61 Reforms to C-61, Day 15: TPMs – No Exception for Cell Phones

The 61 reforms series now shifts to several weeks worth of postings on the fundamentally flawed, dangerous, and stunningly overbroad anti-circumvention provisions in Bill C-61.  The digital lock rules have rightly been the primary focus of attention for most groups as they are far more restrictive than the Liberal's C-60, more restrictive than approaches in other countries such as New Zealand, and arguably even more restrictive than the rules under the U.S. DMCA.  The Canadian DMCA goes far beyond what is needed to comply with the WIPO Internet treaties and ultimately have the effect of eviscerating fair dealing in the digital environment. 

Even with the many reforms I plan to propose, the reality is that these provisions will still be problematic.  I question the need for anti-circumvention legislation (as do countries like Israel which declined to include it in their recent set of reforms).  If the government is committed to anti-circumvention legislation, however, major amendments are critical.

With an eye on the launch of the Apple iPhone in Canada today, I start the anti-circumvention problems with their effect on locked cellphones.  As currently drafted, the bill could make it an infringement to unlock a cellphone and would certainly make the distribution of programs used to unlock cellphones (or service providers that do so) illegal.  Why is this the case? 

  1. Section 41.1(1) makes it a violation to "circumvent a technological measure within the meaning of paragraph (a) of the definition of "technological measure"
  2. "Technological measure" covers any effective technology, device or component that controls access to a work
  3. Circumvent means to "bypass, remove, deactivate or impair the technological measure."

In the case of cellphones like the iPhone, unlocking would certainly involve a circumvention.  The only question is whether the iPhone is a "work" under the law.  In the United States, there has been experience with this question and the U.S. Copyright Office agreed that a specific exemption was needed to remove the possibility that a work would cover cellphones (the argument is that the cellphone includes software which constitutes a work).  In supporting an exemption, the Office noted that:

"This is a noninfringing activity by the user. . . The purpose of the software lock appears to be limited to restricting the owner’s use of the mobile handset to support a business model, rather than to protect access to a copyrighted work itself."

Even with the exemption, at least one company has pursued a legal strategy of suing unlockers. Despite the experience in the U.S. and the similar legislative wording in Canada, C-61 does not include a specific exemption for cellphones.  As I pointed out earlier this week, Industry Minister Jim Prentice purports to favour greater competition in the wireless market, yet this bill represents a significant step back since it locks consumers in and the competition out.  Amendments are needed to make it absolutely clear that the anti-circumvention provisions do not apply to the unlocking of cellphones.


  1. C-61 column
    Craig McInnes, Vancouver Sun – Thursday, June 19, 2008. \”The beat will go on despite the federal Conservatives\”

    [ link ]

    \”They might as well try to outlaw music. The beat will go on.\”

  2. Anonymous says:

    “This is a noninfringing activity by the user. . . The purpose of the software lock appears to be limited to restricting the owner’s use of the mobile handset to support a business model, rather than to protect access to a copyrighted work itself.”

    Maybe it’s just me, but I always thought the sole purpose of TPM’s was to support bussiness models, not to protect works. didn’t the MPAA or RIAA even admit to that at one point?

  3. Maynard G. Krebs says:

    Unlocking cellphones
    I posted this under another topic a week or so ago, but this post of Michael’s is the more appropriate place for my comments:


    Under C-61, while you *might* have a right to an unlocked cell phone, it appears that that may only be true if you write your own software to do so.

    The purpose of having ‘locked’ phones (which is really more accurately called a “subsidy lock”) is so that the carrier can lock you into contract for 2-3 years in order to recoup any subsidy they provide when you purchase the phone.

    Let’s say you want a Sony Ericsson W380a. Today Fido will outright sell you the phone for $300 or they give you the option to pay $60 for it if you commit to a 3 year contract with Fido. So Fido is placing an economic value of $240 on the ‘subsidy’.

    In this, let’s not forget a few other things:
    a) Fido has early contract termination fees, which would presumably make them ‘whole’ for both the value of the subsidy and any contractual obligation for the then remining term of your service contract should you decide to cease doing business with them.

    b) Once the ‘subsidy’ is repaid to Fido, they have no right to expect that you should not be able to unlock your phone. Yet C-61 does not recognize this.

    There is NO subsidy if you buy the phone outright, and as such the vendor (Rogers/Fido) should give you the unlock code immediately.

    We all know the reasons why people want unlocked phones – to use a model that isn’t currently sold in Canada, or to have the flexibility and lower cost of using a local GSM carrier when overseas without incurring rapacious roaming charges, or when there was real GSM competition in Canada (ie. Rogers didn’t own Fido) you could always switch carriers and not have to purchase another phone.

    Here’s one more real-world reason:
    I know a person who has a vision problem who could NOT find a cell phone from either Rogers or Fido that would provide both a display which was visible enough to them *AND* had a keypad which had keys that were sufficiently isolated from one another to be found easily by touch with their swollen arthritic fingers. I had to source a phone from overseas which met his physical needs and have it unlocked.

    Practical Effects of This
    Under both Rogers and Fido’s rules, my friend would be financially penalized (charged more for data services by Rogers/Fido) were he to sign-up for data services with either of them – because he didn’t purchase his phone from them (they are now correlating the IMEI serial number of the phones with their billing systems to do this). Call Rogers/Fido and ask if you can sign-up for one of their ‘economical’ data plans if you have a non-Rogers/Fido phone and they will tell you “No, you can’t.”. You have to ‘pay as you go’ for data instead, and that is several thousand percent more expensive per byte.

    And he’d be in violation of the law under C-61 for unlocking the phone and subject to penalties from I’m not really sure who – the government? the phone company? the phone manufacturer? all of the above? Does he then have a criminal record which will prevent him from crossing the border to visit family?

    It is said that the law is blind. Well, my friend would be penalized under the ‘blind law’ precisely because he is nearly physically blind. C-61 makes no exceptions – you are either guilty or not, and if guilty there are statutory penalties (ie. mandatory minimums) which a judge cannot waive. My friend could go to jail because he has a low income and could not afford to pay *ANY* penalty unless he chose to not eat or pay his rent that month.

    Which does Mr. Prentice suggest he give up – food or his home, or declare bankruptcy to pay a penalty?

  4. This is nonsense. There is no way that a cellphone comes into the definition of a “work” under the copyright law

  5. Maynrd G. Krebs says:

    A Parallel?
    I think that any discussion of locked cellphones and tying them to ‘services’ also has to be looked at in the light of the United States v. Eastman Kodak 1954 Consent Decree, which has many analogous issues. [ link ]

    In 1954, Kodak had 90% of the colour film market in the USA. [Rogers and its subsidiary, Fido, has about 99.9% of the GSM market in Canada – there are a few small GSM players scattered around the country.]

    Since Kodak sold its color film only as a package deal with processing included in the price, it also had over 90% of the color photofinishing market (J.A. 220-21). [Does this sound familiar to Rogers/Fido tying a service to a product or vice versa?]

    The tying arrangement resulted in a government antitrust suit and a consent decree in 1954 (J.A. 109). Section V of the 1954 decree permanently enjoined Kodak from “[t]ying or otherwise connecting in any manner the sale of its color film to the processing thereof, or the processing of its color film to the sale thereof” (J.A. 114-15).

    Should Nikon be permitted to require only Nikon branded film or digital media cards in their cameras? Should Canon be permitted to require only Canon branded paper to be used in their photocopiers? Should GM be allowed to require only GM branded oil in cars made by it? If the answer to these is NO, then why on earth should cellphone be ‘locked’ to a carrier?

  6. Disliking this direction
    Let me say that I really like the coverage that Michael has been giving to this issue (C-61) as well as his general “watchdoggedness” for Canadians, however, I’m really starting to dislike the whole direction of this blog. It’s trying to make suggestions on how to fix something that is so fundamentally broken that attempts to fix it just make it worse.

    In the case of this particular posting for example, the message seems to be (or certainly could be interpreted by Mr. Prentice as) “just exempt cell-phones and the anti-circumvention restrictions would be better”. But that’s like saying taking a beating with only one hand tied behind your back is better than having them both tied behind your back — while taking a beating.

    The anti-circumvention restrictions are so bad that there is only one reform needed: scrap them altogether. Anything else is just the same beating while you get to wave one arm around.

    Maybe I should just wait for the next few dozen reforms and see how it pans out.

  7. “fundamentally flawed”
    “If the government is committed to anti-circumvention legislation, however, major amendments are critical.”

    Yes, we must amend C-61 into the garbage, should amend the government out of power, and might amend the Charter of Rights and Freedoms to prevent the threat, expense, and waste of time, of this kind of abhorrent legislation going into the future. The people of Canada are clearly not “committed” to any of this, and if our government is, then we need a divorce.

    We must have clear fundamental rights to absolute freedom of use of things we own. Anything less is an obvious violation of our liberty and property, in spirit, if not yet in law. I only suggest Charter amendments because it seems to be clear that we need our privacy and property rights enshrined a more solidly than we have at present. We the public need stronger protections from greedy and digitally empowered companies, when their influence reaches all the way to making law. As it stands, the Charter should be our fundamental shield against abuses like C-61, which would be inherently incompatible if these rights were “Chartered”. I suggest there is an historic opportunity for long lasting fame available to anyone brave and powerfull enough to do the right thing here.

    61 reforms are not enough.

  8. Disliking it too
    ^ @ Brian, I agree that this excellent blog is spending too much time on the details, and not enough time on the deeper implications, and real solutions. It’s exactly what I was worried about at around day 3 (A.C61.), when I first heard about it. C-61 frames the whole discussion. All the people who need to be asking real questions and making suggestions and having good ideas, are all distracted, and muddled in the quagmire of C-61’s deep and profound nonsense. It’s so bad we shouldn’t even be arguing about it. Just shake it off, and get on with doing something sensible and honest. But nooooo, here we are endlessly stuck quibbling point by point over sheer stupidity and madness. I don’t think C-61 was ever even intended to pass, just to burn out and destroy the entire process in Canada, so that the bigger interests can push through whatever they want sometime a little later.

    The real players in this game (industry) have deep strategy, deep pockets, and patience. Everyone has deep strategy when BILLIONS of dollars are at stake. To anyone who thinks this sounds too conspiratorial, I have to ask what else you think the word is for secret negotiations that break the law? The dictionary calls that conspiracy, and believe me, C-61 breaks the law, into many bad little bits.

    61 reforms are not enough.

  9. This Bill should be renamed the “Rogers iPhone Monopoly Act”

    They lock you in for a 3 year contract – and charge $400 if you want out of the contract.

    Clearly the phone industry is backing these laws. Bell, Rogers, Telus want to own us for life.

  10. Anonymous says:

    Where in the name of all that’s legal did the import ban on the iPhone go?

    OBVIOUSLY the phone industry is corrupt, look at what they’re up to right now? Rogers bribes the CRTC out of an import ban on the iPhone. Bell sets up the traffic-shaping scam shutting competing ISPs off their hardlines. Telus almost got shut down by the RCMP over labour issues five years ago but bribed their way out of it (I had a boyfriend over in Vancouver on the picket lines). Sorry, but this business is as sickening here as it is in the US.

  11. Maynard G. Krebs says:

    Import ban
    Any import ban, if any, may have be as a result of the trademark dispute between Toronto-based Comwave Communications and Apple.

    Comwave had a VoIP service caled ‘iPhone” since 2004 or thereabouts. Earlier this week Apple paid off Comwave to take ownership of the trademark ‘iPhone’ in Canada. Comwave will continue to also use the ‘iPhone’ name on their VoIP service until November 2008, at which time they will rename their VoIP service.

    This is what allowed the Apple iPhone into Canada, aside from Apple striking a carrier deal with Rogers.

    [ link ]

  12. Krebs, here’s an even more interesting question about your friend:
    Say he instead or as well glued “key extenders” to his phone or otherwise *physically* modified the device — technically, wouldn’t that also be a violation under this provision?

  13. Boiled Frog says:

    Troll Is Right
    Troll is right. Bill C-61 has no effect on the legality or illegality of unlocking cell phones.