Harper’s Christmas present for the US entertainment industry

Copyright lawyer Howard Knopf, writing in the Hill Times, summarizes what he expects from the Conservatives in updating the Copyright Act to attack file sharing, all to the benefit of a US entertainment industry that has been feigning injury better than any elite soccer player. Knopf also points out many areas where Canadian copyright law is better than its US counterpart. Full text is available on his blog; highlights below:

The rumours are that Canada’s “New Government, ” as it used to call itself, is about to give a costly Christmas gift to the U.S., for which Canadians may never stop paying. It’s shaping up to be a made-to-order American style copyright bill that will:

• Put digital locks on our computers, cellphones, iPods, other gadgets and tools, and, ultimately, our culture and make it an infringement and maybe even a criminal offence to try to circumvent the sometimes malignant and much-maligned technology known as Digital Rights Management (DRM) and Technical Protection Measures (TPMs). … This will happen notwithstanding the fact the architect of the American Digital Millennium Copyright Act (DMCA), Bruce Lehman, has publicly admitted that “our Clinton administration policies didn’t work out very well” and “our attempts at copyright control have not been successful.” Even the music industry itself is fleeing from DRM as fast as it can.

• Make it possible for the big four foreign record companies to sue ordinary Canadians whom they suspect of file sharing. This is happening in the U.S. where companies routinely extract so-called ‘settlements’ equivalent to a year’s Canadian university tuition or more and have even gotten a judgment for $222,000 (which is under appeal). This could happen here, notwithstanding that the world’s leading study on P2P downloading and file-sharing commissioned by Industry Canada from two independent English academics and based upon data from a Decima survey of 2,100 Canadians shows that such P2P filesharing activity actually tends to increase rather than decrease music purchasing.

This is happening mostly because of a lot of spin and propaganda from the U.S. Ambassador to Canada, David Wilkins, as well as the considerable efforts of Canadian lobbyists such as Graham Henderson, president of the Canadian Recording Industry Association, which is the Canadian arm of the RIAA. Important Canadian “indies” such as Nettwerk have left CRIA, and disagree with its desire to sue fans and families. Nettwerk is a leading label that produces the Barenaked Ladies, Avril Lavigne, and Sarah McLachlan.

The problem with American copyright propaganda is that the U.S. is a “born again” believer in copyright law, and therefore prone to overly zealous and inaccurate excessive rhetoric. Until 1976, its copyright laws were clearly weaker than any other developed country. It didn’t even join the bastion of international copyright law, the Berne Convention, until 1989, which was 61 long years after Canada. Even now, there is good reason to question American compliance with Berne, on such issues as moral rights and state sovereign immunity, not to mention its adjudicated WTO violation. It would be very sad if our politicians were to believe the overall propaganda coming from the U.S. and the rhetoric of CRIA. about such issues as file-sharing.

… Canada’s New Government is about to betray its libertarian roots and its 2005 Policy Declaration by heavily interfering with the marketplace of ideas and commerce, and providing unnecessary and counterproductive monopoly rights that serve only to benefit mostly foreign corporate interests. Nothing is more interventionist and counterproductive to innovation and cultural evolution than excessively strong IP protection. Thomas Jefferson, one of the greatest of all Americans, understood and articulated this better than anyone.


  • Any business model that relies on suing the bejeesus out of your market is inherently flawed. These types of policies inhibit innovation and growth, because music cos don’t have to adapt to new technologies. They should have occupied the space that P2P services occupied before they got there, but didn’t have to bother because they could rely on legal sanctions to control supply instead of having to innovate, adapt and compete. They can offer a quality, reliability, hassle free service for very little cost to the consumer. It’s not that hard. They didn’t have to bother with that, and the consumers went to the P2P services. Well, duh. Now they want stronger protections? F*ck that.

    The market for music is colossal. My grandparents had about 4 records. My parents around 50. I have, I don’t know, 10,000 tracks? 15,000? More? I can’t even remember. Technology has permitted this market to explode. It has also reduced costs and overhead in terms of distribution. I can’t remember the last time I went to a brick and mortar store. And the consumer pays basically the same price as 20 years ago? Again, f*ck that.

    Consumers know when they are being screwed. If they offered a competitive product at a reasonal price, the revenues will come. Until that time, they will have to keep suing their customers and their customers will keep “stealing” music. It’s a dumb, dumb business model, though it will keep lobbyists and lawyers employed.

  • Seems the industry can’t even wait for its legislative (demand-side) christmas goodies and is already taking steps on the supply-side to put in place the requisite jurisprudence to be able to shut down Canadian bittorrent (p2p) tracker sites (which enable bt users to connect and share files with other users). If successful, alongside the big push to shutdown other such sites currently underway, in particular in Western Europe (where many are housed), this could have significant global implications.


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