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Behind the Scenes of Bill C-32: The Complete Ministerial Q & A

  • C-32′s consumer exceptions and digital locks: the response comes clean that the government is indeed adopting an approach where digital locks trump consumer rights. The government justifies its approach with the refrain that consumers can decide whether or not they want to buy products with digital locks [which is inaccurate for some students who are required to purchase digitally-locked books for their courses].
  • C-32 digital lock rules going far beyond what is required by the WIPO Internet treaties: the government does not dispute this and has no answer other than to say it believes the bill represents good policy.
  • C-32 digital lock rules and permitting circumvention for non-infringing purposes: the government does not have a direct response, choosing instead to talk about protecting jobs and a limited number of exceptions. [The response doesn't actually address why non-infringing purposes, which mean the intended use is legal, shouldn't qualify for an exception.]
  • C-32 digital locks rule exceptions not in-line with U.S. exceptions: the government response is that the Canadian market is different. [This is correct, which is precisely why the DMCA approach on digital locks is inappropriate.  Moreover, the question fails to note that the U.S. permits circumvention of DVDs in some circumstances, whereas the Bill c-32 did not.]
  • Doesn’t C-32 create exceptions that mean “anything goes”?: the government response notes that the overwhelming majority of Canadians are law abiding and will follow the rules. [While this response addresses exceptions, that view is precisely why the digital lock rules - which presume that no one is law abiding and therefore the lock trumps virtually all rights - gets it wrong.]
  • The YouTube remix exception: the government does a nice job explaining why it is needed and how it features important built-in safeguards to prevent misuse. [Interestingly, the government reiterates its view that Canadians are law abiding here too.]
  • Fair dealing for education: the government response reiterates the reality that “fair dealing is not a blank cheque” and is even broader in other countries
  • The “book burning” provisions that require the destruction of course materials after 30 days: the government argues that destruction of materials “are an essential part of the balance.”
  • Will the bill allow for suits against individuals for large amounts like in the U.S.?: The government says the bill is designed to ensure Canadians will not face disproportionate penalties for infringement. [The Hurt Locker lawsuits demonstate the bill does not go far enough in order to achieve this objective.]
  • Why has Canada caved to US pressure?: The government notes differences from U.S. law including one digital lock exception, notice-and-notice for ISPs, and statutory damages reform. [The Wikileaks cables obviously tell a much different story]
  • Will C-32 get us off the US Piracy Watch list? The government gets this one exactly right – “Canada does not recognize the validity of the Special 301 process and considers it to be flawed. The Report does not employ a clear methodology in its country ranking, as it relies on industry allegations rather than empirical evidence and analysis.”
  • Do the C-32 exceptions meet the Berne Convention requirements?: The government says yes.

Coming tomorrow: a 150 page clause-by-clause internal analysis of Bill C-32, also obtained under Access to Information. c32ministerqanda

37 Comments

  1. With C-32 and the omnibus crime bill, I’ve decided it’s time to join the Tor (or similar) network. I hope others do the same.

    I hope that in several years the government finds most of the Canadian populace is interacting with the internet in an anonymous way, so that they are forced to either accept and respect anonymity, or make it illegal.

    Things clearly have to get a lot worse before they get better.

  2. People will stop being law abiding when their ability to do what they want with their DVDs (and other locked media) goes away*. Why? Because the bill is not going to change consumer habits no matter how much people try to stop the world from changing with laws that no one respects.

    *By this I mean the ability to back up or put their DVDs on to other forms of media. Making it illegal isn’t going to stop it from happening, it’s just going to change most people to breaking the law.

    And the “if they don’t want it, they don’t buy it” also only works if the items are actually ever sold without it, which movie media from the DVD on is not.

    The bill is so out of touch with reality on the digital lock provisions that no one is actually ever going to really follow it. The fact that the government doesn’t realise this makes me think that they shouldn’t be passing laws.

  3. @ki
    Wouldn’t a significant portion of the Conservative voter-base would be negatively affected by this law if enforced? In other words, if they actually enforce the law with any significant degree of aggression then their political future is bleak, is it not?

    At best this law will be a symbolic gesture to the US with no real teeth behind it. At worst… well… see my previous post.

  4. It’s the age-old story. Most people want to do what’s right and most people want to do what’s easy. Where the two conflict, most people will do what’s easy rather than what’s right. So, make it easy to do what’s right and you’ll have most people cooperating.

    If the gov’t truly believes most citizens are law-abiding and will do the right thing, then why is it an issue to have TPM that trumps otherwise rightful use? Apparently neither the gov’t nor the industry associations “get” this concept.

  5. “The government justifies its approach (with regards to digital locks) with the refrain that consumers can decide whether or not they want to buy products with digital locks”

    This is all very well and good, but is is *WHOLLY* dependant upon the available of alternative or unlocked works in the first place. The impetus that C-32 gives content producers to actually utilize digital locks by offering them a promise of additional control they would not otherwise have would be sufficient to guarantee that the availability of alternative and unlocked works in the future will diminish to nearly zero, and the so-called fair dealing provisions in C-32 rendered entirely moot

  6. This proves it
    Guess we really are owned by the US. All harpers future policies are the failed american policies. harper is just a puppet for the US

  7. Mark is on point.

    You cannot buy, for example, unlocked movies on DVD — they are all protected by CSS (Content Scrambling System).

    Circumventing the CSS — for example, by playing a movie you purchased in Australia at your home in Ottawa on your Linux computer — is illegal under the US DMCA, and patently stupid. You have paid for the movie, you should be allowed to watch it.

    The Canadian Government should not be trying to prop up a failing American content industry. Instead, they should be working with Canadian content creators to figure out how to earn a fair income in the digital economy.

  8. Emulating a failed state.
    I agree. The US is turning into a third world country. They will soon be torn up by internal strife as they inevitably turn into Mexico. China on the other hand has little or no rules and thumbs their nose at American intervention into their internal affairs. Corporations running States has a name doesn’t it. Let’s try to be more like Europe.

  9. digital locks
    With the digital locks mechanism, it basically locks you into the original provider of the digital material. Most people in Canada that buy digital tv shows do so through iTunes because it’s the only place you can buy TV shows. If you want to start buying them from another company in the future, it means you lose everything you bought in the past from Apple or you have to run two systems to play TV shows.. so basically you guarantee the big players stay big and the small players can’t enter the market on equal grounds.

  10. Look, my lips didn’t move …
    @James Moore “Canada does not recognize the validity of the Special 301 process and considers it to be flawed.”

    So …. it’s OK for Canadian politicians to disingenuously ask the USA to use a flawed invalid process to make force through their own policies?

    For those not following the wikileaks, the Canadian Conservative government asked the USA to put Canada on the Special 301 list to MAKE CANADA LOOK BAD so they could have an easier time passing C-32.

    Yikes! And we are supposed to trust them that these laws are for our own good?

    Laws that are perceived to be unfair and even ‘bought’ will not be respected and likely not followed by many. This legislation, if left unchanged, will sadly be a step back for copyright and a healthy functioning media marketplace.

  11. @Ki
    Well personally, I’m not as bothered about my ability to back-up DVDs as I am about my ability to *watch* them. These are DVDs that I brought with me when I immigrated, so they’re not region 1.
    And of course I don’t have the option to not buy them, because they’re already bought and paid for.

  12. anonymous forever says:

    for DaveGravy – There’s a lot more than Tor
    There are anonymizing services, proxies, email and web forwarders, virtual private networks, usenet, freenet, encrypted peer-to-peer, libraries, public wi-fi, mesh networks, or any one of many other such technologies to come.

    This lawyer makes it clear that if you try you CAN be anoymous:
    http://blog.privacylawyer.ca/2011/09/how-lawful-access-may-backfire.html

  13. Thanks for releasing this — but could you please refrain from using scribd to host documents?
    It is an annoying service which adds no value to the Internet. Just put the PDF up on a DropBox public share or something.. there is no good reason why anyone should have to login just to download a publically-released document.

  14. Will installing Linux on new machines soon be illegal?
    Here is an interesting story from Slashdot, illustrating how digital locks may possibly affect us in future. If these proposed technical measures by Microsoft are indeed considered as ‘digital locks’ under C-32, then it may be illegal to put the Linux operating system on hardware which you have legitimately bought and paid for.

    [blockquote] “Windows 8 PCs will use the next-generation booting specification known as Unified Extensible Firmware Interface (UEFI). In fact, Windows 8 logo devices will be required to use the secure boot portion of the new spec. Secure UEFI is intended to thwart rootkit infections by using PKI authentication before allowing executables or drivers to be loaded onto the device. Problem is, unless the device manufacturer gives a key to the device owner, it can also be used to keep the PC’s owner from wiping out the current OS and installing another option, such as Linux.”
    [/blockquote]

    http://linux.slashdot.org/story/11/09/21/062231/How-Microsoft-Can-Lock-Linux-Off-Windows-8-PCs

  15. Michael Geist says:

    @Russ
    The post includes a link to the document on my own site as well as a Scribd version. The Scribd embed is convenient for those that don’t want to download the full document. However, those that want it without logging into Scribd are able to do so.

    MG

  16. Thank’s Michael
    Hey Michael,

    Thanks a lot for keeping us informed. What you’re doing here is invaluable and truly an asset to Canada.

    Your time writing, researching and communicating what is going on is deeply appreciated.

    Sincerely,
    Canada

  17. anonymous forever says:

    Thanks Michael
    Seconded.

    When the common man comes to understand the implications for free speech, free markets, and for democracy, I will expect that you will be awarded a Nobel prize for this blog.

    You are a hero.

  18. Well, time to have a chat with my MP again. I seem to have a sit-in meeting with him every time copyright comes up, and he’s always surprised at what his government is trying to pass.

  19. It just goes to show how corrupt our political system is..
    …policies seem to be created to allow some party to profit, rather than for the betterment of Canadians.

  20. R. Bassett Jr. says:

    What a load of crap – but did we really expect anything else?
    “The government justifies its approach (with regards to digital locks) with the refrain that consumers can decide whether or not they want to buy products with digital locks”

    Mark said: “This is all very well and good, but is is *WHOLLY* dependent upon the available of alternative or unlocked works in the first place.”

    Indeed, Mark.

    Personally, I await the day that the big media companies use the patent/copyright trolling system to make simply independently created media illegal. What better way to force people to buy your digitally locked garbage than to make everything else illegal?

    Sadly, this will happen.

    From the “Innovation Stifling System” (patents) to the “Who Needs Merit When You Just Make a Legal Monopoly System” (copyright), laws are created to protect nothing more than the pocketbooks of the already rich and lazy leeches of our society. It’s all such a load of crap.

    You know what, if your product can’t compete based on its own merits, then you should face the reality that your product sucks and that other companies can obviously fill that need better than you. I don’t see why we should all be expected to happily sit back and accept mediocrity, simply because the rich few want to be richer [by expending the least possible effort]. If you can’t be bothered to make a quality product, don’t expect everyone to give you a free lunch by buying your junk.

    Alas, there is obviously no reasoning with our elected representatives. They will do what they want, regardless of how their constituents feel about it.

    So, go ahead and add your digital locks. Give the uncaring corporations control over Canadian society and enjoy the pathetic excuse for a country your stupidity will create. I’ll be sure to remind you how fantastic your new society is when you’re begging me to help get out of it – that’s right, I sure as hell am not going to stay in this “New Canada” you idiots (those in favor of making Canada a corporate state, by way of these anti-citizen “laws” – laws in quotes, because nonobjective, amoral rules should not be confused with the moral compass that laws to provide) obviously want to create. In fact, don’t bother coming to me crying about your mistakes – it’s not like millions of people haven’t already taken the time to help you make the right choices BEFORE you make the wrong ones.

    Now if you’ll pardon me, I must determine if this Earth still has a sensible sovereign nation that my family can live in, in peace not in servitude to the whims of faceless corporations [who often times have placed money ahead of the value of a human life].

  21. R. Bassett Jr. says:

    “Well, time to have a chat with my MP again.”
    I’m still waiting for a reply from letters I sent to my MP about this issue in 2008. He’s still there and he still just couldn’t care less I suppose. It really makes a person feel that our political system is fundamentally broken when our representatives don’t seem to be interested in actually representing (or even listening to) us…

  22. Canada owned by the US??
    How can people sit here and claim that the US owns Canada. Nonsense. WE own Canada, but we need to be more careful who put in a position of power.

    In layman’s terms: DO NOT VOTE CONSERVATIVE and DO NOT VOTE LIBERAL and make sure to tell them why.

    Wouldn’t it be nice to get a few Pirate Party MPs?

  23. to anonymous forever
    When the common man comes to understand the implications for free speech, free markets, and for democracy, it will already be too late…

  24. Byte: Not voting conservative in the next election will do nothing to stop this bill from passing, and once passed, it will not be as easy as having a different government majority next election to get it revoked.

    For what it’s worth, and from what I know, the Conservatives are the only party supporting this bill. All the other ones want changes made to it of greater or lesser degree before it is passed… even the liberals. With a majority government, however, the conservatives can pass this into law in the face of unanimous objection from every other party.

  25. Kirk Bannister says:

    ……
    As much as I am forced to agree with you @ someone very Angry, I wouldnt be saying stuff like that online. I am just like you, am tired of the government taking away our rights, they are always protecting the rich, and never to middle class and poor. It is cause of all the back door bribes they receive and we cant do anything about it. I am soo tired of this copyright bill getting redone and re-tabled that I could freak out on the government right about now. Shaw Cable said that if this comes to pass, they will probably be the only company in canada to not give into demands of the government/RCMP and Rat people out as that would mean they would lose money and customers. I am sure if we look hard enough, somewhere in Bill C-32, there is going to be something that is going to interfere with our Privacy laws and it is going to make the government look like kindergarten children.

    I just cant stand this anymore, why cant the government start listening to the common people that vote them in, rather than the rich, and the governments of other countries, and have them enforce laws on us that hold no canadian values what so ever.

    I MIGHT just start hacking Modems too just to protect my privacy and others as well, just to be on the safeside, considering there is no law against that in canada, and I have checked. Its nice having a lawyer in my family. Even Bill c-32 doesnt protect that.

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  27. Another thing that the government has utterly failed to address is, IMO, a critical weakness of this bill, and that is that it will cause millions of Canadians who aren’t even infringing on copyright (since copies that satisfy the provisions of fair dealing are exempt from copyright infringement) will end up breaking the law when they conclude for themselves (and they will) that the provisions of this bill are unfair (assuming they even know about it), and will simply proceed to ignore them. Why should a consumer care that a copyright holder has only chosen to let them format shift their music to an iPod when they are using a different type of music player, for example? To the consumer, it’s going to seem like the same thing, and the fact that the consumer is going to have to break some digital locks to accomplish their intention is not likely to discourage many people from engaging in what, to them, is going to look like a perfectly reasonable act. So even if they know about the bill itself, they will conclude that the bill is simply a stupid law that should be ignored. This bill is so spectacularly unenforceable that it is almost entirely GUARANTEED to diminish the value of copyright, rather than preserve it. Publishers will face increasing obligations to rely on digital protections for their works rather than utilize copyright alone to protect their interests, reducing the availability of unlocked works, limiting consumer choice, and rendering any fair dealing provisions entirely moot – the exact same provisions which the conservatives have insisted are what makes this bill fair for consumers.

  28. Michael, great work!
    I just wish someone held responsible those people who vote for such bills. They should be publicly shamed. It’s about time that digital rights issues become a big election topic. And for that to happen, the pressure already needs to start building up.

  29. Does the new bill still include a fair use clause for review and criticism?

  30. Re: Mike
    To an extent, but it is trumped by the anti-circumvention provisions.

  31. Re Eric
    So what about a series that reviews tv shows. Fair use?

  32. Don’t wake me up, I’m enjoying this.
    Holy cow, the new BSA study shows Canada is LESS of a ‘piracy haven’ than the USA, 7 countries further down the list as a matter of fact.

    So lets all celebrate as the US government must now, to be fair & honest, list the United States of America on the Special 301 list ;)

    I’m going to enjoy this … well in my dreams at least.

    Heh … I’m still chuckling.

  33. RE: Mike
    “So what about a series that reviews tv shows. Fair use?”

    Well depends on what kind of series. If you mean a TV show, I would guess they would get permission or some sort of license from the media conglomerate to use the footage or have some other arrangement. But I think you are referring to (non-commercial) Internet reviewers. In that case, either they would use absolutely no footage or audio from the TV show, or you find a source of the TV show that isn’t protected by any digital restrictions manager whatsoever. The chances of that are laughable, since even digital broadcasts now often implement some sort of protection.

  34. RE: Crockett
    Considering that the BSA is in itself a pretty shady organization (largely a Microsoft front-end), this only the more incredible.

  35. @Mike: Everything you have questioned about whether it is “fair use” or not is covered under the fair dealings provisions of the bill and therefore is explicitly permitted. If you are curious about the legality of particular acts, please read the text of the bill rather than just asking for each individual case. As a general rule of thumb, if the act was considered fair use in the USA, then it is probably covered under the fair dealing provisions in Canada… Bill C32 extends the fair dealing provisions beyond even the USA’s definition of fair use, and IMO, it’s the single most redeeming quality of this bill. I would encourage anyone who wonders what all is going to be allowed to read the bill.

    However, as Eric has pointed out, there are going to be absolutely *NO* fair dealing provisions when the work is protected by any sort of digital lock. The only copying that is permitted in such cases is what the copyright holder has explicitly allowed. This is the single biggest problem with the bill, and in addition to being in all ways utterly unenforceable, creates a bill that no consumer who wants to make a particular private use copy of a work that the copyright holder had not anticipated will believe is fair.

  36. anticircumvention laws abrogate democracy by permanently opening a back door for unilateral corporate “decree” which bears the force of legilsation, bypassing constitutional provisions that only parliament may legislate.

  37. How many jobs will this cost canada? Considering it’s position as one of few first-world nations left without this abhorrent provision on their law books, I suspect a very large number of circumvention-technology producers and retailers will end up shuttered by this.

    I remember buying the modchip for my xbox from canada.