(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
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
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
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.
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.
- 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
- 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>
- 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.
- 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.
- 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
- 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.
- 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.
- Regional encoding is also under investigation in Australia.
Ongoing investigations will be hilighted as part of the
OpenDVD Regional Codes resource:
- 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.
- 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
- 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
- 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.
- 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
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
... "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
, 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
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
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.