Michael Geist

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Reflecting on the CRTC’s Hate Site Blocking Decision

My weekly Law Bytes column (Toronto Star version, homepage version) looks at last week's flurry of activity over Internet-based hate sites at the CRTC, including the request for an order to permit voluntary blocking and the Commission's decision to deny the request on Friday.

Had the CRTC addressed the substantive questions, the case would have presented an enormously difficult choice. There is little doubt that the content in question is illegal and that Warman faces a serious threat. By directly targeting Warman, the foreign sites have arguably brought themselves within Canada's jurisdiction. Further, by merely asking the CRTC to issue a voluntary order, Warman avoided state-sanctioned censorship and placed the issue in the hands of ISPs.

Despite the good intentions behind the application, however, there remains some cause for concern.

August 28, 2006 — 12 comments — Columns

30 Days of DRM – Day 10: Security Research (Circumvention Rights)

Given the priority currently accorded to security concerns, it is difficult to understand how any government would be willing to undermine security in the name of copyright. That is precisely what has occurred in the United States, however, where computer security researchers have faced a significant chilling effect on their research due to legal threats from the DMCA. The U.S. cases are fairly well known: they include Princeton professor Edward Felten facing a potential suit from the RIAA when he planned to disclose his research findings in identifying the weaknesses of an encryption program and Dmitri Sklyarov, a Russian software programmer, spending a summer in jail after presenting a paper at a conference in Las Vegas that described his company's program that defeated the encryption on the Adobe eReader.

Even more compelling are recent comments from Professor Felten at a conference at the University of Michigan.

August 28, 2006 — 2 comments — News

30 Days of DRM – Day 09: Reverse Engineering (Circumvention Rights)

The inclusion of a reverse engineering circumvention right is another obvious necessary provision. Reverse engineering is described by the Chilling Effects site as follows:

Reverse engineering is the scientific method of taking something apart in order to figure out how it works. Reverse engineering has been used by innovators to determine a product's structure in order to develop competing or interoperable products. Reverse engineering is also an invaluable teaching tool used by researchers, academics and students in many disciplines, who reverse engineer technology to discover, and learn from, its structure and design.

The need for a reverse engineering provision therefore follows from some of the discussion last week – it is pro-competitive as it facilitates the creation of compatible devices as well as greater competition in the marketplace.
While there may be general agreement on the need for a reverse engineering provision, it is essential that Canada avoid the U.S. DMCA approach which has been widely criticized for being too limited in scope and thus woefully ineffective.

August 27, 2006 — 6 comments — News

EU Pushes Forward with Digitization Program

Peter Suber reports that the EU has taken another step forward with its ambitious digitization program. Where is a much-needed Canadian strategy backed by government support?

August 27, 2006 — 1 comment — News

30 Days of DRM – Day 08: Privacy (Circumvention Rights)

Today's post kicks off the heart of the 30 Days of DRM series – circumvention rights. Circumvention rights are necessary since everyone agrees that an absolute anti-circumvention provision (ie. circumvention prohibited in all circumstances) is unworkable. There are instances where such a prohibition would result in significant costs by precluding beneficial activities, creating "unintended consequences", and lead to significant harm to the public. Indeed, the DMCA itself includes several narrow exceptions to the general anti-circumvention rule.

The approach in Bill C-60 was to limit (the government believed eliminate) the need for circumvention rights by creating a direct link between circumvention and copyright. Bill C-60 only made it an offence to circumvent a technological measure for the purposes of copyright infringement. In other words, if you had another purpose – for example, protecting your personal privacy – the anti-circumvention provision would not be triggered.

If the new copyright bill adopts a U.S. style approach, then a crucial part of the discussion will be whether the government has identified all the necessary rights to limit the harms associated with anti-circumvention legislation. While these rights might be characterized by some as exceptions, I think they are more appropriately viewed as circumvention rights, analogous to the Supreme Court of Canada's emphasis on user rights.

Privacy protection is an obvious example of a circumvention right.

August 26, 2006 — 1 comment — News