ZeroPaid Interviews Russell McOrmond – Part 1 of 3

In Canada, there is no shortage of debate on many things that touches technology. Does privacy trump security or the other way around? Should DRM be protected or should we be protected from DRM?

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

One of Canadas many experts took some time out of his busy schedule to offer some interesting thoughts on a broad range of topics.

(Authors note: This portion of the interview took place on February 22nd)

ZeroPaid: Who are you and what do you do? What got you into the copyright debates as well as other things that you advocate for? How long have you been an advocate these general technology issues?

Russell McOrmond: My name is Russell McOrmond. I am paid mostly as a system administrator of FLOSS-based Internet servers, which often includes authoring and/or enhancing FLOSS software. I have done a bit of paid work as a policy person for federal government departments and in other sectors. As a volunteer I am the host of Digital-Copyright.ca, co-coordinator of GOSLINGcommunity.org , policy coordinator for CLUEcan.ca, and offer free web hosting to community groups through FLORA.org and elsewhere.

I became aware of/interested in computers in the early 1980’s, with Commodore PET computers on loan at my school for a few months in Grade 8.

I became aware of the Free Software movement in the early 1990’s, while at Carleton University. I was sceptical of the long-term viability of the proprietary software industry, and sceptical of the ability of independent entrepreneurs to make a living in that monopolistic industry.

I became involved in Digital Copyright in the summer of 2001 when someone sent me an email to let me know that Canada was doing a consultation on possibly bringing a DMCA into Canada. I already knew about the DMCA, and how bad an idea it is.

My background is in technology, but I spend more time talking to bureaucrats, lawyers and other policy people in recent years than talking about technology.

ZP: The big headliner recently has been the story of Michael Geist getting the EFF pioneer award. What are your thoughts on this and does this, in your mind, affect the issues he stands for in anyway? Any words for Michael Geist?

RM: Michael Geist is one of our best allies in Canada. He comes at this policy from a very different direction. He is a lawyer and law professor that didn’t really grow up with technology the way I did, even though we are the same age. He noticed a crucial policy debate where major stakeholders were not invited to the debate, nor were they fully aware that a debate was happening. Has been doing everything he can to ensure that these missing voices are heard and understood. He understands the benefits of new communications technology and media, and begins many of his presentations by talking about the wonderful benefits (economic and beyond) that giving individual citizens control over the media has and can continue to offer us.

I think Geist is well deserving of the award. My only worry is that far too much of a spotlight has been placed on any single person when we need to make very visible to politicians and other Canadians a strong and diverse Canadian movement for modernizing our laws to embrace rather than oppose new technologies.

ZP: There’s been a number of stories around the world about privacy. In Ireland, 80 government laptops, which are among a number of storage devices were ‘stolen’ which raised privacy concerns as well as some interesting debate on the whole issue of data retention laws in Europe. This came a few months after the massive story of Britain losing nearly half the populations identities went missing. Then, there’s a huge issue in the US with the whole telecom immunity story. Latest word was that one of the parties is saying effectively that there will be no compromises for telecom immunity which is after it passed the senate. With all these privacy issues cropping up, it is sometimes easy to forget that Canada did have a debate not too long ago with the Lawful Access issue to which CIPPIC immediately shot down. Despite all these issues going on today, do you think that these issues could play a roll in future debates on things such as lawful access should they arise? What are your thoughts on some of the other countries asking about whether or not there should be some give from privacy in favor of security? On the flip side, sometimes transparency is a good thing for corporate and government entities. Do you have any thoughts on the California Court issuing an injunction on Wikileaks?

RM:I see a number of distinct issues discussed here.

What is the responsibility of companies when they hold personal information about us. This is one of the great things about Canada where we have privacy commissioners and privacy law at both the federal and provincial levels. What we have now is a start, and there are consultations going on right now to enhance these laws to handle things like mandatory disclosure of security breaches.

Then there is the question around what liability should exist when governments impose additional monitoring and data retention. This is coupled with some heated political debates about whether we should give up privacy in favour of security, or whether giving up privacy is itself a form of giving up security. I am one of those people that believes that protecting privacy is itself required to protect our security, and the idea that we should give up privacy for security is utter nonsense.

Rather than governments imposing more and more surveillance on us they should instead be doing everything in their power to empower us to better secure ourselves from unauthorized (by us citizens) surveillance by either governments or foreign attackers.

Corporate and government transparency is a different issue, and I don’t consider that related to privacy. It is public transparency and accountability for activities which have an impact on the public, not activities which are private in nature.

Then there are issues of pure politics. When it is a government that makes a mistake, is it not simply a form of corruption when they try to hide from the law anyone who helped them in this mistake. This is the essence of laws which grant immunity for third parties breaking the law?

There needs to be respect for the law in order to hold our society together, and when governments play political games with the law in order to avoid political embarrassment then this puts our entire society at risk. What the outgoing Bush administration in the USA is doing is extremely dangerous, and will only encourage more lawbreaking in that country.

Respect for the law is a key component of the Copyright debate. In order for the law to be respected it needs to be respectable. That means that how it regulates us must be understandable to those it regulates. There must also be a understanding and agreement within society as to the laws purpose.

I believe that the current direction of Copyright policy is dangerous as it erodes respectability, which may lead people to want to throw the baby out with the bathwater. Copyright has some positive effects that are being overshadowed by the negative social and economic impacts of recent reforms and proposals.

ZP: There’s been some debate on whether or not ISPs should be playing the ‘copyright cop’ with some ISPs considering a ‘three strike rule’ for file-sharers. First it was France to consider it, then it was England, then Australia. The IIA which is an organization that represents Australian ISPs have already said that these kinds of filtering wouldn’t work not to mention that ISPs seem to have historically been reluctant to even think about caving to pressure from copyright stakeholders to police their networks. Now AT&T have said that they may have a change of heart which caused some debate on the matter. You’ve said numerous times on your BLOG that file-sharing of copyrighted content like software actually deals greater harm to the open source movement in general. At the same time, plenty of open source projects are out on file-sharing networks. So, how would these ideas affect the movement should they really be implemented? Do you have any thoughts on the filtering at the ISP level, not to mention having a three strike rule?

RM: As with the last question, there are a lot of separate issues, each of which take some time to discuss.

At the highest level I believe we as an online or technically literate community need to get past our naive arrogance of believing that the genie of the Internet and new technology is out of the bottle, and that it is not possible to put it back in. Far too many people ignore the politics around technology law simply believing that filtering is not possible. The reality is that it is quite easy as the number of people who are both technologically literate enough and politically motivated to use technology to circumvent the law.

Many people who lack this knowledge and motivation are today doing activities, but that is because the Genie is still out. There are a host of organizations that want to put it back.

The roll of ISPs in this debate is confusing as there are companies that currently sell Internet services that actually want to offer something very different than Internet services. I recently wrote an article Copyright lobby to IT sector: It’s all your fault! In some cases itis that discussed this issue in more detail.

When I say “Internet” I mean a network configured under the End-to-End design principle where all the intelligence in the network are at the endpoints, and the network in between is deliberately dumb. This allows for innovation that only requires coordination between those endpoints, and does not need the permission or changes in configuration of the underlying dumb network.

The phone and cable television companies recognize that an end-to-end network would compete with their traditional phone and broadcasting services, and not be compatible with their legacy business models (per “call” costs, bundles of channels, etc), so they do not want to offer that service.

How a non-Neutral ISP could work. A photoshop by echobucket of Something Awful. Source: BoingBoing.net

Unfortunately in North America most people gain access to the Internet via the phone or cable companies, meaning they are connecting to the Internet in a way that may not actually operate like the Internet at all in the future. People wanting to understand the history and get a sense of the current state of our movement away from having Internet connectivity should read Digital Imprimatur: How big brother and big media can put the Internet genie back in the bottle.

I don’t think we should take the willingness of phone and cable companies to configure their networks more like phone and cable as a “change of heart”, but just one of those many ways in which the phone and cable companies act quite differently than independent companies who actually want to offer “Internet” services.

If we have a end-to-end network that is neutral to the political, economic or other policies of the pure dumb-network intermediaries, this does not mean that we have a free-for-all. As one example, copyright has never before tried to regulate what types of technologies can exist. It has only required permission from a copyright holder to carry out
specific activities which people might do with respect to expressions of ideas. While new technologies made new activities possible, copyright has historically been technologically neutral in that it has never tried to prohibit the existence or individual control over any type of technology.

If we were to continue to follow the way that copyright has worked over hundreds of years, we would have a situation where copyright did not impact the existence of multi-purpose technology and services, but would only regulate very specific activities with very specific content.

I believe that so-called P2P filesharing tools should be both legal and treated neutrally on the Network. That does not mean that I believe that people should be able to share anything that they want.

I believe that it should be the copyright holder, and nobody else, that should be able to decide what business model they want to use to try to fund their creativity. I consider it wrong when alleged “fans” try to second guess the creator and claim that unauthorized sharing is simply advertising for some other product or service. Whether that is true or
not is irrelevant to me: it should be the creator who gets to make that choice, and they should collect both the rewards of success as well as the costs of failure.

I don’t believe that anyone else, whether that be governments or alleged “fans”, should impose choices on the creators. I believe it is as wrong for alleged music fans to infringe copyright as it is for the government to try to regulate against private ownership and control of communications technology.

We have far too many examples of special interests trying to convince governments to impose or otherwise privilege specific business model choices on the economy. I went into some of the false statistics recently in Lies, Damned lies, and IIPA/BSA/etc statistics. I consider the lobbying by IIPA, BSA, RIAA, MPAA and similar organizations to be less moral than those who commercially infringe copyright, with both greatly harming the interests of creators and innovators.

I don’t believe P2P filesharing should be carved out of our laws to allow anyone to “share” anything, including things we neither own nor acquired permission to share. I want to ensure that it is those who have chosen to break copyright law that bear the costs of their personal decisions — not everyone else.

This means I support a very narrow definition of “making available” which ensures that there is evidence that files have to actually be distributed to someone (as a minimum an investigator) before any case can be launched alleging infringement. We need to stop these dragnets that the legacy recording industry and motion picture industry have been tossing out where there is minimal evidence of infringing activity. The threat of excessive statutory damages is then used to scare people into settling out of court. There should also be adequate penalties for false accusations to ensure that this issue isn’t taken as lightly as it currently is.

Some copyright holders also want someone other than them to bear the political and economic costs of lawsuits against alleged infringers. I believe that having to sue people and make potential future customers upset is simply a cost of their chosen business model. If they don’t think they have the moral support of the public for enforcement, then I really believe they need to be seeking business models that have the full support of their customer base. There is a full spectrum of methods of production, distribution and funding available for each type of creativity, and there is no reason to believe that if customers don’t support one model that they will not support another. Most people believe that creators should be paid for their work, and it is simply dishonest lobbying to be suggesting otherwise.

This brings us to the issue of ISP liability and whether ISPs, either real ones or phone and cable companies, should be policing copyright. Current copyright law is excessively complex, and I do not believe that anyone outside of a court should be trying to pass judgement about whether copyright has or has not been infringed. This is why I support the “Notice and Notice” regime proposed in Canada. ISPs are sometimes the only link between an alleged copyright holder and an alleged copyright infringer. Having the ISP act as a communications intermediary between the two seems obvious.

If, after the ISP customer has been notified that what they are doing is possibly infringing, they can’t then suggest that they didn’t know. The Copyright holder should then go to a court as a next step. That court could then order up discovery information (such as the identities of the customers, which are otherwise information protected by our privacy laws), or it could order that the material be removed, or even the customer disconnected until the issue is resolved.

I am strongly opposed to ISPs being given the roll of the courts, and incorrectly presumed to either be as competent on the law or as impartial as we expect of our courts. Courts have a level of legal competency, accountability and transparency which ISPs lack, so it should be trivially obvious that one cannot substitute for the other.

I don’t think the concept behind “three strikes and you are out” is all that novel, but I have yet to see any proposal that talks about actual strikes. Being a strike doesn’t mean three allegations from some alleged copyright holder, but being found guilty of some harmful amount of copyright infringement in a court. This would not be something new, and courts have ordered people accused of computer crimes to not be allowed to use a computer for a period of time.

The only concept that is really new to the discussion is the suggestion that untrained, unaccountable and special interests ISPs should be taking on a roll that must be reserved for our courts.

Canada is a country that has statutory damages for copyright, which means that there is no obligation to show any harm caused by the infringement. In Canada it is damages of “a sum of not less than $500 or more than $20,000”. This is “per infringement”, and cases in the USA (which Canadian courts would follow) this has been translated to “per
file” in the case of P2P. Given that statutory damages can easily bankrupt a family, we already have a “one strike and you are out” regime in Canada. If your family is bankrupt, not having Internet access is the least of your problems given you may not be able to afford a computer for a very long time.

Note: Contrary to common misconceptions of the BMG vs Doe case, unauthorized P2P filesharing of music is not legal in Canada. While those “receiving only” are likely to be considered to be under the private copying regime, those sharing could be liable for a minimum of $500 per file that is being shared. It is politics and the desire of the recording industry to confuse politicians into passing draconian laws that is different in Canada that has caused the industry not to sue in Canada as they have in the USA.

As a way to simplify the issue in some specific cases, I support compulsory licensing for things like recorded music, to legalize non-commercial citizen-to-citizen sharing of music, movies and television. This is the same way we legalized commercial radio and cable/satellite television, so it is not like this is a new idea. These must be narrow and adequately analyzed, as I wrote in Analyzing when copyright levies are a good idea, and when they are a very bad idea, as levies in some areas can be helpful, but they can decimate other creative sectors.

Part 2 of this interview is available here.

Part 3 of this interview is available here.

Drew Wilson on Twitter: @icecube85 and Google+.