Friday, June 13, 2008

Labyrinth of Locks, Levies and Litigation

Re Bill C-61, I am, for once, speechless.

Actually, not entirely. Here I was on Mike Duffy Live yesterday.

But I won't be silent for too long.

I will be talking about the Bill at the CIPPIC summer series next Wednesday, June 18, 2008 at the U. of Ottawa Law School, Room 135 from 1:00 PM to 3:00 PM.

Here's the CIPPIC schedule.

For the moment, all I want to say is that this may technically be a "made in Canada" bill - but its really a "made worse in Canada" version of the discredited U. S. DMCA.

CRIA "applauds" the bill. QED.

If this bill passes, look forward to Canada as the land of the Labyrinth of Locks, Levies and Litigation.


1 comment:

  1. I agree that copyright is good; the legislation needs updating to address the social change wrought by digital communication. Indeed, the current draft of C-61 appears to be a bad faith reproduction of the US DMCA with some added dishonesty that giveth with one hand and taketh (and worse) with the other.

    What I think is a possibly outcome of the passage of this act is the potential enforcement process. The proposed law, like all laws, makes universal presumptions, i.e. applies equally to all citizens. Demographically the reality on the ground is quite different. The vast majority of those downloading and peer sharing copyrighted material are in the 16-17 years age group and the next most frequent group is the 18-24 years age group. The former are mostly still dependents, so their parents or guardians are ultimately responsible at the level of the civil penalty. Most parents/guardians don't have the time/will to closely surveil their charges, yet could end up paying the penalty for the actions of these kids.

    Further, if you look at the demographics of the next age group, up to about 24, the majority have not established themselves in career jobs, do not own real estate (in high-rent cities like Vancouver, they are up to age 29 or 30 still more likely than not to be living either with their parents or in overcrowded rental sharing situations). So, for the 1st group, it is the parents who are ultimately liable for the punishment provisos even though they have effectively no control over the actions that gave rise to their liability. In the latter case, at least for the civil court penalties, these young people have put what spare cash they've been able to put aside into their computers and iPods. They are transient, don't have big bank accounts to seize nor property to attach liens to, so ultimately even if they lose a suit, the result is largely a "dry judgement" that only deepens youthful cynicism and disregard for the rule of law. Since it is true that an unsatisfied judgement puts a black mark on future employment and credit-worthiness, for many of these young people caught in violation of this act it simply means that as a group they will become more anti-social in their views. Their copyright violation activities will only be driven further underground and with that a corresponding deeper disrespect for the law generally.

    We also have to think about who is discovering the offenders -- if it is a matter of a download from a social or pirate site or P2P network, investigators will be relying on the IP and MACS address of the computer in question, and to prove the violation will have to have the means to search the machine with those numeric identifiers. In the process, what is to stop overzealous investigators from looking at other, e.g. political or utterly personal content on that machine? Nothing, that is the answer.

    And, where are all these civil courts going to operate? If the penalty claimed by a plaintiff is under the small claims limit of a jurisdiction, I'd imagine it would be filed there. Small claims courts are already for the most part operating at capacity, so would quickly be overburdened and resort to administrative shortcuts that weaken their fairness and protections for defendants. We are already seeing this in areas where super-high residential rentals has meant an explosion of residential tenancy actions and the shortcuts the responsible provincial court or tribunal has resorted to in order to handle the demand (e.g. conducting arbitration hearings by teleconferencing, with all the attendant problems of justice not being seen to be done, the accused being able to truly face the accuser, the judge or arbitrator not being able to scrutinize the credibility of a litigator or witness, the open assessment of exhibits, and on and on). It only gets worse if multiple infringements of the $500 penalty to a given defendant add up to over the small claims court limit and go to a provincial supreme court, where not only the amounts claimed are onerous, but also that the average 20-something defendant can't afford to retain counsel or represent themselves in this more complex forum. Therefore it is likely that many default judgements will be rendered without real consideration of the merits. Then when the 20-something defendant gets a good job down the line or begins to accumulate real property, etc., he/she might find that there are outstanding judgements which were never defended but which then punish the person who aspires to become socially established within the mainstream.

    Under these circumstances, young people are likely to become more cynical, particularly about the legitimacy of our legal system, and the rebellious streak inherent in all young people will be fanned into a flame of anti-social attitudes that go beyond digital rights issues. Informal social systems of aggrieved young people that seek to counteract this flawed law can easily generalize into resistance in other areas of necessary or similarly overzealous social control. Disingenuous statutes favouring elite interest groups end up in the larger sense creating a climate the opposite of their purported intention: the encouragement of a covert lawless attitude and a deeper divide between the special interests embedded in corporate culture vs. everyone else. In a surveillance society such as ours, the resistance of those singled out for disproportionate punishment does not lead to healthy political involvement, rather individual alienation from the larger social fabric, with all the attendant negative consequences.