The Problem with Bill C-32

This past week, the Honourable James Moore, Conservative Minister of Heritage & Official Languages and the Honourable Tony Clement, Conservative Minister of Industry introduced Bill C-32, “Copyright Modernization Act“ at the Electronic Arts studios in Montreal, Quebec. As its title suggests, the aim of the bill is to modernize copyright law in Canada, an admirable goal considering that our copyright laws haven’t been reviewed since 1997. In Internet time, that’s nearly an eternity, and a lot has changed since then. With respect to its stated goal, Bill C-32 is a reasonably good proposal of law. It contains some much needed legislation that will indeed clarify and modernize our copyright code.

For example, the Network Services section 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 and RIAA vs. Tenenbaum cases, this is an extremely important clause.

Unfortunately, these positive aspects of the proposed law are counteracted in the Technological Protection Measures and Rights Management Information section of the bill. In this section, the proposed law explicitly bans the use, manufacture, import, distribution, sale, or rental of any technology or device capable of circumventing any technological protection measures (also called digital rights management, or DRM) schemes that have been placed on the digital content by its distributor. Under the proposed law, any use of the aforementioned technologies constitutes an immediate infringement of copyright, and makes the responsible party liable to all damages outlined therein. The problem with this section is that it effectively removes all of the rights granted in earlier sections 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 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.”

And just like that, with a single sentence, all of the ‘rights’ that the 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. You see, 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 because an excruciatingly small minority of the digital media that is for sale today is unencumbered by some form of digital rights management. DVDs? Encrypted. Your player contains software that allows them to be read. BluRay discs? Same deal. Video Games? Absolutely. Why do you think the government introduced the law at Electronic Arts’ Montreal studios? Cable television, Netflix digital downloads, eBooks, computer software of all sorts, online television from Hulu and other major providers, and an uncountable number of other consumer media products are all protected by some form of DRM. About the only type of digital media that you can actually buy that doesn’t come coated in some form of protection measure is music, but millions of people who purchased music from the 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. Way back in 1996, before Napster, KaZaa, Limewire, or BitTorrent were invented, a group of countries got together and signed the World Intellectual Property Organization Treaty, 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, and 12 years later, the Canadian government is seeking to ratify the treaty under pressure from the United States and the European Union by following suit. Unfortunately for the government, a lot has happened 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 acceptable ways. In those same 12 years, the piracy situation has yet to stabalize, and the various media industries still attribute billions of dollars per year in losses to digital piracy. So what’s going on? If anti-circumvention laws were truly effective, wouldn’t the rate of piracy drop in countries where they are introduced?

Allow me to explain with a quote from one of my previous posts, An Open Letter to the Conservative Government of Canada:

Anti-circumvention laws styled after those of the United States’ 1998 Digital Millenium Copyright Act serve only to reduce consumer choice while failing to prevent digital piracy in any capacity whatsoever. Lawmakers would do well to understand that digital rights management (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. In the digital case, a single defeat of the DRM system 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 biggest problem with DRM schemes: 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. As such, 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 digital rights management schemes that it aims to sanctify often do little to stop widespread piracy, but do inconvenience 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, who also happens to be the voter responsible for electing the officers of government that attempt to introduce it into law. So why are your elected representatives being complacent in protecting your interests? Perhaps you should ask them about it.

Those readers with an interest in copyright law, internet piracy, and the effects of anti-circumvention legislation are encouraged to read Ripped by Greg Kot and Moral Panics and the Copyright Wars by William Patry, as well as to check out Professor Michael Geist’s excellent Blog.

An Open Letter to the Conservative Government of Canada

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, Kitcener-Waterloo)

Dear Members of Parliament:

It is with much consternation that I view the continued efforts of the federal Conservative government of Canada to ‘reform’ Canadian copyright law. I fear that the government has lost sight of the original purpose of copyright law, and has forgotten their sworn duty to protect the interests of their constituents over those of foreign media conglomerates.  This week brought the news that Prime Minister Stephen Harper has ordered the Honourable James Moore, Conservative Minister of Heritage & Official Languages, to proceed in drafting a copyright reform bill that is likely to include strong anti-circumvention clauses and an inflexible approach to fair dealing exceptions. As a Canadian citizen and an entrepreneur in our strong technology sector, I must make clear my view that these types of laws fail to benefit the end users of technology, and Canadian industry as a whole.

In particular, anti-circumvention laws styled after those of the United States’ 1998 Digital Millenium Copyright Act serve only to reduce consumer choice while failing to prevent digital piracy in any capacity whatsoever. Lawmakers would do well to understand that digital rights management (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. In the digital case, a single defeat of the DRM system 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 biggest problem with DRM schemes: 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. As such, 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. Taken to their fullest extent, anti-circumvention laws prevent consumers from watching legitimately purchased films on their computers and from listening to personally owned music on their mobile devices. They encourage a marketplace that limits consumer choice and promotes vendor lock-in; a market that licenses media to consumers instead of selling it. This situation often results in the loss of personal property when DRM servers that consumers rely on to enjoy their media are inevitably shut down for economical reasons.

Last summer, the federal Conservative government conducted public copyright consultations under the auspices of creating what they advertised as a “made in Canada approach to copyright reform.” Unfortunately, it seems as though the thousands of voices that participated in those deliberations were largely ignored by this government, contrary to the very concept of a representative democracy. While we can all agree that copyright reform is necessary, it is important that the reforms that are ultimately enacted accurately represent the interests of the majority of Canadians, whose lives are impacted by their access to media technology on a daily basis. We must remember that the primary purpose of copyright law is provide a monetary incentive for artists to contribute to our society, and not to enrich foreign media conglomerates.

Thank you for your time,

Jonathan Fritz,

A concerned citizen

This open letter was emailed and posted to all listed Members of Parliament. If you are interested in joining in on the discussion and want your voice to be heard by your representatives, feel free to borrow my letter and to modify it as you wish. Alternatively, head over to the website of the Canadian Coalition for Electronic Rights and use their automated form to accomplish the same task.

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

The Canadian DMCA and You

With the October 14th Canadian federal election quickly approaching, I think it’s a good time to bring forth an important issue that isn’t getting enough spotlight in our media.

Anybody who is tech-oriented or reads the news should be familiar with the American DMCA (Digital Millenium Copyright Act). Put into law in October of 1998, the law works to strengthen copyright protection in the USA, and includes an anti-circumvention clause that makes it illegal to break any digital security system placed on your files. This law applies to any kind of Digital Rights Management (DRM) system placed on your otherwise legitimately purchased digital property.

Under the DMCA, it is illegal to convert Apple iTunes downloads to the more open Mp3 format, rip DVD movies to your computer to watch them on a network, a portable device, or otherwise back them up, rip certain CD’s (the ones that have copy protection warnings all over them) so that you can listen to them on your iPod, and a whole host of other should-be legitimate activities.

In the past, copyright law was only broken if you took somebody else’s work and illegally distributed it to others via the internet, a CD-R, or USB thumbdrive. With the DMCA in place however, it is illegal to do all sorts previously legal activities that fall under the realm of fair use of a product legitimately purchased.

Which brings me to my point – previous to taking their summer recess, Stephen Harper’s minority conservative government was once again attempting to champion bill C-61 through the House of Commons in an effort to put a similar law into effect here in Canada. Most experts in the United States argue that their DMCA has actually hindered the tech sector there, while security experts cringe at the idea of being legally bound to not test the security of various systems, including electronic election equipment (on which maker Diebold has handily installed DRM so that it is illegal to check over their source code).

As a tech-oriented citizen entrepreneur in Canada, I feel that this law needs to be struck down immediately. Details regarding the law can be found here, while information about how to help defeat the proposal can be found at boingboing, copyrightforcanadians, this youtube video from Canadian law proffessor Michael Geist, and this segment of CBC’s the Hour, also featuring Michael Geist.

For those seeking more information regarding DRM, the DMCA, and the effect both have had on tech and liberty in the USA, check out this essay (*.pdf) that I wrote last term for an Ethics course I took at Laurier. It’s about 16 pages, but a solid read, and full of links to other important resources.

Contact your local MP, and get their opinion on the law as part of your voting research.

Cheers,

Jon