Yesterday's post on the 32 Questions and Answers on Bill C-32's digital lock provisions focused on general issues in the bill, including compliance with WIPO, the penalty provisions, and their constitutional validity. Today's post discusses the shortcomings in the anti-circumvention exceptions that are included in C-32. With the exception of a new exception for cellphone unlocking, the exceptions are the same as those found in C-61 and a virtual mirror of the U.S. DMCA. For those that want it all in a single package, I've posted the full series as PDF download.
C-32's Circumvention Exceptions
This section features answers to the following questions:
- Bill C-32 contains circumvention exceptions for encryption research and security testing. Doesn't that address the research concerns?
- Bill C-32 contains a circumvention exception for privacy. Doesn't that address the privacy concerns?
- Bill C-32 contains a circumvention exception for the visually impaired. Doesn't that address those access concerns?
- Bill C-32 contains a circumvention exception for interoperability. Doesn't that address those concerns?
Bill C-32 contains circumvention exceptions for encryption research and security testing. Doesn't that address the research concerns?
No. The impact of the anti-circumvention provisions on the research community extends far beyond just encryption research and security testing. Bill C-32's exception is the same as that used in Bill C-61. When C-61 was introduced, I met with several University of Ottawa researchers engaged in fields as diverse as biblical scholarship and engineering. Their common thread was that their research plans would be stymied by Bill C-61. Researchers that need to circumvent in order to access content for media criticism, search technologies, network content distribution, etc. will all find themselves unable to conduct their research. Those that argue that Bill C-32 is unenforceable have never had their work subjected to an ethics review that invariably includes an examination of the legality of the methodology. If the work fails the review, there will be no grant funding and the research simply stops. The exceptions for encryption research and security testing are needed, however, the Canadian approach to exceptions has been to simply mirror the U.S. DMCA list. A general research exception is essential if Canadian researchers are to be able to continue their work.
Moreover, the encryption research exception requires the researcher to inform the target about plans for circumvention for research purposes. The exception already includes a condition that "it would not be practical to carry out the research without circumventing the technological measure" and that the person has "lawfully obtained the work," so the researcher has a legal copy and must pass a necessity barrier. The inclusion of an additional notice requirement should be dropped since it has little to do with copyright protection, yet creates a possible barrier for researchers who need to do encryption research without telegraphing their plans to the target organization. The exception also raises issues for peer review since the exception does not cover third party peer reviewers, who may be unable to adequately review the research.
Bill C-32 contains a circumvention exception for privacy. Doesn't that address the privacy concerns?
No. The exception fails to provide Canadians with full privacy protection and Bill C-32 unquestionably makes it more difficult for Canadians to effectively protect their privacy. The reason for this is that though there is an exception that permits circumvention to protect (and prevent the collection or communication of) personal information, the ability to exercise this exception is rendered difficult by virtue of the inability to legally obtain devices (ie. software programs) for this very purpose. The bill states that a person can offer circumvention devices or services for the protection of personal information only "to the extent that the services, technology, device or component do not unduly impair the technological measure."
Bill C-32 does not include a definition of "unduly impair." However, according to an Industry Minister official who was responding to a journalist inquiry under Bill C-61 about the same language:
"The intent of the provision is to ensure that while individuals may obtain devices and services that circumvent technological measures with a view to protecting privacy, any ensuing circumvention of the technological measure cannot be done in a manner that would enable unauthorised uses of the underlying copyright material by that person or by a third party."
In other words, you can use a circumvention device to protect your privacy but it cannot allow you to simultaneously access the underlying content. Of course, once most circumvention devices circumvent a technological measure, the protected content will be in the clear. Distribution of this form of device is therefore illegal. Moreover, service providers will be likely be unwilling to use this provision for fear of facing liability. Not only should the "unduly impair" wording be removed, but the bill should place a positive obligation on those companies that use DRM that may raise privacy concerns to provide the keys to circumvent their technological measure where requested to do so for privacy purposes.
Bill C-32 contains a circumvention exception for the visually impaired. Doesn't that address those access concerns?
No. The provision suffers from the same shortcoming as the privacy exception. While there is an exception for the act of circumvention, access to devices that can be used to circumvent again comes with the restriction that a person can offer circumvention devices or services only "to the extent that the services, technology, device or component do not unduly impair the technological measure."
The notion of not unduly impairing the TPM is even more non-sensical in this context given that the whole point of circumventing is to provide access to the content for those with perceptual disabilities. The content will obviously be in the clear since that is what is needed to provide the necessary access. The limitation on devices and services here makes absolutely no sense unless the real aim to stop those with perceptual disabilities from obtaining access. Not only should the "unduly impair" wording be removed, but the bill should place a positive obligation on those companies that use DRM to circumvent their technological measure where requested to do so for access for those with perceptual disabilities.
Bill C-32 contains a circumvention exception for interoperability. Doesn't that address those concerns?
No. The emergence of open source software as a powerful alternative to proprietary software models has been an important business and societal development. Open source software is today widely used by consumers (e.g., Firefox browser) and businesses (e.g., Linux operating system, Apache web server). From a policy perspective, the Canadian government's professed goal is to create a level playing field so that the marketplace rather than laws will determine marketplace winners. It has opposed attempts to create policy preferences for open source (over the objection of some advocates and countries) instead favouring a more neutral approach.
Notwithstanding the claims of neutrality and trusting in the market, Bill C-32 creates significant marketplace impediments for open source software. Achieving a level playing field requires interoperability so that differing computer systems can freely exchange data. The bill includes an interoperability provision at Section 41.12 which states that the anti-circumvention provisions do not apply to:
a person who owns a computer program or a copy of it, or has a license to use the program or copy, and who circumvents a technological measure that protects that program or copy for the sole purpose of obtaining information that would allow the person to make the program and any other computer program interoperable.
The problem with this provision is that it does not extend far enough to maintain a level playing field. The classic example involves the use of Linux as a consumer operating system. Unfortunately, this operating system cannot officially play DVDs since most commercial DVDs contain a digital lock and the entity that controls the lock does not license the necessary locks to play DVDs on Linux. Programmers have developed alternatives, but all involve circumventing the digital lock, an act that becomes illegal under Bill C-32.
The interoperability provisions do not help address this issue, since DVDs may not be considered computer programs and many of the circumventing programs have functionality beyond playback of commercial DVDs. The net effect is that Bill C-32 erects an enormous barrier to open source software adoption, thereby harming innovation and a competitive marketplace. The solution – as proposed by the Computer and Communications Industry Association in 2000 – is to create an exception the substantially broadens the interoperability exception.
Could containment of mass adoption of “open source-ware” be one of a number of unadmitted-to goals of this bill, then?
This cannot be emphasized enough: The effect of US-style anti-circumvention laws that prohibit “circumvention devices” is to create a totally new right to a state-enforced platform monopoly: the power to dictate, with force of law, what devices can play your content, what content can play on your device, and what aftermarket devices can interoperate with your device.
In the video game industry, the makers of hardware platforms have been seeking such a monopoly right for decades–look up Atari vs. Coleco, Nintendo vs. Galoob, Sega vs. Accolade, Sony vs. Connectix and Sony vs. Bleem. However, they always failed in the courts–in every one of these lawsuits the plaintiff lost. The platform makers couldn’t persuade US courts to construe either copyright, patent, trademark, or any combination of those intellectual property rights to give them the legal monopoly they wanted. However, they finally got what they wanted in the US via the backdoor of the DMCA: in the disguise of copyright protection, they managed to arrogate a radical new monopoly right that had eluded them for years.
That’s why Danielle Parr and the ESA are particularly enthusiastic about Bill C-32.
An independent software author to Michael Geist: Thank you.
An independent software author to @michaelgeist : Thank you. http://Fix.BillC32.ca/5153
Dwight Williams,
I would say that “Open Source” has been one of the primary targets of the BSA/CAAST for some time. Their statistics do not adequately differentiate infringement and lawful FLOSS usage, and they have said more than once that they would prefer people infringe than switch to lawful alternatives. Opposition to policy that favoured or even put FLOSS on an equal footing with non-FLOSS was offered by them in submissions towards the USTR’s Special 301 report.
DVD region coding would seem an even simpler example of the need for circumvention measures. With these anti-circumvention provisions, it seems like you wouldn’t be able to legally play a DVD you bought in another country, or purchase a device that could even play DVDs from multiple regions. That’s just ridiculous.
Isn’t that the point?
Stopping p2p, open source, region free DVD players and generally making format shifting illegal are all certainly goals of this legislation. Perhaps even getting us into a place where ACTA will be the logical next step.
Why would our government table legislation beneficial to foreign corporations at the expense of its citizens?
@Sandro – In fairness, that is kinda the whole intend of region encoding 🙂
Foreign Pressure
It would seem that bill C-32 could be a direct result from foreign pressure. A month or two ago, the EU demanded we upgrade our copyright protection laws as a condition for a trade agreement, and we were called the “Zimbabwe of copyright protection”. I thought we were in the clear when certain ministers stood up for our country. Until I read the article in [u]The Embassy[/u] newspaper that we really didn’t have a strong position in the negotiations, and that the US was pressuring us as well. It all happened soon after the UK passed their new copyright bill that only 5% of mp’s debated on.
So, could Bill C-32 and our willingness in ACTA be a result of Canada losing bits of sovereignty? Why are we so complacent with such heavy pressure from foreign interests to ignore many complaints about the C-61 bill?
the goal of this legislation is enrichment
…of commercial entities with far more representation than citizens.
the basic idea behind digital locks is not to ‘safeguard’ the material itself but promote multiple streams of revenue from the same material.
there have been a variety of examples of tpm equipped media being ‘sold’ (as in perpetuity) but required a license check to replay. http://boingboing.net/2007/11/07/mlb-rips-off-fans-wh.html this is not a ‘sale’ as in ‘first sale’, it is a time and device specific lease with far different attributes than historically defined as a ‘sale’.
Accessibility
What really grinds my gears with the exception for the visually impaired is that it says nothing to the people who created the DRM in the first place. Open standards and ‘the whole point of digital media’ aside, this is going to be a huge problem for publicly funded organizations, which should be as accessible as possible.
If someone creates DRM that is so intensely powerful it is actually impossible to circumvent it without spending a few hundred billion dollars, that would likely become the expected standard for “preventing someone from copying or storing digital media†and render any other DRM systems obsolete.
Now, according to the language in this copyright bill, it is up to the disabled people to circumvent this on their own steam. The people who created the DRM aren’t going to help. If they did, they would lose control over their incredible IP and their market foothold. But, now, they can’t just circumvent the DRM because they are allowed; it is practically impossible.
Are we that country? Is Canada this insensitive?
What they need to do is strip out this digital lock stuff from Copyright and create a new document dedicated to the problem. Something that clearly defines both sides of the story.
@James
>Why are we so complacent with such heavy pressure from foreign interests to ignore many complaints about the C-61 bill?
Canadians are not BUT the politicians are and unfortunately it seems that in the free world the days where the politicians sort of worked for the people are now gone.
The US has not much to offer to the rest of the world anymore and all they got is IP and very little manufacturing left compared to China. They are desperate to introduce laws which lock in IP so no one but them can control it after the first sale.
C32 probably bans GTKPod
GTKpod does not integrate with iTunes or iPods, it modifies a database which is not software, it generates its own cryptographic hash in order to modify these music databases. Since we’re dealing with a file and a file that contain media files it seems obvious that the point was not interoperability, it was TPM breakage and copyright infringement.
Therefore with #C32 you cannot load your ipod with your files via an alternative method. You cannot load you iPod using Linux, Android, your non-apple phone.
Apple already tried some DMCA complaints against gtkpod et al.
Handbrake is illegal under C32
Handbrake is illegal under C32. The popular MacOSX DVD convertor is illegal because it violates CSS in order to rip the video off of the disc.
It violates TPM. It makes it illegal to use Handbrake to load your ipod with downgraded versions of your DVDs.
several years ago, voters were asking if Harper had a ‘hidden agenda’ I didn’t think so and I voted for him. I didn’t even know what the Bilderberg Group was. Now everyone knows. Welcome to the ‘hidden agenda’ we can view the unseen hand that governs us
Open Source Software
It still eludes me how they plan to legislate open source software. Most of it is FREE. Most of it, especially the larger projects like Apache and the various Linux distros, are developed by people all over the world and distributed using Torrents and from repositories all over the world. MOST people do not make money on it. What laws were broken and how can you apply Canadian or US law to a multinationally-developed software…all the luck to them.
What’s to stop some group of on-line friends, connected through the open source community, located in Uraguay, Peru, North Korea, Polland, etc. from collaborating on the development of a deCSS-type clone of software for Linux (Or Windows for that matter) and uploading it to a Torrent or a repository located in a country where such software is not illegal. Have a look at the contributor list for VLC some time…. It’s still available EVERYWHERE!! …unless we start employing IP blocking of course (Which is completely ineffective for Torrents or for those using TOR or i2p software), but this is a whole other issue. Making the software illegal is ineffective, unenforcable and a waste of time.
Did they no technical advisors at all when they designed this legislation?
@IamME
They won’t stop it from being made, but if their laws are retarded enough, they can prevent businesses from using it legitimately, give microsoft another excuse for sueing companies that use Linux, show that it is illegal for any legitimate business to use, etc.
You have to remember there are actually some entities that are going to be trying to actually follow these new laws. The same legitimate users and companies that are trying to follow the law today (minus whoever gets screwed too much and gives up) will be the ones affected by the new laws. I know my companies always tries to be on the up and up with all licensing, and that would most likely include not using Linux if it were illegal to do so in Canada.
@cradle
I wasn’t suggesting they could make Linux illegal, in fact trying to do so would likely be political suicide and not even Stevie is that dumb. I was only using it and Apache as examples of large freely available distibuted deveopement opens source projects. Linux is integrel to way too many institutions. Even if the general user base runs Windows, quite often the servers, especially web servers run Linux in the back end. Nearly all our servers run Linux with the exception of a couple old Sun boxes still running UNIX.
What they will do is make certain software, such as deCSS and VLC, illegal. I had a look at the authors list for the old version of VLC (0.8.6d) I have installed at work…there are at least 25 authors distributed over about 10 different countries. Those numbers would certainly be higher now. I can’t see how they can control or enforce it. Retail products are easy to control, but something that is freely given away as a download and which is not universally illegal in the entire world, is pretty much impossible to control. So they’re creating unenforcable laws.
Yes, business will try to comply with the new laws which, in most cases, shouldn’t make a large impact. The ones they’re trying to control are not business entities and will never comply and for some, it’ll be just out of principle. I have friends from European, communist countries who are hardcore open-source, freeware, anti-Mircosoft, Linux gurus and will generally laugh if the govenment tries to tell them how to use their machines. Then they will dig in further, put up more firewalls, encrypt their drives and go through i2p or TOR to download their open source software as they see fit. Oh wait, they’re already paranoid by nature and do most of this anyway…the government and US lobby groups are fighting a losing battle.
Pandora’s box has been opened, there is no closing it, the only option will be to adapt to the new environment. Trying to suppress it might work for a while, but will ultimately fail.
@crade, what the corporations, artists, or anyone else intend you to do with your property is irrelevant to what you should be legally allowed to do with it. What right does the MPAA have to prevent me from playing any DVD I legally purchased? They got paid for their good, I should now own my good with all the attendant rights that come from a legal exchange.