May 12, 2010

Final Draft

I have finalized the letter I am going to go with. You will notice the posted letter on this blog is missing a fancy graph. If someone is interested in seeing it and the raw data feel free to e-mail me or leave a comment.

I now get to work on a new letter for the Digital Economy Consultation. *sigh* The things I do so I can smugly reply "why don't you do something about it?".

It has been 3, almost 4 years since I started being active on copyright legislation in Canada. During all those years I asked everyone where is the consultation with Canadians. It was the topic of almost every discussion on copyright law I had. There was a public consultation from July 20, 2009, to September 13, 2009 with over 8,000 submissions not to mention the round tables and town halls. The lingering question in my head is did anyone learn anything?

I honestly believe that people did learn some of the pitfalls of bad copyright legislation. Unfortunately I do not believe that knowledge has reached the Prime Minister's Office if current news has anything to say. I am now back to doing whatever I can to get the proper information to the right people in order to get a good bill tabled.

I ask for legislation that is based on evidence and Canada's needs. The evidence used to draft the bill needs to be properly vetted and open to public scrutiny. Too often organizations have a predetermined answer and do not let the evidence speak for itself. They instead cherry pick pieces of evidence that supports their claim and discard the rest. Copyright legislation needs to be based on evidence that speaks for itself and not evidence that has been cherry picked.

Copyright is not a natural right, but a man made one which is why we should not loose sight of what the purpose of copyright law should be when looking at evidence. The purpose of copyright law in the United States is “to promote the progress of science and useful arts” and seeing how the purpose of copyright law is not clearly defined in Canada we should table a bill based on the U.S. definition. We should definitely not table a bill whose purpose is to prop up failing business models or whose purpose is to appease foreign pressure.

A problem is that some of the numbers that are used to describe copyright infringement or counterfeiting are not based on any scientific study. For example an often quoted FBI release on July 17, 2002 states “losses to counterfeiting are estimated at $200-250 billion a year in U.S. business losses.” When Ars Technica got a response they found out the FBI had “no record of source data or methodology for generating the estimate and that it cannot be corroborated”.

Here is another example of a bad study as shown by Ars Technica

After commissioning a 2005 study from LEK Consulting that showed collegiate file-swappers were responsible for 44 percent of movie studio "losses" to piracy, the MPAA then used the report it bought to bludgeon Congress into considering legislation to address this massive problem. Now the MPAA admits that the report's conclusions weren't even close to being right; collegiate piracy accounts for only 15 percent of "losses." Oops. And that's assuming you believe the rest of the data.

The problem with these numbers is they are still used today. The Information Technology and Innovation Foundation in the United States is a self described “non-partisan research and educational institute – a think tank...[who] publishes policy reports, holds forums and policy debates, advises elected officials and their staff, and is an active resource for the media.” In a December 2009 publication called “Steal These Policies: Strategies for Reducing Digital Piracy” on page 3 is a regular who's who of questionable numbers including the previously mentioned 2005 LEK Consulting study.

What worries me is this organization brings poorly vetted obscured evidence to elected officials in the United States. I have to wonder what evidence Canadian elected officials are seeing when it comes to copyright law.

By looking at the DMCA in the United States you can see evidence of the chilling effects on free speech that bad copyright legislation can have. The Electronic Frontier Foundation released “Unintended Consequences: Twelve Years under the DMCA” in February 2010 and has 20 examples of how free speech has been chilled in the past. Instead of a simple list I feel the need to post an example that caught my eye in full.

Foreign Scientists Avoid U.S.

Foreign scientists have expressed concerns about traveling to the U.S. following the arrest of Russian programmer Dmitry Sklyarov. Some foreign scientists have advocated boycotting conferences held in the United States, and some conference organizers have decided to hold events in non-U.S. locations. In 2001, Russia went so far as to issue a travel advisory to Russian programmers traveling to the United States.

Highly respected British Linux programmer Alan Cox resigned from the USENIX committee of the Advanced Computing Systems Association, the committee that organizes many of the U.S. computing conferences, because of concerns about traveling to the United States. He also urged USENIX to move its annual conference offshore.

The International Information Hiding Workshop Conference, the conference at which Professor Felten’s team intended to present its original SDMI watermarking paper, chose to break with tradition and held its next conference outside of the U.S. following the DMCA threat to Professor Felten and his team.

If that is not damning evidence of how bad copyright legislation can chill free speech while simultaneously hurting the security research industry I do not know what is.

The last piece of evidence I want to leave with you is a graph of literary copyright registration per population as a function of time in the U.S. What it shows is how little effect extending copyright has on creating new works. In 1909 copyright terms lasted 28 years with another possible 28 years on renewal. Today it lasts the authors life plus 75 years or life plus 95 years if it was a work for hire. If the copyright terms extensions provided incentive to create new work there should have been evidence in the graph below. I do not see it.

*Cool Graph Goes here*I recreated this graph from Against Intellectual Monopoly using U.S. government data that can be found online.

If the newest copyright legislation looks like the last copyright legislation it means I obviously have not done a good enough job getting the word out on why the previous legislation is not supported by evidence and why it does not fit Canada's needs. If you feel that any of my examples are not clear or if you have any questions please contact me. The contact information is at the top of every page *excluding blogs*.

Thanks for reading.

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