DMCA-Style Reforms: “Not a Reasonable Policy To Foster Innovation or Respect for Copyright”

Canwest's Sarah Schmidt features an terrific story in which Industry Minister Tony Clement admits that he has infringed copyright in loading songs onto his iPod.  Like many Canadians, Clement says that he shifted many CDs to his iPod, which now contains over 10,000 songs.  What makes the article noteworthy is not the acknowledgement of infringement – Canadian Heritage Minister James Moore admitted infringing activity in using his PVR last year – but rather the focus on the need to update copyright law by legalizing activities that most Canadians view as perfectly acceptable.  Notes Clement:

"Well you see, you know I think I have to admit it probably runs afoul of the current law because the current law does not allow you to shift formats. So the fact of the matter is I have compact discs that I've transferred, I have compact discs from my children or my wife that I've transferred onto my iPod. None of that is allowable under the current regime. It shows that the current regime is not realistic and is not modern to encompass how people obtain their entertainment in today's world. That's what happens in a family. You do tend to share music that way and I think most people would find that to be perfectly acceptable behaviour. But our current law is so antiquated, it doesn't contemplate that situation."

While Clement clearly envisions updating the law, the article rightly notes that the addition of time shifting or format shifting (which would legalize recording television shows or shifting CDs to an iPod) could still be dependent on the absence of any digital locks.  As I discussed earlier this week in my seven questions for Moore, the presence of a digital lock on a CD, DVD, electronic book, or other device trumps fair dealing rights.  NDP MP Charlie Angus picks up on this issue:

"It's the issue that digital locks supersede everything else. You can provide any other kind of copyright protection guarantees for us to back up, and for research or study, but if there's a digital lock on it, then you get treated the same as an international bootlegger counterfeiter. That's just simply not a reasonable policy to foster innovation or to foster respect for copyright."


  1. Hmm
    Well at least Angus gets it… why the hell is the rest of the government so retarded?

  2. cndcitizen says:

    Didn’t they try and try to do….
    The same thing the last time with c-61. Highlighting that now you have the ability to copy music and tv shows, but then tell you only if they don’t have digital locks which almost everything has nowdays. It is the standard bait and switch that this party keeps doing. I can’t wait for the next election…this government is out of control in spending and scandals…they need to be booted…I hope they try and do some c-61b type bill that will force an election. I am ready again. If they can spend a billion dollars on a couple week party for their international friends then they can spend 500 million on a new election to get rid of this Made in the US party.

  3. Hindgrinder says:

    Last night I had stuffed crust pepperoni lovers pizza hut pizza for supper.
    It’s been “format shifting” all night in my guts.
    After my morning coffee the conversion should be complete and ready to download to my Itoilet.
    This got me thinkin….
    Mr. Moore…you sir, are full of crap.


  4. Devil's Advocate says:

    “Last night I had …pizza for supper. …’format shifting’ all night in my guts. …ready to download to my Itoilet. This got me thinkin….
    Mr. Moore…you sir, are full of crap.”


  5. The G8 and G20 parties
    These parties aren’t over a couple of weeks, they’re over 3 days. Over a billion dollars spent on ‘security’ for a 3 day party.

  6. RE: Clement’s comments
    Finally, someone is being honest and is making sense!!!! The last estimate was that 29% of Canadian people engaged is some sort of piracy…actually much lower that many other contries. I’d wager that number is far higher, just that many people don’t consider copying music to an MP3 player or recording a TV show as illegal.

  7. exploderator says:

    You get what you pay for…
    “Over a billion dollars spent on ‘security’ for a 3 day party.”

    Seems like we are buying ourselves a police state. (shudders)

  8. Hindgrinder says:

    @ Exploderator

    NWO 2.0 – the remix cyber false flag edition.
    Too many people are watching now….hot water.


  9. A police state? Who are you kidding, we’re buying ourselves in to a US State. Soon we’ll all start acting like them and sue our neighbors because they’re too damn ugly and it offends us. As far fetched as this is, unfortunately I think it’s far too late for our government to grow a backbone and we’re all screwed.

    Does anyone have any documentation on the effects of DMCA in the US? Did it actually affect piracy rates at all?

  10. Heh
    Does it matter? 😛 They’ll just make up numbers to support their claims anyways !

  11. If a Conservative wants the facts
    They’ll make them up. No need for them thar science fellows. or investigative journalists. Heck, those and dissidents are what the mega prisons are made to handle.

  12. Neumann347 says:

    Not sure that The industry minister broke the law
    Isn’t moving files to your ipod already legal?

    Shouldn’t there be some clarity regarding the law before we go changing it?

  13. Mr
    When I buy a CD (record, cassette, 8-track, whatever), I’m paying a royalty to listen to the content. The Conservative are just trying to force ‘double dipping’ by applying fees to format shifting. It doesn’t matter whether it is acetate, vinyl, plastic or wax; the royalty (albeit too small) has already been paid to the artist. I’ll bet a dollar to a doughnut that the money from format shifting never reaches originator!
    If the high principled Conservative do it, the rest of the country will follow along.

    To be clear, I am firmly against and do not participate in ‘sharing’ content. You want to listen, you pay the royalties.

  14. All we need to do is stall for time.
    As younger people enter into politics the chances of passing these ridiculous laws decreases steadily. The old way of doing things is dead.

  15. cndcitizen says:

    Not Paying

    I don’t think anyone is for not paying for rights to use the media, it is the draconian rules that clients want to impose. Just taking in the MP’s use, he imported content from all his family. If the new rules some into effect, then everyone in the family has to buy their own license to listen to the content. This is completly insane and no one will abide by it. Just look at the lose of sales because of draconian DRM that forceses a family to buy multiple copies of the same game so that the kids can play them….Ubisoft…just check out the backlash that ubisoft has now and the drop in sales (compared to previour) for top shelf titles.

    If I want to play a game on my xbox or ps2 or PC and they force every person who is playing the game to have a seperate license…you can see a drop in sales…most people will look for group friendly games.

    I for one will never buy another Ubisoft DRM game again as you can’t take it on the road or play it during travel…I will content myself with Civilization and other games that you can play that are far more engaging.

    DRM only causes the buyers to break the law and are caused great inconvenience as the people that download the stuff off the internet don’t have the worry of down DRM servers or connection issues…they can play anytime they want…and every DRM has been broken…in days.

  16. Mr
    @Not Paying
    Thanks. family usage is a consequence I had not considered.

  17. Is it already **explicitly legal** in Canada to copy music for personal use ?

    Canada Copyright Act, Part VII, Section 80 where it says:
    “the act of reproducing all or any substantial part of […music…] onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer’s performance or the sound recording.”

    Further, on December 12, 2003, The Copyright Board of Canada further clarified that P2P filesharing is a legitimate source of music for copying.

    Is Industry Ministers Clement blowing smoke ?

  18. Michael Geist says:

    No – Minister is right. Federal Court has ruled that an iPod is not an audio recording medium within the meaning of s.80.


  19. Laurel L. Russwurm says:

    there SHOULD be clarity; they are changing the rules
    @Neumann347 Your link is broken… it takes you to an update notice:

    @Nik: What is ‘sharing’ content? That is precisely what Mr. Clement admitted to… sharing content with his family.

    When I was a kid if you bought something you owned it. It was physically under your control. The seller couldn’t come into your home and take it back without first going through the courts. Yet when Amazon mistakenly thought that 1984 was in the Public Domain and sold it as a Kindle ebook, when they were informed it was still under copyright they went into Kindles that their customers had purchased and REMOVED digital content that their customers had purchased.

    When I was a kid you could listen to your records, or copy them to cassette, or loan them to a friend, or sell them second hand. A library would buy 1 book and lend it out to anyone who wanted to read it over a period of decades. That’s a case of libraries sharing content and people reading free books. And you know what– writers were THRILLED when a library bought their book, because it meant that many many many people would get to read it free. Many of them would become fans, and some would even buy themselves a copy. Writers knew how important sharing was to their success.

    There was a time when recording companies ran into legal trouble: some were caught bribing DJs and radio stations to play their records over the air so that thousands of listeners would be able to hear those songs for FREE. Because they knew that most people are not going to go buy a record without having heard it. In fact, I wouldn’t buy a record on the basis of one of those horrid 30 second previews they play on places like Amazon. Which is why pretty much the only music I buy these days is replacing my records with CDs, or buying CDs direct from the musicians when I hear them play at Jazz Festivals.

    @cndcitizen … “the backlash that ubisoft has now and the drop in sales”

    but that is precisely the kind of thing that the Copyright Lobby would point to as a sign of increased “piracy”

    The only reason we don’t have a Canadian DMCA already is that we have a minority government.
    The LIBERAL PARTY was unable to get their Canadian DMCA passed (Bill C-60)
    The CONSERVATIVE PARTY was unable to get their Canadian DMCA passed (Bill C-61)

    The only time Canadian Governments listen to citizens is when they are not in power, or when they are in a minority. Tell them what you think.
    If not:

  20. Laurel L. Russwurm says:

    Youth does not guarantee an open mind.

    Heritage Minister Moore is rather younger than Industry Minister Clement.

  21. cndcitizen says:

    @cndcitizen … “the backlash that ubisoft has now and the drop in sales”
    but that is precisely the kind of thing that the Copyright Lobby would point to as a sign of increased “piracy”

    Yes but when you read the message boards on the support sites all you see is people having issues with installation, playing and dropped server connections. Almost all of them want their money back and advise others not to buy. If you read the game reviews (PC Gamer-UK, etc) (online or not) most of them give the games high reviews but suggest buyers NOT purchase the game bacause of the DRM issues. What is that saying when the companies that review games and tell the people if it is good or not tell them don’t bother buying the game because you will have issues. Do you think the paying public is going to fork over $60 for a new game that doesn’t always work…I have declined to purchase the last two releases of Ubisoft games because of the DRM issues I experienced with the first (which I have now uninstalled). Although I want the games, I can wait for them to appear in a couple years without the DRM. As I said about, Civilization is still installed and it is 4-5 years old, if a game is good people will puchases it and there will always be people who download the games for free from the internet. That has been the case for 20 years. Originally companies would put their games up for free as shareware, then if you liked it you could buy a couple extra features for 10-15 bucks. That is how some of the best game companies started (ID Software). Free advertising is good…if all you get is negative free advertising, then that is bad.

  22. DMCA Take downs are abused by those that can afford to do so…
    These are the types of abuses that I’m afraid will end up hurting consumers in the long run, if we adopt the US DMCA.

    Gameplay can’t be copyrighted. Yet, I see this over and over lately, where companies just blindly send out DMCA take downs because they don’t like the the competition. The competitors in many cases can afford to hire lawyers and fight these things… so they just close up shop, and move on, which is sad.

    I see about once of these types of articles a day in the US… i guess it’s just a matter of time for us 🙁

  23. Laurel L. Russwurm says:

    @cndcitizen It doesn’t matter what the real reason is. That’s the beauty of:

    “the technique “doublespeak” refers to the “two” contradictory concepts juxtaposed against each other to create deep confusion in the hearer for the purpose of producing inaction and apathy. ” –

    They don’t care about reality, or the real reasons, unless it supports their agenda. It’s also why they give legislation and secret treaties misleading titles, in hopes of misleading citizens into thinking a skunk is a flower. If they say it enough times people will start to believe it too.

    @Sean once the whole world has DMCA laws (see ACTA in the left sidebar) it will certainly happen much more frequently.

  24. RE: the backlash that ubisoft has now and the drop in sales
    2K Software suffered similar losses when they initially released Bioshock. They used some DRM software called SecuROM which was extremely prohibitive, originally they limited the number of installs 2 or 3 (Not simulainiously, over the life of ownership), even if they were legit installs (Say Windows re-install, like that never happens, or new PC). Due to outrage, withing weeks they released a patch to up it to 5, which still left many people completely outraged. Not only did SecuROM limit the game, it interfered with some hardware and some other software. Within a matter of months they released a patch to kill the DRM altogether and not even a year after the original release, they re-released the game without any DRM. They lost millions of dollars and an untold number of customers due to the negative press.

    As an amusing aside, with Bioshock, they commited the ultimate faux pas. They said it was “uncrackable”. This is like issuing a challenge to every hacker/cracker in the world. The first fully working, cracked version appeared literally within 24 hours of the game’s official release.

  25. Junji Hiroma says:

    That’s why it isn’t conspiracy theory ,it’s conspiracy FACT that they are passing DMCA to ban free speech and to ban us from the internet.They are looking for a TOTAL takeover of the web and censoring it all.It’s a fact, but they’ll tell that everything is ok but it actually much more WORSE and with the north americvan union coming into play.It’s going to be more scarey when they pass even MORE and more draconian laws.We need ppl to wake up and fight this peacefully.The NWO are losing and they ARE rushing with these laws to puh THEIR agenda

  26. @Junji
    “That’s why it isn’t conspiracy theory ,it’s conspiracy FACT that they are passing DMCA to ban free speech and to ban us from the internet.”

    They can’t control the Internet, when it was designed by the US Army, it was designed to be decentralized so it could fend off electronic attacks and not go completely down. As stronger encryption methods and dark-net technologies are adotped by file sharers and pirates, tracability will be lost. That is why they’re trying desperately to control the content with legislation such as DMCA and technologoes like DRM. Even if it goes through, it will eventually backfire on them as more and more people turn to “open” options to avoid overly restrictive DRM, while many others will simply resort to piracy. They will continue to lose money because they won’t be giving consumers what they want in fact, if it gets passed in all it’s restrictive DRM glory, it might very well push even more people toward piracy.

    Brand loyalty is a thing of the past, buying albums without listening to them first is a thing of the past, the entertainment industry as it existed before the Internet is a thing of the past. New business models are needed.

  27. cndcitizen says:

    Ubisoft just dropped their price by 30% and included 3 free games….
    @IamMe – I forgot about the BioShock, I rememnber having issues with that when I bought it too. Was an excellent game.

    Ubisoft, just dropped their price for the new Splinter cell (rel April 27, 2010) from $64.99 us to $45.00 on Steam and added in 3 other splinter cell games for free in a package. Must be because of poor reviews and lack of sales…I know it just came out the other day, so the reason for dropping the price must have to do with the DRM and the negative feedback. If they dropped the DRM I would definately buy it even though I already own 2 of the 3 free games in the package.

  28. Laurel L. Russwurm says:

    where’s tinkerbell when you need her
    @IamME I’m not a techie (merely a writer) and although I’d like to believe that “They can’t control the Internet” but I don’t.

    I live in Canada. At the moment, I can’t bypass Bell Canada to connect to the Internet because they are the backbone for me here.

    That’s 1 bottleneck. If they can sell the idea that noncommercial piracy is theft it’s a small step to encryption shields pirates (and/or terrorists). Soon enough you’ll find big brother peeking over your shoulder.

  29. @Laurel
    No, unfortunately you can’t bypass your ISP (At least not cheaply), but you can protect yourself, to a degree, with encryption. Even for just regular communications. It could potentially take years to crack some of the modern encryption algorithms. Unless you’re using some sort of tool to hide your IP address, everything on the Internt is traceble back to the user, that doesn’t mean that we have to let them know what that communication contained.

    These postings, for instance, can be traced back to the original computer used to post it. The server powering this web site very most likely logs the IP address attached to every post.

    To break strong encrytion is cost preventative. The only way to do everything ACTA and DMCA would like is to make the use of encryption illegal, like it is and places like China, Iran, Irac, Russia, etc….places you know they’re spying on your communications.

  30. …in addition…
    Hypothetically, if encryption were to be made illegal, which it won’t, it would make on-line banking and on-line shopping (Amazon, Napster, iTunes, etc.) as insecure as posting to this BLog. It would also make it illegal to put encryption keys on your wireless routers…every wireless router wide open to invasion. It would be hacker heaven…it would be chaos!!!

  31. cndcitizen says:

    @IamMe – “make it illegal to put encryption keys on your wireless routers…every wireless router wide open to invasion. It would be hacker heaven…it would be chaos”

    Actually that would then allow anyone to download anything free as no one would have secure connections so you could sit outside your favorit MP’s house and connect to their wireless to download everything illigal. I think your statement above would never happen, too many institutions rely on encryption to provide safe transactions. What they would possibly do is ban VPN’s for personal use…corporations would have to register to allow their employees to connect from home to the corporate network with a VPN….

    The only real option is to push that genie back into the bottle and put a cork back in it….or busy your head in the sand.

    Anyway the bill will be pushed out Thursday so once we get to read it, we can start pushing for a balanced one. I have already spoken to both provicial and federal MP’s and received responses back that they are just waiting to see what the bill is as they have been flooded with responses…

  32. “What they would possibly do is ban VPN’s for personal use”

    Can’t do that either. A “VPN” is a class of encrypted communications with one unique function, the ability to “tunnel” an internal network through that encrypted connection. There are lots of VPN style connections, most of them indistinguishable from other encrypted connections. You can even run a VPN through a DNS lookup – slow, but it works.

    Bottom line, you can’t “restrict” encryption to special situations. It’s either there, or it’s not. At this stage of the world, you can’t stop it.

  33. cndcitizen says:


    Sorry, yes I was aware of that, what I was refering to was all VPN or redirection software would have to be registered and keys to that would need to be provided to the MPAA/Copyright police to be able to understand. You can tell certain things from packet structure and destination once you know that it is being used. Just like virus’ and other “fingerprints” each encryption type has some similar characteristics…If you start searching for those characteristics or know in advance what they are then they can watch and if you are using one illigally (not registered with MPAA) then they will tell you you did something wrong and throw you in Jail…I know it is far fetched, but so was 1984….but it seems that someone reached into computers to remove that unauthorized work….

  34. “each encryption type has some similar characteristics”

    To a certain extent, yes. But throw in frequent key rotation and that too becomes nigh impossible to detect.

    We are getting into the specialized area of cryptography. The same technology that protects online banking and corporate VPN networks. This is constantly evolving and constantly being analyzed for weaknesses. The particular “signatures” you are referring to are only applicable to the weaker/older versions.

    The point is that encryption cannot be “outlawed” without shutting down all commerce on the internet. You cannot control, or even identify, particular applications that use encryption. To attempt to single out any “VPN” connection out from all other encrypted connections can be (and is in stronger encryption) impossible.

    BTW.. DRM is simply another form of encryption. The reason it is so easily cracked is that it has a static key associated with the data. Play the same thing multiple times analyzing the input and the output, and soon enough you have the “key”. There is nothing dynamic (key rotation) about the encryption used. It is fundamentally impossible to have a “stamped” DVD or other “static” media (can be replayed multiple times) that cannot be cracked.

  35. “I know it is far fetched, but so was 1984….but it seems that someone reached into computers to remove that unauthorized work….”

    That’s because the “owner” of the Kindle didn’t have the DRM keys, the manufacturer did.

    If any of these Kindle owners took the time and effort to remove the DRM associated with their “copy” of 1984 and reinstall it as a “DRM free” version, this would not have happened. The only workable step would be for Amazon to completely lock out the Kindle for any “non-DRM” use – which they can also do.

  36. Encryption is like the lock on your bathroom door.
    In 2000 I saw Nortel boxes breaking 128 bit encryption on internet traffic in realtime. Think about that. Realtime on commercially available hardware over ten years ago. These boxes were not even classified.

    There are already devices in place that record all line traffic that travels through the USA. Every single bit and byte. You cannot protect yourself with encryption. The only thing protecting you is the LAW. We would be wise to protect our rights and not put our faith in locks that only provide the psychological illusion of privacy.

  37. @Some guy
    If you believe that, then you better not do any online banking, or internet purchases, or depend on the security of corporate VPN networks. Nor should anybody else. Put on your tin foil hat too.

    One of the biggest headaches for Echelon, is encryption. Modern encryption.

    I took a quick search and couldn’t find anything about a Nortel box breaking encryption in real time circa 2000. Can you supply any references? I used to work with Nortel equipment around this time frame. I never heard of any such claim.

  38. @Some guy
    It just dawned on me that you might be confusing real time encryption/decryption with real time breaking of encryption. Nortel did have real time encryption/decryption during 2000. There are much better devices for that nowadays, doing the same thing with 2048 bit, and larger, keys.

    Don’t confuse encryption/decryption with encryption breaking.

  39. exploderator says:

    @ Some guy & oldguy
    Hey folks, just spent some time with Google. First off, BREAKING any normal encryption in real time is NOT POSSIBLE, definitely not 128 bit. Now, DES (56 bit, obsolete) has been broken (with very large amounts of computation), and SHA-1 (128 bit, used in securing all SSL type traffic) is vulnerable given a very prolonged and extreme attack (extremely expensive). Anything using 256 bit SHA or any other solid encryption, is not crackable, period. Unless the NSA has a secret and vast campus of quantum computers that, in all honestly, cannot exist by all human knowledge at this time (triple layer tinfoil hat / goverments using alien technology type stuff). Again, under no circumstances, is real time encryption breaking possible.

    The vulnerabilities that do exist are a matter of messages that actually merit a very prolonged and expensive attack (probably months or years of supercomputer time). Governments would be unwise to use anything less than 256 bit encryption for anything that must not EVER fall into enemy hands, and better pray big quantum computers don’t come along before their secrets are obsolete.

    So, for an example of the kinds of unbreakable stuff soon coming to a P2P application near you, here’s a tidbit from the I2P introduction:

    “The network itself makes use of a significant number of cryptographic techniques and algorithms – a full laundry list includes 2048bit ElGamal encryption, 256bit AES in CBC mode with PKCS#5 padding, 1024bit DSA signatures, SHA256 hashes, 2048bit Diffie-Hellman negotiated connections with station to station authentication, and ElGamal / AES+SessionTag.”

    Good luck Hollywood, good luck DRM, good luck copyright in the digital era. Technology will always work in favor of computers doing more for the public, not less.

  40. RE: I2P introduction
    “The network itself makes use of a significant number of cryptographic techniques and algorithms – a full laundry list includes 2048bit ElGamal encryption, 256bit AES in CBC mode with PKCS#5 padding, 1024bit DSA signatures, SHA256 hashes, 2048bit Diffie-Hellman negotiated connections with station to station authentication, and ElGamal / AES+SessionTag.”

    I2P is new to me, but I’ll have to check it out. Add to that the idea of random hop-nets (Like TOR) or pure dark-nets to change or completely hide IP addresses and Internet traffic will become virtually untraceble while packet information will be unbreakable with some of these super strong encryptions. The entertainment industry can have all the laws in the world on their side, but if they have no way to identify anyone to prosecute they’ll be stuck. This is when they’ll realize, “Oh shit, maybe we should have actaully listened to consumer needs and tried to work with them to try and find something that works for everyone.”