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    61 Reforms to C-61, Day 24: TPMs - No Exclusion of Non-Infringing Access

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    Thursday July 24, 2008
    Bill C-61's anti-circumvention approach ranks among the broadest of any statute in the world.  One area where it is particularly (over)broad is in its failure to exclude non-infringing access.  Under the current bill, Section 41.1(1) simply states that "no person shall circumvent a technological measure within the meaning of paragraph (a) of the definition of 'technological measure'".  Technological measure "means any effective technology, device or component that, in the ordinary course of its operation controls access to a work. . . "

    By using such a broad approach - any circumvention of any effective access control - the statute prohibits the circumvention of TPMs that have absolutely nothing to do with infringing copying.  The most obvious example of this comes from the region coding found on DVDs and many computer games.  Many DVDs include Macrovision (designed to stop copying a DVD to VHS), Content Scramble System or CSS (the subject of important litigation involving DeCSS, a software program created to allow Linux users to play DVDs since they were otherwise unable to do so due to CSS), and region coding. 

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    61 Reforms to C-61, Day 23: TPMs - No Exception for Obsolete or Broken Digital Locks

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    Wednesday July 23, 2008
    The inclusion of a right to circumvent in the event that the TPM breaks or becomes obsolete should be relatively uncontroversial.  The U.S. Registrar of Copyrights has included a specific exception that addresses this situation since 2000.  The exception reflects the recognition that the continual evolution of technology places the investment that consumers make in entertainment and software products or that libraries make in materials at risk in the event that a TPM ceases to function or becomes obsolete.  While products do not come with a guarantee to function forever, the law should not impair consumers and libraries that seek to circumvent techologies that are no longer supported and thus create a significant barrier to access to their property.

    Despite the obvious, recognized need for such an exception, Bill C-61 does not address the issue.  There is an limited exception for software interoperability, but that provision does not come close address the concerns associated with obsolete or broken TPMs.  Given the frequent changes in technology, it is a question of when, not if, technologies become obsolete.  The Canadian DMCA must anticipate these technological changes by providing a right of circumvention due to obsolete or malfunctioning TPMs.
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    61 Reforms to C-61, Day 22: TPMs - No Exception for Filtering Programs

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    Tuesday July 22, 2008
    As part of the U.S. Copyright Office's DMCA rulemaking procedure (under which it identifies non-infringing uses that are hampered by the DMCA), the Office has twice issued an exemption for circumvention of filtering software programs in order to identify the list of sites included within the program.  Filtering programs can be used to filter or block inappropriate material, yet the same programs have been subject to considerable criticism over concerns that they may be overbroad and block perfectly legitimate material.  The only way for a party to ascertain whether their site is included on the block list is to access the lists contained in the software program, a process that typically requires circumvention.

    In 2000, the Copyright Office found that an exception for filtering programs was needed.  It reaffirmed the decision in 2003.  In 2006, Seth Finklestein, the primary supporter of the "censorware" exception abandoned the fight for another renewal and the exception was dropped.  The same concerns remain, however, which is why a clear exception for the circumvention of filtering programs is needed within Bill C-61. 

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    Prentice and the Pancake Protest

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    Tuesday July 22, 2008
    Maclean's covers the recent Prentice Stampede breakfast and the presence of C-61 protesters.
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