A Letter to the Federal Government Regarding Bill C-32

This week, I sent the following letter the a few key members of the Federal Government, outlining my concerns with the proposed Bill C-32. Those who have read my other posts regarding the bill may notice a great deal of similar language. As always, feel free to borrow this letter and to modify it in any way, shape, or form. Printed letters can be sent to Members of Parliament free of charge, and all Members’ contact information is available here.

To: The Right Honourable Stephen Harper
To: The Honourable Tony Clement
To: The Honourable James Moore

CC: Marc Garneau (Liberal Industry critic)
CC: Pablo Rodriguez (Liberal Heritage critic)
CC: Charlie Angus (NDP Digital Affairs Critic)
CC: Peter Braid (MP, Kitchener-Waterloo)

Dear Members of Parliament:

Last week, our Conservative government introduced Bill C-32, the Copyright Modernization Act. As its title suggests, the aim of the bill is to modernize Canadian copyright law, an admirable goal considering the incredible changes that the internet has had on our economy since our copyright laws were last reviewed in 1997. With respect to its stated goal, Bill C-32 is a reasonable proposal. It contains some much needed legislation that will indeed clarify and modernize our copyright code.

For example, the Network Services section of the Bill provides a safe harbour clause for Internet service providers and other network operators. In particular, the section provides legal protection for hosting service operators whose customers may have uploaded copyrighted works to their servers. Likewise, the Copyright Infringement section sets maximum monetary awards for copyright owners who successfully charge an individual with infringement of works for personal or commercial use. Given the astronomical awards granted by American courts in both the Capitol vs. Thomas (2007) and RIAA vs. Tenenbaum (2009) cases, this is an extremely important clause.

Unfortunately, every positive aspect of the proposed law is counteracted in the Technological Protection Measures and Rights Management Information section of the bill, wherein the proposed law explicitly bans the use, manufacture, import, distribution, sale, or rental of any technology or device capable of circumventing any technological protection measure (also called digital rights management, or DRM) schemes that have been placed on the digital content by its distributor. Should the bill become law, any use of the aforementioned technologies will constitute an immediate infringement of copyright and make the responsible party liable to all damages outlined within. Therefore, this section effectively removes all of the rights granted in earlier portions of the bill, including Non-commercial User-generated Content and Reproduction for Private Purposes, the two sections that the government is using to desperately peddle this bill as consumer-positive, when in fact it is nothing of the sort. In particular, the latter section proposes that it be made legal to create personal reproductions of copyrighted material (often referred to as time- or format-shifting, an activity that the vast number of Canadians already take part in) so long as a number of conditions are met, one of which is that “the individual, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented.”

Just like that, with a single sentence, all of the ‘rights’ that the Conservative government is waving around as they insist that their approach to copyright reform is not bought and paid for by foreign media conglomerates are struck from the record. With an anti-circumvention clause built into our copyright law, the ability to use legitimately purchased digital media in a fair and open manner (generally called fair use in the USA or fair dealing here in Canada) ceases to exist. The reason for this is that an excruciatingly small minority of the digital media that is sold today is unencumbered by some form of digital rights management. DVDs? Encrypted. Your player contains software that allows them to be read. BluRay discs? The very same. Video games? Every one. Perhaps this is the real reason that Bill C-32 was introduced at video game developer Electronic Arts’ Montreal studios. Cable television, Netflix digital downloads, eBooks, computer software of all sorts, online television services, and an uncountable number of other current and future consumer media products are all protected by some form of DRM. About the only type of digital media that you can actually buy that does not come coated in some form of technological protection measure is music, and yet millions of Canadians who purchased music from Apple’s iTunes store prior to January of 2009 still have affected tracks in their music collections. Under the proposed law, none of this digital content can be backed up, moved to a different device, transcoded to a different format, or otherwise tampered with, because to do so would require that its owner break the DRM that has been placed on it, thus making that person a criminal in the eyes of Canadian courts.

Perhaps the most interesting thing about laws of this sort is that they are known to be ineffective at stopping internet piracy. In 1996, before popular file-sharing services like Napster, KaZaa, Limewire, and BitTorrent were even invented, a group of countries that included Canada signed the World Intellectual Property Organization Treaty (WIPO), a document that required that signatory countries enact laws prohibiting the circumvention of digital rights management schemes. The United States did so in its 1998 Digital Millennium Copyright Act (DMCA), and twelve years later, the Canadian government is seeking to ratify the treaty under pressure from the United States and the European Union. Unfortunately for the government, a great deal has changed since the turn of the century, and many consumers are now aware of the problems that rights management schemes can cause them while trying to use their legitimately purchased media in seemingly normal and socially acceptable ways. In those same twelve years, the digital piracy situation faced by media companies worldwide has grown exponentially, and various media industries attribute billions of dollars per year in losses to digital piracy. If anti-circumvention laws were truly effective, piracy should never have become the problem that media companies claim that it is today; the DMCA put anti-circumvention laws in place in the United States a full year before the invention of Napster and three years before the introduction of the BitTorrent file-sharing protocol.

In truth, anti-circumvention laws styled after the United States’ DMCA serve only to reduce consumer choice while failing to prevent digital piracy in any capacity whatsoever. Lawmakers would do well to understand that DRM schemes are no more than the digital counterparts of real-world mechanical locks. There has never been, and will never be, a lock that cannot be broken by any determined party with time, knowledge, and resources on their side. Further, it is essential that lawmakers understand that a single defeat of the DRM scheme designed to protect digital media often results in the widespread availability of that media to any and all interested parties by way of the internet. Therein lies the problem with DRM as an anti-piracy measure: One does not have to be a determined hacker to access the media that a DRM scheme is intended to protect; one simply requires access to the internet, and knowledge of a website that distributes media that has been helpfully unlocked by other, more capable parties. The global nature of the internet ensures that the parties most interested in defeating digital rights management schemes need not operate in countries unfriendly to their cause. For these reasons, a government mandate that protects the sanctity of digital locks will not have the desired effect of preventing widespread domestic piracy. Instead, such a ruling will serve only to impact the ability of consumers to utilize their rightfully purchased digital media in a fair and open manner.

Since anti-circumvention legislation has not reduced piracy rates in countries where it has been introduced, and since the DRM schemes that it aims to sanctify do little to stop widespread piracy, but do make common criminals out of legitimate customers on a wide scale, it is a simple matter to conclude that this type of legislation is not, and never will be, in the best interests of the consumer. Gentlemen, I urge you all to reconsider the laws proposed in Bill C-32. As a young entrepreneur and a professional employed in our strong technology sector, I cannot help but be concerned about the potentially stifling effects of the proposed legislation on our economy, and on our ability to innovate and to create the technologies of the future.

Thank you for your time,

Jonathan Fritz, BSc.

A Few Good Reads

The following is a handy list of a few of the things that I’ve been keeping an eye on lately.

The Anti-Counterfeiting Trade Agreement:

If you haven’t been reading slashdot lately, you might not know that representatives from the governments of most of the developed world have recently been participating in some top-secret meetings aimed at establishing something called the Anti-Counterfeiting Trade Agreement, or ACTA for short. Now, according to Michael Geist, the proposed agreement actually has very little to do with counterfeiting, and an awful lot to do with copyright protections for big content – the same guys who influenced the USA’s Digital Millenium Copyright Act. Based on leaked information, Geist has pieced together a very good explanation of the proposed agreement as an online slide show that I snagged from TVO’s Search Engine blog:

Now as you might expect, quite a few people got uppity when they found out that the government was participating in secret meetings with the aim of establishing a global copyright treaty that would bypass the house of commons and fly in the face of last summer’s copyright consultations. So many people in fact, that NDP MP Charlie Angus questioned Industry Minister Tony Clement about it during yesterday’s question period. Thanks to the work of Fair Copyright for Canada, a video of their exchange is available on YouTube:

I too am pretty incensed at the government for keeping this all as hush-hush as they have. As I understand, copyright isn’t even a law in Canada – it is in fact a right, and one that must be exercised by the right holder. In my opinion, it is not the business of the government or of the Internet at large to take care of exercising this right for the holder. Further, much of the leaked information about this law points to it having a clause that bans internet access to any person who has been accused (read: not convicted) of breaking copyright three times. If implemented, this clause would be open to abuse, and far too wide-ranging for my comfort.

Can Software Be Patented?

On a related note, the Supreme Court in the United States is apparently deciding something or other about the legitimacy of software patents this week. While I admit that I haven’t really kept up with the issue enough to appreciate its gravity, the resulting press has lead me to this incredible article on Groklaw that provides a beautiful explanation of Computation Theory and its implications on Patent law.

Of course, I learned all of the stuff in the article in school, but have never seen it explained as simply or applied as practically as the author does in the article. For those who are looking for a printed copy that will persist link rot, a PDF of the article is available here on my server. It’s a lengthy read, but most certainly worth your time if you are at all interested in computers, their history, and its implications on modern law.

Praise is a Strange Thing:

Another lengthy read, this article from New York magazine really got me thinking. It deals with the types of praise that parents give their children, and the implications of that praise throughout their lives. Essentially, there are two kinds of praise: Telling your child that he accomplished his goals because he is smart, and telling your child that she accomplished her goals because she worked hard at doing so. The former gives a false sense of achievement that doesn’t provide a framework for what to do in cases of failure. As a result, children praised in this manner tend to avoid things that they do not naturally do well at, even though they may be accomplished in other areas of life. A related article that I found over on Pixel Poppers considers the implications of this kind of research on video games. Specifically, the author discusses the ‘fake achievement’ that RPGs provide players when their characters level up in lieu of actual skills, and asks if this alone could be responsible for problems encountered in other areas of life.

Back to Studying:

Well, that’s about it for me. I’m back to procrastinating studying for finals.

Cheers,

Jon