Campaign for Digital Rights: Meeting 2002-04-29

City University, London

The following text is written by Matthew Byng-Maddick <mbm+cdr@colondot.net>, but the copyright is (c) Copyright 2002 Campaign for Digital Rights
The URL for this page is http://colon.colondot.net/~mbm/cdr/

The following text, is roughly the result of 8 sides of A4, and I haven't taken that much down since I left University 3 years and a bit ago. You may, on the recording hear my attempts to tear off the sheets in a quiet fashion, a skill I appear to have lost.

After an introduction by David Dodson from Lonix, first up was Julian Midgely to give us an overview of the European Copyright Directive (hereafter referred to as EUCD). Basically this consisted of the fact that the UK Law implementation of the EUCD is in consultation stage, and so people should be writing to their MPs to register their interests. He also mentioned the WIPO treaty (of 1996) which will be covered in more detail later, as a point from which the EUCD has arisen, and talked a bit about the history of CDR, the Campaign for Digital Rights, and its origins as the campaign to free Dmitri Sklyarov, the Russian held in a US gaol under the US Digital Millennium Copyright Act after his talk at DefCon cracking the Adobe eBook format. Julian then described how the EUCD had been brought to the Free Sklyarov campaign's attention, and how this had led onto the Free Sklyarov group forming the CDR as it is today.

Julian then introduced the keynote speaker, Linux Kernel core developer Alan Cox.

Alan opened by saying that the problems which currently affect Open Source Projects (while taking great pains to make sure the Free Software guys didn't get left out either) in terms of copyright are the same as those that affect small business and individuals. Basically, if you're a large corporation, you can afford to sue, and to work out the law by asking your legal department (and your campaign contribution department) to do the work for you. Anyone else, and that hope is useless, you'll be fighting a losing battle.

He then switched tack to start talking about the Music Industry, since they will almost certainly be the major beneficiaries of EUCD. He suggested that their concerns were very real, about the increase in infringement brought about by the new communications technologies, and that it was true that Napster was a problem, with music being easier to retrieve from Napster and to find from Napster rather than going down to the shop to buy a copy.

Highlighting the other major beneficiary, the film industry, Alan pointed out that a normal Hollywood film will cost around $100m to make, and that even the asian Bollywood films were probably of the order of $20m. He also pointed out that a large number of them actually make a loss, and that a few only make a profit some years later. Thus any drop in profits is seen as scary by this industry.

Next came the first introduction in Alan's talk to the EUCD and Technological Protection Measures (TPMs). He pointed out that there is hardware verification in such unexpected places as mobile phones authenticating their batteries, and printers authenticating their cartridges. The reason, so he said, for doing this is to stop the small manufacturers, as it is fairly easy to go against the large ones, and then settle out of court, or in court, but with the small ones, they just fold, but can start up again just as easily, and there can be more of them. Thus you have automatic monopoly situations.

Then Alan went on to describe the computer gaming industry, where he used to work, and talked about the days of copy protection in computer games, and to say that the measures taken by the games companies were actually only really to stop people copying the game for 6 weeks or so, as by that time, everyone who was going to buy a copy would have. He then went on to raise the really important point that with the TPMs, it only takes one person to break the system, and the crack will get everywhere.

In terms of copyright, he also pointed out that the separation of Digital and Analogue copies is meaningless, so once you can watch it, you can copy it. At this point, he raised Napster, and attempted to answer the question of why it was so successful, which, he suggested, was due to the fact that you could find what you were looking for so easily.

He then went on to make various points about current copyright law. First, he told the audience that the current copyright law is actually good enough to cover those pushing for the implementation of the EUCD. The Music Industry, he pointed out, were currently looking at, in their words "where they could take this technology", but in his "how could they abuse it", and in the most objective way, "how could they maximise their shareholders' profits". He then pointed out that with the Music Industry as it is at the moment, the distribution is controlled by the large companies, so it is impossible to start up a new record label without conforming to what the big record companies want. Adding TPMs would just make this position for the club of record companies even more secure. He also pointed out that they could enforce patents, stop second-hand media, and enforce pretty much any contract term that they felt like.

And, as Alan then pointed out, where traditional copyright has ways to make sure that abuse of monopoly position is not exploited, the EUCD has no such thing. This means that you can stop people being able to reverse engineer your file formats by including a TPM as part of the format, or that you can encrypt your library interface, so that only your application can work with it, etc. So, he asked, what was legitimate reverse engineering? Basically, he thinks that such things as DeCSS, when used for things such as playing your DVD on your own operating system, or expanding the text because you are partially sighted are good reasons.

The EUCD also raises some interesting problems, running a webcache becomes a potentially difficult problem, especially if you are adding your own adverts. Any kind of content filter, such as a porn filter, or hate speech filter is now potentially illegal, if the content is copyrighted. There is no public or society interest exception. Obviously this could hit schools quite hard. And, said Alan, consider a future with eBooks that can't be shared, which have licences only lasting a year, where you can't get at the tables of data, except by copying it out by hand, and you can force specific hardware. And of course the archives and libraries are going to miss out. At a time when literacy is in decline, the EUCD is just going to completely stomp on it.

Not only this, but Law Enforcement are going to have a problem. They often want to anonymise documents, for protecting sources, or other such, and this may not be possible if the identifiers are part of a TPM. Academic research, and even the original manufacturer's own testing may be an offence if you are trying to knowingly circumvent a TPM.

The EUCD makes no particular exemptions for people's individual needs to be able to use a work, and Alan went on to talk about various forms of Dyslexia, which often has particular solutions for particular individuals. The member states have the option of forcing the company to allow for disabled access, but if the company running the protection mechanism says they are providing for the disabled, then there isn't much that the Directive allows you to do. In a global market, the product won't get imported if it needs modification for this kind of access. This kind of attitude leads to what Alan called "Intellectual Lost Property", where it doesn't matter that the copyright has expired on a work, because there are no copies which aren't in arcane and encrypted formats, because the original rightsholder has gone bust or abandoned it. This was a problem because there was no mandatory requirement for library and disabled access.

At this point, Alan finished his presentation and there were some questions from the floor. Someone pointed out that you could use the DRM technologies to alter documents remotely, and cause them to disappear entirely. In the wake of Enron, some companies may like this idea. Someone else wondered about whether there was a conflict between the EUCD and the Regulation of Investigatory Powers Act 2001, leading to a necessity for key recovery, Alan seemed to think that the two were not likely to contradict the other. The WIPO treaty was then mentioned, and it was pointed out that actually it asked for relatively little, so we should incorporate laws as to what one should and shouldn't be able to legally use a DRM system for, and under what circumstances it may be legal to circumvent it. Someone else raised the problem of a DRM system in a computer virus, such that it may be illegal to write virus removing software, it was not regarded as being very clear how the EUCD would interact with such things as the Computer Misuse Act 1998, which covers such things. Finally, Alan closed with an appeal to get people to write to their MPs and table motions to include the optional bits of EUCD, such as providing disabled access, and stopping the industries fighting them.

With Alan finished, Martin Keegan came on to speak. He started off by telling us that Alan had stolen all his points so he was going to ad-lib. He opened by talking about the way companies do business, and in particular, the way that advertising services and products plays a vital role both in business, and for the people doing the illegal copying. He pointed out that there needs to be a copyright law of some form, because there could be no compensation for creations, and thus no professional creators.

Martin then went on to describe how it is in a company's best interests to sell you something at the highest price you will pay, as then you are not losing money on those who are prepared to pay more, and you're not losing sales on those who can't afford your product. Either way, people's views of what they are prepared to pay for a given product is dependent on how much they think it cost to make. In particular, with CDs there is the packaging, the shop will have to pay their rent and staff, and there are numerous other costs, wheras paying the same amount to download the music from a website costs less and is therefore valued less by consumers, so they are less willing to pay a high price.

Infringement was mentioned briefly, that this is in current copyright law, if the rightsholder thinks that an individual is infringing their copyright, the law allows them to sue for the infringement, and if they are running a business on it, then there are potential criminal charges. Martin also talked about the current trend to "encapsulate" content, by wrapping it in layers of encryption. He then started to describe the boundaries placed on the rightsholder by copyright law. Firstly, the length of time before a given work would be in the public domain and freely copyable, secondly, the "fair use" or "fair dealing" defences and rights, thirdly the application of copyright is only valid on certain types of work and finally that copyright doesn't transfer in its entirety when you buy the work second-hand. As far as the rightsholders are concerned, however, copyright is about profit maximisation, and thus, such services as libraries are a "tax" on their profits. Crucially, Martin pointed out, UK law does not say what purpose copyright is supposed to serve, whether it is to protect the public, or the rightsholder, so it is potentially difficult for a court to interpret the law, rather than just sticking to the letter.

Copyright law also does not give the rightsholder control of access and use, so Martin introduced the idea of the Technical Protection Measures that are being used by rightsholders. These TPMs don't necessarily follow copyright aims directly, and as pointed out before by Alan, because they'll likely be used on multiple works, it only takes one circumvention device to be able to circumvent it all. This would allow, due to the increasing cost, in terms of tools, research or knowhow, the ability for the rightsholders to control access as a matter of fact rather than through the Law, and even more so if the Law bans circumvention devices.

Martin then went on to talk about some of the history of the copyright laws that exist. He mentioned the UK Copyright, Designs and Patents Act 1988 and the US Digital Millennium Copyright Act 1998, both of which make the use of a circumvention device into a potentially criminal offence. The US law, in particular makes no exception for justified circumvention, such as the information being already in the public domain, illegal contract terms or access to the raw data (eg. partially sighted needing bigger text). He also pointed out that an encryption based TPM may well obscure a watermark, and that in the interests of profit maximisation, a company may well protect all sorts of data with a TPM, including copyrighted and non-copyrighted works, with circumvention of the latter being undermined by the device being able to circumvent the protections on the former.

As far as Martin was concerned, the laws on circumvention devices meant that the copyright boundaries that he had mentioned previously were going to be put in the hands of those who they were supposed to control. He then started talking about the economic situation for a company in control of a work, where the maximised profits come from split prices to different people, but where they are not allowed to sell on. He mentioned how the supermarkets used loyalty cards to track what offers to target at particular people, and mentioned that something similar might be used with this multi-price model to determine how much a consumer ought to pay. This, of course, has enormous privacy implications.

Martin then summed up the various acts and the World Intellectual Property Organisation (WIPO) treaty that described what signatories ought to have in their copyright laws, in particular that distribution of a circumvention device made the distributor as liable as someone actually infringing the copyright. He reminded the audience that the DMCA has a few exceptions for allowable circumvention, while the EUCD has none, but does say that alternative access means should be provided.

Finally, he put his recommendations for the government to the audience, firstly, that the legislation introduced by the various countries is harmonised sensibly, but including all the EUCD options relating to access, and requiring industry to implement these options, secondly to apply bounds to the use of TPMs, by passing other laws to regulate the usage. Thirdly, he suggested that the concept of "fair use" or "fair dealings" remain, and finally, that there should be some kind of key escrow, or copyright library so that protected works don't get lost.

There were then a few questions, relating to Martin's views on private copying, which he did not think would be introduced with the EUCD in the UK, as there is no right in the UK for this already. The issue of taxpayer-sponsored information and the copyright surrounding it was also raised, and it was mentioned that there was some debate about this, and lastly Senator Boucher was named after a question about blank media levies, who pointed out that not only was private copying illegal in the US, but that the record companies were also asking for a blank media levy to cover for private copying.