Must Reads

“When copyright Bill C-32 passes, I will automatically become a criminal”

Heather Mallick’s must-read column on Bill C-32 and the impact of the digital lock provisions.

29 Comments

  1. I know you are very concerned about accuracy in reporting on C32, so can we assume that in your role as legal expert and professor you will be correcting Ms. Mallick, and explaining there are no criminal penalties for personal use after circumvention?

    In other words, she would NOT become a criminal.

    Seems like an important distinction for a law professor to care about.


  2. So there’s no penalties for personal use. What the hell does that matter if the circumvention itself is illegal?!!

    Your butt must be hurting Degen. I suggest you take your head out of it.

  3. Degan,

    Does the ‘current’ version of the bill say that it is a crime to circumvent DRM no exceptions?
    And if it does not say this please explain where it says this.

  4. right gotta start proof reading:
    “And if it does not say this please explain where it says this.”

    I mean please indicate where it says that it is not always a crime to circumvent DRM.

  5. Harvard P Stanford says:

    No Correction Needed
    John, Ms Mallick will not be correcting this piece nor will there any need for Geist to direct any of his legal expertise or his professorial prowess her way. Although, one caveat for you, you are correct in your wording, “there are no criminal penalties for personal use AFTER circumvention.” However, as we all know, Bill C-32 explicitly makes the act of circumvention a criminal act. So yes, if/when C-32 passes in its current form, and Ms Mallick breaks a digital lock on her PAL DVD to convert it to NTSC, she will have triggered the criminal provisions of the Bill and its anti-circumvention clause(s).

  6. Sorry folks, as James Gannon points out on his blog:

    http://jamesgannon.ca/2010/11/09/tpms-a-comprehensive-guide-for-canadian-copyright-law/

    “Large-scale, commercial and purposeful infringement of TPMs is punishable as a criminal offense (s.42(3.1)), except for libraries, archives, museums or educational institutions.”

    That’s the point of the protection, and you can see the spirit of the law in every part of circumvention that is either explicitly excused or not targeted with criminal penalties.

    As I said above, that’s an important distinction. To purposefully ignore that distinction is, what would you call it?, “circumvention” of the truth.

  7. Harvard P Stanford says:

    John, apology accepted, thanks.

    However, as the Governemtn points out on their website:

    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;

    The digital locks provisions of the Bill trump all acts of circumvention EVEN if explicitly excused or not targeted in other areas of the Bill. I am by no means purposefully ignoring this distinction, I am just presenting the Bill as it stands now. Is there some cryptic wording in the Bill I am missing? If the digital locks provisions do not trump all other explicitly excused actions, please enlighten me John.

  8. Harvard
    Seems we were on the same page. I’d like to add the fact that sections 29.22, 29.23, 29.24, which deal with private copying, each mention that circumventing TPM makes the copy illegal, the text of each subsection includes this (or a very similarly worded) section.

    “the individual, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented;”

    There’s still no clear way to do anything legally this bill “grants” us if a TPM is in use.

  9. Harvard,

    Perhaps it’s time to go back to one of your two schools. The answer is in the educational content I freely provided you by linking to James Gannon’s blog:

    •A technological protection measure (TPM) is a device that a copyright holder uses to (A) control access to a creative work or (B) prevent copying of a creative work (s.41)

    •It is an infringement of copyright to circumvent a TPM, but only if it restricts access to a work as in (A) above. There is no restriction on the act a circumventing a copy-control TPM under the definition of (B) above (s.41.1(1)(a)).

    So, indeed TPMs do not “trump” all acts of circumvention.

    I understand the confusion over this question. There are intentional confusers afoot. Some of them very close by (he whispered, using his eyes to point to the top left corner of the page).

  10. @Degen
    Region coding is access control. It is intended to prevent someone from viewing a DVD that was not intended for sale in their part of the world. It has nothing to do with copy control. Therefore she would be illegally circumventing a TPM.

  11. @Degen (continued)
    yep, “intentional confusers afoot” indeed. Agreed, very close by.

  12. @JD
    “•It is an infringement of copyright to circumvent a TPM, but only if it restricts access to a work as in (A) above. There is no restriction on the act a circumventing a copy-control TPM under the definition of (B) above (s.41.1(1)(a)). ”

    Well, thanks for that John. I really was worried for a second. I feel much better now.

    So tell me what TPMs does the industry use that only restricts (B) copying of a work, but not (A) access to the work?

    What? They all restrict access? Even the ones that restrict copying also? So really this is a meaningless differentiation. I see. I guess I can go back to being worried again.

    Thanks again John

  13. @Degan
    Could you perhaps comment on the sections I posted? As you suggest I may just be confused but it seems quite clear under section 41 that any lawful copying I am granted by this bill is only granted on condition that no TPMs are broken.

    Please explain to me how I am mistaken.

  14. Gosh, I don’t know Darryl — I seem to be able to access my Kobo e-books as much and as often as I want. Funny thing — can’t copy them.

    Guess this is the latest “fact” about “the industry” you’ve gotten wrong.

    I’ve asked you before, but now seems like a good time to ask again. Do you EVER get tired of being wrong?


  15. “Gosh, I don’t know Darryl — I seem to be able to access my Kobo e-books as much and as often as I want. Funny thing — can’t copy them.”

    Good for you. If you are in love with locked down content, then by all means delve yourself in it. Go out and buy that iPad where Apple chooses what applications you can install. Oh, and when Kobo decides to delete on of your books due to a mistake ala Kindle, you can just go on about how awesome it is. Sorry Degen, but the world doesn’t agree with you.


  16. Oh, and I give a short period of time before somebody discovers how to copy content off the Kobo, thus making its DRM provisions a complete and utter waste of time.


  17. Oh, and Degen, did you ever think about the effects this law could have on issues regarding Trusted Computing among many other things? Or in regards to the damage that DRM can cause to a computer? I think it is time you stop thinking in your 2-D short-term world and start thinking about the longer-term repercussions.

  18. @JD
    John, that would be wrong about what exactly? The DRM on your Kobo restricts BOTH your access any your ability to copy it.

    From the kobo website:

    http://www.kobobooks.com/companyinfo/authorsnpublishers.html

    “As an author or publisher you’ll receive a competitive vendor commission based upon your suggested retail price for every sale made on Kobo. In addition you’ll determine how many chapters you’d like to offer for free and whether you’d like to generate additional revenue by having ads run alongside your work. Hoping to get some extra eyeballs on a particular title? Why not offer it for free for a week (or month) and have it appear on our Free Books list. Self-published author? We’ll treat you like a publisher too!”

    So it controls access. and….

    “Kobo supports Digital Rights Management capable of preventing unauthorized use, copying, sharing, or printing of your works. ”

    It controls copying too.

    Therefore you cannot circumvent (B) without also circumventing (A) and also breaking the law.

    You are trying to tell us that the legal restrictions are very specific on only one type of lock. I am illustrating to you that such a lock does not exist in issolation. It is actually an integral part of all the other locks, so your differenciations is completely meaningless.

    Do you get it yet????

  19. @Degan
    Could you please reply to my question? I’d really like to know how I’m misreading the text of C-32.

  20. RE: Darryl
    “Do you get it yet????”

    I don’t think he will ever get it. His attitude suggests that he takes the technology at face value only. “Since I can access a book, that means I have unrestricted access!” – As Darryl shows, that is not the case, since your access can be restricted. So I guess Degen thinks that having legally-bought but region-restricted content that you can only watch in Europe has “unrestricted” access as well. Again Degen, you are think two-dimensionally and in the short-term.

  21. Joe,

    The sections and clauses of the bill interact with each other. You can’t take one section and make a universal out of it. Read James Gannon, as I’ve mentioned. I can’t do your work for you.

    Darryl, Eric L., again you are asking for everything, instead of just the one thing you purport to be asking for. The complaint against the TPM protection in C-32 is that it criminalizes private circumventions for copying. But it doesn’t do that.

    Kobo doesn’t want you to break it’s copying DRM, but as someone else mentioned, it’s probably already broken, and as long as you don’t illegally fileshare the file you’ve broken into, you have no worries of criminal prosecution. Seems like a ridiculous way to treat a good-faith vendor to me, but you’re not me (clearly).

    You also want unlimited access, and here the copyright act and new bill should stand strong (in my opinion). How does Kobo sign agreements with publishers and authors for content delivery if it cannot protect access? How does a Creative Commons oriented distributor protect licensing agreements without some legal protection.

    I’m not confusing copying and access at all — you are expecting the two to merge in the law, and they shouldn’t if we actually care about a functioning cultural sector. And please don’t link me to Russell’s article about access control in copyright. The world changes; our laws change with it. Get over it.

  22. “as long as you don’t illegally fileshare the file you’ve broken into, you have no worries of criminal prosecution.”

    John, how exactly do you figure this? The locks on the kodo protect BOTH copying and access, therefore to circumvent for the purpose of copying, you’ve also circumvented to change access. That is clearly illegal by this bill.

    You are most definitely confusing copying and access. I do not expect them to merge in law. By Bill C-32 they obviously will not be. They are however merged in reality, which means that the fact that they are not merged in law is utterly irrelevant.

  23. @Darryl Thanks for that last post, it clears things up for me as I was confused with the difference between copying and access as they seemed very much intertwined.

    @Degan Thanks for your help but I think I’ll be disagreeing with yourself and this James Gannon fellow.

  24. Joe,

    James and I will be getting together for a drink later to mourn the loss of your agreement.

    Darryl — I cannot help it if you want to believe the worst about every good faith attempt to reform our laws. This is a choice you seem to have made a very long time ago.

  25. “I will be getting together for a drink later to mourn the loss of your agreement.”

    Does that mean that you’ve fallen apart? It seems to be just you ‘getting together’.

    “I cannot help it if you want to believe the worst about every good faith attempt to reform our laws.”

    Is that really the best rebuttal you can offer? Does this mean then that you concede that the legal differentiation between two different digital locks really is nothing more than a charade to make the extreme legal protections being offer more palatable to the objectors?

    I’ll happily take the label of ‘faithless’, or even ‘spoil sport’, if you are conceding this point.

  26. @Degan
    Please enjoy your get together, Mr. Gannon certainly owes you a drink for the constant trumpeting of his blog.

    @Darryl
    Sticking with the classy drink talk, I’ll have a beer with you any day. We can watch DVDs on a Linux box or something.

  27. RE: Degen
    Here’s some food for thought Degen: Apple stated that attempting to run Mac OS X on a non-Apple labeled computer would be a violation of the anti-circumvention provisions of the DMCA. Even though I could go out now and buy a perfectly legitimate boxed-copy of Mac OS X, it would still be circumventing a TPM to run it on my non-Apple computer. As Geist stated already a billion times, the Canada DRM/Anti-circumvention provisions go even farther than the ones in the DMCA.

    Do you get it now? Regardless of what the law says, corporation have been successful in distorting anti-circumvention laws in this way. I guess you think that all corporations are honest and and not deceitful.

  28. Wow so I might end up being a criminal in a few weeks time, awesome! Chicks dig bad boys.
    I have a very large library of copied PC games, all of which I still own the original, however the DRM on the games made within the past ten years all require the original disc to work. So I had to acquire modified EXE files for the games so I could run the copied versions and ensure that the originals stayed immaculate.

    DRM is a digital lock that controls access, by using a modified program to play the games I own legitimately I can go to jail because I am circumventing that lock. Wow great to see this bill was so well thought out.

  29. No distinction between TPMs (DRM)
    John (Degen),

    While the definition for TPMs in S41 does indeed consist of two parts (your A and B), they are never referred to separately. They are taken together (as a logical OR statement) as the definition of TPM in the bill.

    In each of the anti-circumvention clauses, there is not any mention of components of the definition of TPM. It simply refers to the collective definition, which includes both “types” of TPM (though there is no practical difference between them anyway).

    While the definition may have two “parts,” they are never used individually, only collectively.

    Stop lying to people by trying to convince them “some kinds of” circumvention is not punishable.

    It’s dishonest and you know it.