The dissolution of Parliament on March 25th has led the Copyright Modernization Act (), the third attempt at Canadian copyright over the last decade or so, to on the Order Paper.  The issues surrounding Bill C-32 remain, however, and this includes ongoing debate over the prohibition of circumventing Technical Protection Measures (TPMs).  Meanwhile, the online entertainment industry is increasingly moving toward cloud-based content.  It will be interesting to see whether a cloud-based entertainment industry will appease concerned user advocates when a fourth copyright bill is introduced.

While advocates for user rights have claimed that () did not uphold the of the legislature and them from breaking digital locks for non-infringing purposes, authors stand to significant economic consequences if TPMs are circumvented.  In the midst of the rapidly changing landscape of the online entertainment industry, however, are user concerns over TPM circumvention warranted when they have unlimited access to the cloud?

Among the hotly contested provisions of Bill C-32 were those surrounding the prohibition of circumventing TPMs, which would make it illegal for anyone to break a digital lock (a mechanism that regulates access to or the ability to reproduce copyrighted works) on a copyrighted item.   In the , student concerns have included the restrictions to fair dealing these provisions would impose when using digital educational resources, such as electronic course packs and textbooks.  Other have included, for example, the proposed illegality of TPM circumvention for making a backup copy of a purchased hard-copy CD or DVD, or media file.  Where users were concerned about damage to or loss of purchased copies of creative content, it was argued that the provisions found in Bill C-32 should have been amended to allow users to break digital locks when circumvention was not done for infringement purposes.  This seems at its face to be a reasonable request, however, whether or not the private copies are kept solely for personal use would be impossible to monitor, potentially undermining the overall purpose of the provisions.

In the name of user-creator balance, some TPM protection is merited.  Many online entertainment business models, namely subscription streaming sites such as , , or , allow users to access streamed content at any time with a subscription.  Others offer free services.  These models, which provide users with extensive access to content, on TPM enforcement for their economic viability (and the compensation of creators) by ensuring that users don’t turn streams into permanent copies they did not pay for.  The importance of digital locks to these businesses is clear, and in these cases user concerns surrounding circumvention seem unwarranted:  since users are granted unlimited access to content stored online, often from various devices, why would streaming site users need to break digital locks?

Unlimited download models are also on the horizon.  Apple Inc., for instance, is with record labels to allow iTunes users unlimited downloads of purchased music.  Unlimited downloads would provide users with accessibility similar to streaming, since a of their download could be accessed from as many Apple devices as desired (eg. iPod, iPad) or downloaded again if users lose or damage their copies.   This would arguably make the circumvention of TPMs for non-infringing purposes significantly less pressing for iTunes users, as a permanent backup is provided for them.

In the wake of sites such as iTunes working towards decreasing or eradicating the use of TPMs by allowing unlimited copies to buyers, and with the rising popularity of subscription and ad-based streaming sites, online entertainment is becoming increasingly accessible and convenient for users.  In the entertainment industry, then, the legality of legitimate TPM circumvention should become less of a pressing concern in the next incarnation of copyright reform, at least for cloud-content consumers.   What effect this will have on Canadian copyright law is yet to be seen, however one thing is plain: the rapid shifts in online entertainment business models are currently around the legislature in refining the role of TPM enforcement.

The post Cloud-Based Content and TPMs: the Cloud’s Part in the Next Incarnation of Copyright Reform appeared first on IPOsgoode.

Ellen Seidler is a reluctant anti-piracy advocate.  Though advocacy was not her initial intention when she released her film And Then Came Lola, (co-directed by Megan Siler), her first-hand experience with piracy and its heart-breaking effects on creators has compelled her to “speak out and speak up” against online theft.  It also brought her to Canadian Music Week 2011 as the key note speaker for the Global Forum, which this year focused on combating piracy as a creative community.

Seidler, an American filmmaker with a B.A. in Fine Arts from Harvard University and an M.A. in Journalism from UC Berkeley, released And Then Came Lola one year ago.  Within 24 hours of its release it was available on pirate hosting sites and was almost immediately illegally downloaded by an astounding number of users.  She stopped counting at 35,000.  Why was this happening?  Was it because Seidler’s film was so great, so popular?  Her modest answer: “no”.  Piracy, she explained to the crowd, has become a BIG black market business.  To fully understand the problem, Seidler took the Forum participants through the piracy business model.

Technology has facilitated a steady stream of income for pirates with little overhead or risk and a “world-wide, willing customer base”.  People upload the films for free, although sometimes they are paid in points or cash, providing the hosting sites with free or next-to-free content to profit from through advertisements and subscription charges for upgrades.  The new trend sees the traditional torrent “file-sharing” sites giving way to cyber lockers, with new cloud-based cyber lockers popping up every day.  Seidler is confident that most of this content is stolen.

Further incentives and sustenance for illegal download hosting sites come from payment processors (credit card companies, etc), who provide pirates with easy and anonymous payment services.   Similarly, ad networks, the largest being Google AdSense, as well as their clients, profit from pirate sites who abundantly share links to their ads.

The irony of this messy situation astounds Seidler, who spotted Netflix ads on multiple pirate site pages offering And Then Came Lola.  Netflix sponsored her film.

Generally, advertisers claim that they don’t have much control over where their ads go since it is the ad networks they sign on to that place the ads.  Seidler contacted Netflix, and after initially ignoring her, they claimed that the goal of their ads was to convince people to use Netflix over pirate sites.  Interesting.  She’s had more luck with Microsoft, however, who seems to be taking more responsibility in preventing inadvertent placements on pirate sites using technology to monitor the good sites from the bad.

So what’s the solution?  According to Seidler, there is no absolute solution.  She likens the legal attempts at a solution of the United States (DMCA) to holding an umbrella while standing under Niagara Falls.  She has sent hundreds of DMCA notices to host sites, who take down the flagged version of the video only to have another version posted hours later.  Google has responded to Seidler with warning emails that her notice will be forwarded to the , who claim that DMCA notices have the effect of “chilling” free speech.

For Seidler, the best thing for filmmakers, actors, musicians and behind-the-scenes contributors to do is speak out, speak up, engage in an online dialogue with the public and take the profit out of piracy.  Creators need to put a face and a story to the effects of online theft.  Yes it’s hard to compete with free, but if consumers realize the harm involved in piracy, perhaps they will rethink their priorities and “give up their latte for a day” to support the arts.

Seidler made it clear at the outset of her address that this was not about her, her film, her experience, but about the struggle all creators currently face against rampant online theft.  The heartbreak is in the amount of effort, time and money that creators put into producing content that is so readily discounted when it is stolen by online consumers.  Clearly music and films have value to consumers, otherwise they wouldn’t want to steal them.  But that value was born from a great deal of effort, and when it is undermined and disrespected, jobs are lost.  Creativity is discouraged.  Contributions to human development are stifled.

To show your support for content creators, join (“like”) the and check out Ellen’s .

You can find more information about And Then Came Lola and how to purchase it legally .

The post How Pirates Stole Lola: Ellen Seidler Explains the Intricacies of Online Theft at CMW 2011 appeared first on IPOsgoode.