Copyright Wars Volumes 1 & 2

The Author and his Deceased Editor
The Author and his Deceased Editor

Greetings and salutations! On September 1, 2011 I had the great pleasure of publishing the first two volumes of my Copyright Wars series. They are up on both Amazon and Smashwords, and should be available on the Kobo, IBook, Diesel, and Sony Reader platforms in a few days. I published them under my imprint. Yes, I’m legally a Canadian publisher, you can find me listed on Collections Canada.

Continue reading “Copyright Wars Volumes 1 & 2”

I'm Going To Forecast The Death Of The American Recording And Video Industries

Yep. Time to stick my neck out again. By my calculations 2+2=15, and I want to tell you about it.

First off, this has nothing to do with file sharing, nothing at all. And it has nothing to do with my dislike of the industry for their past actions. I’m coming at this from a different direction, one that I don’t believe that the industry has really considered. At least if they have, they don’t seem to have done anything about it.

First, you must have money to buy things. This is a basic economics that even a four-year old can understand. At least my kids could when they were four years old. To have money, you must have a job, which pays you enough money that you can cover housing, food, transport, and other essentials, and then have money left over for luxuries, like internet access and entertainment. For those who don’t think internet access is a luxury, consider this – would you prefer to eat or surf the web? Surfing the web while starving isn’t fun, especially when you run into things like Cooks Source <EVIL GRIN>.

Financially difficult times, like the current Recession, cause people to cut back on spending. If you aren’t working, taking the family to the theater to see the newest Harry Potter movie really isn’t a practical choice. Instead you’ll wait until someone you know buys the DVD, and borrow it. You’d prefer to own your own copy, but if you don’t have the money, well, you don’t buy it. This is a simple extension of why most of the population doesn’t drive Corvettes. A Corvette is a luxury. Watching Harry Potter at the cinema is a luxury. Going to a Neil Young concert is a luxury, listening to Neil Young on Q107 is affordable.

Let’s consider the Republic of Ireland, Eire, or Southern Ireland as us old folks still think of it. The Irish Times, a major Irish newspaper has reported that Ireland is insolvent. To quote the first two paragraphs of the article:

WHEN I wrote in The Irish Times last May showing how the bank guarantee would lead to national insolvency, I did not expect the financial collapse to be anywhere near as swift or as deep as has now occurred. During September, the Irish Republic quietly ceased to exist as an autonomous fiscal entity, and became a ward of the European Central Bank.

It is a testament to the cool and resolute handling of the crisis over the last six months by the Government and Central Bank that markets now put Irish sovereign debt in the same risk group as Ukraine and Pakistan, two notches above the junk level of Argentina, Greece and Venezuela.

I suspect that you didn’t hear of this. The newspapers wasted a lot of ink covering Greece and Iceland, while ignoring Ireland almost completely. Maybe it’s because unlike the Greeks, the Irish haven’t been rioting in the streets. Maybe it’s because unlike in Iceland, the Irish bankers haven’t been charged for criminal acts. The problem is that the Irish State is in deep financial trouble (for further details see the Irish Economy blog).

There was no single issue that caused Ireland’s problems. In fact there were too many issues, including banks that issued mortgages that the mortgagee had no hope of repaying (sound familiar?) The banks knew that they were doing this. In many cases they deliberately forced customers who qualified for lower interest rate mortgages into higher interest rate mortgages so that the bank could make more money. When the recession caused cash flow problems for the customer, it caused problems for the bank. If the customers had have been at the lower rates, a significant number of them would not have had cash flow problems. The banks action quite possibly was criminal. In any case it left many Irish families with little or no discretionary spending money, money that they might have spent on luxuries like concerts.

And then to top it off, the government panicked, and decided on an austerity program. Rather than raise taxes on industry, and use the money for infrastructure projects, they did what industry wanted. Keep the taxes low, and cut spending. When they cut spending, they put people out of work, which meant that tax income dropped, so they cut spending further, which put more people out of work, so tax income dropped further, implementing a classical feedback loop. The country is now effectively insolvent, even though the government has some money left, money which will be gone by early in the new year.

Their next door neighbors, Britain, have now decided to take the same course. Curiously, all the spending cuts affect the poor and the middle class. The Toffs make out just fine, thank you very much.

Now the Americans want to do the same thing. They will do the same thing. And will suffer the same fallout. Massive unemployment, massive underemployment. The entire audience that the RIAA/MPAA companies depend upon for their sales will be in the poorhouse, and unable to afford to buy entertainment. After all, food and housing come first. You can survive without entertainment. Life is more fun with it, but life is impossible without food.

Possibly this is the reason that the Entertainment Distributors have been so interested in pushing ACTA, in the hope that they’ll be able to increase their sales outside of the United States. Other countries are pushing their creative industries too, so competition will be fierce.

Things look desperate for the Entertainment Distributors in the United States. It looks like only a miracle can save them.

Regards

Wayne Borean

Monday November 8, 2010

The TPM Provisions in Bill C-32 Are Not In Compliance With The WIPO Internet Treaties

Oh dear, here we go again.

Unlike most of the rest of the people commenting on Bill C-32 I’ve actually read the WIPO Internet Treaties. Heck, I’ve even quoted them often enough. You can read the specific treaty in question in PDF form here or read the text online here. At this point I’m going to be really nasty. Have you ever wondered why I’m the only person who is willing to post a link to the treaty? Don’t you think that it’s curious that Michael Geist, Barry Sookman, James Gannon, Howard Knopf, etc., etc., etc. never give you a link so that you can read the treaty on your own? Curious, isn’t it.

Specifically I want to look at Article 11, Obligations concerning Technical Protection Measures which reads:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Note the word authors, which is used twice in the text. But what does the treaty mean by this? Since the treaty does not give a definition of the word ‘author‘ anywhere within it’s text, it means that the word is considered so well defined, that the treaty did not need to give a definition. So let us turn to our old friend dictionary.com for a definition.

AUTHOR

–noun

1. a person who writes a novel, poem, essay, etc.; the composer of a literary work, as distinguished from a compiler, translator, editor, or copyist.
2. the literary production or productions of a writer: to find a passage in an author.
3. the maker of anything; creator; originator: the author of a new tax plan.
4. Computers . the writer of a software program, esp. a hypertext or multimedia application.
–verb (used with object)

5. to write; be the author of: He authored a history of the Civil War.
6. to originate; create a design for: She authored a new system for teaching chemistry.

By the usage of the word in the treaty, it’s a noun, so we can ignore the verb definitions. Let’s take the noun definitions one at a time.

1. a person who writes a novel, poem, essay, etc.; the composer of a literary work, as distinguished from a compiler, translator, editor, or copyist.

So by this definition, I am the author of this blog, just as James Gannon is the author of his blog, and Roy Schestowitz is the author of his blog.

2. the literary production or productions of a writer: to find a passage in an author.

So this would cover the works written by a writer, such as the books written by Tanya Huff, the songs written by Brooke Lunderville, the poems written by Ann Margetson, etc.

3. the maker of anything; creator; originator: the author of a new tax plan.

This is the widest definition yet. In theory this makes my wife the ‘author’ of her quilts, since each quilt she makes is designed individually for her customers (to the best of my knowledge she has NEVER made the same quilt twice, and I live with her quilting – heck I help with it when I can, which considering my limited sowing skills mostly involves holding things). In theory I suspect that certain people would like to stretch this to cover the manufacturers of Compact Discs and Digital Video Discs. But the words ‘creator‘ and ‘originator‘ are also used, and those have very specific definitions which have nothing to do with manufacturing.

4. Computers . the writer of a software program, esp. a hypertext or multimedia application.

Which would have covered me, back when I was still writing software, including designing my own Technical Protection Measures. In fact I still hold the copyright to those programs, even though they are useless now, since the original reason that they were written is now obsolete.

What does this mean? Simple. If the Canadian Government does decide to include some protection for Technical Protection Measures, it is only obligated to do so IF THE AUTHOR OF THE WORK DECIDED TO USE THEM. That is what the WIPO decided, and that is all that is required.

So where does this leave Apple, with it’s highly touted ITunes App Store? Apple automatically adds Technical Protection Measures to every application that is sold through the App Store. If the author of the application states that they did not want the Technical Protection Measure used, then according to the WIPO Treaty, you are free to break the TPM.

This means that the Digital Millennium Copyright Act of 1998 (PDF warning) that the United States is so proud of, is not in compliance with the WIPO Treaty, and has never been in compliance with it. Isn’t it wonderful what you find out when you read the actual source documents? Doesn’t it make you wonder exactly why all of the commentators aren’t telling you the truth, the whole truth, and nothing but the truth?

The problem is that the Recording Industry (as separate from the Music Industry) is suffering from sales drops, and is panicking. In effect the Recording Industry has become obsolete, and they are fighting to try and retain some relevance. Any relevance. And they probably could except for one thing. A couple of days ago I published an article on Canadian military procurement titled F35 Joint Strike Fighter – The Biggest Procurement Mistake Ever in which I mentioned political instability in the United States. The article was published before their election, and my concerns about American political instability were based solely on the news articles of the time. It appears that things may be far worse than I thought. The new composition of the House of Representatives are going to push for enormous spending cuts, which is almost certain to turn the current Recession into a Depression, right behind the Brits and Irish. As the economy gets worse, they will probably attempt to cut spending further, possibly putting the United States economy into a death spiral. And of course if consumers don’t have money, they don’t spend it on things like music. It is quite possible that we could see one or more of the large Recording Industry companies forced into Chapter 11 Bankruptcy in the near future, because their customers won’t have any money to spend.

And of course downloaders will get the blame.

As a final note, since I’ve mentioned certain people in the first paragraph, I will of course contact those people to let them respond if they so choose. I look forward to hearing their comments.

Regards

Wayne Borean

Thursday November 4, 2010

Why Is Michael Geist In Favour Of Digital Rights Management/Technical Protection Measures?

I was disturbed to find that Michael Geist has come out in favour of Digital Rights Management/Technical Protection Measures in an article published today. In his own words:

1.   Anti-Circumvention Rules

The rules on digital locks are easily the most controversial aspect of the forthcoming bill.  Yet there is more agreement here than disagreement.  At this stage, the majority of stakeholders accept that Canada should implement the WIPO Internet treaties and with it introduce anti-circumvention rules into Canadian copyright law. The fact that we move forward on WIPO should please the U.S. and many copyright lobby groups.

I – along with many others – have argued that it should only be a violation of the law to circumvent a technological protection measure if the underlying purpose is to infringe copyright. Circumvention should be permitted to access a work for fair dealing, private copying, or any other legal purposes.  This approach – which is similar (though not identical) to the failed Bill C-60 – would allow Canada to implement the WIPO Internet treaties and avoid some of the negative “unintended consequences” that have arisen under the DMCA.  It is also the approach that was recently adopted in India and bears some similarity to both New Zealand and Japan.  While some would not love this – some would want more, others less – it is likely an acceptable compromise to most.

I’d like to remind Michael that there was more agreement than disagreement that blacks were an inferior species in North America late into the 1900s, and that there is still a strong belief that Native Canadians are inferior in parts of Canada even today. Just because there is some agreement on something doesn’t mean that it’s right.

Michael also ignores the specific language of the WIPO Copyright Treaty, which under Article 11, Obligations concerning Technical Measures says:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Note the highlighted word. AUTHORS. There is no allowance for corporations (which by definition cannot be authors) to implement DRM/TPM, and there is no protection for DRM/TPM implemented by a corporation, unless the AUTHOR is in agreement.

And a lot of authors aren’t in agreement. Film Maker Nina Paley turned down an offer from NetFlix to distribute her film Sita Sings the Blues because Netflix refused to distribute it without DRM.

Corey Doctorow has an article titled ‘Can You Survive A Benevolent Dictatorship‘ discussing issues with DRM/TPM on the Apple IPad, in which he says:

There’s an easy way to change this, of course. Just tell Apple it can’t license your copyrights–that is, your books–unless the company gives you the freedom to give your readers the freedom to take their products with them to any vendor’s system. You’d never put up with these lockdown shenanigans from a hardcopy retailer or distributor, and you shouldn’t take it from Apple, either, and that goes for Amazon and the Kindle, too.

What a lot of people don’t know is that Blue-Ray was supposed to include a managed copy system. Scenic Labs attempted to implement the managed copy system, and ran into severe problems. They didn’t even have the option of not using the Advanced Access Content System unless they burned the discs in their own facility, which according to the article wasn’t feasible.

The Apple IPad. The Amazon Kindle. The Microsoft XBox360. The Nintendo Wii. The Sony PS3. Blue Ray Players. All of these default to ‘DRM ON’ even if the author doesn’t want it. All of them push DRM at authors. None of them give the choice that the WIPO Treaty was supposed to provide. None of them are legal under the plain language of the treaty.

The Americans make a huge fuss about being WIPO compliant with the Digital Millennium Copyright Act of 1998, but the DMCA does not recognize the special status that was accorded to authors, instead it accords this status to publishers, which is in conflict with the WIPO Copyright Treaty.

There are other issues with DRM/TPM that I’m going to cover in another article, but for now I have one question:

Why do you support DRM/TPM Michael?

Regards

Wayne Borean

Tuesday April 27, 2010

James Gannon Presentation – Copyright Viewed By A Lawyer – Correct Legally But Wrong – Part 3

Since finishing the last article, I’ve been informed that the Parliament of the United Kingdom has passed the ‘Digital Economy Act’, and I’ve been reading Corey Doctorow’s tweets on the subject:

doctorow RT @xenijardin: #debill has passed. Makes DMCA look like a warmup act. @doctorow‘s on holiday, but I’d keep tuned to @BoingBoing for analys

doctorow No more “What’s a good digital entertainment bizmodel?” Now: “How do we kill these corps before they destroy democracy?” #debill

doctorow IP is XXIth Cen oil. Oil nation: hole in the ground surrounded by guns. IP nation: Great gash in the net, surrounded by corrupt laws #debill

doctorow Don’t know what kind of Lord Peter Mandelson is. I’m guessing the Lord Voldemort kind. #debill

doctorow Don’t think the entertainment co’s want to destroy society. But I think they don’t care if they do so in the course of seeking $ #debill

doctorow MPs who allowed the #debill to pass w/o real debate + over the howls of constituents have shamed their parties and the nation

doctorow RT @dajmeister not even a quorum even bothered to vote. #debill MPs can’t be arsed to turn up for work and do their jobs.

loveandgarbage @doctorow There have been some that did sterling work – including @tom_watson , @ericjoyce , @donfostermp , John Grogan, Bill Cash & others

doctorow When corporations weaponize copyright to use against civilians, they use artists as human shields #debill

doctorow Artists: our copyrights are being hijacked to attack our audiences. #debill

doctorow What will fans do when you stop being ‘artist they lost their virginity listening to’ and become ‘guy they lost their Internet to?’ #debill

doctorow Passing the #debill will legitimize piracy as an act of civil disobedience in the minds of fans. Nice work, #BPI

Streather @doctorow i’m reasonably sure when mandelson became a lord it was a Sith lord.

doctorow RT @LoufromBilbao: @doctorow They have made an ass of law. When the law is an ass, that’s an open invitation to civil disobedience. #debill

Corey Doctorow is a famous author, a creator, one of the people that the Digital Economy Bill is supposed to benefit. Note that I said ‘supposed to benefit’, it appears from Corey’s comments, that he thinks that the bill wasn’t designed to help the creators, but instead to make the creators slaves of the corporations that specialize in distribution.

But that is rather off-topic 🙂 Let’s get back to James presentation, and continue with ‘film.’ Film is an old term for what we now call video. James is under a bunch of misapprehensions here. First, in the TV Show section, he thinks that YouTube uses TPM/DRM. If it does, I’ve never noticed it. Since we have Rogers Slow-Speed Internet, I always download YouTube videos to watch them using the Video DownloadHelper extension for Firefox, and play them using Videolan, the best media player I’ve ever found. It makes Windows Media Player and Quicktime both look like junk. Don’t take my word for it, give it a try. Oh, and did I mention that there are versions for Microsoft Windows, Mac OSX, Syllable, Debian GNU-Linux, Red Hat Enterprise Linux, Ubuntu, Slackware Linux, Mandriva Linux, Alt Linux, Fedora, Arch Linux, Open SUSE, Free BSD, Gentoo Linux, Net BSD, Solaris, Open BSD, and QNX. Seriously. Windows Media Player, Quicktime, and the moribund Real Media Player just can’t compete.

As far as Hulu and NetFlix are concerned, I’m surprised that James bothered mentioning them. He couldn’t have watched them. His office is in Toronto, he’s a Canadian, and since neither Hulu or NetFlix is available to Canadians, well, the only conclusion I can draw is that someone mentioned them, and he didn’t bother doing any research, because he sure as hell couldn’t have watched them.

Then he gets into movies. He mentions Content Scramble System, the incompetent DRM/TPM used on DVDs once again, and I won’t bore you with repeating how bad it is. He also mentions Adobe Flash Copy Protection, which since it is used by Hulu, which is USA only he can’t know anything about. He mentions Quicktime DRM, which isn’t Quicktime DRM, its Fairplay, and is one of the few DRM/TPM systems that doesn’t seem to be designed to make the consumer into a raving lunatic (Apple is one of the few consumer electronics companies that actually seems to care about their customers). And finally he mentions Blu-Ray, Sony’s latest attempt at consumer lock in, and one that based on the lack of titles available at our local video stores, is failing miserably.

So he’s telling us about things he can’t have any experience with, and he’s deliberately not mentioning things that conflict with his message. At which point I start wondering exactly why he is so wrong? Is he being paid to be wrong? Or is he not very bright. Since graduating from Law School isn’t the easiest thing in the world to do, I know what I think.

The he gets into publishing. His wonderful example here is AZW, the DRM/TPM used on the Amazon Kindle. The Kindle has only recently become available in Canada, and I haven’t seen one yet. However there have been a lot of reviews in the U.S. Media, and there are some points that he doesn’t mention about the Kindle’s DRM scheme that need to be considered. For one thing, the device totally tramples on the WIPO Copyright Treaties. Now my original battles with Barry Sookman started when Barry allowed Doctor Mihaly Ficsor to post the article Dr. Ficsor: An invitation to Canada to join the international community by ratifying the WIPO Internet Treaties, which caused me to respond with the article An invitation to Doctor Ficsor to explain the value to the citizens of Canada in ratifying the WIPO Internet Treaties. Barry thinks we should adopt the WIPO Copyright Treaties, and I disagree. That’s fine. I don’t expect the entire world to agree with me, I know that I’m a genius (IQ of over 150), and most people just don’t have the intelligence to keep up with me :). Yes, I’m conceited. I do expect some logic though, and if James’ law firm is backing Canadian WIPO ratification, then why would he bother listing a device that tramples on the WIPO Treaties?

The WIPO Treaties state specifically that DRM/TPM use is to be decided by the author. Amazon implemented DRM/TPM on all titles, including those that were out of copyright. In fact from what I am told, one of the writers who’s works had DRM/TPM added was William Shakespeare, the ‘Bard of Avon’, and he died in 1616 AD. Since Amazon doesn’t have access to Doc Brown’s Delorean or the Tardis, I doubt that they were able to get the author to agree to the use of DRM/TPM.

So which is it? Do you want Canada to adopt the WIPO Copyright Treaties? If so, why are you not criticizing those who are not in compliance, like the United States (with the DMCA) and the United Kingdom (with the Digital Economy Bill). For that matter, where is Doctor Mihaly Ficsor, the supposed copyright expert? Why isn’t he criticizing the United States and the United Kingdom for passing legislation which is not compliant with the WIPO Copyright Treaties?

Logic people. Use some logic. I’ll try to finish this series tomorrow, I’ve just noticed that it’s 12:30 AM, and I have to get up early tomorrow.

Oh, and I should mention that this post, and all of the other posts in this series are being filed with the Canadian Government, as part of the ongoing Canadian discussion on Copyrights and Patents.

Wayne Borean

Thursday April 8, 2010

The Far Left Virtual Police State or How I Didn’t Do My Homework And Now I Look Like An Idiot In Front Of 7 Billion People

I don’t know what’s wrong with John W. Dozier Jr. I do know that his articles tend to be extremely uneven. Some times he makes sense. At least a bit of sense. Other times, well, he doesn’t do his homework, and sounds like he’s totally lost it.

A case in point – he produces an article called ‘The Far Left Police State’ in which he claims that those of use who disagree with him are nasty, nasty, orcses, and attack through words. Really? Isn’t that exactly what you are doing? Do you understand the word ‘hypocrisy?’

OK, I didn’t think so. So I’m going to deconstruct you one paragraph at a time. Unlike you, I will document what I’m saying. I’ll provide links to my evidence, because unlike you, I don’t believe that people should believe me because of who and what I am. I’d rather that they read the evidence, and made their own decisions based on it.

Hold on – maybe that’s the point. You don’t want people to make a considered decision, because you know that you are wrong! Hum. Yes, that does look possible. You are free to respond. Or not. After all, This is Liberty Hall – You can spit on the mat, and call the Cat a bastard.

*****

We’ve been quite vocal at Dozier Internet Law about the nasty habit of the far left leaning and liberal blogosphere of attacking through words (and otherwise) individuals who dare disagree with their “information yearns to be free” and “hands off the web” mantra. These interests claim that our free speech guaranteed by the First Amendment protects the right to attack with impunity anyone with whom they disagree.

Where to start. John, John, John. You are so bad at this. OK, first word. We. Curiously the ONLY person who ever writes anything here is you. So unless you are twins, or suffer from Multiple Personality Disorder you should change that to ‘I’.

Then you mention the ‘far left leaning and liberal blogosphere,’ and claim that they attack everyone who disagrees with them. You are right. Left wingers such as Rush Limbaugh, Glen Beck, and Laura Ingraham are a danger, and should be shut down. Oh, wait. You say those are right wingers? Hum, when you mentioned ad hominem attacks (and I hope these words aren’t too long for you), these are the only people who came to mind. That aside, didn’t your mother tell you that insulting people is not the best way to get them to agree with you? And really – calling me a liberal. Do you know how bad an insult that is in Canada? Many Canadians consider all Liberals to be corporate sellouts (see the Gomery Inquiry for details.

As I said – do some research so that you don’t look like an idiot. And if you don’t like the first Amendment, why don’t you move up to Canada with me and Michael and Howard and Barry? Canada is a lot nicer place to live than the United States, and if you do, you’ll never have to worry about the First Amendment ever again.

And most troublesome is that these groups and special interests maintain a virtual police state online. They develop intelligence, share information, and relentlessly attack the dissenters to their far left perspective, sometimes in the dark of night using anonymous and pseudonomous postings, riding off the ‘Streisand Effect’ to create a mob attack of similarly minded fanatics (I call it a “mobosphere attack” in the Google Bomb Book).

Um, have you seen your shrink lately? That sounds especially paranoid. But I’m not a doctor. Go seek professional help. Oh, wait. You can’t afford to. Ah, well. You made the mistake of living in the United States, not me.

And don’t act surprised when people are offended because you called them fanatics.

I have often said that the left wingers are all for the right to free speech, until they don’t agree with it. Time and again you’ll see discussions and postings about using the Streisand Effect to retaliate against someone for offering an opposing voice. It is a policy aimed at destroying dissension, particularly in Internet legal and policy areas. ‘First things we do, let’s kill all the lawyers.’ Consider the context of the statement if you don’t already know and it quickly becomes apparent that this effort to bully, undermine, attack and destroy lawyers is the rallying cry for the police state…a world in which dissidents are held out to public scorn and ridicule by a vicious mob (Streisand Effect) or relentlessy attacked by masked intruders (anonymous speakers). This is the world in which we live today. Honest, honorable, intelligent, well mannered, battle worn veterans of the world rarely participate in online dialogue because of the attacks their participation invites. And so you get a very one sided, jaded, biased perspective on Internet law and policy issues. The far left liberals not only control the message, but police the web for anyone not drinking their kool-aid.

And I thought that the last paragraph was bad. Police State. Kill all the Lawyers. Drinking their Kool-Aid? I seriously think that you need professional help, and soon. I hope that your family sees this, and gets you the help that you need.

Oh, and if they don’t, invest in a spell checker for God’s sake. Do you know how much harder it is to read your ravings when peppered with spelling mistakes?

What really amuses me about the above two paragraphs, is that everything that he accuses the ‘left wing blogosphere’ of, he then proceeds to do. Attack, attack, attack. Good work John, you are really convincing me.

The latest dust up comes from a debate about the Anti-Counterfeiting Trade Agreement that will establish standardized laws for dealing with Intellectual Property. On the one hand, the liberals complain about a number of proposed or anticipated elements like a “three strikes” law for those infringing copyright and anti-circumvention technology restrictions, all of which is far too involved to discuss in this post. It is all very complex, and the online debate is raging.

If it’s too difficult to talk about, why are you bringing it up? It is really difficult to read John’s writing, between the mis-spellings (can’t he afford a spell checker?), and the total lack of logical structure, it’s almost incomprehensible. Maybe he should hire a writer. I’m available. No, wait. I have limits. I don’t knowingly lie to an audience. In the next paragraph it appears that John is doing exactly that.

What caught my attention was not the relative merits of the debate, but comments made by Dr. Mihaly Ficsor, a renowned global copyright expert and a citizen of Hungary. It is in response to Michael Geist’s far left leaning attacks on the treaty and the publication of high profile and allegedly misleading claims about the treaty that Dr. Ficsor offers a perspective that we in the US cannot possibly have. Here are his words from Budapest, Hungary:
I have decided reluctantly to react to this, and then truly do not want to deal with this weird quarrel anymore. It is completely useless to present arguments against heated ideological discourse and sheer hatred campaigns trying to suppress any contrary views. I am immune against it, as someone who has survived a serious illness. In the decades through which we were constrained to live under a communist regime, this was so customary; everybody who did not agree with the collectivist ideology, there was no discussion about it; he simply became enemy and the agent of the “imperialist forces.” There were no blogs at that time; there were only newspapers and radio, but the style was the same as in these “digital activist” blogs; even the words and expressions are so familiar. Ask about this the many Hungarians who fled to Canada after our beautiful but failed uprising in 1956! We who have suffered a lot – I too as a child and adolescent as a member of a family which, together with many others, was a victim of serious persecution because my uncle bravely spoke out against the communist ideology – have become resistant. Nevertheless, at the same time, we are sensitive to those phenomena where some people try to settle disputes in the style of those “glorious” years, and we may be ready to say some words just in order that our social environment make use at least the wisdom of the saying: “Experience is a wonderful thing; it helps us to recognize our mistakes when we commit them again.”

Doctor Ficsor offers a perspective that we in the US cannot possibly have? John, John, John. Go do some research. Simple basic stuff. Check out Michael Geist’s website. It will tell you that Michael lives in Canada, not the US. If you check out my website you will see that I live in Canada too.

And then of course there is the question of who is Doctor Ficsor? I asked that question in my article An invitation to Doctor Ficsor to explain the value to the citizens of Canada in ratifying the WIPO Internet Treaties because I had never heard of him before! Since I’ve been closely monitoring, and taking part in discussions about Copyrights and Patents for the last several years, if he really was a ‘World Renowned Copyright Expert’ then why is there so little evidence to prove this online? In fact when I did search for proof that he was what he says he is for my second article Doctor Ficsor is wrong about many things – why should we believe him the first three results were links to my first blog posting!

By the time I wrote Doctor Ficsor is wrong again I had come to the conclusion that Doctor Ficsor is only a bureaucrat at the WIPO. He may have had input into the ‘Internet Treaties’, but I fail to see how that would make him an ‘International Copyright’ expert. As as to his experiences in communist Hungary, I fail to see how those have any validity in this situation.

Also in Doctor Ficsor’s first post he claims he was surprised to find Michael Geist’s blog. Well while I had never heard of Mihaly Ficsor, I had definitely heard of Michael Geist. Mihaly Ficsor’s claim that he was unaware of Michael Geist’s blog is less than credible.

And so, as we begin a New Year, let me propose five resolutions that we should all consider embracing. I’ll call them the “Ficsor” principles:
Oppression: I resolve not to abuse our rights in free speech. I will be vigilant in guarding the rights of others to voice their opinions and disagree, but will never hide behind protected free speech in order to punish others for voicing their opinions.

Wow! Do you really promise to do this? Because based on this post, I doubt it.

2) Suppression: I resolve to reject the use of the mobosphere attack or Streisand Effect to influence, undermine or control online dialogue from dissenters.

OK, so you reject democracy as well. Maybe we should put you in a time machine, and send you back to join Doctor Ficsor in 1957.

3) Anonymity: I resolve to never publish anonymous and pseudonomous comments or posts that are derogatory towards someone.

But it’s OK to publish derogatory comments if you aren’t anonymous?

4) Persecution: I resolve to voice my opinion vigorously and openly with utmost respect for the free speech rights of those with whom I disagree, and to discourage and condemn any attempts at coordinating the persecution of my online adversaries.

Now this one you are going to have a really hard time with. I recommend a 12 Step program, you’ll find it will do wonders for you.

5) Intellectual Integrity: I resolve to only comment upon what I know after reasonably acquiring a fair, informed and balanced understanding of the issue.

If you were to follow this, you’d have to delete your post. I will wait for proof that you have done so, before believing you.

Those are my New Year’s resolutions.
Thank you, Dr. Ficsor, for reminding us that those who ignore the past are destined to repeat it.
And we must always remember that those who abuse our basic freedoms place them at risk.
John W Dozier Jr
Dozier Internet Law

*****

John:

Let me get this straight. If you do the same things that you accuse other people of doing, that’s all right because it’s you doing it. But you whine like a baby if someone else is doing those things to you or your friends.
Hypocrisy at it’s finest.

And then you make rookie mistakes because you can’t be bothered to do any research (as pointed out neither Michael Geist nor myself live in the USA). American law, and the American Constitution doesn’t apply to us. Canadian Law, and the Canadian Bill of Rights do. Think about it.

Oh, and don’t bother trying to edit your post so you won’t look so silly. I kept a copy.

Wayne Borean

Monday January 4th, 2010

Doctor Ficsor is wrong again

Oh dear – here we go again. Doctor Ficsor, you are quickly gaining a reputation for inaccuracy. I was originally going to refute you point by point, but that would have resulted in another long document, and as you stated, this is Christmas. I have children and a wife (never mind two adorable dogs) who would like to see me away from the computer for a while, so I will make this short.

Point Number One:
You have stated that the United States is compliant with the treaty in regards to ‘Technological Protection Measures (TPM)’. According to the wording that you, yourself have provided they are not. Their implementation, known as the ‘Digital Millennium Copyright Act of 1998’ is defective in many areas. I’ll pick one to demonstrate, specifically the Kindle, an E-Reader marketed by Amazon. The Kindle uses ‘Digital Rights Management (DRM)’ (a more accurate name would be Digital Restrictions Management), another name for a TPM, to prevent copying of the E-Books on the Kindle. According to your reading of the treaty, any legislation is supposed to outlaw ‘circumvention devices’ for any TPM.

However flatbed scanners are sold in many stores. With a flatbed scanner, I have the capability of scanning the book page by page. I can then, using commercially available Optical Character Recognition Software (OCR) transform the scanned pages into a DRM electronic file.

If your statement about the United States being compliant with the treaty was accurate, flatbed scanners and OCR software would not be legally available for sale in the United States, as they allow me to circumvent the TPM on the Kindle.

You may regard this example as ridiculous, however there is nothing in the treaty which allows a country to

Point Number Two:
Article 11, Obligations Concerning Technological Measures, states that:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

This section was written to protect the rights of an author, like you or I. Under this measure, only authors are protected. Publishers are not. Let’s use Canadian singer/songwriter Avril Lavigne as an example. If she writes a song, and records it, and she chose to use a TPM to protect the recording, under the wording of Article 11, if Canada ratified the treaty, you say we would have to enact legislation to prevent the sale and/or manufacture of circumvention devices of any sort. However if her label, RCA used TPM, we would not be required to enact legislation to protect the TPM from circumvention devices.

Or if Avril recorded a song that I wrote (an unlikely eventuality), since she is not the author, again, Canada would not be required to enact legislation to protect the TPM from circumvention devices.

So your blanket statement about the requirements for legislation to control circumvention devices is inaccurate. The requirement exists only if the author chooses to use it. No one else has that ability.

Point Number Three:
I have asked twice now, for you or Barry to supply me one or more peer reviewed cost/benefit studies. So far you have not done so. In fact your only argument is the Lemming argument. If a Lemming runs off a cliff, the other Lemmings have to follow. This makes any Lemming that follows the pact eligible for a Darwin Award, and would definitely improve the Gene Pool.

The obvious inference is that you either can’t or don’t want to supply the information. If you can’t supply the information, because such a study was not done, advocating that Canada sign the treaty would be a breach of fiduciary duty on your par

If you don’t want to supply the information, because the study showed that there either was no benefit, or that implementation would have a negative effect on the citizens of Canada, this would also be a breach of fiduciary duty on your part.

Since, as you pointed out, this is Christmas, I will happily wait until the end of the second week of January, for you to supply this information.

Point Number Four
As I pointed out in my earlier responses, to you and Barry, the Government of Canada is responsible to the citizens of Canada, not to the World Intellectual Property Organization (WIPO). The Government of Canada has a fiduciary duty to the citizens of Canada, not to the WIPO, or to any other political or judicial body outside the boundaries of this great country.

Canada is a democratic country. For you to suggest that our politicians have a greater responsibility to the WIPO, than to the citizens of this country, which you have done, is insufferable. Your original invitation read more like an order.

Since it is now December 24th, I will wish you a Merry Christmas. Even a Maoist Revolutionary can do that.

Dr. Ficsor is wrong about many things – why should we believe him?

Dr. Ficsor is right; Prof. Geist is wrong about the WIPO Internet Treaties

Earlier this week, Dr. Ficsor posted a blog inviting Canada to join the international community by ratifying the WIPO Internet Treaties. Dr. Ficsor is an internationally revered copyright scholar and professor and the former Assistant Director General of WIPO. As his posting pointed out, he was also responsible for organizing the preparatory work of the two Treaties, for the 1996 Diplomatic Conference adopting them, and for the first efforts to achieve their adequate implementation, There is no one on the planet who knows more about the treaties or what was intended by them than him.

That wasn’t an invitation – it was more like a mugging. That aside, I have this unfortunate tendency not to believe what people say. I guess its a fault in my makeup, that I believe everybody is lying to me, until I’ve proved otherwise. The problem is that all too often, I find out that they are lying to me. Or at least ‘gilding the truth’. The internationally revered copyright scholar and professor. A Google Search on the term Doctor Ficsor returns the following data:

Cranky Old Nutcase by The Mad Hatter: An invitation to Doctor …I’m a Canadian. Dr. Ficsor’s ‘An invitation to Canada to join the international community by ratifying the WIPO Internet Treaties’ is one of the more …
tweetmeme.com/…/cranky-old-nutcase-by-the-mad-hatter-an-invitation-to- doctor-ficsor-to-explain-the-value-to-the-citizens-of-canada-in… – 12 hours ago

Ficsor Curriculum vitae – International Symposium on IP Education …At the World Trade Organization (WTO), Dr. Ficsor is a member of the roster of … Dr. Ficsor holds a doctor’s degree in law and political sciences from the …
http://www.wipo.int/academy/en/meetings/iped_sym…/ficsor.html – Cached – Similar

Cranky Old Nutcase by The Mad Hatter: An invitation to Doctor …Dr. Ficsor’s ‘An invitation to Canada to join the international community … glynmoody says: invitation to Doctor Ficsor to explain the value in ratifying …
astonmartinnews.com/…/cranky-old-nutcase-by-the-mad-hatter-an-invitation- to-doctor-ficsor-to-explain-the-value-to-the-citizens-of-canada… – 12 hours ago

Glyn Moody (glynmoody) ‘s status on Wednesday, 23-Dec-09 11:16:40 …23 Dec 2009 … invitation to Doctor Ficsor to explain the value in ratifying the WIPO Internet Treaties – http://bit.ly/7whl4C fine takedown of codswallop …
identi.ca/notice/17306530 – 13 hours ago

Meeting of Kyrgyzpatent leadership with Dr. Mihály Ficsor …12 Jun 2009 … Dr. Ficsor emphasized that such problems have existed all over the world. He shared experience of other countries in this field. …
patent.kg/en/news/2009/06/12/430.html – Cached

[PDF] SHORT BIOGRAPHY -Dr. Mihály Ficsor Dr. Mihály Ficsor is a national …File Format: PDF/Adobe Acrobat – Quick View
At the World Trade Organization (WTO), Dr. Ficsor is a member of the roster of … Dr. Ficsor holds a doctor’s degree in law and political sciences from the …
http://www.fordhamipinstitute.com/ip_conference/…/Mihaly_Ficsor_Bio.pdf

Only the first six finds, which are printed above, were for Doctor Ficsor, and three of them linked to my response to his post on your blog. If the man really was an ‘internationally revered copyright scholar and professor’ I would expect more hits, and I would not expect the number one hit to be an article critical of his opinions and writing. So we have a virtual unknown trying to interfere in the affairs of a sovereign country. Does this sound as ridiculous to you as it does to me? It doesn’t? Don’t go away, it gets better.

In his post, Dr. Ficsor took issue with several assertions made by Prof. Geist about the treaties. Yesterday, Prof. Geist responded to Dr. Ficsor in another blog posting. Prof. Geist starts his new blog by attacking Dr. Ficsor trying to paint him as a lobbyist for rights holders. Anyone who follows Prof. Geist will know that he labels almost everyone he disagrees with as a lobbyist, attempting to demonize and discredit them by association rather than by the views they hold. Prof. Geist goes way over the line this time, however, when he tries to lead his readers to believe that Dr. Ficsor’s opinions about the WIPO Treaties are influenced by work he may do in the copyright area. Dr. Ficsor’s views about the requirements of the treaties have been well documented for over a decade. It is shameful that Prof. Geist would attempt to tarnish Dr. Ficsor’s reputation and iconic standing by asserting that he has “joined up with copyright lobby groups” thus suggesting that his views are not honestly held.

Doctor Ficsor’s views have been well documented for over a decade? Where? The man is virtually unknown according to Google. Most of the results it tosses up for his name link to my virtually unknown blog! My god man – didn’t your teachers tell you to strive for accuracy if you want to be believed? Both you and Doctor Ficsor are fond of making statements, without providing proof. Document, document, document!

And as to Doctor Ficsor’s connections to the ‘copyright lobby groups’, I refer you to my earlier post where I came to the same conclusion. Doctor Ficsor’s arguments are so similar to the arguments made by the US Ambassador to Canada in a recent speech. Which happen to be the same arguments made by the Motion Picture Association of America and the Recording Industry Association of America. Which may not be surprising, as the Obama regime is infamous for hiring RIAA lawyers for sensitive positions in the administration.

Now, let’s examine the substance of what Dr. Fiscor said and Prof. Geist’s responses.
1. Dr. Ficsor’s claim: Dr. Fiscor took issue with Prof. Geist’s assertions that Canada has not fallen behind the EU and Canada’s other trading partners by failing to implement the WIPO Treaties. Dr. Ficsor pointed out that such an inaccurate assertion could only be made by someone who is “ignorant about these facts” or “who intend to hide or drastically misinterpret them for some purpose”.
Response by Prof. Geist. Prof. Geist did not respond or take issue with this claim by Dr. Ficsor.
My Comment: Prof. Geist could not respond. Prof. Geist has consistently tried to confuse the concept of treaty ratification with enacting legislation to implement the treaties. When Prof. Geist says “for all the claims that Canada is years behind, the EU ratification arrived today” he wants his readers to believe that the EU member states only now just passed laws to implement the treaties. The fact is, however, that the EU member states had all implemented the treaties long ago to help foster a legal digital infrastructure for its citizens.

Well, I’m not Professor Geist. As I wrote to Doctor Ficsor yesterday, By your definition the number of lemmings who’ve gone over a cliff confirms the validity of their migration path. Evolution would not agree with you. Since we Canadians are not lemmings, I see no reason that we need to ratify the ‘Internet Treaties’.

Now my apologies if the next bit is a bit messed up. My blogging software has limitations, and I’m not sure that the table will reproduce.

The EU enacted a Directive mandating implementation of the treaties in 2001. The member states enacted legislation implementing Directive 2001/29/EC on the dates set out below:

Country Implementation Date
Austria July 1, 2003
Belgium May 22, 2005
Cyprus May 1 2004
Czech Republic December 1, 2000 (in part)
Denmark December 22, 2002
Estonia October 29, 2004
Finland October 14, 2005
France August 4, 2006
Germany September 13, 2003
Greece October 10, 2002
Hungary May 1, 2004
Ireland January 16, 2004
Italy April 9, 2003
Latvia April 22, 2004
Lithuania January 1, 2004
Luxembourg April 18, 2004
Malta September 2, 2003
Netherlands September 1, 2004
Norway July 1, 2005
Poland April 1, 2004
Portugal August 24, 2004
Slovakia January 1, 2004
Slovenia April 24, 2004
Spain July 7, 2006
Sweden July 1, 2005
United Kingdom October 31, 2003

Again, documentation. You allege that these states introduced laws making them compliant with these treaties. You do not provide the texts of the laws, so that we can assure ourselves that they actually exist. And of course, we have had not opportunity to compare these laws to determine if they actually do bring these states into compliance with the treaties. My documentation indicates that you are telling a whopper here. The WIPO website itself does not agree with you.

And then of course there are other issues. For example it is apparently legal to run a torrent site in Spain, as long as you don’t make any money (i.e. have advertising revenue). This interpretation of the law has been upheld in court. How does this make Spain compliant with the treaties? One of the things that the treaties apparently cover is ‘notice and takedown’, this apparently is not happening in WIPO compliant Spain.

And now we get to the part I love. I’m going to have to chop this into little, teeny, pieces to respond.

2. Dr. Ficsor’s claim: Dr. Fiscor took issue with Prof. Geist’s assertion that Canada has the flexibility to adopt a “made in Canada approach” to implementing the treaties which does not involve providing legal protection for anti-circumvention tools. Dr. Ficsor stated “the professor’s blog seems to suggest a kind of “made-in-Canada” way of implementation that would consist of not implementing certain obligations under the Treaties”, and in particular, not protecting against anti-circumvention tools.
Dr. Ficsor explained why legal protection for anti-circumvention tools was required under the treaties as follows:
“The allegation that the two Treaties do not require protection against the manufacture and distribution of unauthorized circumvention devices is completely groundless. The negotiation history of the Treaties clearly indicates that, although their anti-circumvention provisions finally used a more general language, they had been based on proposals extending to the prohibition of such activities. However, what is even more important is that the obligation to provide for such prohibition also follows from the text of the relevant provisions themselves of the Treaties. Under those provisions, Contracting Parties are obligated “to provide adequate legal protection and effective legal remedies” against the circumvention of technological protection measures. It could hardly be suggested seriously and without a big amount of cynicism that a Contracting Party is able to provide adequate protection and effective remedies if it only prohibits the very acts of circumvention and leave technological protection measures to their gloomy fate by that.  Such acts are normally performed in private homes or offices where, due to privacy considerations, it would be extremely difficult – or quasi impossible – to apply adequate protection. At the same time, it is possible to build adequate defense line if the manufacturing and distribution of unauthorized circumvention devices and services are also prohibited. Since this is possible and since this is needed for an adequate anti-circumvention protection, it follows from the treaty obligations that this should be applied by the Contracting Parties. The EU regulation is based on this recognition and the regulation is duly applied by the Member States.  The EU has not chosen an imaginary “WIPO-lite” implementation to fulfill certain obligations and neglect others, since there is no such way of implementing the Treaties; it would be equal not implementing them by adopting a ridiculous theory that for some mysterious reasons the basic principle serving as a basis of any serious agreement – pacta sunt servanda – does not apply to them.”
Response by Prof. Geist. Prof. Geist simply asserts that a proposal for expressly protecting anti-circumvention tools was not accepted into the wording of actual treaties at the Diplomatic Conference. As Dr. Ficsor had already pointed, the Diplomatic Conference adopted the requirement that legal protection be “adequate” and remedies be “effective”. Prof. Geist cites an article from Prof. Samulson which purports to describe the history behind the provisions adopted at WIPO. However, Prof. Geist does not attempt to contradict Dr. Ficsor’s assertion that the requirement for adequate legal protection and effective legal remedies for TPMs does not require legal protection for anti-circumvention tools.
My Comment: It is one thing to claim, as does Prof. Geist does, that a specific proposal for the wording of the treaties was rejected at the Diplomatic Conference. It is quite another thing to make the completely unsupported conclusion that Canada “can be compliant with the WIPO Internet treaties without implementing” protection for anti-circumvention tools. It is noteworthy, that Prof. Samulson, the only authority relied upon by Prof. Geist, does not even suggest in the article quoted that the WIPO treaties do not mandate legal protection for circumvention tools. In fact, she concluded “The inclusion of terms like “adequate” and “effective” protection in the treaty will mean that U.S. firms will be able to challenge national regulations that they deem deficient.”

Such a lot of verbiage, to say so little. There must be “technological protection measures.” They must have adequate protection. Oh, woe is me. Of course Barry hasn’t bothered explaining several things:
1) If the TPM was adequate in the first place, why would it need legal protection?
2) Why Prof. Samulson was only concerned about US Firms being able to act against laws they deem deficient?
3) Pacta sunt servanda – why good faith only applies to the WIPO, and not the citizens of Canada?
4) What the value to Canada and Canadians is of ratifying these treaties?

And the reason he hasn’t, and Doctor Fiscor didn’t address these issues is that they have no answers for them. There are no peer reviewed studies showing that ratifying these treaties will have any benefit to the citizens of any country. In fact, there are several peer reviewed studies that state the opposite. So why should Canada ratify? For that matter, if the WIPO is so out of touch with simple cost/benefit calculations, what benefit does Canada, one of the greatest world powers, a member of the G7, the second largest country, the 15th largest economy, get in remaining a member? Possibly you could explain this to me. With documentation. Verifiable documentation.

It is telling that in the face of being directly confronted by Dr. Ficsor, the world authority on the interpretation of the WIPO Treaties, that Prof. Geist did not cite even a single authority that supports his position that Canada can implement the WIPO Treaties without providing legal protection for circumvention tools.
The authoritative texts which have interpreted the obligations imposed by the WIPO Treaties all agree that to be adequate and effective, anti-circumvention provisions must prohibit the trafficking in circumvention tools and the provision of services which can be used for circumvention purposes. For example, the WIPO Guide to the Copyright and Related Rights Treaties administered by WIPO[1] states the following in this regard:
“For these reasons, Contracting Parties may only be sure that they are able to fulfil their obligations under Article 11 of the Treaty if they provide the required protection and remedies: (i) against both unauthorized acts of circumvention, and the so-called “preparatory activities” rendering such acts possible (that is, against the manufacture, importation and distribution of circumvention tools and the offering of services for circumvention)… (iii) not only against those devices whose only – sole – purpose is circumvention, but also against those which are primarily designed and produced for such purposes, which only have a limited, commercially significant objective or use other than circumvention, or about which its is obvious that they are meant for circumvention since they are marketed (advertised, etc.) as such”.

Note again the amazing allegation that Doctor Ficsor, the man who Google knows so little about, is ‘the world authority on the interpretation of the WIPO Treaties’. I find this hard to believe. I also find it hard to believe that Google knows so little about this paragon of experts, so I just did another search on the term Mihaly Ficsor and the results were a bit better. I’m insulted though, my blog didn’t show up at all. Ah well, fame is fleeting. Here’s the first ten hits:

Dr. Mihaly FicsorDr. Mihály Ficsor, one of the best-known experts in the field of international copyright, is a consultant to the International Intellectual Property …
http://www.iipa.com/html/Bio_Mihaly_Ficsor.html – Cached – Similar

Ficsor Curriculum vitae – International Symposium on IP Education …Mihály Ficsor Director Center for Information Technology and Intellectual Property (CITIP) Budapest Hungary. Dr. Mihály Ficsor is a national of Hungary. …
http://www.wipo.int/academy/en/meetings/iped_sym…/ficsor.html – Cached – Similar

Mihaly Ficsor stories at Techdirt.22 Dec 2009 … Check out our CwF + RtB experiment. Brought to you by Floor64 and the Techdirt crew. stories filed under: “mihaly ficsor” …
http://www.techdirt.com/blog.php?tag=mihaly+ficsor&edition=techdirt

Meeting of Kyrgyzpatent leadership with Dr. Mihály Ficsor …12 Jun 2009 … [On June 9 the meeting took place of Kyrgyzpatent leadership with Dr. Mihály Ficsor, Professor, President of the Hungarian Copyright Experts …
patent.kg/en/news/2009/06/12/430.html – Cached

Flipkart.com: Mihaly Ficsor Books: Buy in Indiamihaly ficsor: Books Buy & Search Online @ Flipkart.com. Great Discounts, Free Shipping on mihaly ficsor Books: Biggest Online Book Store India.
http://www.flipkart.com/mihaly-ficsor/ – Cached

Flipkart.com: The Law Of Copyright And The Internet: Mihaly Ficsor …Buy The Law Of Copyright And The Internet in India. Price:Rs.29749 Free Shipping on The Law Of Copyright And The Internet. Book Review of The Law Of …
http://www.flipkart.com/law…mihaly-ficsor/019829901x-gqw3fdu57e – Cached

[PDF] SHORT BIOGRAPHY -Dr. Mihály Ficsor Dr. Mihály Ficsor is a national …File Format: PDF/Adobe Acrobat – Quick View
Dr. Mihály Ficsor is a national of Hungary. From 1966 to 1968, he was judge at the Central District Court of Budapest, and, from 1969 to 1975, he was …
http://www.fordhamipinstitute.com/ip_conference/…/Mihaly_Ficsor_Bio.pdf

Collective management of copyright and related rights – Google Books Resultby Mihály Ficsor, World Intellectual Property … – 2002 – Law – 165 pages
books.google.com/books?isbn=9280511033…

Oxford University Press: The Law of Copyright and the Internet …Mihály Ficsor. bookshot Add to Cart. ISBN13: 9780198299011ISBN10: 019829901X Hardback, 848 pages. Apr 2002, In Stock …
http://www.us.oup.com/us/catalog/general/…/IntellectualProperty/?…ci&#8230; – Cached

Law of Copyright & the Interne: Mihaly Ficsor: HB Books Buy Law of …Mihaly Ficsor. (Author) Rating of 0 out of 5 (0 Customer Reviews). + FREE Shipping in India! …. This book by Mihaly Ficsor is written in English language. …
http://www.infibeam.com/Books/…/Mihaly-Ficsor/…/019829901X.html – Cached

Let’s see. High marks from the International Intellectual Property Association, and the WIPO. However since he seems to be working for both one way or the other, they don’t count. Techdirt thinks he’s worth covering. No, wait. They don’t. They only have one article on him, written at the same time I wrote my response to him. And a couple of hits for his book, which looks like a sure cure for insomnia at 848 pages. And this guy is supposed to be ‘the world authority on the interpretation of the WIPO Treaties’? Pardon me, but I have a hard time believing this.

Reinbothe and von Lewinski, in their book The WIPO Treaties, [2] are equally unequivocal about the need to include protection against trafficking of circumvention tools and the provision of services which are made available for the purpose of circumventing technological measures:
“…It may be held that legal protection against circumvention is only meaningful and adequate if it also covers circumvention devices and services, the so-called ‘preparatory acts’… the manufacturing and distribution of devices which permit or facilitate circumvention may potentially cause more important prejudice to rightholders than acts of circumvention. A ‘circumvention only’ approach appears, therefore, to be insufficient…The domestic law of Contracting Parties would have to proscribe devices, products, components or the provision of services which are produced or distributed for the purpose of circumventing protection technologies.”

Fascinating. Google seems unable to find this book. Oh, hold on. Here it is. One of the links is really interesting, it says:

While both the U.S. and EU/German systems prohibit the circumvention of, and the trafficking in, access control devices, the United States regime does not prohibit the circumvention of copy control devices. Consequently, U.S. users who can circumvent a copy control device without trafficking in such devices may make fair use of the copyrighted material. The EU/German system does not permit the circumvention of copy control devices in any respect, but it does require the copyright holder to provide the user, in exchange for compensation, with the means to bypass the copy control devices and make fair use of the copyrighted material. This requirement, which expands the degree to which copyrighted material is made more accessible for fair use, gives the EU/German system a decided advantage over the U.S.
regime, though the EU/German system has drawbacks that impair its effectiveness.

Is this possibly what Prof. Geist has been talking about? According to Doctor Ficsor, this isn’t allowed. But Barry says Germany is compliant with the treaties. Who do we believe?

Prof. Jane Ginsburg[3] comes to the same conclusion in rejecting the proposition that the WCT does not require protection against trafficking in circumvention tools:

“Such an inference seems unwarranted, because it would significantly diminish the effectiveness of the prohibition. First, limiting the prohibition to the act of circumvention would mean that copyright owners would need to discover and prove the commission of acts that may often occur in private, at the user’s home. This seems both difficult for copyright owners and undesirable to users. Second, outlawing the device as well as the activity is likely to have a greater impact on the provision of circumvention devices; without the device, less circumvention is likely to occur, and it is more effective to pursue a small number of device suppliers than the large numbers of their customers. Moreover, the formulation “the circumvention” should be read in the context of the sentence in which it appears. An interpretation that disfavors effective protection against circumvention by limiting the prohibited conduct to the sole act of circumvention, rather than encompassing the provision of devices as well, would be inconsistent with art. 11’s direction that member States “shall provide  adequate legal protection and effective legal remedies against the circumvention.”

OK. So circumvention tools are not allowable. But copying tools are. This makes absolutely no sense at all. Any copying tool has to circumvent the TPM. For that matter any device or software which allows access to the work has to circumvent the TPM. In effect, a DVD player is a circumvention mechanism.

Now I know that the argument which will be made here is that the DVD player manufacturer had to take out a licence with the DVD Forum (formerly known as the DVD Consortium). However how does the end user know that the manufacturer has legally done this? Anyone can lie. And quite frankly crooks lie as a matter of course.

But that’s a side issue. The point is that players are circumvention devices. The treaties state that circumvention devices are not legal. Therefore DVD players are not legal. None of which makes any sense at all. But we aren’t looking at the actual text of the Treaty. It says:

Article 11
Obligations concerning Technological Measures

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Note the word ‘authors’. So if I publish a song that I’ve written, and choose to use Technological Protection Measures, any country that has signed the treaty is required to have in place ‘effective legal remedies’. If I’m not the author, there is no requirement for the country to have in place ‘effective legal remedies’ to protect Technological Protection Measures. Since there is no mention of licensees, there is no requirement to protect technological protection measures used by the licensee.

Possibly this explains the panic that I am seeing in Mihaly and Barry’s posts. The Emperor has no clothes.

In recognition of the need to provide rights and remedies against circumvention tools, the international norm of countries that have implemented the WIPO Treaties is to prohibit trafficking in circumvention tools. Countries and territories that have done so include the United States, Australia and Japan. As Dr. Ficsor pointed out, this requirement is also in the EU Directive which has been implemented by EU member states.
Glen Bloom, a well known Canadian copyright lawyer, and the vice-chair of the CBA’s Copyright Technical Committee, expressed the same opinion about the treaties after considering whether Bill c-60, which would not have provided legal protection for TPMs, could have complied with the WIPO treaties:
“‘A plain reading of Articles 11 and 18 of the WIPO Internet Treaties, the definition of “technological measure” and new section 34.02 inevitably raise questions about the adequacy of the protection for technological measures to enable Canada to ratify the WIPO Treaties. In fact, in view of persuasive commentary including in particular the WIPO Guide and legislative developments among Canada’s trading partners, the inevitable conclusion is that Canada’s legislation could not adequately implement its obligations regarding technological measures under the WIPO Internet Treaties without significant amendment to the definition and new section 34.02.”[4]

But only if the person implementing the TPM is the author. A plain reading of the text indicates that this was the intent of those who drafted the treaty.

3. Dr. Ficsor’s claim: Dr. Fiscor took issue with Prof. Geist’s assertions that “the European national implementations show a wide range of exceptions, opening the door to a ‘made-in-Canada’ WIPO approach.”

Response by Prof. Geist. Prof. Geist did not respond or take issue with this claim by Dr. Ficsor.

Ah, but I’m not Prof. Geist. Explain the copying exception in Germany, and the website exception in Spain for me please.

Dr. Ficsor ends his posting by asserting that Prof. Geist’s views “about the obligations under two WIPO Treaties and about the way the EU Member States have implemented them are groundless and misleading.” There is nothing in Prof. Geist’s reply that should change anyone’s opinion’s on the substance of Dr. Ficsor’s rebukes of Prof. Geist.

Ah, but there was in my response to Doctor Ficsor, which you have totally ignored. As yet neither of you have provided us with any peer reviewed studies indicating the economic benefits to the citizens of Canada (or any other country) to ratifying these treaties. You also have not explained by so many other countries have not ratified these treaties:

Austria
Bolivia
Canada
Denmark
Estonia
European Union (but you said that they’ve signed – I will assume your good faith, and that the page has just not been updated yet)
Finland
France
Germany
Greece
Ireland
Israel
Italy
Kenya
Luxembourg
Monaco
Namibia
Netherlands
Nigeria
Portugal
South Africa
Spain
Sweden
United Kingdom
Venezuela

Some of these countries are EU members, and their status may change when and if the web page is finally updated. However it is curious that they aren’t listed as EU member states, but rather separately. Is there something else you are not telling us?

[1] WIPO Guide Geneva 2003 at para CT-11.16.
[2] Reinbothe and von Lewinski, The WIPO Treaties at  141, 144-145
[3] Ginsburg Legal Protection of TPMs  at  8.
[4] Technological Measures and Rights Management Information October 25, 2005

While the references look interesting, your failure to link to the sources has me wondering if these documents actually exist, and if they do exist, what their worth is.

In closing – I don’t know what Prof. Michael Geist is thinking. I don’t know why he responded to Doctor Ficsor in the way he did. I’ve never meet him, an
y more than I’ve ever meet Doctor Ficsor or yourself. And quite frankly it doesn’t matter.

What does matter is that:

1) Both you and Doctor Ficsor have inaccurately quoted the treaties
2) Both of you appear to have an undisclosed vested interest in the treaties
3) Both of you have provided no documentary proof that there are benefits to ratifying the treaties
4) Both of you appear to have issues with the truth

And both of you appear terrified that someone will call you out on this. Well, I’m calling you out. What are you hiding, and why are you hiding it?

An invitation to Doctor Ficsor to explain the value to the citizens of Canada in ratifying the WIPO Internet Treaties

I’m a Canadian. Dr. Ficsor’s ‘An invitation to Canada to join the international community by ratifying the WIPO Internet Treaties is one of the more insulting, and incorrect documents that I’ve perused over the years. So many errors, where oh where should I begin? How about the start?

On December 14, the international copyright community had a big celebration in Geneva at the headquarters of the World Intellectual Property Organizations (WIPO). The ambassadors of 16 Member States of the European Union and the European Union itself deposited their instruments of ratification of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). By this, since 10 of new Member States joining the EU in 2004 and 2007 and Belgium had previously deposited their instruments of ratification, all the 27 Member States of the EU and the EU itself will be Contracting Parties to the two so-called “Internet Treaties” within three months bringing the number of Contracting Parties to 88 (WCT) and 86 (WPPT), respectively. This long waited development has confirmed the full validity and ability of the Treaties to duly regulate the protection of copyright and related rights in the digital network environment, and has also made it clear that these instruments have become inevitable standards of this branch of intellectual property.

By your definition the number of lemmings who’ve gone over a cliff confirms the validity of their migration path. Evolution would not agree with you.

Since, as the then Assistant Director GeneraI of WIPO, I was the main responsible in the Organization for the preparatory work of the two Treaties, for the 1996 Diplomatic Conference adopting them, and for the first efforts to achieve their adequate implementation, it was a particularly great pleasure to me to participate in the last week celebration of this success of the Treaties.

OK, so you have a vested interest, as one of the people involved in drafting this. I’m glad you admit it. I’m rather disappointed that you don’t mention that you are a consultant to the International Intellectual Property Alliance (link to your bio included). So you have two irons in this fire, and only have admitted to one. I would consider this suspicious.

Nevertheless, the deposit ceremony has not been for me just a moment of cloudless happiness, since it meant that I should fill now the promise made to my publisher, the Oxford University Press, to prepare a new edition of my book on the two Treaties: “The Law of Copyright and the Internet.” I tried to delay undertaking the quite heavy task of rewriting the now 7-year-old 800-page book which is still quite well selling, and my last defense was that we should wait until the deposit of instruments of ratification of all EU Member States. Now it is over.

It’s a terrible thing, being a successful author.

This freshly renewed obligation of mine to pay full attention to the developments around the WIPO Treaties has made me to look around on the Internet, inter alia, by typing “EU ratification WIPO Treaties” in the search site.

Why didn’t you try Google, Bing, or Cuil? By using the search on the WIPO site you were limiting yourself.

I have found a reference to the statement made by Francis Gurry, Director General of WIPO, on the occasion of the EU ratification who “noting that the EU plays a leading role in promoting use of the Internet and in developing on-line content, …. said its ratification of the treaties will positively influence the development of creativity within the digital environment in Europe and beyond,” as well as the comments of EU Commissioner Charlie McCreevy: “Today is an important day for the European Union and its Member States and WIPO. We, as a group have shown our attachment to the international system of protection of copyright and related rights. These two treaties brought protection up to speed with modern technologies. As the technological evolution accelerates, protecting creators and creative industries is more urgent than ever.”

Doctor Gurry has worked at the WIPO since 1985, in several positions. He also has a vested interest in this treaty, so forgive me for ignoring his statement. When someone has a vested interest, I do not trust what they say. It is curious that you forgot his title though, I notice you didn’t forget yours.

And then you trot out Charlie McCreevy, the man that the Irish Times called ‘the worst minister for finance in the history of the State’, and who it appears has been in the pockets of foreign multinationals. If you scrutinize his career, it is notable for legislation that has no benefit to his constituents, but has many benefits to corporations, many of which have contributed to his election campaigns. There have been too many questions raised about his legislative actions. Where there is smoke, there isn’t always fire, however it is a good possibility.

These declarations correctly reflect the outstanding importance of the EU’s full ratification of the two Treaties which have been duly characterized by the WIPO press release issued on this occasion as follows: “The ‘Internet Treaties’ laid the ground for a balanced system of protection in the new technological environment in areas such as the interactive transmission of copyright content, limitations to copyright and the promotion of technologies that facilitate the distribution and use of creative content.”

Curious. When I read the documents, I didn’t see anything that would ‘facilitate the distribution and use of creative content’, what I saw was an attempt to keep the 21st Century equivalent of buggy whip manufacturers in business, in spite of their technological obsolescence.

However, by browsing through the search “matches,” I have also found something that made me exclaim by surprise: “WHHHHAT?” In the blog of what seems to be operated by a Canadian professor (his name is Michael Geist), the following short report appeared: “The European Union has formally ratified the WIPO Internet treaties. While critics of Canadian copyright law will no doubt use the move to argue that Canada has fallen behind on copyright reform, it is worth noting that: (1) Canada has twice introduced legislation designed to do the same; (2) the European national implementations show a wide range of exceptions, opening the door to a ‘made-in-Canada’ WIPO approach; (3) for all the claims that Canada is years behind, the EU ratification arrived today.”

And this in inaccurate how?

It is hardly understandable on the basis of what kind of logic one may suggest that Canada has not fallen behind just because draft legislation has been designed twice, since neither of the two drafts has been adopted. One single piece of adequately drafted and adopted legislation would be sufficient to implement the Treaties; not only two but even a dozen non-adopted draft laws cannot replace it.

OK, let’s start with Beverly Oda, who introduced copyright legislation, and was found to have held a fund raiser with industry representatives. The public was not invited. The public wasn’t amused, either.
Even before Bill C-60 was introduced a petition was signed by 1800 Canadians opposing it. That’s right. Before it was introduced in Parliament.

Bill C-61 meet similar opposition.

When Industry Canada ran a Copyright Consultation with the public and industry, suggestions ranged from a copyright period not to exceed 15 years, to 70 years after death (you can search here) and included suggestions such as making DRM illegal, vesting copyright in the creator (no transfers allowed), etc. A good summary is here.

Canadians as usual had a wide range of views. Curiously, only the industry bodies backed longer copyright terms, technical protection measures, and other restrictions.

Another statement in the blog implies that it is not well founded to claim that Canada has fallen behind since “the EU ratification arrived today.” Even if one accepted the allegation according to which the EU and its Member States have only completed the implementation of the two “Internet Treaties” with the deposit of the 16+1 last instruments of ratification, it would not change the fact that now all the important trading partners of Canada’s from the US to Japan, from Mexico to the EU and its 27 Member States, from South Korea to Australia, along with a lot of other countries, such as China and Russia, are party to the Treaties – and Canada is not, and even it does not have implementing legislation on the basis of which it could ratify them. However, it is far (in light-years distance) from being true that the EU implementation of the two Treaties took place just around the time when on December 14, 2009, at 6 a.m. the 17 ambassadors handed over the instruments to Director General Gurry. The EU Information Society (Copyright) Directive taking care of the implementation of the Treaties was adopted in 2001 and the great majority of the “old” and “new” Member States completed their legislative implementation and internal ratification process quite quickly after that. The only reason for which they did not deposit their instruments of ratification was a decision announced on the last day of the 1996 Diplomatic Conference according to which the EU and its Member States would deposit their instruments together on the same day. It has become possible this year when some months ago the last two Member States – Portugal and Malta – have also completed their ratification process and joined the others many of which were waiting for them for a number of years.

In other words, there has been a lot of disagreement in the EU about the treaty – else it would not have taken over ten years to get to this point. And there is still strong opposition to the treaty, else the Pirate Party would not now hold two seats in the European Parliament.

Only those may allege that Canada has not fallen quite importantly behind the EU and its Member States (as well as its other important trading parties) regarding the implementation of the WIPO Treaties who are ignorant about these facts (which could hardly be presumed about somebody who seems to be a professor also dealing with copyright) or who intend to hide or drastically misinterpret them for some purpose.

How does accusing those you want to convince to do something that they are ignorant help your cause? This is not the action that I would expect from a man who is supposed to be an experienced negotiator.

The purpose has become evident when I looked around in the website in trying to find out what the weird statement might mean according to which “the European national implementations show a wide range of exceptions, opening the door to a ‘made-in-Canada’ WIPO approach.”

The implementation of the two Treaties in the EU Information Society (Copyright) Directive took place on the basis of a “made-in-EU” approach, the D.M.C.A in the US was adopted in 1998 as a result of a “made-in-the US” approach, the Japanese laws to implement the two Treaties were created following a “made-in-Japan” approach. Thus, it is just normal that, if Canada finally implements the Treaties, it will do so by applying a “made-in-Canada” approach. Any “made-in” approach is acceptable that is suitable for due implementation of all the treaty obligations.

In simple terms, it appears that you are arguing that you should be allowed to interfere with internal Canadian affairs, but that we should not be able to interfere with your affairs.

However, the professor’s blog seems to suggest a kind of “made-in-Canada” way of implementation that would consist of not implementing certain obligations under the Treaties. This turns out when one visits another part of the website which discusses the EU proposal for the IP chapter of a currently negotiated Comprehensive Economic and Trade Agreement to be concluded with Canada. The professor states that the proposal is “incredibly troubling” and that “when combined with ACTA, the two agreements would render Canadian copyright law virtually unrecognizable as Canada would be required to undertake a significant rewrite of its law.” He refers, inter alia, to the following elements of the EU proposal – relevant from the viewpoint of the implementation of the two Treaties – that are not just troubling but incredibly troubling:

* WIPO ratification. The EU is demanding that Canada respect the rights and obligations under the WIPO Internet treaties. The EU only formally ratified those treaties this week.

* Anti-circumvention provisions. The EU is demanding that Canada implement anti-circumvention provisions that include a ban on the distribution of circumvention devices. There is no such requirement in the WIPO Internet treaties.

* ISP Liability provisions. The EU is demanding statutory provisions on ISP liability where they act as mere conduits, cache content, or host content. ISPs would qualify for a statutory safe harbour in appropriate circumstances. There is no three-strikes and you’re out language (which presumably originates with the U.S.)…

* Making available or distribution rights. The EU is demanding that Canada implement a distribution or making available right to copyright owners.

Let us take a look at these incredibly troubling demands in the EU proposal. Probably, the first one is not among them since any lawyer in a sober state of mind might hardly suggest that if a country accedes to a treaty, its special “made-in” approach of implementation could go so far as to not respecting the rights and obligations under the Treaty. The last demand is of the same nature. The two Treaties obligate Contracting Parties to grant exclusive rights of making available and distribution. Thus, it could hardly be characterized as incredibly troubling to demand that, if Canada at last ratifies the two Treaties, it should not adopt a “made-in-Canada” legislation by not providing for these rights. Then would the inclusion of EU-style statutory provisions on ISP liability in respect of mere conduit, caching and hosting services be incredibly troubling? Hardly; it could not be alleged reasonably that those rules trying to guarantee just a minimum minimorum level of cooperation of such intermediaries – who usually gain a lot as a result of illegal transmissions of infringing materials through their systems – are not justified.

Actually there are a variety of issues with all of the above. The most important is number one.

1) Would the people of Canada benefit from this treaty? If they wouldn’t, it
should not be ratified.
2) Since Canada has held a Copyright Consultation, and the vast majority of submissions were opposed in whole or in part to the components of your treaty, and Canada is a Democracy, implementation is not possible, at least not unless the consensus changes.
3) The Government of Canada is responsible to the citizens of Canada, not the WIPO staff.

Under the circumstances, implementing the treaty, no matter how important to the WIPO, is not possible.

Thus, what is presumably regarded by the professor an incredibly troubling demand is that Canada should implement anti-circumvention provisions by also prohibiting circumvention devices. This appears to be the case since he adds that “[t]here is no such requirement in the WIPO Internet Treaties.” It seems to follow from this that a “made-in-Canada” implementation of the Treaties preferred by the professor would not be supposed to include such prohibition (although, in the website, there may be found traces of a previous strange campaign that the professor has been waged also against the application and protection of digital rights management (DRM) systems in general).

Actually the correct term is ‘Digital Restrictions Management’, since the devices and systems exist to restrict the users access.

In respect of anti-circumventing provisions, the EU demands something that is provided in Article 6 of the Information Society (Copyright) Directive and which is duly implemented in the legislation of the Member States. In view of this, there is an obvious self-contradiction in the position of our professor in respect of how he considers the EU’s way of implementing the two Treaties from the viewpoint of a “made-in-Canada” approach he would prefer. There is, since as quoted above, he also states with pleasure that the European national implementations open the door to a “made-in-Canada” WIPO approach.

You still have not explained how the two treaties are of any advantage to the citizens of Canada – or of advantage to the citizens of any country. The two treaties appear to have been written by the industry, for the industry. The one thing that I am surprised is missing, is an exemption for the industry to copyright claims, such as the $6 Billion Class action lawsuit filed against the Canadian Recording Industry Association by artists who allege that their works have been systematically infringed by the big Four record labels.

The allegation that the two Treaties do not require protection against the manufacture and distribution of unauthorized circumvention devices is completely groundless. The negotiation history of the Treaties clearly indicates that, although their anti-circumvention provisions finally used a more general language, they had been based on proposals extending to the prohibition of such activities. However, what is even more important is that the obligation to provide for such prohibition also follows from the text of the relevant provisions themselves of the Treaties. Under those provisions, Contracting Parties are obligated “to provide adequate legal protection and effective legal remedies” against the circumvention of technological protection measures. It could hardly be suggested seriously and without a big amount of cynicism that a Contracting Party is able to provide adequate protection and effective remedies if it only prohibits the very acts of circumvention and leave technological protection measures to their gloomy fate by that. Such acts are normally performed in private homes or offices where, due to privacy considerations, it would be extremely difficult – or quasi impossible – to apply adequate protection. At the same time, it is possible to build adequate defense line if the manufacturing and distribution of unauthorized circumvention devices and services are also prohibited. Since this is possible and since this is needed for an adequate anti-circumvention protection, it follows from the treaty obligations that this should be applied by the Contracting Parties. The EU regulation is based on this recognition and the regulation is duly applied by the Member States. The EU has not chosen an imaginary “WIPO-lite” implementation to fulfill certain obligations and neglect others, since there is no such way of implementing the Treaties; it would be equal not implementing them by adopting a ridiculous theory that for some mysterious reasons the basic principle serving as a basis of any serious agreement – pacta sunt servanda – does not apply to them.

Why is the theory ridiculous? I just love it when you say outrageous things, and provide no back up to your statement. Let’s consider the CSS copy protection scheme used for Digital Video Discs. The system is a total failure. Why should something that can (and was) broken by a college student deserve protection? Because you say so? Sounds like a schoolboy argument to me, not the sort of argument I would expect from a former judge.

What is the value to the citizens of Canada, the United States, the European Union, and the citizens of all of the other states that  members of the WIPO in having a TPM installed on their equipment?

In view of this, it is not clear to what the professor might refer when he expresses his pleasure that “the European national implementations show a wide range of exceptions, opening the door to a ‘made-in-Canada’ WIPO approach.” What exceptions to what does he have in mind, what doors could they open, and for what kind of special approach they may serve as a basis? There is no reply to these questions in the blog. Article 5(1) to (5) of the Information Society provide for exhaustively listed exceptions to and limitations of the rights of reproduction, distribution and making available to the public, subject to the three-step test in accordance with the relevant provisions of the WIPO Treaties (as well as the Berne Convention and the TRIPS Agreement). The Member States apply the majority of them truly with certain national variants. If the “made-in-Canada” way of implementing the Treaties consisted in this sort of provisions on exceptions and limitations in accordance with the international norms and subject to the “three-step test,” obviously no conflict would emerge with the Treaties. The EU’s “incredibly troubling” demands hardly form any obstacle in this respect.

Again, you feel free to interfere in Canadian internal affairs. But you would be quite upset if we asked for your removal from your position at the WIPO.

The Information Society (Copyright) Directive also includes well-balanced provisions guaranteeing the applicability of certain exceptions that are important from the viewpoint of public interests. The Member States are obligated to introduce intervention mechanisms for those cases where the owners of rights applying technological protection measures do not provide access to the beneficiaries of such exceptions on a voluntary basis. The majority of Member States have provided for some kind of mediation-arbitration systems as intervention mechanisms. This is the case also in my country, Hungary, where the Copyright Experts Council has been appointed to act as a mediation-arbitration body. Since 2000, I have been the President of the Council which has had the task to act as such a body since May 1st, 2004, the date of Hungary’s accession to the EU. I know the number of cases brought in front of the Council in this connection until today. It is exactly zero. The problems of access by the beneficiaries of the exceptions involved have been prevented on the basis of framework agreements between owners of rights and the beneficiaries of exceptions, and the few potential disputes have also been solved peacefully without the need for formal mediation-arbitration. T
he experience in our country is similar to what has been found in other countries concerned; it indicates that, if we have heard some noise, it was not because the copyright sky has fallen down under the weight of DRM systems, but rather because the credibility of the doomsday prophesies about blocking access to works by DRM in an unjustified way have collapsed spectacularly.

Since your memory appears to be defective, let me remind you of some cases where ‘the copyright sky has fallen’ as you so quaintly put it:

1) Amazon deletes 1984 from the Kindle
2) Spore DRM issues
3) Walmart to shut down DRM servers
4) Microsoft shuts down DRM servers
5) Yahoo shuts DRM servers
6) Overdrive goes out of business, DRM books disappear
7) Windows Genuine Advantage server outage
8) Sonic Wall DRM Server Outage
9) Mobipocket DRM Server Fails

I’ve stopped at nine items, but there’s many, many, more. Digital Restrictions Management has cost end users a huge amount of money. Consider the Sony RootKit fiasco, where the DRM opened a security hole on systems running Microsoft Windows (Mac OSX and Linux users were unaffected). Or the time that someone issued the wrong key for a TV show, and those who had bought a ‘DRM Compliant’ DVR were not able to record the show…

The allegations that may be found in the professor’s blog about the obligations under two WIPO Treaties and about the way the EU Member States have implemented them are groundless and misleading. However, on the basis of what I have seen by reading – masochistically – in the comments added by his devoted followers, this appears to be of no importance for them. What they seem to need is no matter what kind of fuel for their anti-copyright “revolutionary” zeal and blind hatred against what they characterize as “greedy” copyright industries (not seeing – or pretending that they do not see – the authors, performers and other creative and technical contributors whose rights are equally denied if the industries in and for which they work cannot duly exploit copyright). For them, everybody is stupid, traitor and/or the agent of the “big industry” enemy who does not agree with them and does not share the view that free access to works is the only acceptable solution on the Internet. Nobody is more impatient and nobody is more ready to suppress any contrary speech than these “liberal” (alleged) “free-speech” champions. One may become very popular if he serves and organize these kinds of “speak out” campaigns.

And your allegations aren’t? What anti-copyright revolutionaries have you found? Who have you found who doesn’t want to pay the artists? Why do so many of the artists object to the treaties, to Digital Restrictions Management, to the RIAA lawsuit campaign, and to the ‘big industry’ (after all, they wouldn’t be suing the industry that supposedly represents them if it was doing its job properly – $6 Billion lawsuit, remember?)

I am sure that the policy makers of Canada do not allow being misled and frightened by the noisy group of these “free-access” “revolutionaries” (I hope so since, here in the former “socialist” countries of Central and Eastern Europe, we have had quite bad experience of certain “free access” “revolutionary” collectivist systems constrained on us for several decades). I am sure that they will not let Canada to become an isolated hostage and victim of demagogue campaigns organized in the hatred-driven style of Maoist Guards as during that other brilliant “cultural revolution.” Thus, I hope that Canada will now accept the kind invitation presented on December 14 to join its main trading partners and the mainstream of the international community by ratifying and duly implementing the WIPO Treaties that are indispensable instruments to guarantee adequate and well-balanced copyright protection in the digital on-line environment.

I’ll repeat this again. The ‘policy makers of Canada’ aren’t responsible to the WIPO, or to the industry organizations (CRIA, MPAA, RIAA). It is responsible to the people of Canada. You have not shown how this has any benefit to the people of Canada, or the people of the United States, or the people of the European Union, or the people of any other state. All you’ve done is cry about your precious treaties over and over.

Considering that there have been no studies that I have found which show that the WIPO copyright treaties deliver an advantage to the citizens of any state, I see no reason to adopt them. In fact there are studies such as this excellent one from a researcher at Cambridge which shows optimal copyright term as 14 years. Here’s an amicus brief file by researchers from Harvard which states that the economic benefits of further copyright extension are minimal if any. There’s also a paper from the
Review of Economic Research on Copyright Issues
which calls for further research. We live in a world where cost/benefit rules. At present we don’t know what the costs or benefits are, because you haven’t published them. And that’s the big secret. You didn’t publish them, because the answer is that there are no benefits to the citizens. In fact there are significant costs to the citizens, aren’t there? And you didn’t intend to tell them. Why didn’t you intend to tell them? The only conclusion I can reach, is because you were paid by the industry organizations not to. Else, why write two treaties that put the citizens at such a disadvantage?

Dr. Mihály Ficsor,
President of the Hungarian Copyright Experts Council,
former Assistant Director General of WIPO

In closing, for those who aren’t aware of how Europe works, Dukes, Knights, and other ‘Nobility’ no longer exist in most EU member countries. They’ve been replaced by Doctors. Holding a Doctorate is a necessity if you plan to be anyone in the European Union. This has given rise to at least one Diploma Mill situation. I am not accusing Doctor Ficsor of attending a Diploma Mill, just stating that people with the title of Doctor, whether in law, like Doctor Ficsor, the arts, economics, etc. are very common compared to North America (except in England, where they still have the real thing).