Yesterday's post identified the availability of circumvention devices as a one foundational issue. The second foundational issue is protection against contracts that seek to trump the law by contracting out of the copyright balance or, in the event that anti-circumvention legislation is introduced, statutory circumvention rights. The use of contractual terms to effectively void privacy protection or basic user rights has become all too common with cases such as the Sony rootkit providing a classic example of how contractual terms that quash important legal rights are buried beneath the "I agree" button.
Governments are understandably loath to intervene in privately negotiated contracts. However, not every contract or contractual term is enforceable – there are certain terms (and certain contracts) which run counter to important public policy goals that will often be rendered unenforceable by a sympathetic court. On this particular issue, we should not wait for the courts to intervene. Rather, Canada should identify the core protections and policies that underlie the copyright balance and establish rules that prohibit attempts to "contract out" of such terms.
The copyright lobby will obviously object, arguing that this constitutes an inappropriate intervention into the market. Yet anti-circumvention legislation is also an intervention into the market. I remain steadfast against such legislation (even more so having completed 30 days of discussion), however, if anti-circumvention legislation is to become part of the Canadian legal landscape, then this tradeoff must be part of the bargain. If the copyright lobby wants its anti-circumvention rules, it must also accept statutory limits on the contractual terms associated with their use.