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30 Days of DRM – Day One: Linking Copyright and Anti-Circumvention (Markets)

I need to begin day one with a couple of introductory issues for those new to copyright reform.  When I speak of a Canadian DMCA, I am focused chiefly on anti-circumvention legislation.  The forthcoming bill will likely contain many other provisions (few of which will address the needs of users and many creators) but it is the anti-circumvention provisions that will likely prove to be the most contentious.

So what are anti-circumvention provisions?  They are provisions that grant legal protection to technological protection measures (TPMs).  In plainer English, traditional copyright law grants creators a basket of exclusive rights in their work.  TPMs or digital locks (such as anti-copying technologies on CDs) effectively provide a second layer of protection by making it difficult for most people to copy works in digital format.  Anti-circumvention legislation creates a third layer of protection by making it an infringement to simply pick or break the digital lock (in fact, it even goes further by making it an infringement to make available tools or devices that can be used to pick the digital lock).  Under the DMCA, it is an infringement to circumvent a TPM even if the intended use of the underlying work would not constitute traditional copyright infringement.

This broad legal protection for TPMs has raised numerous issues over the past eight years.

Perhaps the most obvious problem has been the use of these legal provisions in cases that have nothing to do with copyright.  The U.S. has been home to a litany of cases involving the DMCA and garage door openers (which involved Canadian-based Skylink), printer cartridge refills, hardware backups, and cell phones.  None of these cases involved attempts to stop copyright infringement.  Rather, they were fundamentally about exerting greater market control by thwarting potential competitors and reducing innovation.  For example, in the Skylink case, Chamberlain, a competitor in the garage door opener market, tried to stop Skylink from offering a universal garage door remote control.  Chamberlain argued that Skylink needed to circumvent its TPM in order for its remote to function and that this constituted a violation of the DMCA.  While some of the cases have ultimately been dismissed (including, after several appeals, the Skylink case), the mere threat of a lawsuit is frequently enough to dissuade many companies from entering the market or from developing an innovative new product.

Canada can ill-afford to follow the U.S. lead by leaving doubt as to whether anti-circumvention provisions apply outside the realm of copyright.  To do so would pose a threat to Canadian innovation and create significant competition law concerns.  Moreover, it would subject the Canadian law to constitutional challenge, since the federal government would be encroaching on provincial property rights, rather than addressing copyright.  Accordingly, any anti-circumvention provision must be linked directly to copyright.  For more on these issues, see my article on the competition concerns of DRM, Jeremy deBeer's piece on the constitutional considerations, and the EFF's study on the unintended consequences of the DMCA.

7 Comments

  1. I was White Trash when White T says:

    http://whitetrashb4u.blogspot.com
    i can make copies right without any fringe or ribbons and no glue neither.

    you got any more of them debeer’s left in your cooler?

  2. Ellen Weber
    Thanks for the work you are doing in this area and especially for the blogs which begin to put this into language that is understood and can be responded to. This is dearly needed if people are to regain any communications with the laws that govern their work. All the best

    Brain Based Business

  3. Jhonny Pabón says:

    TPM Colombia
    Hola, felicitaciones por esta iniciativa de 30 dias, de la cual estare al tanto todos los días.
    En Colombia, SurAmerica, de acuerdo a las obligaciones de los tratados OMPI de 1996 se legisló sobre las TPMs en el codigo penal del año 2000.
    Quedo establecido entonces que toda elusion a las TPMs es considerada un delito, y mediante una reforma de junio de este año, las penas por eludir las TPMs son ahora de 4 a 8 años de carcel mas una multa economica. En Colombia no existen excepciones para los actos de elusion, por lo que me parecen muy importantes todas estos foros, para que de la forma más pronta se establezcan excepciones, y podamos tener como referentes las legislaciones de otros paises (como Canada), pero además las discusiones previas de dichas reformas, ya que no siempre la ley queda satisfaciendo los intereses de toda la comunidad.

  4. Jason Schwartz says:

    News Reporter
    West Springfield, Massachusetts man allegedly assumed the false company names Park Place Entertainment, Razor Mountain Records, Starscope Records and Fast Track Financial Services to scheme thousands of dollars from hundreds of people in at least 9 states

    Defendants are presumed innocent until proven guilty.

    Peter Robert Bouchard of West Springfield, Massachusetts, allegedly took the money of many unsuspecting young musicians and promised these bands and artists he would get them live shows, sponsorship and even fame. Attorney General Tom Reilly announced on May 19, 2006 that Bouchard was also arraigned on charges for scheming to steal thousands of dollars from other business clients who had hired him to help them apply for grant money.

    Bouchard was indicted April 25 by a Hampden County grand jury on one count each of larceny by scheme over $250 and other related charges including fraud at his arraignment on May 19 in Hampden Superior Court and is next scheduled to appear in court on August 17. More serious charges are also expected to be brought against Bouchard after further investigation.

    In addition to stealing thousands of dollars from musicians, Peter Bouchard has also allegedly claimed to be the sole owner and operator of “Fast Track Financial Services”, a firm claiming to be dedicated to helping clients and businesses obtain federal state and foundation grants. Between 2004 and 2006, hundreds of business owners were contacted by Bouchard who offered to help them obtain grants. Bouchard charged a $595 fee and often added more than $1000 in what Bouchard allegedly termed “processing fees.”

    Bouchard has been indicted and was arraigned on May 19 on charges that he allegedly took clients\’ money while providing bogus services and that he never intended to obtain grant money and took no steps with legitimate organizations to obtain the money. After discovering clients would not receive the grant money, the clients were unable to reach Bouchard and contacted police.

    There have also been hundreds of complaints from musicians and other performing artists claiming Bouchard took hundreds of dollars promising such services as guaranteed event booking and product sponsorship. The means by which he allegedly took money from these individuals is being investigated because he allegedly told people his name was Ben K., Oliver P., Kris K., and other false names, assuming these names to make his fictitious companies look more established than they were, and after taking their money in payment for these promised services would reveal that his real name was actually Peter Bouchard.

    Assistant Attorney General Matthew Shea of AG Reilly\’s Criminal Bureau is prosecuting the case, which was investigated by State Police assigned to the Attorney General\’s Office with assistance from the Westfield Police Department.

  5. Down with DRM
    Bottom line is no DRM will stop me, legislated or not. First off, I’d never buy a DRM CD. Nor would I buy a DRM audio file. I do buy DRM DVDs but that doesn’t affect my enjoyment of them, however I can see how it would affect others wishing to format shift for portability purposes. DRM WILL NOT STOP ME. I’d like to say “suck it” to EMI Music Canada for almost four years of DRM CDs.

  6. Branko Collin
    I am still not quite sure what I should be more shocked at: the garage door opener decision, or the prominent copyfighters’ verdict that this is a right decision.

    Software is software. It should not matter whether that software is written by smelly hackers to watch their rightfully acquired videos, or by “decent, upstanding” businessmen to open garage doors. By giving his verdict, the judge in that case proclaimed that there is a difference. Computer hackers bad, businessmen good. Apparently in the US the law is not equal for everyone, and it takes absurd distinctions between what is and what isn’t a copyrightable work to make that work.

    If the judge thought it was ridiculous to stiffle fair use by using anti-circumvention legislation, he could just have said so. He could have repealed that part of the law, or even the entire, but that would have required having actual, you know, balls.

  7. Branko Collin says:

    Safe-harbour
    I realise that 30 days is barely enough to write about the anti-circumvention part of this law; but I would like to ask you to look at safe-harbour provisions for web hosting providers too.

    - Proportionality: Blackmask.com, a provider of free e-books, was wiped off the face of the web by its hosting provider, because publisher Condé Nast claimed proprietor David Moynihan violated several of its copyrights through his website. Moynihan hosted thousands of works he believed to be in the public domain. As it turned out, some of them weren’t, and Moynihan decided upon having his day in court.

    Subsequent discussion has centered on Moynihan’s supposed folly to claim adverse possession for intellectual property (which apparently is just like real property, except when it doesn’t suit the copyright holder), but completely glossed over the disproportionate action of removing access to thousands of legal works because only a few were deemed “illegal”. A safe harbour provision should oblige a hosting provider to let their customer make changes to a website so that there is no longer an apparent infringement.

    I blog at Teleread, and to this day we get reactions from people who are disappointed that Blackmask has disappeared entirely.

    - Proportionality 2: the European “DMCA”, unlike its US counterpart, does not clearly define what steps hosting providers have to take before they shut down a website. So where DMCA-like laws turn publishers into law makers (let’s face it; these laws are written to help protect publishers’ failing and ailing business models, not to help the “poor starving artist”), the EU version turns providers into judges. They themselves have to make decisions about what’s infringement and what not.

    Dutch digital rights organisation Bits of Freedom, closing down this month for lack of money, tested how providers respond when faced with a take-down notice about a work that is clearly and unequivocaly in the public domain. Most providers responded by shutting the site down.

    It is unfair to demand of providers that they sit on the judges chair. Where quick action is necessary, but the chance of abuse is very real (see below), the provider should only be safe from further legal action if the complaining author/publisher faces prosecution for abuse. Otherwise the balance is lost.

    - Keeping dishonest people (lawyers) honest or imprisoned (their choice):

    The US DMCA forces the author of a take-down notice to swear on penalty of perjury that he represents the actual copyright holder. It doesn’t let that author swear on the same penalty that the work is actually copyrighted, and that the republisher does not have the right to republish.

    Over 30% of US DMCA take-down notices is about legal republishing. It would be nice if the authors of these notices could burn in hell, but I’ll settle for nice and long prison terms. Claiming copyright infringment where there is none, thereby dissuading citizens of making legal copies, is a form of fraud that should be punished most harshly.

    It is a popular demagogic trick of copyright maximalists to keep calling infringement theft. It is not. If it were, it would not be called theft.