Minister Moore and the Myth of Market Forces

Last week was a bad week for the government on the copyright front. The government recently tabled legislation to reform copyright and the man in charge of the file, Heritage Minister James Moore, gave a speech at the International Chamber of Commerce in which he decried those who questioned the bill as “radical extremists.” The comment was a none-too-veiled attack at people like University of Ottawa Professor Michael Geist who have championed for reasonable copyright reform and who, like many Canadians, are concerned about some aspects of the proposed bill.

Unfortunately for the Minister, things got worse from there.

First, the Minister denied making the comment in messages to two different individuals who inquired about it:

Still worse, the Minister got into a online debate with Cory Doctorow, a bestselling writer (he won the Ontario White Pine Award for best book last year and his current novel For the Win is on the Canadian bestseller lists) and the type of person whose interests the Heritage Minister is supposed to engage and advocate on behalf of, not get into fights with.

In a confusing 140 character back and forth that lasted a few minutes, the minister oddly defended Apple and insulted Google (I’ve captured the whole debate here thanks to the excellent people at bettween). But unnoticed in the debate is an astonishing fact: the Minister seems unaware of both the task at hand and the implications of the legislation.

The following innocuous tweet summed up his position:

Indeed, in the Minister’s 22 tweets in the conversation he uses the term “market forces” six times and the theme of “letting the market or consumers decide” is in over half his tweets.

I too believe that consumers should choose what they want. But if the Minister were a true free market advocate he wouldn’t believe in copyright reform. Indeed, he wouldn’t believe in copyright at all. In a true free market, there’d be no copyright legislation because the market would decide how to deal with intellectual property.

Copyright law exists in order to regulate and shape a market because we don’t think market forces work. In short, the Minister’s legislation is creating the marketplace. Normally I would celebrate his claims of being in favour of “letting consumers decide” since this legislation will determine what these choices will and won’t be. However, the Twitter debate should leave Canadians concerned since this legislation limits consumer choices long before products reach the shelves.

Indeed, as Doctorow points out, the proposed legislation actually kills concepts created by the marketplace – like Creative Commons – that give creators control over how their works can be shared and re-used:

But advocates like Cory Doctorow and Michael Geist aren’t just concerned about the Minister’s internal contradictions in defending his own legislation. They have practical concerns that the bill narrows the choice for both consumers and creators.

Specifically, they are concerned with the legislation’s handling of what are called “digital locks.” Digital locks are software embedded into a DVD of your favourite movie or a music file you buy from iTunes that prevents you from making a copy. Previously it was legal for you to make a backup copy of your favourite tape or CD, but with a digital lock, this not only becomes practically more difficult, it becomes illegal.

Cory Doctorow outlines his concerns with digital locks in this excellent blog post:

They [digital locks] transfer power to technology firms at the expense of copyright holders. The proposed Canadian rules on digital locks mirror the US version in that they ban breaking a digital lock for virtually any reason. So even if you’re trying to do something legal (say, ripping a CD to put it on your MP3 player), you’re still on the wrong side of the law if you break a digital lock to do it.

But it gets worse. Digital locks don’t just harm content consumers (the very people people Minister Moore says he is trying to provide with “choice”); they harm content creators even more:

Here’s what that means for creators: if Apple, or Microsoft, or Google, or TiVo, or any other tech company happens to sell my works with a digital lock, only they can give you permission to take the digital lock off. The person who created the work and the company that published it have no say in the matter.

So that’s Minister Moore’s version of “author’s rights” — any tech company that happens to load my books on their device or in their software ends up usurping my copyrights. I may have written the book, sweated over it, poured my heart into it — but all my rights are as nothing alongside the rights that Apple, Microsoft, Sony and the other DRM tech-giants get merely by assembling some electronics in a Chinese sweatshop.

That’s the “creativity” that the new Canadian copyright law rewards: writing an ebook reader, designing a tablet, building a phone. Those “creators” get more say in the destiny of Canadian artists’ copyrights than the artists themselves.

In short, the digital lock provisions reward neither consumers nor creators. Instead, they give the greatest rights and rewards to the one group of people in the equation whose rights are least important: distributors.

That a Heritage Minister doesn’t understand this is troubling. That he would accuse those who seek to point out this fact and raise awareness to it as “radical extremists” is scandalous. Canadians have entrusted in this person the responsibility for creating a marketplace that rewards creativity, content creation and innovation while protecting the rights of consumers. At the moment, we have a minister who shuts out the very two groups he claims to protect while wrapping himself in a false cloak of the “free market.” It is an ominous start for the debate over copyright reform and the minister has only himself to blame.

20 thoughts on “Minister Moore and the Myth of Market Forces

  1. Aaron McGowan

    This bill appears to be very absurd from what I have read.The conversation which I followed last week on Twitter between the various above mentioned individuals where like you said – astonishing. The fact that MP James Moore that called those individuals who can intelligently question and bring awareness to faults within this bill “radical extremists” tells me that he should probably not be in the position which he is.I am curious… is he and others who are in full support of this bill ready to repurchase our data which was originally bought by consumers if there is such hardware failure that we loose the data? The fact that we can no longer create backups legally without breaking these digital locks or even transferring the data to a new storage device such as from a CD to our MP3 players is absolutely crazy in my opinion.

    Reply
  2. Russell McOrmond

    Thanks for the great post.Curious what you think of my suggestion that “access” is a concept that has always been protected outside of copyright, and that importing it into copyright law indirectly through “access control” technical measures radically rewrites copyright and abandons the traditional definitions of copyright.I also believe the TPM provisions of C-32 to be unconstitutional http://BillC32.ca/5156I believe that if TPMs were protected in appropriate e-commerce, contract and property law that the market forces that Mr. Moore has been calling for might become possible. By being dishonest about the nature of the law (copyright vs other laws), market forces become impossible. Free markets require correct information, not Dishonest Relationship Misinformation (DRM).

    Reply
  3. anti-moore

    Moore is an incompetent asshat.. and needs to be booted from office ASAP before he can cause more damage.

    Reply
  4. Wizard Prang

    DRM is a tax on the honest.Large-scale pirates will either break it with impunity in minutes, or copy it bit-for-bit, protection and all. The rest of us have to go through technological contortions – and break the law – in order to exercise our fair-use rights.DRM is not, and has never been about copyright.It is about control.From Moore's position, It is obvious what his priorities – and who is paymasters – are.

    Reply
  5. Eo Nomine

    David, it's unfortunate that you've accepted Cory's analysis at face value, as the Bill itself does not support his argument.He argues that “if Apple, or Microsoft, or Google, or TiVo, or any other tech company happens to sell my works with a digital lock, only they can give you permission to take the digital lock off. The person who created the work and the company that published it have no say in the matter.” He further insists that he as an author must be given the right to authorize someone to circumvent.However, as Ronald Landheer-Cieslak points out in his blog post “TPM on your content under #c32 – handing away your rights?” (http://landheer-cieslak.com/wordpress/tpm-on-yo…), the Bill ALREADY DOES THIS:”There’s no circumventing TPM there either. In both cases, here’s what the bill says (emphasis mine): “circumvent” means,(a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure”, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner;“technological protection measure” means any effective technology, device or component that, in the ordinary course of its operation,(a) controls access to a work, to a perform- er’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner;as the copyright holder, you can withdraw the authorization to use the TPM on your content, and you can give yourself (or anyone else) authorization to remove the TPM.”Indeed, the definition of “circumvent” means that if the copyright owner authorizes anyone to get around the TPM, it’s not an act of “circumvention” for the purpose of the Act and the prohibition wouldn’t apply. So, contrary to Cory Doctorow's assertion, under the bill, a copyright owner CAN authorize someone to circumvent the TPMs protecting their work. Now, large distrubtors and aggragators like Apple and Amazon may limit a copyright owner’s ability to authorize circumvention as a condition of using their service to distribute works, but that’s a different issue and frankly is between the owner and the distributor to work out between them. Moreover, if a copyright owner disagrees with the terms of service of a given distribution platform, there are plenty of other options, and the owner would certainly be free to self-publish the work and distribute it DRM-free online.Similarly, the assertion that “the proposed legislation actually kills concepts created by the marketplace – like Creative Commons – that give creators control over how their works can be shared and re-used” is clearly false, as any copyright owner who CHOOSES to release their work under a creative commons license retains the authority to authorize anyone to circumvent the TPM protecting that work. Furthermore, I would also surmise that, in most cases, a copyright owner who releases a work under a creative commons license would probably not authorize the work to be protected by a TPM in the first instance, and as the definition of “technological protection measure” under the bill requires that the use of the TPM to be authorized by the copyright owner, and TPM applied to a work without the copyright owner's permission would not qualify for protection under the bill.And if an author has assigned the copyright in the work to someone else (eg a publisher), presumably for some kind of payment and/or back-end royalty, then why should they retain the authority to allow others to circumvent the TPM when they've given up your ownership rights in the work?

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  7. Crockett

    Which is part of the reason I posted a parody on YouTube. While I have nothing against Mr. Moore personally, people must be made to realize that he is out of his depth on this topic.

    Reply
  8. Zygo

    Consumer TPM circumvention–that is, removing the proprietary wrapper around content to make it compatible with devices made by different manufacturers–is the market force that balances the tendency of device manufacturers toward monopoly.A lot of new devices coming along consume digital media over some kind of digital network, and they are being steadily locked down to a single digital media provider. If that trend continues, we are heading toward a world where you have to buy one music player from each publisher (or, more likely, all music players buy from a small number of collectives). Now that's not really a copyright problem, but it is a huge competition problem.It's also an environmental problem. Unlike most devices we've seen so far, the life cycles of provider-locked media end instantly when the media provider goes away. Cell phones already have this kind of problem, and allowing–much less protecting–TPMs just make this problem even worse.If you're a professional author, and your choice is to publish with a vendor who imposes TPM and offers 95% of the market, or another vendor who imposes no TPM but less than 5% of the market, your choices are usually 1) stop being a professional author, 2) compromise your principles and use TPM, or 3) spend a billion dollars a year to enter the consumer entertainment device market. That's not good for authors, and raising the bar for penetration of the device market much higher than it already is isn't good for consumers either.(Note that I'm not advocating consumers have a right to circumvent TPMs on content they haven't fairly paid for, e.g. to get access to scrambled satellite TV signals; however, the broadcast act already makes that illegal, so I'm not sure why we'd need it in the copyright act as well).

    Reply
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  10. Russell McOrmond

    I think you are focused too closely at what is written in the bill and not how such language will impact real markets. Laws don't exist in isolation separate from the societies they are enforced within.Yes, a copyright holder will always be free to not encode their copyrighted works to work with a specific platform. While many of these platforms today offer both platform-dependant delivery mechanisms (DRM) and platform-independent options (DRM-free), this is something that can easily change if a vast majority of copyright holders fall for the DRM Trojan Horse.If the majority of copyright holders adopt DRM, then device manufacturers will be free to remove the non-DRM file format options from their hardware. Those copyright holders who do not sign contracts with the platform will simply not be able to reach audiences who are “customers” of these platforms.Then the business model of copyright will flip on its head, where the platforms have the product (audiences) and copyright holders will be left with a “take it or leave it” situation. Moore likes to say “let the market decide”, but adding access control TM's to copyright law is a massive government intervention in the marketplace to privilege certain (ab)uses of technology. If this protection were in contract law where it belongs, then the balance of contract law would deal with the issues. Add this to copyright law, and claim a circumvention of an access control for an otherwise lawful purpose is infringement, and we've wiped out not only free markets but much of the balance of the rule of law.You may not be concerned with this, or believe it is possible. You may think that copyright holders will be smart enough to recognise this trend before it harms them. I think the very fact that many copyright holders (or lobbiest associations) believe that “infringement” is the greatest market change in the last decade and a half for the content industry is indicative that they aren't watching actual markets very closely at all. The statistics these industry associations promote to justify radical rewriting of the traditional definition of copyright to add “access controls” do not differentiate between infringement, misapplied technical measures, competition from other sources of entertainment/etc, or various perfectly lawful market trends.I happen to believe that misunderstood and misapplied technical measures has had a greater negative impact on the content industry than things like unauthorised P2P. The rise of these misunderstood technologies coincided with the rise of other technologies, and these industry associations really not spent the time to understand their impact.I'm an open source software developer and consultant, and we really are the canary in the coal-mine when it comes to these issues. We are already seeing greatly anti-competitive practices with the collusion between big media and specific technology platform providers. Rather than making the situation worse with backward-facing laws like C-32, we should instead be modernising our competition law to deal with these issues before other creators are harmed even more than they have been already.

    Reply
  11. Russell McOrmond

    I think you are focused too closely at what is written in the bill and not how such language will impact real markets. Laws don't exist in isolation separate from the societies they are enforced within.Yes, a copyright holder will always be free to not encode their copyrighted works to work with a specific platform. While many of these platforms today offer both platform-dependant delivery mechanisms (DRM) and platform-independent options (DRM-free), this is something that can easily change if a vast majority of copyright holders fall for the DRM Trojan Horse.If the majority of copyright holders adopt DRM, then device manufacturers will be free to remove the non-DRM file format options from their hardware. Those copyright holders who do not sign contracts with the platform will simply not be able to reach audiences who are “customers” of these platforms.Then the business model of copyright will flip on its head, where the platforms have the product (audiences) and copyright holders will be left with a “take it or leave it” situation. Moore likes to say “let the market decide”, but adding access control TM's to copyright law is a massive government intervention in the marketplace to privilege certain (ab)uses of technology. If this protection were in contract law where it belongs, then the balance of contract law would deal with the issues. Add this to copyright law, and claim a circumvention of an access control for an otherwise lawful purpose is infringement, and we've wiped out not only free markets but much of the balance of the rule of law.You may not be concerned with this, or believe it is possible. You may think that copyright holders will be smart enough to recognise this trend before it harms them. I think the very fact that many copyright holders (or lobbiest associations) believe that “infringement” is the greatest market change in the last decade and a half for the content industry is indicative that they aren't watching actual markets very closely at all. The statistics these industry associations promote to justify radical rewriting of the traditional definition of copyright to add “access controls” do not differentiate between infringement, misapplied technical measures, competition from other sources of entertainment/etc, or various perfectly lawful market trends.I happen to believe that misunderstood and misapplied technical measures has had a greater negative impact on the content industry than things like unauthorised P2P. The rise of these misunderstood technologies coincided with the rise of other technologies, and these industry associations really not spent the time to understand their impact.I'm an open source software developer and consultant, and we really are the canary in the coal-mine when it comes to these issues. We are already seeing greatly anti-competitive practices with the collusion between big media and specific technology platform providers. Rather than making the situation worse with backward-facing laws like C-32, we should instead be modernising our competition law to deal with these issues before other creators are harmed even more than they have been already.

    Reply
  12. MP3 Players

    the proposed Canadian rules on digital locks mirror the US version in that they ban breaking a digital lock for virtually any reason. So even if you’re trying to do something legal (say, ripping a CD to put it on your MP3 player), you’re still on the wrong side of the law if you break a digital lock to do it.

    Reply
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