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.

DRM is a Bitch

With nothing important to do this morning (except for all that studying that I should be tackling), I decided to play a favourite game of mine – 1701 A.D. It’s an excellent RTS-style game from Germany in which you play the role of an explorer in the new world. It is your task to build a successful settlement that supports itself and glorifies the Queen. Think SimCity meets Age of Empires, all rendered in pretty graphics and with engrossing game play that will easily make your entire day fly right by. Unless, of course, you try to install and run the game on Windows Vista:

Alright, so, the installer must have failed. I went and ran DrvSetup_x64.exe from the game disc, and got another fantastic error message:

Well, that’s handy. A Google and a half later, I found a slew of angry posts about Tages copy protection on various message boards. I gather that Tages essentially installs a copy-protection driver to your system that isn’t signed by Microsoft. This is an issue under Vista, and the system refuses to install the driver for security reasons. You can reboot and tell Vista to not require that drivers be signed by tapping F8 at boot and selecting “Disable Driver Signature Enforcement” from the boot menu, but according to these posts, you have to perform this action every time you wish to play the game, which is a big security hole as well as a big pain in the ass.

I found a link to an updated version of the drivers at the Tages website that were signed by Microsoft, and installed with no issues, finally allowing me to run a game that I legitimately paid for instead of simply pirating. While I appreciate the situation that studios and distributors find themselves in regarding piracy, I can’t help but be indignant when confronted with copy protection schemes that punish the honest customer. Between my mother and I, our family has purchased three copies of this game, and every previous installment of the franchise. She wouldn’t have been able to figure out the issue with the drivers. Why weren’t the drivers distributed on the game disc signed by Microsoft? Why did the game not automatically update the drivers after validating a legitimate install? Why was there no post about this issue on the game website?

I have to admit that while looking for a solution, I did consider torrenting a cracked version of the game instead of bothering to fix my legitimate copy, which is funny, because the Tages website states that:

The proof of TAGES™’s effectiveness is undeniable as illustrated on various web sites. All major competitors have been hacked and the hackers have made generic cracks available for free. Anyone can break into these systems and produce illegal copies. With TAGES™ there will never be a generic crack, and there will never be one-to-one copies. It is physically impossible.

An interesting claim, since a quick Google search shows quite a few illegal versions of the game available for torrent. At the end of the day, while I cannot condone piracy, this kind of nonsense really gets me angry. I understand that piracy is pushing developers away from the PC platform and toward the more secure Console systems. I understand that piracy can destroy the user experience of a game; but I demand that if a company is going to take steps to prevent piracy, they do it well, and don’t inhibit the actions of legitimate users of paid copies of their product. You wouldnt knowingly push a game to market that had a bug that made it unplayable – so why do DRM schemes get a free pass?

Rethinking the Issue of DRM

This morning I found an excellent article called PC Game Piracy Examined written by Koroush Ghazi over at TweakGuides.com that addresses the current state of PC video game piracy, and the so called “death of PC gaming” theory that has been circulating the internet as of late. Readers will recall my DRM essay uploaded some months ago that concluded among other things that

The basic flaws inherent in every DRM system, the rampant destruction of customers right to first sale and fair use, and the fear of device lock-in and market stagnation lead this author to believe that a better solution need be proposed to protect the intellectual properties of media producers.

Upon reading through Ghazi’s lengthy ten page article, I have to admit that I’ve been forced to take a hesitant step backward and re-evaluate some of the opinions that I’ve long held regarding DRM technologies. While I still agree and stand by many of the points made in my essay, his writing has cleverly challenged some of my conclusions.

The concept of Zero-Day Piracy is one that I did not research when writing my essay, and deals with the idea that hype for any product is at its height on launch day. Many expectant fans will rush to obtain the product by whatever means possible as soon as they can, and if a pirated version of that product is available on or before launch day, the first spike of revenue (often what ensures that the studio breaks even and continues to release subsequent products) is lost. In this regard, producers realize that their products will eventually be pirated, and use DRM to ensure that their products stand available only in legitimately purchased form for at least a week after launch. While it sounds hopeless, this week of legitimate sales is instrumental in ensuring the economic success of the product.

Another part of the article that really resonated with me was the discussion of how game developers and publishers are changing their business models to adapt to the problem of mass piracy. Some are choosing DRM, while others are moving toward MMORPG’s with a subscription model, and some are moving away from the PC entirely. As a portion of this section, the author discussed things that developers and publishers can do to try and reduce the number of pirated copies of their games. One of these suggestions called strongly for more demos. I especially appreciate this, as for some reason graphics-heavy games tend to crash my video card drivers on a regular basis (I blame Vista and/or Ultramon), and I like to try a game out to ensure that it will in fact run stable on my system before putting my money down. I had this problem after purchasing Left 4 Dead the other day ($50 later, it’s almost unplayable), and thought twice about buying Far Cry 2 this morning, realizing that it would probably push my machine too far, even though my video card is listed as supported. A demo of that game would have eased my choice along considerably.

While I still believe that DRM is bad for the system in the long run, Ghazi successfully pounds the point home that publishers turn to DRM systems in an effort to offset the damage done to their business by piracy. To excuse piracy on the basis of clever DRM systems that are hard to bypass is to turn a blind eye to the destruction reaped upon the digital marketplace by that same act of piracy and to in effect lend oneself to the continued downfall of beloved products, including music, movies, and video games.

I would recommend that any person who has in the past participated in the piracy of software, movies, or music take the time to read through this article, lengthy though it may be. Entertainment distribution is in a tough place across the board these days, but PC game development in particular is a sector that many inspired artists are dropping out of all together because they can no longer afford the risks involved. These same risks can make it nearly impossible to break into the business as an independent developer, as evidenced by the piracy rate documented by 2D Boy, developers of the incredible title World of Goo. In effect, by continuing to pirate products that we know and love, gamers are contributing to the downfall of this valued form of entertainment, and whether we agree with DRM or not, I think that it is important that we all take a moment to consider the real entertainment value of these products that we take for granted, and consider the true implications of our actions.