Over the past 28 days, this series has addressed circumvention issues both big and small. I have saved the two most important issues for the end since I believe that without addressing these two issues, many of the other recommendations are rendered ineffective.
The first issue is that Canada must not establish a ban or prohibition on devices that can be used to circumvent DRM. Bill C-60 did not contain a provision prohibiting circumvention devices and that approach should be retained in any future legislation.
The DMCA features just such a ban. Section 1201(a)(2) provides that:
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that –
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
The DeCSS case demonstrated the breadth of this approach when merely linking to a devices (devices really refers to software that is able to crack a DRM system) was ruled sufficient to violate the statute.
The past 28 days have illustrated that there are numerous legitimate uses for all circumvention devices. The DMCA provisions seek to ban devices that are primarily designed to circumvent a TPM with only limited purposes other than circumvention. Yet this is precisely what is needed to allow security companies to do their work, for researchers to conduct their research, for individuals to protect their privacy, for the perceptually disabled to access content, for consumers to legitimately make backup copies, for libraries and the education community to take advantage of their exceptions, and for users to exercise their user rights. All of these activities – activities that are protected by law – depend on the ability to circumvent and therefore rely on the availability of tools that will allow for legitimate circumvention of DRM systems.
To create a basket of circumvention rights while simultaneously banning the availability of the tools necessary to circumvent is to neuter the right. There are no shortage of items that can be used for good or harmful purposes – drugs can save lives but result in an overdose or a hammer can be used to build a house but also be wielded as a weapon. There are both good and bad uses, yet we do not ban these items. We occasionaly regulate (either their distribution or the conduct associated with their use), but we do not ban. Canada similarly must not ban or prohibit circumvention devices that invariably serve numerous legitimate purposes.