Civil Rights fall to the Provinces. So long as you’ve got provisions that are clearly about copyright, this is something that obviously falls within Federal jurisdiction and they can legally legislate.

The problem the Government may face when it comes to the digital lock provisions as they are currently structured, is that they seem to be far more about property rights, what people can and can’t do with their personal property that they’ve purchased than it is about copyright. In fact, as part of that Access to Information request that I obtained from the government, there was a clause by clause analysis of the legislation, and the government is very very clear in that you don’t need an actual copyright infringement to violate the digital lock rules, and the traditional defenses that exist within the Copyright Act also don’t apply when somebody breaks the digital lock rules. So if we’ve got provisions here where we’re not talking about traditional offenses under the Copyright Act and we’re not talking about traditional defenses under the Copyright Act, that doesn’t sound very much like copyright at all.

Jesse Brown
Give me an example. Are we talking about like if I were to break a digital lock on a DVD or if I were to unlock a cell phone how does that have anything to do with copyright, is that what you mean?

Michael Geist

That’s exactly what it is. We’re talking about access in the case, let’s say, of the DVD and its the Copyright law not the Access Act, and so the Copyright Act deals specifically with copying and reproduction of works. This ventures far beyond that into people’s rights to access materials, in this case the use of the property they have purchased. The copyright holder of course owns the right in the underlying work, the intellectual property that exists within the DVD, But you still do have some rights over the physical DVD that you’ve purchased and the notion that one can exclude access part of that is pretty far afield from conventional copyright.

Now if the government would follow the recommendations that we’ve seen from so many groups, that say create a clear linkage between breaking a digital lock and an intent to infringe, well then it does start sounding again like copyright, because now we are talking about people who are breaking copyright rules and the digital locks are there to support those basic policies about insuring the copyright act is effective.

But the way the government has structured the law right now, is that they’ve moved pretty far away from traditional copyright, it really is into the realm of traditional property rights. It’s all about what consumers can and can’t do with their property irrespective of whether someone might be infringing copyright or even irrespective of whether or not they’ve got an appropriate defense of fair dealing or otherwise. And so I think it is entirely possible once this becomes operational, and we face the prospect of some actions brought against people, that we’ll see groups seek to clarify whether or not the provisions as currently structured even pass muster from a constitutional perspective.

Jesse Brown
And this is not sort of you know, lawyeringness, or a kind of niggling detail, our rights over our private property are pretty essential in any democracy. These are constitutional rights. The circumstances of where this would get fought I suppose would be if you found the right case, say a blind person who buys a book that is not available as an audio book They break DRM in order to feed it into a text to speech program so they can actually enjoy what they bought. There is no question of illegal reproduction, certainly not commercial, That might be a case that you know some interested lawyer who knows about these things. maybe yourself might actually make an issue out of it and take it to the courts and then that would challenge the bill itself.

Michael Geist
I think that would challenge those specific provisions. So I would seek to argue that the particular provisions around digital locks are unconstitutional because they are ultra vires the federal government. In other words, provisions that involve property and civil rights, and do not directly involve copyright, are beyond the jurisdiction of the purview of the Federal Government.

There’s an easy way of course to fix that and make this legislation a bit more bulletproof against a constitutional challenge and that’s to create a link to copyright. As we’ve been discussing now, despite the fact that so many groups and now all the opposition parties have been calling for exactly that kind of remedy the government has been loath to move in that direction.

Jesse Brown
What will be the impact for average Canadians in the period of time shortly following the passing of this law. Are we going to see the same kinds of lawsuits that, I mean, Minister Moore like to say that the Industry is done with that kind of lawsuits that the Recording Industry Association filed against, I don’t know, 30,000 individual file sharers, teenagers, single moms… Of course the movie industry seems to be moving in that direction. The Hurt Locker down loaders faced lawsuits like that. Are we going to see that in Canada? Is that how this is going to hit home for people who have not paid the closest attention to this up ’til now?

Michael Geist

Well, you know, the odd thing about this legislation is that the way that it gets promoted is so often around things like peer to peer file sharing but C-11 has very little to do with peer to peer file sharing.
The practical reality is that similar legislation has been in place in the United States since before the advent of Napster and so the notion that suddenly new digital lock protection are going to provide the kind of protections that are necessary to eradicate infringement online is just patently false. And I think everybody knows it. I spent sometime this week at a conference with a series of European experts are here and no one’s talking about digital locks. In fact in Europe a number of countries have implemented it in different ways, in some ways different than the United States has implemented it. Digital locks aren’t ultimately about dealing with peer to peer and they’re ultimately not about these sorts of lawsuits.

And so, once the legislation is passed, we’re going to see a real impact. Whether its in education, or in other places where the rules won’t be clear, that many of the traditional user rights or exceptions, around research, or around private study, or in criticism review, potentially even around education itself, if that becomes part of the law with C-11. There, once there’s a digital lock in place, those rights cease to apply and I think that’ll have a pretty dramatic impact.

Now, there’s a lot of other good things that will come into the legislation, in terms of clarifing legalization of recording television shows and back up copies. Extending or expanding some of the fair dealing rights. I think all of that’s great. But at the same time those digital lock rules will have that immediate impact. As for the prospect of lawsuits, the Industry stood up before the committee just a few months ago, just before the bill died, and was unequivocal when asked directly about the prospect of new file sharing lawsuits against individuals, and said they have no intention of doing so and just within a number of months, we now know that lawsuits have been filed with three major ISPs in Canada, and of course if those are successful, even with the changes to the statutory damage provisions in the bill, even with changes that create a cap for non commercial infringement, the door is still open to see more of these kinds of suits.

Jesse Brown

You know, I feel that most Canadians, for personal use, are going to continue to do whatever they were doing before, if in fact they are aware of this bill is a law or will soon be a law or not. It’s really at the institutional level, the universities and companies that just want to avoid liability in any way that they’re going to stop doing a lot of things that they have been doing.

Michael Geist

That’s absolutely right. And in fact I’ve been asked many times since both Bill C-32 and C-11 about that ability to enforce and I think it is true that practically speaking, most individuals are going to be very tough to stop them from picking a digital lock, the tools are out there, even though this will make the distribution of those tools illegal, and further, its arguable that there are no real damages here either, especially if they are simply seeking to access their own works that they purchased.

But where the rubber will hit the road, where the enforcement will not only be possible but probable, and where it will have a real impact, is frankly, as usual, on the good guy. On the people who are actually going out and buying licensing, trying to make use of materials, and they suddenly find now that where there are locks there are going to be restrictions.

Where you’ve got someone who is sight impaired who wants to ensure they’ve got access if the publisher isn’t making it accessible, and where its behind the lock, they’ll be prohibited from going after it, and there will be large institutions that might want to try to do that on behalf of their users they won’t be doing it.

In larger education institutions where you’ve got teachers and students who want to engage in remix and multimedia presentations and they need to be able to break a digital lock in order to do that, things that are legal as the law currently stands, that too will stop, because the guidelines I think will be unequivocal when presented within those institutions they want to stay on the side of the law and what they will do is make it clear that they can’t engage in that activity.

And so the sad part of all this, one of the sad parts about all this, is that where this will hit most directly, are on the people who are the most likely to want to be compliant with the law. And its in the one place where there are some of the best advantages of using these kinds of new technologies and providing new levels of access, new kinds of creativity and yey what the government is going to be doing
stopping some of it dead in its tracks.

Jesse Brown

Well, this is soon going to be over and then it’s just gonna be beginning.

Michael Geist

I think that’s right. It’s the beginning in terms of some of the legal questions and issues about the bill, and incredibly, it is very likely to all start again with a new piece of legislation now on IP enforcement, that may well be introduced weeks after this piece of legislation passes through the parliamentary process.

Jesse Brown
I hope you’ll be willing to take us through that when the time comes. Thank you as always for your time, Michael

Michael Geist
It’s my pleasure, Jesse. Take care.

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Jesse Brown
Search Engine is produced by me with help from Luke Simcoe and a community of listeners who, unlike me, know their Charter from their Constitution. Email me at jesse@jessebrown.ca Check out the blog, its at t-v-o-slash-searchengine The videos which are going up all the time go up at YouTube-dot-com-slash-t-v-o-searchengine and I’m on Twitter @jessebrown

this program is released with a Creative Commons License. Go ahead and link to it, I promise not to switch it with anything nasty. The next podcast will be up on Tuesday.

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