Setting the Record Straight: 32 Questions and Answers on C-32′s Digital Lock Provisions, Part One

The digital lock provisions have quickly emerged as the most contentious part of Bill C-32, the new copyright bill.  This comes as little surprise, given the decision to bring back the digital lock approach from C-61 virtually unchanged. The mounting public concern with the digital lock provisions (many supporters of the bill have expressed serious misgivings about the digital lock component) has led to many questions as well as attempts to characterize public concerns as myths.  In effort to set the record straight, I have compiled 32 questions and answers about the digital lock provisions found in C-32.  The result is quite lengthy, so I will divide the issues into five separate posts over the next five days: (1) general questions about the C-32 approach; (2) the exceptions in C-32; (3) the missing exceptions; (4) the consumer provisions; and (5) the business provisions.  For those that want it all in a single package, I've posted the full series as PDF download.

Before getting into the 32 questions, it is worth answering the most basic question – what are anti-circumvention or digital lock provisions?  The short answer is that 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 copy-controls on CDs, DVDs, or e-books) effectively provide a second layer of protection by making it difficult for most people to copy or sometimes access 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 Bill C-32, it would be an infringement to circumvent a TPM even if the intended use of the underlying work would not constitute traditional copyright infringement.

The C-32 Approach

This section features answers to the following questions:

  • Isn't the C-32 digital lock approach simply the required implementation to comply with the WIPO Internet treaties?
  • Penalties are reduced for individuals who circumvent for personal purposes.  Doesn't this solve the problem?
  • The digital lock provisions in C-32 appear to distinguish between copy controls and access controls.  Isn't that enough to address concerns about the bill's impact on fair dealing?
  • Are the digital lock provisions in C-32 constitutional?
  • Is it true that C-32 requires teachers and students to destroy some digital lessons 30 days after the course concludes?
  • Is it true that C-32 requires librarians to ensure that inter-library digital loans self-destruct within five days of first use?
  • The U.S. has a regular review of new exceptions every three years.  Does Canada plan the same?

Isn't the C-32 digital lock approach simply the required implementation to comply with the WIPO Internet treaties?

No.  The WIPO Internet treaties require that countries provide legal protection for digital locks, but leave considerable flexiblity in how this requirement is implemented.  The U.S. has promoted its particular approach (as found in the DMCA and now in C-32) since before the treaty was even concluded, yet consensus in establishing the treaty was only achieved by adopting far more flexible language.

On the issue of legal protection for digital locks, the treaties require countries to provide "adequate legal protection and effective legal remedies" for technological protection measures.  The U.S. initially proposed:

(1) Contracting Parties shall make unlawful the importation, manufacture or distribution of protection-defeating devices, or the offer or performance of any service having the same effect, by any person knowing or having reasonable grounds to know that the device or service will be used for, or in the course of, the exercise of rights provided under this Treaty that is not authorized by the rightholder or the law.

(2) Contracting Parties shall provide for appropriate and effective remedies against the unlawful acts referred to in paragraph (1).

This language did not achieve consensus support with many proposed changes.  A compromise position was ultimately reached using the "to provide adequate legal protection and effective legal remedies" standard.  Not only does this language not explicitly require a ban on the distribution or manufacture of circumvention devices (ie. software programs used to circumvent digital locks), it is quite obvious that the intent of the negotiating parties was to provide flexibility to avoid such an outcome.

U.S. law professor Pam Samuelson chronicles precisely what happened in her 1997 law review article, The U.S. Digital Agenda at the World Intellectual Property Organization:

At the diplomatic conference, there was little support for the Committee's proposed language on circumvention technologies. Some countries opposed inclusion of any anti-circumvention provision in the treaty.  Others proposed a "sole purpose" or "sole intended purpose" standard for regulating circumvention technologies. Some wanted an explicit statement that carved out circumvention for fair use and public domain materials.  The E.U. offered a proposal that would have required contracting parties to adopt adequate and effective legal measures to regulate devices and services intended for technology-defeating purposes.

Facing the prospect of little support for its proposal or the Committee's draft anti-circumvention provision, the U.S. delegation was in the uncomfortable position of trying to find a national delegation to introduce a compromise provision brokered by U.S. industry groups that would simply have required contracting parties to have adequate and effective legal protection against circumvention technologies and services.  In the end, such a delegation was found, and the final treaty embodied this sort of provision as Article 11.

This was, of course, a far cry from the provision that the U.S. had initially promoted. Still, it was an accomplishment to get any provision in the final treaty on this issue. The inclusion of terms like "adequate" and "effective" protection in the treaty will mean that U.S. firms will be able to challenge national regulations that they deem deficient.

In the years since the treaty was concluded, the U.S. and a handful of supporters have argued strenuously that countries should ignore the compromise language and adopt the U.S. approach. Yet some countries have rejected that advice – Canada's own bill C-60 adopted a flexible approach, as does the most recent copyright reform bill from India.  New Zealand's law features many differences from the U.S. model and dozens of countries have added exceptions and changes to the basic U.S. approach.  In fact, the reality is that of the 88 states that have ratified the WIPO Internet treaties, fewer than half that have adopted the U.S. model. 

When the U.S. was in the process of implementing the WIPO Internet treaties into what became the DMCA, officials acknowledged the flexibility that exists in the treaty.  Marybeth Peters, the U.S. Register of Copyrights, said in testimony before the House Judiciary Committee on 16 Sept. 1997:

"Some have urged that the legislation not address the provision of products or services, but focus solely on acts of circumvention. They state that the treaties do not require such coverage, and argue that devices themselves are neutral, and can be used for either legitimate or illegitimate purposes. It is true that the treaties do not specifically refer to the provision of products or services, but merely require adequate protection and effective remedies against circumvention. As discussed above, however, the treaty language gives leeway to member countries to determine what protection is appropriate, with the question being whether it is adequate and effective."

And, later in the same testimony, the clearest statement: "the treaties do not specifically require protection for access controls in themselves."

Applied to C-32, the current bill goes far beyond what is strictly required to be compliant with the WIPO Internet treaties.  A more flexible, balanced implementation would still be WIPO compliant, provide protection for businesses seeking to use DRM, and maintain the copyright balance.

Penalties are reduced for individuals who circumvent for personal purposes.  Doesn't this solve the problem?

No.  First, claims that reduced penalties removes the impediment to Canadians circumventing digital locks for personal purposes assumes that concern for statutory damages is the primary motivator for a particular action.  I disagree. In the education world, teachers and students will not break the lock because academic guidelines will make it clear that they can't.  Similarly, research will also be stifled in the same way since researchers sign ethics documents when they apply for grants that their research plan is compliant with all laws.  They can't sign the document in this situation, regardless of the likelihood of damages.

Second, C-32 also makes the distribution and marketing of devices (ie. software) used to circumvent illegal.  This suggests it will be more difficult to get those tools (and perhaps risky), so the notion that people will circumvent in light of lower penalties is undermined by the underground nature of being able to do so.

Third, from a bigger picture perspective, rights holders have been complaining for years that the public does not respect copyright.  This bill is an attempt to revive respect for copyright by having the law better reflect current norms (and therefore make it more respectable).  However, you do not build respect for copyright by creating provisions that outlaw something but have the government indirectly say it is acceptable to violate its new rule.  C-32 should craft rules that generate support and acceptance in the public and thereby build support and acceptance for copyright more broadly.

The digital lock provisions in C-32 appear to distinguish between copy controls and access controls.  Isn't that enough to address concerns about the bill's impact on fair dealing?

No.  The distinction in one section of Bill C-32, which was also contained in C-61, does not address the fair dealing concerns in the bill.  First, the distinction between access controls (access to the work itself) and copy controls (copying the work) is a distinction without a difference for many of today's TPMs.  The digital locks used by Amazon or Apple on e-books or the TPMs on DVDs are both access and copy controls.  In order to effectively circumvent to be able to copy, you have to circumvent access.  The locks often permit access for some uses, but not others.  In other words, Canadians will often need to circumvent access to get to the copying and therefore will still be infringing under the law.

Moreover, even if a consumer could distinguish between access and copy controls, the tools themselves that would be used to circumvent for copy purposes cannot be lawfully marketed or distributed.  The notion that it is permissible to circumvent for copying but that the software needed to do so can't be distributed demonstrates how this distinction really makes no real difference. 

Finally, many of the other new exceptions – format shifting, time shifting, and backup copies – are covered by all digital locks, including both access and copy controls.

Are the digital lock provisions in C-32 constitutional? 

Possibly not.  The constitutionality of digital lock legislation has been examined in two articles by Canadian law professors.  Both conclude that the provisions are constitutionally suspect if they do not contain a clear link to conventional copyright law.  Their reasoning is that the constitution grants jurisdiction over copyright to the federal government, but jurisdiction over property rights is a provincial matter.  Digital lock legislation that is consistent with existing copyright law – ie. one that factors in existing exceptions – is more clearly a matter of copyright.  The C-32 provisions are arguably far more about property rights since the provisions may be contained in the Copyright Act, but they are focused primarily on the rights associated with personal property.

My colleague Jeremy deBeer conducted a detailed analysis of this issue in his article, Constitutional Jurisdiction over Paracopyright Laws.  Many of his arguments were echoed in a 2009 article published in the Journal of Information Law and Technology by Professor Emir Aly Crowne-Mohammed and Yonatan Rozenszajn, both from the University of Windsor, which concluded that the anti-circumvention provisions found in Bill C-61 were unconstitutional.  The authors argue that the DRM provisions were "a poorly veiled attempt by the Government to strengthen the contractual rights available to copyright owners, in the guise of copyright reform and the implementation of Canada’s international obligations. Future iterations of Bill C-61 that do not take the fair dealing provisions of the Copyright Act (and the overall scheme of the Act) into account would also likely to fail constitutional scrutiny."

Is it true that C-32 requires teachers and students to destroy some digital lessons 30 days after the course concludes?

Yes.  Bill C-32 requires teachers that utilize a new educational exemption to destroy the lessons that they have created for their courses with one month of the conclusion of the course.  Teachers must recreate the lessons each year, which obviously establishes a strong incentive to run as far away as possible from these new "rights." 

Is it true that C-32 requires librarians to ensure that inter-library digital loans self-destruct within five days of first use?

Yes.  While moving toward digital interlibrary loans has obvious advantages (speed and cost being at the top of the list), Bill C-32 forces libraries to implement DRM-based solutions.  The requirements for legal digital interlibrary loans include limits on further copying and distribution that go far beyond what is necessary (they are presumably a response to the unlikely scenario that only a single Canadian library will purchase the copy of a work and use digital distribution to cover the rest of the country).  Even worse is the requirement to destroy the digital copy within five days of first use.  There are no similar requirements for paper-based copies of works and it makes no sense to force libraries to install DRM protections on digital copies to create time-limited uses.

The U.S. has a regular review of new exceptions every three years.  Does Canada plan the same?

No.  The U.S. DMCA experience leaves little doubt that the introduction of anti-circumvention legislation will create some unintended consequences.  No matter how long the list of circumvention rights and other precautionary measures, it is impossible to identify all future concerns associated with anti-circumvention legislation.  The U.S. DMCA addresses this by establishing a flawed tri-annual review process.  The system has not worked well, creating a formidable barrier to new exceptions and long delays to address emerging concerns.

As bad as the U.S. system is, the proposed Canadian system under Bill C-32 is worse since there is no mandated review of the exceptions at all.  Instead, Canada gets a flexible process that will allow the government to consider new exceptions if and when it sees fit.  In other words, the same government that brought you the Canadian DMCA will decide if there is a need to add any exceptions. If Canada establishes anti-circumvention legislation, it should also establish an impartial process that will enable concerned parties to raise potential new circumvention rights without excessive delay.  The process must be fast, cheap, and easily accessible to all Canadians.  Bill C-32 establishes the criteria for the introduction of new circumvention rights but fails to implement an administrative structure to conduct the reviews.


  1. Hindgrinder says:

    *deep breath*
    DRM and monitor?
    You bring the dead urls of conquered torrent sites to my Parliment hill…
    You insult my reason, you threaten my children with sharing fines and internet death…
    Oh I’ve chosen my words carefully US Lobbyist…perhaps you should have done the same.

    /me boots Conservatives out of office


  2. Death of Ubuntu says:

    Distributing Ubuntu CDs will be illegal
    Ubuntu CDs often contain DVD players on them, these DVD players often ignore/break the TPM on the DVD disc (CSS) in order to watch the content on the disc.

    That’s right entire distributions of opensource are illegal to distribute under C32 because they contain TPM breakers that let you watch your legally purchased DVDs.

  3. If they added “for profit” or “for monetary gain” to many of the sections in C-32 it’d be perfect, but as mentioned many times despite claims there is no real distinction between bootleg dvd folks in a garage and an old lady copying a cd.

    @Death of Ubuntu – Not just Ubuntu mate, certainly ever Linux distro which feature non-oss video & audio software. Frankly the media player I use on my Windows install would techically infringe.

  4. Captain Hook says:

    RE: Distributing Ubuntu CDs will be illegal
    Actually NO. Ubuntu NEVER comes with dvd decryption installed for this very reason.

    It can be added after

    Linux Mint on the other will will be illegal in canada

  5. Well now,
    the larger looming question is whether we still have time to tell our government to stick it, or did they already rush this into law like they intended to?

    If so, the wait-until-we-officially-know-what-the-bill-says approach officially failed royally.

  6. Self Destructing Library loans
    5 days? I’ve barely had time to look at my documents in that time! Thanks to an inter-library sharing program when my university doesn’t have a journal I need I can call the other university and get them to print off a copy, but they wouldn’t be able to email me the same document? I have friends working on PhDs they need their loans available for months, sometimes years. I’ve had proffessors ask me a few times to turn in a copy of the journal articles I’m working on unless they are immediately available from our library.

  7. Exemptions
    This comes up every time. Let’s compare this to the DNCL legislation. There is a piece of legislation with lots of exemptions. And just how effective is the legislation?

    Exemptions for specific groups simply because they want it (or makes their life easier) is not the way to go (at the very least it creates two classes of citizens; the human rights commission perhaps should be consulted as well). I was looking at the PDF version of this, and one of the comments was that the desired academic exemption was for all research, not just cryptography and security testing. I have to ask for a justification for this; why is it necessary, and state something beyond something nebulous like the common good. All exemptions should require justification, and not be granted simply because it is politically popular. If the justification is sound, then go ahead and make the exemption. But it must be for a good reason, otherwise we end up with another DNCL.

    At the end of the day, while I am generally supportive of Mr Geist’s position, I do find that he can be inconsistent. For instance, he has, on a number of occasions, commented on the fact that the DNCL has so many exemptions so as to be nearly ineffective, and yet will argue for many exemptions in copyright reform, some of which I can’t see a requirement for based on the argument. Perhaps they are needed in some form, but I’ve not seen a justification for them.

  8. @Uni Kid
    I agree the time allowed is far too short. However, perhaps you could suggest a reasonable alternative value that could be put in as an amendment? I would suggest 90 days personally. Certainly if they are going to use the document once the student has graduated they should be purchasing a copy.

    However, the risk of making it too long is that it, in essence, impacts the sales of the book publishers. Making the period too long (say, the length of a semester) opens the exemption up to abuse; there is no incentive for the student to purchase their texts; they can simply get them on an inter-library loan from another university. The publisher sells one copy to each university library, the university makes it a required text for a course and the student borrows an electronic copy of it.

    Remember, every exemption opens up yet another avenue for abuse and a loophole to be exploited.

  9. Mr. Pibb says:

    Can anyone tell me of another consumer product where manufacturer’s rights supersede consumer’s rights in the consumer’s own home?

    Why is Disney allowed to tell me what to do after the sale is complete? They are already protected by other laws that prohibit re-distribution of their product.

  10. I would suggest, rather than a self-destruct mechanism that there be a check-in check-out system. Isn’t this how libraries are supposed to work?

  11. Does the bill explain what the difference is between acceptable opening of a digital lock and circumvention of the lock? Whatever device you are using to consume the media, there must be a way to open the lock built in. I can’t see how any of this in enforceable without a clear distinction between the legal and illegal opening of the lock (and as your article points out, the intended use is clearly not the marker).

  12. @Dave
    Acceptable opening is by following the lock’s intended use (using the key or manner of opening provided by the creator of the lock).

  13. Jack Robinson says:

    C-32′s a trip-wired Trojan Horse
    Once again, as a life-long advocate/activist dedicated to the slippery Sysophian slope of free principled knowledge and creativity sharing… I’m both battle-ready and sadly cynical as to the Circus Minimus distractions and likely outcomes the prima facto issues of Digital Locks appears to have engendered amongst the Pod People rabble on these and other sites… whilst the actual agenda of C-32 appears to have escaped their cognitive consensus.

    This vise-grip clamp down upon the archiving, benign sharing or re-formatting of files in ANY fashion of virtually ANY ‘owned’ image, text, tune or video is, in my estimation… the most heinous attempt by our New Rome North government to stifle and punish the surly media, critics and it’s disengaged ostrich farm citizenry into legislated by default, Corporate State-imposed submission.

    But hey… maybe I’m just creeped out by guys who tinkle the ivories with a Ted Bundy gleam in their eyes… and get a little help from their friends.

  14. Kelly Gray says:

    How is this fair?
    I have a legally purchased computer. That computer has a legally installed operating system. If I use this entirely legal computer to play my legally purchased DVD, I would be in violation of this proposed new law, even though there’s no infringement of copyright occurring and therefore no harm to anyone.

    The only way any sort of DRM protection would be at all fair is if it’s tied in to an actual violation of the copyright. This leads to a legal copy not violating either law, while an illegal copy would violate both laws. This means that the DRM protection laws simply become a method of punishing someone twice for the same offense. I’m sorry, but as far as I’m concerned, legal protections for DRM are simply not acceptable, in any form.

  15. @crade
    So what is stopping 3rd party software from utilizing the key? DVDs for example are encrypted, DVD players have built into them the method to decrypt the movie. How is it illegal for a different piece of software to use that same method to decrypt the movie?

  16. @Dave
    DVD playing software needs to be authorized and digitally signed by the DVD CCA (the cartel of movie studios and tech companies that controls the CSS encryption) to be given access to the decryption functionality built into the DVD player hardware.

    The exact DVD CCA license terms are a trade secret, but are known to include a requirement to be “tamper-resistant”; this requirement categorically excludes open-source software such as VLC.

  17. And the winner is!
    With basically 4 major record companies left on the planet and a similar number of major movie studios it is to easy to create a monopoly in the software industry via this law. All Microsoft or Apple have to do is out bid the other to get the record companies to use their DRM. Once that is done all music sold will have to be used on that companies software as they can keep their flavour of DRM to themselves. Eg. Apple out bids Microsoft and the record companies all agree to use Apples DRM. Microsoft doesn’t own the rights to it and Apple won’t licence it. Result. All music has to be played on Apple hardware and software and all music must be sold through the Apple store. Microsoft would be bound to fail as support would wane fast for an OS that couldn’t do multimedia.

    Worse yet Apple wins the bidding for music and Microsoft wins the bidding for Video. Now you can’t play music and video on the same devise. Giving one industry unfettered power over another industry with no over site is one of the biggest mistakes they have made in the US. Harper seems bound and determined to copy every mistake Bush ever made.

    More likely though is that the citizens say this is retarded and just ignore all of the provisions of this act losing respect for the government along the way. The only real effect will be that we will have much less choice in hardware and software. Prices will be higher and fewer people will buy media. The record and movie studios don’t really care if their industry dies as they will be pulling in big money from either Microsoft or Apple, who ever wins the bidding.

  18. Hindgrinder says:

    REMIX – Gone Fishing – Brad Paisley – Geist/Angus Tribute

    Well I love artists, but my kids love to torrent fish,
    I spend all day on the internet and lawsuits is all i catch,
    But today C-32 met me on Parl floor, said I would have to choose,
    If I hit that torrent site today, USA would DRM all Lady Liberty things,
    And Piratebay would be locked down by noon….

    Well I’m not gonna miss Harper, when I vote PPCA home,
    Right now I’m on this Big Pipe, and I’m sitting in fair use sun,
    I’m sure ACTA will hit me, when lobbyists bribe the gov Price-Is-Right,
    Ya I’m not gonna miss Harper..oh Geist is there – you’ve got a Copy-Fight.

    All right!

    Now there’s a chance if Harper hurries, Iggy will make a deal and play,
    Summer seasons right and voter apathy’s perfect, no telling what they can parle’
    So I’m not gonna miss Harper, when Angus throws us a bone,
    Right now I’m on this Big Pipe, and I’m sitting in fair use sun,
    I’m sure ACTA will hit me, when lobbyists bribe the gov Price-Is-Right,
    Ya I’m not gonna miss Harper..oh Geist is there – you’ve got a copy-fight.

    HG – Where you won’t get cut/paste responses from MPs.

  19. end user says:

    RE: Distributing Ubuntu CDs will be illegal
    @ Captain Hook

    I got a desktop running Mint 9 and two laptop running mint 9 and I plan on being a criminal no matter what the paid for by the US media cartels copyright laws are introduced by Canadian politicians. Not to put down any other distro’s cause they all have their place Mint 9 will make you forget about using Windows really fast.

    Also I will not be seeing any more movies in the movie theater anymore and will not buy anymore new dvd’s at all. I will only purchase cd’s/dvd in Pawn/Second hand shops. I talk with my wallet and I hope more Canadians do too.

    Having discovered XBMC this week I’m in the process of ripping 250+ dvd’s and 600+ Cd’s and getting the hardware for my HTPC. For those looking to pre-break the upcoming laws XBMC is here

  20. @dave

    So what is stopping 3rd party software from utilizing the key? DVDs for example are encrypted, DVD players have built into them the method to decrypt the movie. How is it illegal for a different piece of software to use that same method to decrypt the movie?

    Well, the “method” that you refer to in this case is by using a license key provided to you by the DRM creator.

    Using any other method than a license key provided to you by the DRM creator (ie using a license key ripped off an existing dvd player) I would think would be circumvention (I don’t know for sure, but this is how I understand it).

  21. RE: SBMC, VLC, and any other nifty software.
    Get it while you can…soon they’ll all become illegal…though I have no idea how they could possibly enforce it.

  22. Review periods for exceptions
    I have a minor issue with Mr. Geist’s coverage of review periods for new exceptions. He seems to have overlooked that there is a mandatory review of the whole act required after 5 years provided for at the end of Bill C-32. How does this factor in to your analysis? Is this too flexible in your opinion?

  23. Josh MacFadden says:

    Caveat Emptor
    To my mind the digital lock provisions are not a significant concern since, in practice, consumers can elect not to buy digital or other content if the locks do not allow for backups, format shifting etc.

    As a consumer utilizing a range of devices I will certainly gravitate toward those digital products that allow for this functionality and I will simply ignore others. While it may be appropriate to insert a qualification to the legislation which differentiates between personal use versus a motive of profit I would suggest that the legislation has already done so by adjusting the range of penalties that may be imposed from the current maximum. If a consumer wants the right to purchase content that can be backed up, format shifted, shared, etc. they will have to pay a premium. Similarly, if a consumer wants to purchase a steak they shouldn’t buy hamburger. Canadians will just need to be made aware that there are restrictions or limitation on the content they are buying.

  24. exploderator says:

    TPM / DRM : list only what’s illegal, NOT what is legal
    Another truly excellent work from Michael. We would be lost without his contributions.

    Having read this C-32 TPM breakdown, I am left with one central observation: Bill C-32 takes the broad approach of protecting all TPM, and then granting a few exceptions. But it is obviously impossible to create an adequately exhaustive list of the exceptions we currently need for the lawful circumvention of TPM. We will always overlook and omit important exceptions from law, because we live in far too complex a world to possibly identify and legislate for all reasonably legitimate activities. Even in trying to make wide spanning umbrella clauses, such as educational and research exemptions, we too easily miss crucial needs such as peer review, as you wisely noted.

    Furthermore, we live in a rapidly changing technological climate, including our business and institutional climates, and our personal lives. It is a surreal supposition that we can adequately predict our future needs for legitimate circumventions of TPM, or failing that, that an ill defined and complex review process which would doubtless take many months or even years, could even come close to providing us with a useful remedy. In a world ablaze with technology, our activities change very rapidly, and market opportunities come and go in weeks or months. The myopic vision of bill C-32 with regards to TPM can only be a ball and chain on Canada, where we arguably need rocket packs to not be left in the dust. This is the opposite of progress.

    I suggest a better way to provide “adequate legal protection and effective legal remedies” for TPM: prohibit circumvention ONLY for purposes that are a violation of copyright. Likewise, prohibit circumvention technology only when its sole (or perhaps predominant) purpose is for illegal copyright infringement, along similar lines of reasoning to the proposed rules against P2P file sharing websites. Finally, explicitly lay the burden of proof of such claims on the parties who wish to enjoy protection for the TPM that they employ.

    The legislative strategy employed by bill C-32 necessitates an awkward and fallible duplication of copyright and fair dealing strategies, as separately applied to TPM. This gives rise to a situation where TPM rules will be implemented in ways that conflict with other aspects of copyright. By explicitly subtending TPM from copyright, we would eliminate such conflicts, and greatly simplify the law. This would also encourage us to focus on the primary task of assessing the real ongoing suitability of our copyright policies in general, rather than distracting us with the secondary issue of TPM, which is after all only a secondary tool meant to help protect/enable copyright and further its aims.


  25. exploderator says:

    TPM / DRM : list only what’s illegal, NOT what is legal, part 2
    TPM is only a tool, even if it is an important tool like physical locks. Copyright law, like laws governing physical property, already creates the main protections and remedies concerning ownership and theft. We have reasonable laws that protect physical locks by regulating lock picking tools, but of course do not attempt to exhaustively define an exclusive list of acceptable circumstances under which it is permissible to defeat a physical lock; it would be ridiculous to take this approach, and could only create an incredible legal mess. The TPM laws proposed by bill C-32 are such a legal mess. It does the digital equivalent of banning sledgehammers, hacksaws, bolt cutters, disk grinders, and drills, because they can all be used to open locks, regardless of whether this is in aid of breaking the law. Worse yet, it practically guarantees that many locked items will be illegal to open, merely because they were not mentioned in the short list of acceptable circumstances. A similar law regarding physical locks might include permission to force open your house or car should you loose the keys, but forget to mention locks on road gates, computer chassis, filing cabinets, luggage or diaries. And worst of all, we are talking almost exclusively about locks put by others on property we buy, which are only for their protection, and for which we may never have a key. Locks that are usually invisible when we make the choice to purchase, and which have been demonstrated to frequently lock us out by accident or for the wrong reasons. Thankfully, there are few physical locks that bear any resemblance to TPM. If there were, legislation for them equivalent to bill C-32 would be an obviously abhorrent suggestion.

    From this perspective, I think we need to promote a more fundamental change to the TPM approach in bill C-32. I worry that spending too much time on lengthening the list of exceptions is a distraction from more important arguments, and misses the chance to fully explore and elaborate on what a better fundamental approach should look like. It might be wiser to fight to “kill the bill” than to let this pass, even in the form of a slightly better compromise than it is now. While the concept of a blanket exception for “circumvention for lawful purposes” would go most of the way towards this goal, I see it either as a starting point, or as an emergency fall-back position, should it be that we cannot possibly do better. Bill C-32 is fundamentally premised on an “exclude all then make exceptions” approach to TPM. This is a radical and dangerous way to legislate a technology so far reaching and nebulous, and which has such a clouded and brief history.

  26. Issues with making software such as “Linux Mint”, SBMC and VLC illegal.
    Much of this sort of software is free, open-source software, usually developed through a combined effort of people all over the world, hosted by many different repositories, in countries other than Canada, where such software is not illegal. How do they plan to police this? There is too much of a reliance on the honor system in this plan. OK, now VLC is illegal (After nearly 20 years in existance), so no-one will download it for sure…ya right. They’ve made the DRM provisions to be so strict so as to be laughably un-enforceable, all to appease US corporate interests.

  27. crade and dave

    “So what is stopping 3rd party software from utilizing the key?”

    The blurry line between hardware and software. A DVD player is typically construed as hardware, while a program you load onto a computer is considered software. But I can also reload the “firmware” on a DVD player to update it and even change it’s functions, like making it play all region DVDs or skip over “unskipable” sections of the DVD.

    Firmware, microcode, software. Real electronic hardware function can’t be fixed or changed without a soldering iron. The rest is effectively “software”. All decryption nowadays is software. The key idea is if you are licensed/approved to use that software or not. The DVD manufacturer is approved. DeCSS isn’t approved by the consortium. They want to make DeCSS illegal in Canada, as well as the US.

    I am of the opinion that the manufacturers can use any technique they like to “protect” their products they sell. But anti-DRM tools should be unrestricted and perfectly legal. In fact such tools are required to exercise copyright exemption rights.

    Let the market decide. Make the DRM too onerous, and the product won’t sell. Make it too weak and it is easily broken. Even with DRM protection as granted under the DMCA, the games industry is fast finding out that DRM doesn’t work. Games with DRM are less acceptable to the buyers than games without DRM.

    An analogy (yeah, I know :-). It’s not illegal to possess a bump key. It’s not illegal to make one or give directions on making one. It’s not even technically illegal to use a bump key. But breaking and entering is illegal. If you really have something that is that important to protect, you put in decent locks and post guards. Sure, it might cost a lot more, but if what you are protecting is that important, you will do so.

    Frankly, the DMCA in the US has made lots of headlines in it’s abusive, anti-innovation, and anti-competitive aspects. It hasn’t done much, if anything, to reduce copyright infringement. By it’s very nature it can’t be effective in reducing infringement.

    If we absolutely must have legal protection for DRM to meet international WIPO requirements, then make sure it is narrowly constrained to the acts and intentions of copyright infringement. Rather than exceptions to what DRM protection can be applied to, narrowly constrain it to specific actions and intentions. And don’t put any limits on the tools needed to exercise rights granted under copyright exceptions.

  28. end user says:

    @old guy

    I don’t think anyone here is against manufacturers releasing their products in any which way they want. The problem is laws are being be written for a dying industry that would rather spend money on lobbying politicians to write laws that benefit them and punish consumers then to evolve their business models.

    How can anyone in their right mind think that if you put some bits of code onto your media its not gonna be broken.

    Also as it is now no one is a criminal for watching a movie on what ever device they want after this law is enacted everyone will be a criminal in their own house when viewing a movie on a device not sanctioned by the big media.

    If they want this I want to see BIG labels (DRM Protected) on DRM protected media to protect Canadian citizen from going home and breaking copyright law.

    The market then will decide who wins.

  29. Zero Boy says:

    Section 18 : Opening the door to mandatory intenet filtering?
    After reading section 18, which deals with “Infringement Services”, it looks like that could be used as a toehold to try and force mandatory internet filtering, ala Australia.

    (2.3) It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.

    It’s not hard to see this being the first step.

    The next step being for the government to draft a law which proactively bans Canadians from using ” a service that the person knows or should have known is designed primarily to enable acts of copyright infringement”

    Of course the best way to do that would be mandatory net filtering.

    And once the Entertainment lobby gets net filtering in the door, the powerful Religious lobbys will be next to get things THEY don’t like banned. All in interests of protecting people from “child porn” and other “illigal acts”.

    And before you say “it can’t happen”, it already has happened in Australia. And in almost EXACTLY the same way.

    Once the Genie of net filters is released, it’s very hard to get it back in again.

    The worst thign is that this potential side-effect of that one provision has gone completely under the radar of everyone.

  30. The new Rent business model
    > To my mind the digital lock provisions are not a significant concern since, in practice, consumers can elect not to buy digital or other content if the locks do not allow for backups, format shifting etc.

    > I don’t think anyone here is against manufacturers releasing their products in any which way they want.

    Too many people are focusing on DRM in content/entertainment (“a performer’s performance fixed in a sound recording or a sound recording, or classes of them, or any class of such technological protection measures.”) Can anyone buy a new car nowadays without DRM in it? When your car needs repairing or servicing, you will have to take it to your car dealer because independent repair shops cannot legally bypass DRM to fix your car. When there’s no competition in car repairs, the car you legally purchased becomes a rental property. The car example is not an analogy, so what else will we have to rent? How about some iHardware?

    Bill C32 is preparing the market for a Pay per Use business model, a government dictation paid in full by the corporations. Almost all of the fair dealing provisions call forth the section 41:
    41.1 (1) No person shall
    (a) circumvent a technological
    protection measure within the
    meaning of paragraph (a) of the
    definition “technological
    protection measure” in section 41;

    It is hilarious to read that even students must destroy their lessons within 30 days upon completing their course. All the ministers need now is a mind and memory wiping machine, so they can wipe people’s mind from remember anything they’ve learned after 30 days of ending their course. The point of learning is to remember the lesson as long as possible, not 30 lame days or whatever the ministers think they can get away with.
    (5) It is not an infringement of
    copyright for a student who has
    received a lesson by means
    of communication by
    telecommunication under
    paragraph (3)(a) to reproduce
    the lesson in order to be able to
    listen to or view it at a more
    convenient time. However, the
    student shall destroy the
    reproduction within 30 days
    after the day on which the
    students who are enrolled in the
    course to which the lesson
    relates have received their final
    course evaluations.

    Is it any wonder anybody will obey Copyright Law ever again? The cartels invited their own demise, and I welcome it!


  31. @ANON-K
    So that all of the posters here know, the posting under “ANON-K” was NOT made by me… I am assuming that it was addressed to me.

    Mr Geist’s position, according to the PDF, appears to be that the law should be able to be reformed as and when necessary (“to raise potential new circumvention rights without excessive delay. The process must be fast, cheap, and easily accessible to all Canadians”). I would argue, in this case, that what he is asking for is too flexible. It is open to being abused through knee-jerk reactions. How many laws do we have in Canada that were created as a result of such reactions?

    The law does need to be updated periodically; however too much churn in the law makes life difficult for everyone involved. In a sense, Mr Geist has done all of his readers a disservice in that he has narrowly defined the review process in question 7 as being solely for exemptions. Section 92 of the bill mandates a periodic review. In this case, the bill mandates a review every 5 years of the entire bill, not just the exemptions portion of the bill.

    So, is that too flexible? I would say no. The main issues that I see is that too many exemptions makes the bill as effective as the DNCL. The rights of the consumers, the IP owners (artists, software companies, etc) and the publishers need to be explicitly laid out. The bill needs to state what occurs when the rights conflict (typically this has been left to the SCOC to determine… I don’t consider this case to be an exemption). Any exemption to the rules should have a solid justification for its existence. The exemption, when written, should be JUST sufficient to achieve the aim without unduly affecting the rights of the other rights holders (balance and fairness needs to be the guiding principle).

  32. @old_guy
    The new law should come with a requirement that in order to get legal protection, DRM protected software must come with a warning on the package, like on cigarettes, so people can make an informed decision :)

  33. RE: Section 18 : Opening the door to mandatory intenet filtering?
    This is essentially censorship which, I believe, infringes on Canadian constitutional rights and basic freedoms. Historically Canada has had very lax censorship laws.

    Up until the recent world-wide interest in “extreme” entertainment (Also known as “torture porn”), probably peaked by the release of movies such as Hostel and Saw, Canada was one of the few places to get uncensored, legal copies of some movies. The one that pops to mind is the original 70′s release of Last House on the Left. To my knowledge, the Canadian version was the only commercially released uncensored version in the world.

    If this is allowed to get out of control, we’re rushing head-long in to another ’80′s PMRC-style push for censorship, except on the Internet this time. Nothing iritates me more than people trying to tell me what is inappropriate for me to watch, read or listen to. I am a full grown adult, “F” off and let me decide for myself…if I don’t like it I won’t consume it. This isn’t much better than some of these Muslim countries where they “morals” police and you can go to jail for holding hands in public.

    Unless it’s changed in the last few years, a lot of unavailable or uncensored material becomes “legal” to download or copy, even for profit, under the Berne Convention. For years companies like “Video Screams” and “Blackest Heart Media” used this exception to distribute movies (Or versions of movies) which would otherwise be unavailable.

    Such legislation only fuels the underground.

  34. Clarification…
    Legislattion such as mandatory intenet filtering fuels the underground…not the Berne Convention. :)

  35. Psychology and Technology
    It continues to amaze me when otherwise intelligent and thoughtful people seem to become stupid when they attempt to legislate around technology and science related issues. This goes beyond the obvious cases of legislation to make pi exactly equal to 3.14, or defining the speed of light to be exactly 300,000KM/sec. It also leads into misapplication or misunderstanding of science or technology to various issues.

    Take the current issues relating to digital copyright, DRM protection, and P2P sharing. Yes, it’s a problem. Yes it needs to be addressed. But it can’t be addressed through technology. Statements like “if we can stop 75% of P2P sharing with 3 strikes” or “if we can control copying with DRM protection in 80% of the cases” are the application of statistics to the problem. But statistics isn’t the right model to apply to the social spread of technology, especially with the internet as a distribution medium. A more appropriate model, is viral infection path analysis. Technology uptake moves from person to person with the speed of the internet. The spread is based on social interactions, not statistical analysis.

    If you come up with a technical based counter-measure that will be effective against only a portion of existing technology, it will be ultimately ineffective. If you manage to “stop” a 75% or 80% portion of particular technology usage, it will only fuel the uptake of the technology that your counter-measures can’t touch. The “resistant” virus will spread more widely, social interaction will ensure it.

    The issue isn’t the technology, it’s the way technology has changed social interaction and behaviour. In cases where a large (and growing) segment of society is using technology, you cannot legislate a prohibition for some uses of that technology while encouraging, and even requiring, that use in other areas. The technology doesn’t “know” about social behaviour, it is simply a tool. P2P sharing and anti-DRM tools are not a “technical problem” requiring a legislated technical solution, they are a response by society. Technology is simply a tool, or means, that enables that response. Effective legislation will focus on why society is responding in the way they do, not the tools they use.

    Making guns illegal will not stop a society from revolting against perceived injustices. Nor will DMCA or “3 strikes” types of laws effect copyright infringement. This has already been proven in the USA, where they have had DMCA types of laws for quite a while.

  36. YES

    EXACTLY!!! If a technical countermeasure cannot be made 100% effective, it becomes completly ineffective. This applies to P2P, DRM, Open source software, etc. In this case they’re setting up countermeasures on top of eachother, all doomed to a cascaded failure. The freely available, open source software will be used to break the DRM, then those unprotected files will be used fuel P2P. Complete breakdown and all that was realy achieved was to drive otherwise willing customers away. This is a simplistic example, but entirely plausible.

  37. Captain Hook says:

    But you are mistake. technical countermeasures ARE 100% EFFECTIVE, when used in conjunctions with anti-tampering laws. The problem is that you are misguided regarding what their goal is.

    They are not trying to keep this stuff off the internet. They are not trying to prevent motivated people from ripping it, or doing what ever they want with it. They are not trying to stop REAL piracy. That would be silly.

    They are trying to impose new business models around renting of content. With DRM they can impose their contract terms without negotiation and they can control the hardware without the need to actually own it. That is their goal, and with this bill it will most assuredly be 100% effective.

  38. @Captain Hook
    I stand corrected and I see the logic. Impose DRM and anti-tampering to ensure the 75% of the population who currently don’t “pirate” remain in line. They’re effectively putting a leash on the law-abiding citizen, knowing they can’t control those who truely want to copy. Punish the lambs for being lambs since you can’t control the wolves.

    Unfortunately, especially in rural and remote areas, many ISPs are becoming more and more strict with bandwidth, and some ISPs throttle streaming. Quite often in these situations, these “rental” models fail. Hell, I have a 60G monthly limit, I pay a handsome $70 a month for. My Internet physically stops working if I exceed this and I have to phone them and buy more bandwidth at a heafty $25/10G. Still, I often have problems streaming even the simplest stuff from Youtube. These models are really only effective in an urban setting where architecture is very reliable and bandwidth is pretty much unlimited. They leave everyone else out in the cold.

    In the future, beware those firmware upgrades after this law is passed. Make sure you read all the release notes to ensure they’re not slipping something untoward in…especially if you’re not currently not having issues. Oh well, if this is passed without the personal use stuff fixed, I just won’t buy locked content other than movies (DVD/BD), which I prefer to have to original of anyway. Though, I may start digitizing, some of it and storing the original to make some room for newer stuff, so I don’t have to build more shelves. $crew them and I’ll back up if I want. With $25000+ worth of movies and in the $8000 range for HT equipment (With big upgrade plans), I’ve done and am doing my part to support the industry.

  39. Although I don’t disagree with either of your analysis, I think you have both missed a critical element. The percentage of society that is exploiting anti-DRM and P2P tools is growing…. And it covers a wide spectrum of demographics. It might be alarming to some, but the message is clear. Society is changing and the current models are being rejected. It’s no longer the “young” that are rejecting the current models, it is everyone.

    Legislating legal protection/abolition of popular technology to protect outdated business models simply will not work. The industry and lobbyists will be back at the table next year, complaining that C-32 obviously didn’t go far enough. Once you allow the camel’s nose into the tent, it’s very difficult to keep it out. Once you start using legislation to protect business models based on a particular technology, you have set up an obligation to continue to do so. You will get so sidetracked that you will never actually address the root of the “problem”.

    Let the industry worry about ineffective technology “solutions” to their perceived problems. Their models will live or die on the public acceptance of whatever they come up with. Our government(s) should not be passing laws to protect, or outlaw, any particular technology. If certain industries want to use DRM to “protect” their work, so be it. But tools to “unprotect” that same work should not be restricted either. Competition drives innovation, even if that “competition” is your customers doing things you never envisioned (and more innovative too).

    Recent history has shown that DMCA types of laws do nothing to actually accomplish the stated goal of reducing copyright infringement. On the contrary, the “successes” of DMCA types of laws are the side effect “abuses” of those same laws. Using such laws to restrict new competition or slow down innovation.

    The fallacy here, is C-32 and other DMCA types of legislation are attempting to address a symptom, the failure of the content industries to stay current with society and technology. Such bills lead to a perception of “perceived injustices” by a growing and cross demographic portion of society. If the law is so transparently ridiculous, it will be ignored and treated with disdain. Such laws only encourage disrespect for the law, and by extension the content creators.

  40. Richard M Stallman says:

    The term “digital locks” whitewashes Digital Restrictions Management
    (DRM) by comparing it to locks. The lock on your door does not keep
    you a prisoner, because you have the key. If DRM were comparable to
    that, it would simply be a security measure, and there would be
    no proposal for a law like C-32.

    A better analogy for DRM is a lock that others place on you without
    giving you the key: handcuffs. Thus, we call these features “digital
    handcuffs”. With C-32, Canada’s government proposes to handcuff its
    citizens on behalf of the US.

    Here are some additional questions that ought to be covered in an
    article such as this one:

    Q: Should Canada implement the WIPO Internet Treaty?

    That treaty is a league of governments to repress their citizens.
    Membership is a disgrace, so Canada should withdraw from it.

    Q: What should Canadian legislation say about digital handcuffs?

    Sale of products with digital handcuffs should be illegal unless
    facilities to break the handcuffs are readily available to all

    Q: What should Canada say to US demands for a law like the DMCA?

    We have seen you beat up and handcuff an innocent Canadian trying to
    leave the US. We won’t let you do it inside Canada.

    Q: What should Canada say to Hollywood movie companies that threaten
    not to make their products available in Canada?

    Thank you.

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