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U.S. Move to Pick Digital Locks Leaves Canadians Locked Out

My weekly technology law column (Toronto Star version, homepage version) picks up on last week’s DMCA exemption decision with a contrast to Bill C-32.  I note that since its introduction two months ago, the government’s copyright reform package has generated widespread debate over whether it strikes the right balance.  The digital lock provisions have been the most contentious aspect of the bill, with critics fearing that anytime a digital lock is used, it would trump virtually all other rights.

Supporters of the C-32 digital lock approach have sought to counter the criticism by arguing that the Canadian provisions simply mirror those found in other countries such as the United States.  Yet last week, the U.S. introduced changes to its digital lock rules that leave Canada with one of the most restrictive approaches in the world.

The U.S. rules are found in the Digital Millennium Copyright Act (DMCA), which features a triennial review process that allows the U.S. Copyright Office and Librarian of Congress to mitigate the danger the law poses to legitimate, non-infringing uses of copyrighted materials by identifying new exceptions.

The latest review concluded last week with the introduction of new exceptions that target popular consumer products such as DVDs, smartphones, and e-books.  The exceptions – which make it legal to circumvent the locks – are narrow in scope, but they provide U.S. consumers with far more rights than those found in Bill C-32.

The media focused primarily on the smartphone exception, which is tailor-made to address the locks found on the popular Apple iPhone.  Three years ago, the U.S. established a specific exception to allow consumers to legally unlock their cellphones so they could keep their phones when switching providers. Last week, it extended the exception even further, granting consumers the right to “jailbreak” their phones.  That move allows consumers to install applications of their choice without requiring Apple’s prior approval.

The Canadian rules on cellphones and digital locks pale by comparison.  While the inclusion of an exception for unlocking a phone was promoted as an illustration of a pro-consumer element of C-32, there is no equivalent to the U.S. rule for jailbreaking phones in Canada.

More noteworthy were a trio of exceptions involving circumventing the locks on DVDs. The first establishes an exception to circumvent DVD protection to gather a short clip for educational purposes.  The Canadian government has promoted the benefits of C-32 to the education community (the bill includes a broad new fair dealing exception for education), yet teachers or students engaging in the same conduct would violate the law in Canada under C-32.

The second permits documentary film makers to circumvent DVD protections to gather a short clip.  There is no similar exception found in the Canadian bill, which has led the Documentary Organization of Canada to conclude that C-32 puts “documentarists in an untenable situation” since they will not be able to use as source material any content behind a digital lock.

The third grants a specific exception to anyone circumventing DVD protection to collect clips for non-commercial videos.  The Canadian government has touted its “YouTube” user-generated content remix exception as an example of forward-looking elements in the bill that grants Canadians the right to create remixed work for non-commercial purposes under certain circumstances. However, unlike in the U.S., those new rights are lost once the desired content is placed under a digital lock. 

Finally, the U.S. rules also contain an exception for e-books designed to facilitate access for the sight impaired.  The Canadian rules do not contain a similar exception.

Given the restrictions on distributing circumvention tools, contractual restrictions, and the absence of a general right to circumvent for lawful purposes, the U.S. exceptions are hardly a panacea.  Yet when compared to Bill C-32, they will leave Canadian consumers wondering why the government has proposed a bill with digital lock rules far more restrictive than those found in the U.S.

58 Comments

  1. Blind excemption
    Michael, Bill C32 does have exceptions designed to facilitate access for the sight impaired.
    Bill C32 states:
    Persons with perceptual disabilities:
    41.16 (1) Paragraph 41.1(1)(a) does not apply to a person with a perceptual disability, another person acting at their request or a non-profit organization acting for their benefit if that person or organization circumvents a technological protection measure for the sole purpose of making a work, a performer’s performance fixed in a sound recording or a sound recording perceptible to the person with a perceptual disability.

    CNIB says “The Canadian Copyright Act (Bill C 32) addresses the permissions for the production of alternate format materials for people who have a perceptual disability.” http://www.cnib.ca/en/services/library/advocacy/publications/issues-myths.aspx

  2. ^ Typical defence of the bill
    “It DOES do this one little thing!”

  3. Hrm
    My comment got truncated for some reason. I added next to that, “then proceeds to ignore all the other arguments”

  4. @TeamQ
    Except that if the work has TPM, they can’t break the TPM to make a blind friendly version of it.


  5. …and even if they were allowed to break the TPM in the case of “perceptual disabilities”, if such tools for breaking TPMs become illegal to produce and own, it’ll become increasing difficult to break. On top of that, it still leaves the onus of finding a way to break such things on those with the “perceptual disabilities”. This is by no means a solution, but more of a smokescreen. Say it’s legal to break TPMs, but make the required tools illegal to produce, own or use…classic.

  6. Un-Trusted Computing says:

    More experience with TPMs South of the Border?
    Perhaps the US is instituting legal TPM-breaking because it has experienced first hand how unwieldy these laws can be.

    Which will of course bring us to the next question, if the US is backing down on TPMs why is our government supporting them?

  7. @ Chris A
    What part of the bill says that?
    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;

    Persons with perceptual disabilities
    41.16 (1) Paragraph 41.1(1)(a) does not apply to a person with a perceptual disability, another person acting at their request or a non-profit organization acting for their benefit if that person or organization circumvents a technological protection measure for the sole purpose of making a work, a performer’s performance fixed in a sound recording or a sound recording perceptible to the person with a perceptual disability.

  8. @TeamQ
    This came up a while ago when the bill text was first released, there was some other subtext, or something that made it overly difficult for those with perceptual disabilities. I don’t remember what, I thought it was access to tools, but I really don’t remember.

  9. @TeamQ
    Huh, seems I missed that part. The part of the tools though could be a problem.

    Either way, that doesn’t make the bill any better just because it happens to get one thing (partially) right.

  10. Michael Geist says:

    @TeamQ
    Thanks for the comment. Two points:

    1. The DMCA and C-32 exceptions are not the same. The DMCA grants a full exception to anyone to circumvent “literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.”

    The Canadian exception is more limited in the sense that only certain people or organizations qualify for it. For example, researchers into text-to-speech technologies would arguably still violate Canadian law.

    2. Both the DMCA and C-32 suffer from the fundamental flaw of accessing the tools to circumvent for these purposes. The Canadian bill conditions access to the tools on not “unduly impairing the TPM”, which simply does not work in this context since the whole point is to impair the TPM to gain access.

    MG

  11. @ Michael Geist
    Thanks for the reply.

    Agreed, the DMCA and C32 exceptions aren’t the same. I still think that you saying “the U.S. rules also contain an exception for e-books designed to facilitate access for the sight impaired. The Canadian rules do not contain a similar exception.” is misleading. We definitely do have an exception for the sight impaired. Perhaps you’re using a much more narrow definition of ‘similar’ than I would.

    The exception for Persons with perceptual disabilities apply to a person with a perceptual disability, another person acting at their request or a non-profit organization acting for their benefit. I don’t have any issue with the scope of this. It’s an exception for people with disabilities… not an exception for text-to speech researchers.

  12. I guess
    we’ll just have to stab ourselves in the eyes.

  13. The bigger picture
    I think the larger issue here is the proposed legislation of C-32 is, admitted or not, based on the requests of the USA government and media lobbyists. Now that the USA copyright cabal has had some of it’s wishes peeled back by the courts, Canada is kind of caught with it’s pants down. It has been pretty quiet on the Canadian front on this issue since then, I expect there is much now going on behind the scenes and around the B-B-Qs. I hope the Cons will use this as a face saving opportunity to loosen some of the digital lock provisions, pointing to the precedents down south, but I fear they may just storm ahead as with the census debacle. Time will tell.

  14. Laurel L. Russwurm says:

    fatal flaw
    So long as the law says if it illegal to own or use the tools to circumvent, no exemptions will be possible regardless of what is written.

  15. Laurel L. Russwurm says:

    off topic: Congratulations Michael Geist
    I’d like to congratulate Professor Geist being chosen for a 2010 IP3 award for his work for copyright reform as well as fighting ACTA.

    http://www.publicknowledge.org/public-knowledge-presents-seventh-ip3-awards-samue

  16. Review process is much weaker in C-32
    I’m thinking “getting it right” on the substance of particular provisions the first time is less likely but also less important long term than strength of the periodic review of administrative rules. Three year review under the DMCA by a real authority (these changes indicate its effectiveness) have to be compared with the proposed 5 year, ad hoc Committee no power review under C-32. Canada will survive some bad provisions for a few years, in fact bad provisions are unavoidable, but will really regret trapping itself in those bad provisions with a bad process for review and change.

  17. Congratulations also!
    Well deserved recognition to someone who stands up for the common man. The ‘One who shall not be named’ has indeed been named ;)

    Thank you Michael!

  18. The doctor’s argument contains distractions:
    1.The matter of circumventing the locks on digital content (copyright protection by technological means as first-line defense) speaks to a ‘moral’ matter, one clearly distinct from the ‘practical’ matter of an owner making use of a product in ways not prescribed by its manufacturer. (As a practical matter, think: how can Apple either support its product or reasonably meet its warrantee commitments having neither control over, nor likely any experience with, any number of software a client might choose to install on the device?)

    2.The principal defects of the three proposed US exceptions are (i.e. that they are something other than “the camel’s nose under the tent”, a tent pitched to defend copy and moral rights are):

    I.the underlying presumption that breaking into a house (e.g. breaking a digital lock) is not an inherently immoral act in and of itself i.e. that such acts are moral until such time as the contents of the house are removed (i.e. distributed) for some unreasonable purpose;

    II.an unspoken assertion that consent for fair and reasonable use of digital content could not be requested (by users) and provided(by owners ) within reasonable time frames in this digitally interconnected age, that industry-based protocols (and organizations to support them) could not be established, and finally, that the combination of protocols and supportive organizations and technologies would not deliver reasonable access to use within reasonable time frames for the preponderance of cases;

    III.finally, the canard that a teacher or any ‘innocent user’ of digital content must necessarily copy and distribute copies of it (‘gather’) in order fair use of it, which is patently untrue, especially given the plethora of digital tools to enable the one-to-many real-time display of digital content available even now. Note: and notwithstanding the foregoing comment II.

  19. Un-Trusted Computing says:

    @LW Naylor
    On points 1 and 2…

    Point 1: The house anology is disingenuous in the sense that we’re talking about a “house” the we own. So in essence what you’re proposing would be like buying a townhouse, and being at the mercy of the developper open the door for you everyday. All of a sudden, the devolopper closes shop or goes out of business and you’re still considered a criminal for entering your own house.

    Point 2:

    Why should an education institution have to obtain permission to display a work for educational purposes. Again; content becomes a rental scheme where the rights holder (not necessarily the artist) acts as a toll booth demanding money everytime already purchased copies are accessed.

  20. @LW “As a practical matter, think: how can Apple either support its product or reasonably meet its warrantee commitments having neither control over, nor likely any experience with, any number of software a client might choose to install on the device?”

    I’m not sure of the overall point of your post, but as to the comment above, how is apple’s position any different than say Dell whose ‘devices’ have any number of software installed?

  21. In response to Un-trusted
    Per Point 1: Not at all disingenuous, respectfully. Judging from your response “we’re talking about a house the we own” Dr. Geist has, for at least one person, successfully confused the moral matter of someone else’s copy rights with a practical matter of your rights when in possession of a device you did not produce yourself (e.g. an iPhone or equivalent device taht you purchased). Yet, the two matters are clearly distinct.

    As pertains to the matters of moral and copy rights et al, the debate largely arises from a fuzzy worldview on the part of people who presume that the fact that it may be technologically possible to circumvent the consent of owners of moral and copy rights, confers upon trespassers a right to do so. It is a false and immoral notion intended to render theft a non-issue.

    Per Point 2:
    As a courtesy: any educational institution, in my opinion, should have to obtain permission to display a work for educational purposes because: a) they do not own the digital content, and, b) reasonable uses do not confer any ‘a priori’ rights to users that would supersede those of the owners of moral and copy rights. Rental is certainly a viable option around which to establish a protocol for conferring permission to use content (an example is SOCAN, in the music industry). See: footnote RE: the age of photocopiers.

    In the present digital age, as a practical matter:, there exist technologies that allow one-to-many displays of content that would be effective in the classroom yet not violate reasonable understanding of the moral and copy rights of owners of digital content. Thus, the need for broad access (on the part of users) is largely mooted in educational scenarios. Where it is not mooted: then protocols could be created that, in the digital age of instant intercommunication, could certainly provide a permission for reasonable access to digital content, for reasonable uses of that content, in reasonable timeframes.

    Footnote: In the photocopiers era it was not possible as a practical matter to enforce the consent of owners over the copying and distribution of their content. It was both in recognition of a reasonable use (predicated upon a promise non-commercialisation of the copies), and, in resignation to the fact that enforcement of owners’ rights could not be effected, that a resolution was found for that era. However, that did not confer new rights to users, then, which should be applied today; it only decriminalised users then. Today we have the means to enforce the moral and copy rights of owners of content and should do so.

  22. To Crockett:
    Dell does not own the O/S. Apple does.

  23. Also to Crockett — the ‘point’
    Respectfully, I should have addressed your major point, which was, — you did not get mine.

    My real point is: theft is theft. Dr. Geist’s fundamental positioning, like those of his adherents, is that because technology provides a means to access the property of another (the moral and copy rights, etc. of creators and owners of didgital content) a right to access (freely) is conferred. That view is profoundly defective inherently. Thank-you

  24. Oh My, do we sound so unreasonable?
    @LW I agree, theft is theft. If I purchase an item (DVD) and cannot use it as I wish (format-shift, backup) then my right to use purchased property has been stolen from me. You say “to access the property of another” is theft? Well if I have purchased the property (DVD) it is mine not ‘the property of another’. If I own it I can give it to someone else (gift, trade) but if I do so I should not keep a copy for myself, that WOULD be theft. But to use it for my own private purposes, that is not theft.

    If you will be honest you will admit that the real problem you have is that if people use their own property they have purchased for private uses then they may not have to buy that item a SECOND time to use it in a different manner. If I buy some curtains then decide I will make a dress out of them should I be paying a seamstress somewhere for the right to do so? If I buy a car is Ford able to tell me where only I can drive it?

    I, nor Dr. Giest, nor anyone that I know who posts on these forums or who is pro fair-use, advocates the free distribution of copyrighted works outside of the fair use exemptions. Some people are free for all file sharers, we are not. To insinuate differently is disingenuous for your own purposes of spin. All I want is to be able to legally use an item I have purchased for private use. Bill C-32′s digital lock provision prevents this even while fair-use is included in other segments of the agreement.

  25. To LW
    @LW “Dell does not own the O/S. Apple does.”

    Well then Microsoft does not have control over which programs are installed on their OS, AGAIN how is apple any different?

  26. @LV
    I think you’re missing the point that most people here are trying to make. Yes, theft is theft, and few would argue that point. But the major aurguement most have here is that they’re trying to criminalize activities that a vast majority of people consider legitimate and reasonable. Assuming digital locks, activites such as backing up my DVDs so my kids don’t scratch them, or copying a CD to my wife’s MP3 player, or making backups of music and movies I purchased on-line, etc. all become illegal and they’re trying to label such activities as theft. Just because they’re labeling it as “theft” doesn’t automatically make the designation reasonable.

    If noone respects the law or a law is perceived to be unfair or solely to the benefit of a big buisness, few who they are targeting will listen to the law. It becomes unenforacible!!! Look at the disaster DMCA in the US has become. Did it stop copyright infringement, or help copyright holders at all? I bet not. In fact I’m pretty sure a I read an article somewhere that on-line downloading in the US is at an all-time high.

    They would love to make it illegal to sell or give away content such as CDs and DVDs. Reasonable? I think not. With a nearly 1100 DVD/BD collection, I occasionally need to “purge” to make space. Without the option to sell, where is my incentive to buy something if my only option is to throw it in the trash when I no longer want it? Not very environmentally friendly. They’re trying to force us to buy the same content multiple times on a per-device or a per-use basis…basically a rental.

    I for one am not comfortable with any of these scenarios.

    The bottom line is they’re trying to squeeze more and more money out of their consumers, while striping away more and more rights.

    captcha: reasonable something


  27. Ninja’d by crocket

  28. @LW Naylor
    A personal observation; your attempt at erudition detracts from your message. Clarity in communication is much more important than scholarly verbiage or form. You might take a lesson from Michael here.

    You seem to have conflated property right issues, copyright moral issues, and product warranty issues. That also detracts from your points.

    It’s hard to be sure, but you also seem to have confused general morality with the specifics of moral rights within copyright. Can you please be clear in which framework you are discussing a particular issue?

    Your analogy of “breaking into a house” is wrong. To bring it closer to reality, you must also assume that you gave a key to everyone so they could enter the house, but somehow you expect the lock to prevent them from taking pictures. An inappropriate application of technology, and now you want laws to somehow make it work correctly. This concept flows through all your comments, so I can only assume you don’t understand the technology and it’s limitations as applied within the copyright industry.

    Although I agree that the technology exists to enable rapid and easy consent for fair use, the fact that isn’t in widespread use speaks volumes about the current industry approach. Without such availability and use, it is only “fair” to provide legal exceptions to protect the concept of fair use/dealing.
    Also, a “reasonable time frame” in today’s digital age is often measured in days, or even hours.

    You might also consider the ramifications of backing up your email or digitized legal documents and invoices. Is it really a requirement to obtain permission from every corespondent before you do so, or your email provider does so on your behalf? Take a close look at your everyday, normal activities. Copyright extends it’s tendrils a long way.

    It appears you haven’t considered the concepts of homework, or distance learning, in the educational sphere. Your argument falls apart as soon as you do so.

    And with a strong background in technology, I will flat out disagree with your assertion that “Today we have the means to enforce the moral and copy rights of owners of content and should do so.” If you knew anything at all about today’s technology, you would realize this is less true today than it has been in any time in the past.

    All in all, it appears that a large part of your position stems from a lack of understanding of the technology involved in all aspects of our modern world. It would appear that you have accepted the marketing material of the TPM/DRM vendors without question. I suspect your whole position would change if you realized that you had been sold a bill of goods.

  29. to Crockett
    You clearly do not agree ‘theft is theft’, quite the opposite. Nobody buys a device with a ‘right to do as they wish with it. You have no superseding right of trespass upon those of others when using the device, clearly.

    The purchase of a DVD confers nothing more than a ‘license to use’, the moral and copy rights being retained by their owner.

    If it is true that the vast majority of people believe theft is not theft, then they are wrong.

    PS. the ‘Apple’ analogy was identified as a distraction in the initial post, a feint to confuse two issues by conflation. You may fixate upon the distraction; meanwhile: theft remains theft.

  30. to oldguy
    Theft IS immoral: the word was used deliberately in its ‘biblical’ sense, the notion of morality being ageless.

    There is no dispute that many today believe that the fact that they possess a technological capacity to take the property of others (i.e. digital content), confers an a priori ‘right’ to exercise such means.

    In the case of digital content, except where explicitly declared otherwise, one merely purchases a ‘license to use’. No right of ownership is conferred (transferred); the owner of the content retains ownership. The person with a license to use will be governed by the terms and conditions of the license to use, as the owner establishes, without criminalisation.

  31. @LW Naylor
    Ahh, the old “biblical morality” position. Your sense of morality is better than every other person’s sense of morality. This kind of thing has been debated down through the ages, and will never be ended. It becomes a matter of emotional positions rather than logic and practicality. It tends to blind people to reality. It brings about situations like Prohibition, and 9/11. Sorry, I don’t believe such fervor should have a place in these discussions, nor do I wish to get into discussions that boil down to if “an eye for a eye” is a valid moral position either.

    If what I purchase is a “license to use”, then I also require the right to use it on any device or medium I choose, as appropriate to technology advancements or even of my own design. No rent seeking allowed. TPM and “Digital locks” are directly contradictory to this. If I purchase the medium the content comes on, then it is a purchase not a license, and I can do whatever I wish with the medium.

    You might also want to review exactly what a copyright confers. Keep in mind you cannot legally “own” content, all you can “own” is the copyright to that content. Property laws govern the ownership of that copyright, but copyright laws cover rights relating to the content. Please don’t attempt to confuse copyright with property law.

    I note you haven’t challenged or responded to any of my other corrections or assertions. Do you plan to?

  32. @LW Taylor
    “no right of ownership is conferred…”
    What do you mean? I gave the clerk my money, and she -sold- me a disc.
    Is it my fault she should have gotten me to agree to some sort of contract or agreement?
    A sale is a sale, and thus I own the disc.
    And there is no law against selling things, is there?

  33. “Clearly” … you really don’t understand the meaning of the word.
    There are a few things that as a society are clearly wrong; Murder, Rape etc. and that’s not likely to change. Other things change over time; Slavery, Segregation, Discrimination. Theft I would think falls into the first category but I suggest you are using this word as a brush too broadly.

    In relation to digital content there seems to be two points of view, polarized as to which side of the fence you are on.

    A] If you are a content creator you want to maximize the financial return for your work at all costs.

    B] If you are are a consumer you want to get the best value for your money you can.

    Both are really issues of self interest and neither can be fully realized unless at the expense of the other. What is seen by fair for one party could be seen as injurious to the other. There is nothing really ‘Clear’ about the issue at all.

    Let me present some scenarios:

    1) Consumer purchases DVD for kids and fears it will quickly become unusable due to scratches so he makes a duplicate to use and stores the original away.
    – The consumer feels this is fair use to preserve the value of their purchase (there seems to be no trade in or warranty on DVD’s as far I know).
    – The content owner would prefer this not to happen so that the consumer would have to purchase a replacement. Either the same content or something different to placate the loss to the child.

    2) The Content owner releases a music CD hoping it will be successful and sell well.
    – The consumer enjoys the CD she purchased and wants to share it with her friend, so she makes a copy and gives it to her.
    – The content owner has lost a potential sale of the CD to the second party, which could be a loss. The content owner has had some exposure of their work to the second party that may or may not lead to further sales. To them this is mostly a loose/win situation.

    In senario 1 most people would say that the fairer point of view is with the consumer, while in senerio 2 would more likely side with the content owner. But again depending on your world view the opposite could be said for either case.

    So, for instance when senerio 1 is not legal (in Canda due to digital locks) people feel they are being taken advantage of (gouged ..in a sense theft) and are more likely, out of a feeling of disrespect, to participate in senario two (which in my view falls more into the actual theft catagory).

    There are those who want everything for free and those who want people to pay for absolutly everthing. The solution is somewhere in the middle but the digital age has brought things to a head quickly leading to the polarizaition of attitudes we are seeing.

    Your view, I preceive, is far to one side and if you take the time to actually listen to fair use advocates rather that the ‘company line’ you will see we are not really theives but just wanting to be dealt with fairly as you do.

  34. Un-Trusted Computing says:

    Thumbs up Crockett
    Clearly Crockett said everything I wanted to say about this debate in a much more eloquent manner, so I’ll add very little except for a few obvious reminders;

    Enshrining TPMs into law will only criminalize 99% of the population, because by extension everyone with a deprecated media format and a bit of technical knowledge will simply format shift illegally by breaking whatever TPM exists on their deprecated media rather than buying a new copy unless there are advantages is doing so.

    You could argue that CDs technically had better sound quality than cassettes, but those cases will be few and far in between. Once I convert a DVD into Xvid it can live on my hard drive forever as it should. That way I can still watch it when DVDs become obsolete.

    The argument that breaking a TPM is analogous to theft is disingenuous because it assumes you never paid for the content in the first place. I’m not denying that downloading a copy of a work you haven’t paid for potentially deprives the license holder and or creator from revenue… but on the flip-side, enshrining TPMs is a license for copyright holders (note the distinction between copyright holder and artist here) to extort ongoing revenue from a legitimate buyer.

    At that point you’re creating a set of market conditions that actually encourage breaking the law rather than respecting it.

  35. to OldGuy
    The riposte merits full marks for polemics, but failing grades in ‘ethics’ and ‘self-reflection’. It is inherently immoral to take the property of others without consent. The immorality was more apparent in the 20th Century when states stole property from individuals, but it is no less true today when individuals do so.

    And, yes: there are many today who do hold the immoral view that to possess the technical means to remove property, where there is no technical means to prevent its removal, confers a right to take property without consent (i.e. which is to say that: to steal, to thieve, is neither theft nor thievery). Many, if not most, sycophants of Dr Geist hold this defective view.

    As for: “If what I purchase is a ‘license to use’, then I also require the right to use it on any device or medium I choose, as appropriate to technology advancements or even of my own design.” It generally holds that when one obtains legal access to digital content what is “acquired” is a ‘license to use’**, and a license holder (user) may exercise whatever privileges under license the owner of the digital content chooses to extend; clearly, people who “require” more should consider not buying the ‘license to use’. However, they are conferred no right to steal. In particular, no entitlement to steal arises on the basis of necessity (i.e. that they “require a right to use”); clearly, the only “requirement” at work here is one of naked self-indulgence. Certain extreme instances can be posited where genuine “necessity” might arise (e.g. the unlicensed [ergo, illegal] use of emergency notification software in a bone fide emergency), but that applies as a mitigating factor to judgement for damages (compensation), or for sentencing, as the case may be.

    **NB. Some creators/owners of digital content may choose to waive their absolute rights in effect i.e. to place no constraint on the privileges licensed users may exercise, but, it is the owners’ rights that apply, not any pertaining to the users (which do not exist).

  36. To Crockett
    False (contrived): “A] If you are a content creator you want to maximize the financial return for your work at all costs.”

    Many owners of content give it away freely e.g. YouTube. The salient facts remain: the choice is theirs to make not the users’, and, that is how it should be.

    Theft is theft: no conflicting rights

  37. To Blaze
    You paid your money for a ‘license to use’. There were no other privileges given beyond those extended by the owners of the digital content.

    In short: the owners hold rights to determine the terms and conditions of use; you hold a license to use (in exchange for your money) under such terms and conditions the owners extend.

  38. Grand Theft Copyright
    > The matter of circumventing the locks on digital content (copyright protection by technological means as first-line defense) speaks to a ‘moral’ matter

    LW Naylor, Copyright’s Moral Rights basically refer to the author’s entitlements to integrity and acknowledgements in the work. If you want to see blatant Moral Rights trashings, just watch the credits on most programmings on TV. Most stations, CBC included, either scroll the credits incredibly fast, or show in a smaller window that is unreadable while displaying their ad up front, or sometimes credits aren’t shown at all. Obviously, you’re not at all worried about Moral Rights, but worried about people doing something you don’t approve of.

    Back in the days of the cassette tapes, the music cartel knew people were making copies from radio and encouraged it by paying radio stations to play cartel music. People copied from radio, trade their tapes to friends and so on, but back then I don’t recall anyone being labelled as a radio thief or a music thief. Now, you see people doing what they’ve always done with cassette technology in digital formats, and suddenly everyone’s a thief.

    It turns out the thief isn’t the public, but the thieves are in the entertainment cartels who have bought their laws, international treaties, and Copyright term extending perpetually over decades. Your strategy is to make laws unobeyable, so everyone will become an outlaw one way or another and then you’re the ones left with all of the morality. Theft is entertainment cartels buying C-32, when the Supreme Court of Canada and the lower courts have ruled fair dealing is mandatory. Obviously, you’re not interested in this kind of Grand Theft Copyright, but I do.

    This is funny: You keep saying “Respectfully”, but I don’t think you even know the word. Respectfully, lying and exaggerating about Copyright Law is not respectful at all. How you can even claim to be respectful in such a manner is incomprehensible.

    When it comes to morality (biblical,) eating is the ultimate immoral act, and yet you eat just like everyone else. Isn’t that funny??

  39. The market decides
    LW, Removing all the hyperbole it basically comes down to this …

    The product, and it’s related licence agreement as you outlined above, is seen as too restrictive by most consumers. And, as you say, consumers can choose not to buy it, and some actually choose to do just that. But is that what you really want? There is a concept in marketing and business called good will, and it is something that the vendor is required to foster. By putting such restrictive conditions on your products and say love it or lump it you are alienating your purchasing base.

    In my previous post I tried to convey a facet of human nature … if one feels they are being taken advantage of or not offered fair value then they loose respect for that product/producer. That is hardly a way to increase sales or customer loyalty, rather it encourages people to be disrespectful. Instead, by offering products with more value and flexibility I would suggest you would encourage greater customer loyalty and sales.

    The reality of the Internet age is that people can easily copy and distribute digital works. Passing laws against such practices will be largely ineffective as policing of such activities is virtually impossible, and prosecution generally leads to more disrespect. Creating tougher technological measures will continue to be a cat and mouse game that no one can win.

    Which in the end leaves you back to my original point, your greatest tool (or weapon if you prefer) against the unauthorized use of your copyrighted works is to offer a product that is seen as fair and desirable. Recently I purchased a movie for my daughter that included a Blu-ray, DVD & a digital copy all in the same package and for a price that was reasonable ($23 I think). What a great deal, I don’t have a Blu-ray player yet but my purchase is great future proofing, and I put the digital copy on my Ipod so she could watch it on a long car trip. Now when I am shopping I go out of my way to look for similar products. See, in this case good value and marketing produces customer loyalty and sales.

    I am not asking for free handouts, just value. If your industry concentrated more on that aspect I think they would come out better in the long run. Restrictive laws against fair use and litigation against consumers I think is only detrimental to your bottom line. Some people will always take for free, you cannot change that, instead try encouraging legitimate consumers with good value and good will.

    You’ll be better off in the end.

  40. LW Naylor
    No no, I’m quite serious, and sure, that I purchased a product, for cash. Not a license. I even asked If I was “Buying a disc” to which the clerk responded “Yes, you are”.

    Your position depends on there being no sale possible involving digital media without the IP holders’ blessing.

    The sale is possible because I am not making an agreement beyond a basic sale.
    If a company were to demand recompense for “misuse” of their product, said company would be required to prove I agreed to anything but a sale.
    Its basically passing the buck to the store that sold it to me, sure, but a valid point regardless.

  41. A clarification
    @LW “False (contrived): “A] If you are a content creator you want to maximize the financial return for your work at all costs. Many owners of content give it away freely e.g. YouTube.”

    Yes, that is true. But that is not who I was referring to in my post. I am advising against the media cartels, the same ones who lobby for restrictive laws to maximize profits at the expense of fair use.

    Those creators who operate under open/creative licence agreements are I think both a threat to the established cartels, as well as the way of future. That doesn’t sit well with some, well times change, innovate or move on. Honestly, I am all for a strong and healthy environment for artists and creators, I just don’t the think the current media cartels are the their best vehicle to do so.

  42. @LW Naylor
    …”failing grades in ‘ethics’ and ‘self-reflection’”

    Actually, I passed both those courses with high honors. Of course my instructors were not closed minded about what those concepts actually mean. We spent quite some time on the appropriate interpretation within various contexts.

    Sigh..

    Copyright infringement is NOT theft. Theft is a property concept. There is a world of difference between these concepts, which our society and laws, and even “biblical morality”, recognizes. I’m not sure if the concept of “you stole my idea” or “you stole my words” would apply in biblical morality. The concept of theft is along the lines of “removal of property from another’s possession”, not the copying/reuse of another’s words or ideas. Until relatively recent history, it was quite morally acceptable to “copy” someone’s ideas or words. In fact it was a sign of erudition and stature.

    The only property right you have, is ownership of the copyright to a work. You can sell or buy the copyright, but not the idea or content. The rights granted under copyright are quite different, and more limited, than the rights under property law. They are a social construct. Not an individual moral right.

    You have let your biblical morality cloud your judgment. You still confuse rights granted under copyright laws with property rights. They are fundamentally not the same, and until you divorce these ideas you will continue to confuse them. I already drew the dotted lines for you, but it appears you are too morally indignant to see them.

    To your other point, I am generally required to agree to a license, for which both parties should keep a copy. It is a contractual arrangement. When I purchase the physical media, it is mine to do with as I wish.
    As long as the media and the content contained on that media were permanently intertwined, the difference was effectively moot and could be ignored.
    Technology has advanced to where this is no longer true, and those differences must be addressed. From my point of view, I never agreed to a license, nor did I have a choice of licenses to suit different requirements. From your point of view, the mere purchase of the media implied such agreement, but you didn’t keep a copy of the agreement either.
    As long as the perception exists that it is the media that is being sold, while there is a buried implication of a restricted use license for the content, we will have this kind of standoff. Start offering separate packages for the media and the content, and different use licensing for that content, and this perception starts to disappear. Until then, I will obtain the closest product that matches my requirements, and “adapt it” to fit them.

    This extends into general society as well. Compare the success of iTunes when they used digital locks, and after they removed them. Did the artists make more money or less? Can you estimate how many people were “adapting” their TPM protected iTunes purchases to their needs, that now simply buy them as ready made for their needs? Does iTunes even have a different pricing model for content with and without a “restricted license”?

    Until a viable alternative is available, the marketplace will use whatever is available and adapt it to their requirements. Smart businesses will adjust to the marketplace. Others may attempt to restrict or mold it to “their vision” of what it should be. History has proven which is the more successful approach.

  43. Grand theft
    I see: the thieves are not thieves but “Merry Men” dressed in Lincoln-green and running about Sherwood forest. Convenient rationalization, what?

    Respectfully, your tights are a little too tight.

  44. to Un-Trusted
    Most of us had some mentor with a grounded moral compass who said: were 99 citizens to loot the corner baker, the 100th person to do so would still be a thief.

    It is a self-serving canard to argue that a “necessity” to change media formats exists, or ever existed, to justify theft. For example: I own The Beatles’ Sgt. Peppers album on three formats: vinyl, cassette tape, and CD, each format having been purchased in that sequence over 30 years.

    In no instance of format-change did any industry big-wig place a gun to anyone’s temple and say: “buy it again on the new format!” The vinyl Sgt. Peppers still plays today, and well. Changing the format to cassette was always a matter of one’s convenience: a tape could be stored more easily, and be played through a home stereo receiver, or in a car, or on a Walkman; CDs were a more convenient format still. Everyone who changed media formats did so by choice.

    Significantly, at no point in the succession of media upgrades was any user of content conferred with any ‘rights’ per se — beyond the sense of what is today commonly called a ‘license to use’. The analog or digital content stored on the medium conferred to a purchaser no rights beyond usage under terms and conditions established by the content owner; ‘ownership’ of content remained with (British) Apple, Michael Jackson, EMI and so on. Furthermore, use of the content for commercial purposes (by users) was strictly proscribed against, throughout all media format upgrades, except when owners of content were compensated by a payment to SOCAN (in Canada) and other agencies as appropriate. Finally, a fact invisible to most users (in Canada) was that the very real proscription against copying was not enforced — recognizing that because could theft not be prevented theft was inevitable – offset by a negotiated a fee charged on every cassette tape sold that compensated the (true) content owners. Note: even then the users of the cassette did not own the content; the (true) owners of the content, who were not the users, still retained all rights of ownership.

  45. Blaze
    Blaze: if that’s what the clerk said, they were wrong. You purchased a ‘license to use’, and should read the fine print of the terms and conditions under which you may use that license.

    PS. don’t use cash, it’s more difficult to audit in an honest transaction e.g. B. Mulroney, Karl Heinz Schreiber et al.

  46. Un-Trusted Computing says:

    Practical applications of morality…
    “Most of us had some mentor with a grounded moral compass…”

    I would certainly hope that if I had a mentor of any type s/he would have enough common sense to advise me against paying for the same product multiple times.

    As far as media upgrades not being guaranteed, I guess we’ll have to agree to disagree… I really could not be made to feel any guilt over format shifting, and I hope the rest of the population feels the same.

    As far as conveyed “rights” are concerned; my opinion is as such: I bought it, I own it, the end… it will go from my turntable to my Walkman(tm) and to my iPod and so on and so forth, until I can’t stand to listen to it anymore.

    A law that prevents me from doing so, is simply an unjust law. You can try and establish as much content control as you see fit, but the reality is that technology will be ten steps ahead of you.

    Either way, you either get the status quo, or you get less detectable version thereof, leaving you with an even more opaque market than you started with.

  47. @LW Naylor
    …”Significantly, at no point in the succession of media upgrades was any user of content conferred with any ‘rights’ per se — beyond the sense of what is today commonly called a ‘license to use’.”

    And this addresses part of the issues in the ongoing debate around TPM measures within copyright. It is no longer a succession of upgrades once per decade or so, it is a proliferation of a wide variety of media devices. At one time customers could tolerate occasionally repurchasing the media with the same content. In today’s world such a situation could happen 2 or 3 times a year. It is no longer tolerable, or technically necessary to tolerate it.
    They want the “right” to format shift that content to the device of their choosing, when they choose. If the industry won’t “allow” them those choices, they will simply do so anyway and advocate for changes to copyright laws and exceptions to give them that “right”.

    Keep in mind their use of that content is defined by copyright laws, not property laws. They aren’t attempting to steal anything, they are simply trying to use their choices in content in a reasonable and rational manner within their modern lifestyle.

    The easiest way to make enemies out of your customers is to impose unreasonable and onerous conditions on them. If they have a choice, they will go elsewhere. Without a choice they will ignore you or fight you. The industry is currently getting a taste of both.

  48. Divine morals supersede Supreme Court
    > Respectfully, your tights are a little too tight.

    hahaha
    Once again I find it hilarious how you decided not to address my points and just resort to ad hominems.

    Again, in the cassette days, people copied songs from radio and distributed them to their friends ad infinitum, while the music cartel knew about it and Encouraged it. Now with the internet, it’s widely seen in public where the cassette distribution was really difficult to see. So, how can an activity of the past was moral, but not moral now? Are you really saying eating was moral in the past, but not now?

    Again, the Supreme Court of Canada and the lower courts have ruled fair dealing is inalienable in Copyright Law. Who are you to tell me your morals supersede the Supreme Court of Canada and other court Justices? Are you divine and your morals are thus divine also? But hey, the CBC and others have trashed creators’ Moral Rights by not showing credits properly, and you’re all fine with that. Do you care anything for authors?

    What you call “theft” in Copyright Law is really Infringement. Repeat after me, there is no “stealing”, “theft”, or “piracy” in Copyright Law; there’s only Infringement. Your persistence in using “theft” to describe copyright violations are deceptive, disrespectful, and disgraceful. Keep flaunting your scholarly vocabulary though, since it doesn’t prove anything in terms of your comprehension of Copyright Law. Keep saying respectfully, it means nothing to me in your context.

    > You purchased a ‘license to use’, and should read the fine print of the terms and conditions under which you may use that license.
    > In no instance of format-change did any industry big-wig place a gun to anyone’s temple and say: “buy it again on the new format!”

    Say what? You want to sell a non-materialized license-to-use, and conveniently and simulatneously want to sell a piece of plastic without any warrantee and without any resale right? Who are you trying to fool? If there was a license that allows slavery upon purchase, it would be illegal. Just because you have ownership of a copyright, you’re not allowed to dictate anything you want in a license; thus, your right to license ends at your dicating to people’s uses of their plastic property.

    > PS. don’t use cash, it’s more difficult to audit in an honest transaction e.g. B. Mulroney, Karl Heinz Schreiber et al.

    Honest transactions do not and never need auditing. I wonder if the entertainment cartels use cash in governments around the world.

    hahaha

  49. To Crockett
    Your ‘nice’ categorization of property rights vs copyrights suggests that, as lawyers go, you’re fired:

    Any copyright is deemed an ‘intangible asset’ under GAAP (generally accepted accounting principles), and must be capitalized on the balance sheet; except for the fact that it is ‘intangible’ a copyright is an asset like any other on the balance sheet e.g. a car. Moreover, a fair value can be assigned to the intangible asset, in several ways, not the least of which is by an open, auditable and legal market transaction, in precisely the manner of purchasing a car. Thus, a copyright is the property of the owner of the balance sheet on which it is capitalized, be they an independent performer or a corporation with shareholders. There is no cloudiness whatsoever between copyrights and property rights.

    Furthermore, a musical or cinematic recording is a ‘work of authorship’. That is to say: not being an idea, nor a procedure, nor a process, nor a system, nor a method of operation, nor any concept nor principle, nor a discovery, the musical or cinematic recording can be copyrighted and capitalized as an intangible asset after having been attributed a fair market value.

    One can refuse to acknowledge they are one of Ali Baba’s Forty Thieves, and regard oneself instead to be one of Robin Hood’s merry men all they like. The point remains: steal an intangible ‘work or authorship’ and you rob to give, not to the poor, but to yourself. And, that is immoral in the ‘biblical’ sense.

    PS. The Bible deals with copyright law, you say? Really?

  50. To all of Ali Baba’s thieves …
    … likewise, all the ‘Merry Men of Sherwood’. There are simply too many threads now to deal with, the thieves being thick as they are.

    Thus, I will respectfully disengage for now, until the good doctor posts some other chicanery captured in mainstream media — in the not too distant future, I have no doubt.

  51. @LW Naylor
    …”Any copyright is deemed an ‘intangible asset’ under GAAP”

    Yes, a copyright to content is covered under property law.
    But the content is not. Various rights to the content are what copyright laws define.

    This might seem like subtle difference (it isn’t), but it leads you to a conclusion that copyright infringement is theft. It is not. The attitude engendered by that conclusion is sprinkled all through your arguments. In that sense you are basing your whole argument on a false premise.

  52. Thieves are we?
    Even the law does not count copyright infringement as theft, yet you seem to have placed yourself above the law? I would take offence at that if it weren’t so ridiculous. And perhaps LW leaves us as her arguments are exhausted past the point of calling an apple an orange.

    I think the whole thread can be summed up simply; content owners (most) want to maximize profits over and over again on the same work by repackaging it (physically or digitally). In some cases that that is valid while in others it is seen by the vast majority of consumers as greedy and unfair, thus unsustainable.

    The content industry can stamp, storm and turn blue in the face, but just because they want people to see the things their way will not necessarily make it so. To try and pull out the high morality card is laughable with the documented tactics of ‘creative’ accounting they use in both tax and contract law (eg. movie studio ‘loss’ balance sheets and not fully compensating Canadian artists).

    As I started in my original post, people just want to be treated fairly. Werther you like it or not, the content industry’s current business models do not sit well with most consumers, which is why there is such a large amount of infringement. Business is there to serve the consumer, not the other way around. If you disagree with that, well too bad because there are more of us. If you agree then you should be putting out products that people want to purchase and use.

    This isn’t rocket science, I fail to understand why there is such resistance to change other than they see the golden goose no longer laying her eggs. It will matter not in the long run as the momentum is (as always) on the side of the consumer and businesses that fail to adapt will be pushed out of the way by those that can. Litigation and graft are tools that will slow this process but it inevitable.

    Just like some companies that made horse carriages failed to change their business model to include motorized vehicles, the ability to move with change and innovation will determine the winners. It doesn’t have to be the newcomers that succeed, but too often it is the established that sit on past accomplishments who fail to move before it’s too late, to their own loss.

  53. Read the Criminal Code (Theft)
    > likewise, all the ‘Merry Men of Sherwood’. There are simply too many threads now to deal with, the thieves being thick as they are.

    Again, hahahaha
    Ok, don’t reply, but at least read these for yourself and get a really good comprehension in the concepts of Theft and Infringement. No more pathetic excuses!

    Canadian Copyright Act (INFRINGEMENT)
    http://laws.justice.gc.ca/en/C-42/FullText.html

    Canadian Criminal Code (THEFT)
    http://laws.justice.gc.ca/eng/C-46/page-6.html#anchorbo-ga:l_IX

    The Criminal Code’s Theft section Does Not include any performer’s performance, cinematographic work, music, entertainment, copyright violations, or piracy. The Criminal Code’s Fraud section does have one section prohibiting recording a cinematographic work and/or soundtrack In A Theatre.

    Therefore, your claims of theft in a copyright violation is ridiculous and ludicrous.

    > Thus, a copyright is the property of the owner of the balance sheet on which it is capitalized, be they an independent performer or a corporation with shareholders. There is no cloudiness whatsoever between copyrights and property rights.

    GAAP is a method to convert all things into the common denominator of monetary value. Thus, this means if we add rain, air, or happiness into GAAP, then rain, air, or happiness would somehow be worth a monetary value; however, rain, air, or happiness would not be property rights. Moreover, A DVD is a physical property, so there’s no problem excercising fair dealing with it, like resell it. Please stop your Creative Accounting and stop converting dictionary words, or letters of the Law into your agenda.

    If one buys a copyright content with DRM and C-32 is in force, Grand Theft Copyright begins with the content, and any devices requiring verification in order to play.

    322. (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
    (a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

    You see, I quote the Law, where you quote yourself, but you still insist you’re right; and that is funny, very funny, too funny!!

    hahahahaha


  54. I’m a little late getting back to this. Copyright is not equivalent to a “license to use”. In fact, copyright was created to protect the rights of the consumer, not the copyright holder. Copyright is the right to copy and for the copyright holder to be the sole beneficiary of profit taking related to that work for a given amount of time. Licensing is a differnet issue. When people copy a legally attained song or movie for personal use, they’re breaching the license agreement, NOT copyright. Content holders are trying to muddy the lines between copyright, patent law and licenses to restrict user rights and confuse consumers. As many have echoed, creating a law that few consumers find to be fair, a law that is effectively unenforcible, and most dangerously, a law that most consumers either haven’t heard of or don’t understand WILL backfire on media cartels.

    I have a very large DVD/BD collection and I WILL NOT pay retail prices for rental rights. The same applies to music CDs with TPMs. In fact, the fact that they do not have to label the fact that a TPM was used has driven me away from physical CDs entirely and I buy all my music on-line. At least there, I can ensure content I buy does not have a TPM.

    Most copyright advocates, like LW, do not understand is that in Canada it IS NOT illegal to copy content for personal use. In Canada, we pay a handsome levy per blank CD to “compensate” the music industry. IN FACT, I can borrow a friend’s CD and LEGALLY make a copy of it for myself. If copying becomes primarily illegal, then this levy should go away. It accounts for 10s of millions of dollars annually for the recording industry. If I have no legal right to make multiple copies (i.e. Mixed CDs), then I should have no legal obligation to pay such a levy.

  55. Copyright of DRM
    I find it interesting that they try to extend the copyright laws to protect DRM technologies. DRM is not art. It has nothing to do with copyright. Copyright laws should not even mention it.

    Or better – make them mutually exclusive. Copyright should protect only art in plain DRM-free formats (since they have no other protection). If you want to use DRM (and produce huge inconveniences to established institutions like libraries and archives, not to speak consumers wanting to use them on their device of choice), then DRM should be your sole protection (with no police/law enforcement for such materials).

    Nap.

  56. RE: DRM
    DRM should be part of the license agreement and has no place in copyright. It should be mandatory that if a DRM/TPM tool is used that it must be clearly displayed on packaging to alert consumers…kind of like parental advisory stickers and movie ratings.

  57. wheres my tinfoil hat?
    I’m starting to think that maybe the more…vocal..proponents of copyright law hardening who soapbox on sites like this one are employed by parties interested in said laws becoming, well..harder.
    It wouldn’t be hard to do, would it? hire some of the teeming multitudes of the unemployed in certain countries, give them cue cards and a terminal and tell them to have at it for minimum wage.
    Mark their job description as “marketing”.

  58. Jean-François Mezei says:

    When I buy a CD (or digital music), I buy the rights to listen to the contents of the CD in a personal environment. No public or commercial performances allowed.

    Whether I play that music on a fancy expensive CD player, some portable one, copy it to Itunes and then to some phone/ipod should not matter, as long as I abide by the licence agreement that gives me the right to listen to the music in a private environement.

    No law should impede/prevent an ethical/acceptable practice that is within what the licence given to the consumer when he pays for content.

    If you forbid the copying from a CD to Itunes and from Itunes to some music player/phone, you will essentially be killing the music inustry because nobody will bother buying music if you cannopt put that music on the platform that is most convenient for your lifestyle.