C-32 and the BlackBerry PlayBook: A reply to Michael Geist

April 25th, 2011 by Barry Sookman Leave a reply »

Michael Geist’s recent blog post “The PlayBook Tax: Why the Conservative’s Copyright Plans Create a Hidden Cost for RIM’s PlayBook” makes the claim that “the Conservative plan for copyright reform (as found in Bill C-32) establishes a significant barrier that could force many consumers to pay hundreds in additional costs in order to switch their content from existing devices” to RIM’s BlackBerry PlayBook. He calls this a “PlayBook tax” and claims switching costs apply to “any digital content with a digital lock”.

Michael Geist’s blog post was cunningly timed to coincide with the launch of RIM’s BlackBerry PlayBook and the current federal election campaign. Unfortunately, he has misled Canadian consumers while doing a disservice to an excellent new tablet product from one of Canada’s most important technology leaders, RIM. His use of the term “tax” is clearly inaccurate and designed to maximize the political impact of his blog post which has more to do with promoting his own copyright proposals than being factually accurate.

Bill C-32 died when the election was called so the debate is about a Bill that does not exist. Nevertheless, let us look at the actual facts pertaining to what the effects of Bill C-32 would have been on the BlackBerry PlayBook across the music, e-book and video markets.

Music

Music can be consumed on the PlayBook either by copying music from existing media such as CDs or music downloads onto the PlayBook or by streaming music content to the PlayBook. In almost all cases there would be no “new cost to consumers” and no “barriers” to the adoption of the PlayBook.

When it comes to selling CDs or music downloads, most digital vendors do so without any form of copy protection. iTunes has been selling TPM-free music for more than two years; Amazon MP3 was selling TPM-free tracks before then.[1] (The PlayBook also comes preloaded with an icon to RIM’s new MusicStore, which also sells TPM free music.)

Songs bought on iTunes come in AAC format while Amazon sells MP3 files. The PlayBook will play content in both these formats as well as in AVI, WAV, WMA, WMV, ASF, MP4, MPEG-4, MOV, M4V, M4A, 3GP2 and 3GP formats.

Music CDs can easily be converted into the MP3 format for listening on the PlayBook. Music already downloaded from services including iTunes can also be transferred and played on the PlayBook with no “taxes”. The ease with which this can be done on the PlayBook was noted in the review from the same newspaper that syndicated Geist’s blog, the Ottawa Citizen:

RIM deserves applause for making it easy to get content on to the device. As opposed to many competitors, PlayBook doesn’t need extra software (such as iTunes) to put files onto the device. Plug PlayBook into a computer and it shows up as a drive. Users can simply drag-and-drop files right on to it.

Music streaming services are usually protected from unauthorized copying by TPMs. The most popular music streaming service in Canada today is Slacker Radio. Any iPad user who decides to upgrade to the PlayBook would not lose a dime on their Slacker subscription. The Slacker Radio app for PlayBook comes pre-loaded on the PlayBook. Even if another music streaming service is being accessed from another device, users can simply cancel their old accounts without incurring any sort of “PlayBook Tax”.

E-Books

Geist is also inaccurate when it comes to e-books. He claims that “Consumers with Amazon Kindles or other e-book readers who have invested in e-books that have digital locks…will find that they are unable to legally transfer the content to their new device.”

In fact, consumers who have purchased e-books through Toronto-based Kobo Books will have the capability of transferring their collections to the PlayBook. Like Slacker Radio for music, a Kobo eReading app comes pre-loaded on the PlayBook. The app will enable full transferability of purchased e-books – it will even remember which page you were last reading on your Kobo eReader when you access the book on the PlayBook. Kobo users are also able to sync their e-book library on the PlayBook through the tablet’s Wi-Fi connection.

According to RIM:

“Kobo also offers free reading applications for BlackBerry® smartphones, computers and other devices, which all sync together across a user’s account.  Kobo members can pick up and read on any device without ever losing their place.”

As for the Kindle, Amazon has announced that it is working on a PlayBook app that will allow users to transfer their Kindle books from one device to the PlayBook:

“Like all Kindle apps, the Kindle app for the new BlackBerry PlayBook will let customers Buy Once, Read Everywhere—on Kindle, Kindle 3G, Kindle DX, iPad, iPod touch, iPhone, Mac, PC, BlackBerry, Android-based devices, and in the coming months, the new BlackBerry PlayBook. Amazon’s Whispersync technology syncs your place across devices, so you can pick up where you left off.”

Accordingly, e-books purchased from leading bookstores and vendors including Amazon, Kobo, Borders, Chapters, Indigo and Barnes & Nobles will be transferable and playable on the PlayBook – without switching costs contrary to what Geist asserted. Kindle compatibility may also enable Canadians to borrow e-books from their local libraries and read them on their PlayBooks when this service becomes available in Canada.

Videos

Geist also contends that individuals will be deterred from buying a PlayBook because they cannot make copies of DVDs they own that are protected from piracy by the Content Scrambling System (CSS). The idea that consumers will be dissuaded from purchasing PlayBook tablets because of an alleged inability to transfer their DVD collections onto the PlayBook is ridiculous. DVDs have been sold with CSS anti-copying technology for more than 15 years. This did not stop the adoption of iPads, nor did it hinder the adoption of Blu-Ray players, On-Demand video, iTunes or other digital video services. An inability to instantly scan books into a Kobo e-Reader also did not create a “Kobo Tax” or prevent the runaway success of Kobo. (It is of course also unreasonable to expect studios to make major investments to create motion pictures and other programming and not protect them by using TPMs or other means to prevent massive file sharing over internet file sharing sites and services.)

In any event, Geist is engaging in speculation when he makes the statement that consumers would “immediately also face the PlayBook tax since Bill C-32 would block them from making digital copies of their DVDs to play on the PlayBook” and that “they would similarly be forced to repurchase the same content again”. Beginning in 2007 and 2008, the major motion picture studios including Disney, Paramount, Warner-Bros., 20th Century Fox, Sony Pictures, and Universal began selling DVDs together with portable Digital Copies. The bundle gives the DVD purchaser the right to make a digital copy for play on personal computers and portable devices. Given the PlayBook’s importance as a platform, it is reasonable to expect that it is only a matter of time before Digital Copies will be playable on the PlayBook.

Geist asserts that individuals will be unable to transfer their own video library unto other devices because “the presence of a digital lock will mean that the content is legally locked down to the original device or format”. It is true that Apple contractually prohibits the transfer of a downloaded video to another device other than to one of its own devices or personal computers. It enforces this restriction through its fair play DRM. Geist claims the switching costs to a consumer would “effectively double” the cost of the PlayBook. But, he provides no source or data to support this exaggerated contention. It is highly unlikely that the average user will have anywhere near the paid for video downloads that Geist claims. Moreover, given the increasing trend toward digital rentals, it is likely that a major portion of purchases from iTunes was for short term rentals rather than purchases.

In any event, Geist’s unqualified statement that individuals will be “unable to transfer their own video library unto other devices” because “the presence of a digital lock will mean that the content is legally locked down to the original device or format” is purely speculative and unwarranted. Most of the other popular video download services do not restrict the type of device that video files are copied onto. For instance movies purchased through Best Buy’s CinemaNow service may be played on “5 Devices including Portable Players”. Cineplex also recently launched a digital download and video on demand service. Digital downloads purchased from Cineplex.com can be played on personal computers and other compatible devices including mobile devices. RIM’s PlayBook supports video formats which include 3GP, 3GP2, M4A, M4V, MOV, MP4, MPEG-4, ASF, WMV, WMA and F4V. It is reasonable to expect that it will only be a matter of time before these various services work with the PlayBook.

The PlayBook also has some of the most advanced mobile video streaming technology which can take advantage of the tremendous growth in this digital market. Unlike Apple’s iPad, RIM did not shy away from providing full support for Adobe Flash 10.1, Adobe AIR and HTML 5. This means that a huge amount of online video content will be unlocked for PlayBook users compared to users of mobile devices without native Flash support, like the iPad. PlayBook users in Canada will not have to wait for the development of a specialized app before viewing commercial TV shows and other videos from sites like Youtube, CTV, CBC, GlobalTV and the Comedy Network. With the addition of Flash support for the PlayBook, it is likely that PlayBook users will have a greater choice of providers for movie streaming providers than iPad users as well.[2]

Of course, Geist’s main point about digital locks on DVDs and video content also ignores the increasing trend towards device interoperability, all of which are supported by DRM systems that enable this consumer friendly way of enjoying entertainment products. For example, under Ultraviolet, Canadian families will soon be able to access content purchased from UltraViolet media – such as Blu-ray, DVDs or Internet download – and get the enduring right to access it from any UltraViolet device registered to the household account. This includes obtaining it via streaming through devices at home or on the go.

Conclusion

Michael Geist has disseminated inaccurate and misleading blog posts and articles about Bill C-32 and its TPM and other provisions to support his own copyright proposals before. See, for example, Separating copyright fiction from facts about C-32’s TPM provisions, Separating facts from hype about C-32, Turning up the rhetoric on C-32’s TPM provisionsAre the TPM provisions in C-32 more restrictive than those in the DMCA?, A Response to Professor Michael Geist’s Clearing Up the Copyright Confusion,  Are Canada’s copyright laws friendly or unfriendly towards wealth destroyers according to Prof. Geist?,  Legends and reality about the 1996 WIPO Treaties in the light of certain comments on Bill C-32, Are Canada’s copyright laws friendly or unfriendly towards wealth destroyers according to Prof. Geist? His recent blog post does this again.

Geist’s proposal is to legalize circumventing TPMs that protect copyright content from digital piracy to enable individuals to make free and uncompensated copies of content for any purpose that is not intended to cause an additional separate act of infringement. If this proposal was incorporated into a successor to Bill C-32, it would make Canada the only country in the industrialized world to permit this and it would contravene our treaty obligations. See, An FAQ on TPMs, Copyright and Bill C-32.

Importantly, Geist’s proposal would also undermine existing and future digital business models that rely on TPMs including streaming music services such as Slacker Radio and Spotify, e-book download services such as those offered by Chapters/Indigo and Amazon, e-book library lending from companies such as Sony and Amazon, video download and streaming services such as those offered by Cineplex, CinemaNow and Netflix, household video access to be enabled through Ultrasviolet, as well as the numerous and existing business models that use TPMs in the entertainment software and software industries. Ultimately, Geist’s proposal would undermine access to and the dissemination of digital content to the Canadian public and hurt everyone involved in the digital industries including the consumers he professes to represent.

While Bill C-32 died on the Order Paper with the election call, most agree that it is essential for Canada to update it’s copyright laws to keep pace with technological change and legislative changes in other jurisdictions. When Canada’s copyright legislation is re-introduced in the next Parliament, let us be sure that Canadian consumers and their representatives are well informed about the facts.

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.


[1] As stated in the Amazon MP3 Store FAQ: “The MP3 files you purchase from Amazon.com do not contain any software (frequently referred to as “digital rights management” software) that will restrict your use of the file.”

[2] In fact, one early PlayBook reviewer has praised the PlayBook’s ability to play streaming videos from Amazon’s new Instant Video service (not currently available in Canada) as compared to other devices like the iPad:

I tested Amazon’s Instant Video and Cloud Player services on the PlayBook. Both worked like a charm. As a user of both services (I have three Sony Blue-ray players in my house that are Amazon Instant Video-enabled) this alone may make the PlayBook worth keeping long term.

To my knowledge (and please correct me if I’m wrong), the PlayBook is now the first tablet to play nice with Amazon’s Instant Video service. Some Nokia phones can playback Amazon Instant Videos, but Amazon’s PC software Amazon Unbox is required to download a special version of the program and then transfer it to the phone. With the PlayBook, no software is required; video simply streams to the device. Wow, it seems like I have waited years for this development.

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