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(Updated Strategis links on Jun 25, 2003)

2001 copyright reform: CMPDA reply

This is a reply to the ongoing Canadian copyright consultation process by Russell McOrmond, proprietor of FLORA Community Consulting, a primarily Free Software, Open Source and Open standards based consulting company operating out of Ottawa, Ontario.

This reply is in addition to two previous submissions which included a small announcement of a discussion forum on August 5, 2001 and a full submission on September 13, 2001.

A fully linked version of this reply can be found online at: http://www.flora.ca/copyright-2001-cmpda-reply.shtml. It is online at industry Canada as http://strategis.ic.gc.ca/epic/internet/incrp-prda.nsf/vwGeneratedInterE/rp00813e.html.

A fully linked version of my submission can be found at: http://www.flora.ca/copyright-2001.shtml.

The DVD-CCA issue mentioned in this reply was also mentioned in an Ottawa Citizen article: The Anti-Copyright Crusader

Reply to CMPDA

While there were a few similar submissions from larger publishing companies, associations or cartels, this reply is specifically in regards to the Canadian Motion Pictures Distributors Association (CMPDA) submission.

The members of CMPDA are Buena Vista (Disney), Metro-Goldwyn-Mayer, Paramount/Viacom, Sony/Columbia, Twentieth Century Fox, Universal and Warner Bros.

This submission was of particular interest because Metro-Goldwyn-Mayer, Twentieth Century Fox and Warner Bros are also members of the DVD Copy Control Association <http://www.dvdcca.org> , and all members of the CMPDA are also members of the U.S. based Motion Picture Association of America (MPAA). http://www.mpaa.org/about/ ( Walt Disney Company; Sony Pictures Entertainment, Inc.; Metro-Goldwyn-Mayer Inc.; Paramount Pictures Corporation; Twentieth Century Fox Film Corp.; Universal Studios, Inc.; and Warner Bros. )

I wish to draw attention to some contradictions between the CMPDA submission, ongoing court cases with these members in the United States, and initial investigations of potential violations of Canada's Competition Act by members of CMPDA, specifically in regards to actions related to the changes in Copyright legislation they are calling for.

DVD-CCA case

While I included information in my previous submission on the DVD CCA (Copy Control Association) under "Potential conflicts with other Public Policy", a point-form summary of the key points will be listed.
  1. From their FAQ, "The DVD Copy Control Association (DVD CCA) is a not-for-profit corporation with responsibility for licensing CSS (Content Scramble System) to manufacturers of DVD hardware, discs and related products." <http://www.dvdcca.org/faq.html>
  2. Contrary to their FAQ and the name of their association, the CSS technology is unrelated in any way to copying of DVD's as it does not restrict bit-for-bit copying of DVD's. A copy of a DVD would be indistinguishable to a DVD player from the original. The myth that the DVD-CSS technology is related to the ability to copy a DVD is one of many myths promoted by the DVD-CCA members. <http://www.opendvd.org/myths.php3>
  3. The purpose of the CSS system is to allow the DVD-CCA members to license and thus control DVD player manufacturers. An additional feature of the CSS technology is to include regional encoding which limits the ability of DVD's purchased in one region to be played by a player purchased in another region.
  4. It is the interpretation of this consultant that both of these activities are in contravention of Canada's Competition Act. I and a number of other Canadians have submitted complaints to the Competition Bureau to this effect. I have already met with my MP on this matter, and will continue to further investigate other political options to encourage Industry Canada to open a full investigation of the DVD-CCA.
  5. DVD-CCA's attempted control of the DVD player market is referenced under 'tied selling' which is part of section 77 of the Competition Act
  6. Regional encoding would constitute a barrier to trade in DVD's, arbitrarily restricting distribution of CD's to within a region. Beyond existing competition law, there will likely be implications on future trade agreement negotiations.
  7. It is important to note that trade in CD's are not always sold directly from original publisher/encoder to final consumer. Secondary markets involving large multi-national retailers, specialty importers/exporters, and markets in 'used' CD's exist.
  8. Regional encoding is also under investigation in Australia. Ongoing investigations will be hilighted as part of the OpenDVD Regional Codes resource: <http://www.opendvd.org/regioncode.php3>
  9. The requirement for a CSS license in order to produce a DVD-CSS compatable player, and the claim that software to implement the license needs to be kept a trade secret <http://www.eff.org/IP/Video/MPAA_DVD_cases/>, effectively creates an insurmountable barrier to entry into the DVD player market for any Open Source or Free-software based player as the source code must be published in these cases.
  10. The claim from the CCA in their FAQ that the CCA will license CSS to players that operate on the Linux operating system is not relevant. The question is not whether a DVD-CCA licenced proprietary player can be marketed by a DVD-CCA member for Linux or any specific operating system, but whether the ability to view a legally purchased DVD video is tied to the purchase of a DVD-CCA licensed video player. In my case the specific question is whether the player chosen can be one licensed under a Free Software license.
  11. In their submission, the CMPDA claims under their support for Legal protection of Technological measures that no exemptions from anti-circumvention provisions are required with respect to works in the public domain. They further suggest that market forces will be sufficient.
  12. Both these claims must be taken in context of the US experience. The CMPDA members have proven they can not be trusted to protect free market forces in DVD movie distribution. CMPDA members have thus far been openly hostile towards free market forces as demonstrated with their attempt to gain control over an otherwise competitive DVD player market and to restrict Free Trade in DVD's other than directly from their members to final consumers.
  13. There is clearly a justification for creating an obligation on copyright holders to provide access to their works. As discussed in other submissions, the addition of technological measures creates a situation where physical access to a work through legally purchasing a copy does not guarantee the ability to use the work. This is an issue at the core of the anti-circumvention debate where organizations like CMPDA have demonstrated that they will attempt to abuse these new technologies and laws relating to these technologies to try to create for themselves new rights that otherwise would not be protected in copyright, and most likely understood as anti-competitive.

Personal DVD investigation

In my business I specifically promote and support computing standards that do not tie my customers to any specific vendor for their technology. I use only Free Software or Open Source software, and purchase hardware for which there are alternatives from other vendors for compatible hardware.

When playing DVD videos on my home computer to investigate video viewing and LAN distribution potential for my clients, I was specifically looking for Free Software based players. In this case all the source code is publicly published and I can get involved in and help support this class of product for my customers. My commercial support of these Free Software products would effectively involve me becoming similar to a "reseller" in the proprietary player market.

The VideoLAN project was investigated as it supports LAN-based video-distribution technologies which would be useful to my clients, and the LiViD project which was specifically promoted by OpenDVD.org.

From their respective websites:

"VideoLAN is a project of students from the École Centrale Paris. Its main goals are MPEG and DVD playing and broadcasting on the campus, but it also features a standalone multimedia player that can read DVDs and MPEG files. It will also eventually support streams from a satellite or from an MPEG2 compression card. VideoLAN is free software, and is released under the GNU General Public License."

"The LiViD Project is a collection of video and dvd related sub-projects." ... "Our goals are simple - provide a unified development and user resource center for video and dvd related work for Linux."

"The OpenDVD.org site serves as a comprehensive resource for developers looking to implement DVD technology, and for users to take full advantage of all the benefits that DVDs have to offer.

The DVD-Copy Control Association and movie studio members of the MPAA have filed lawsuits to stop the development of independent players for DVDs. They argue that decrypting the Content Scrambling System (CSS) encryption without a DVD-CCA-licensed player violates their trade secrets (DVD-CCA's California lawsuit) and the Digital Millennium Copyright Act (movie studios' New York and Connecticut lawsuits).

The OpenDVD Group is doing whatever it can to aid the defense, which is led and funded by the Electronic Frontier Foundation. We believe the issue is fair use, not piracy. We respect the rights of copyright owners, but those rights do not include complete control over the uses of their published works. Copyright's protections are balanced by fair use, individuals' rights to make limited copies for criticism, scholarship, or personal use. We, and a number of prominent law professors, believe fair use gives us the right to watch DVDs on any platform of our choice."

In order to test these technologies, I purchased two videos:

"AntiTrust" - http://www.antitrustthemovie.com/
Metro-Goldwyn-Mayer encoded this DVD with CSS Region 1 - U.S.A, U.S. territories and Canada. The irony will not be lost to anyone who has seen the movie of MGM being actively involved in, and lobbying for protection of, a technology that attempts to make viewing this movie using an Open Source player illegal. Some of us in the Open Source industry can't believe they have the NURV to be doing this.

"The Mummy Returns"
According to the CSS-Free DVDs list maintained by the VideoLAN project <http://www.videolan.org/freedvd.html> , this CD is not encoded with CSS.

The CD's could be viewed using both DVD players. Both DVD players made use of unlicensed CSS decoders, which is required because of the conflicting requirement to keep this technology a trade secret with the publicly released source-code nature of Open Source and Free Software.

These two players were both produced outside of the United States since the new controversial DMCA law has allowed the DVD-CCA cartel to declare a competitive DVD player to be an "anti-circumvention device". Considerable information on this case can be found from EFF and other related organizations.

While it is currently legal for me to use these Open Source players to play these videos in Canada, a change in the Canadian Copyright law to label unlicensed CSS decoders as anti-circumvention devices will then tie my ability to view my already purchased copy of the movie "AntiTrust" with an additional purchase of a DVD player licensed by the DVD-CCA cartel.

While this potentially illegal tieing already exists for commercial players who wish to produce players in Canada for export to the USA, a change to our copyright laws to make illegal "anti-circumvention devices" would add into the conflict with the Canadian Competition Act any production of competitive players within Canada, or any attempt to import legal devices from outside of North America into Canada.