Will The Next Copyright Bill Pass Constitutional Scrutiny?

My colleague Jeremy deBeer has been the leading voice questioning whether anti-circumvention legislation – the legal protection for DRM that is often described as "para-copyright" – is constitutional, given that the potential rules arguably involve property rights (which falls under provincial jurisdiction) far more than traditional copyright (a federal matter).  Interestingly, the same issue has arisen in Australia.  Australia recently amended its copyright law under pressure from the U.S. and a law firm article (reg. required; try bugmenot) quotes High Court Justice Kirby – well known as the author of the Sony v. Stevens decision – as stating that the reforms appear to exceed the Australian federal governments powers.  Moreover, the issue was brought to Kirby's attention by another High Court justice, suggesting that a constitutional challenge may find a sympathetic bench.

This places the spotlight on an interesting dilemma within the Canadian context – the tougher the anti-circumvention provision, the less likely it is to be constitutional.  The government can therefore play it safe by introducing a WIPO-compliant, yet limited provision that can withstand constitutional scrutiny or follow the DCMA route and risk having the full provision declared unconstitutional.  Yet another case of be careful what you wish for since you just might get it.


  1. o/t
    off topic

    Standards Council of Canada Asks for Input about OpenXML

    Microsoft’s proprietary ‘open’ standard is being considered by The Standards Council of Canada (SCC).

    The SCC seems to think “Office Open XML provides a common open standard for word-processing documents, presentations, and spreadsheets that can be freely implemented across multiple applications and platforms.”

    The deadline for comments to the SCC is July 5, 2007.

    SCC press release: [ link ]

    Comment to the SCC: [ link ]

  2. Walter Dnes says:

    One thing I\’ve wondered about is \”modding\” hardware. If you *BUY* a Chevrolet, and give it a custom paint job and boost the horsepower and put in heavy-duty shocks, GM can\’t come after you in the courts. Yet, game-console manufacturers do so in many countries. What is the legal underpinning? If a console is *SOLD*, nothing short of a properly executed \”restrictive coveneant\” (real estate term) should forbid it\’s being modified.

  3. wow powerleveling says:

    The five plaintiffs challenged the statute, known as Megan’s Law, that requires convicted sexual offenders to register their name, home address and other personal information with the local police chief. They alleged the provision of the law authorizing the publication of personal information violated a constitutionally protected privacy right.

    The U.S. Court of Appeals in Philadelphia (3rd Cir.) upheld the constitutionality of the statute, but only after it received assurances that the plaintiffs’ privacy rights would be adequately protected. The assurances came in the form of state attorney general guidelines, which local authorities must follow when enforcing the notification provision of the registration statute.

    The guidelines, promulgated in March, require a person requesting the home address of a registered offender to first agree to submit to the court’s jurisdiction, comply with Megan’s law and comply with the court’s order enforcing the law. wow power leveling In the event that a person does not agree to the mandated terms, then the police will provide the street name of the registered offender’s residence rather than the exact mailing address.

    In its opinion, the Third Circuit identified the release of one’s home address as the only piece of personal information that potentially violates the constitution. However, the court, drawing an analogy to the public accessibility to arrest records, held the greater state interest of protecting the public compelled disclosure because the presence of convicted sexual offenders living in society posed a threat to children. And after reviewing the guidelines, the court ruled they sufficiently protected any privacy interest the registered sexual offenders may have in keeping their personal information private.

  4. Water Dnes – much modding of gaming consoles includes using controller chips which contain proprietary source code. Modding your console simply voids your warranty and possibly an EULA, however it is illegal to duplicate source code and distribute it. It is the act of unlawfully distributing this source code that is illegal.