The first three posts on the 32 Questions and Answers on Bill C-32's digital lock provisions focused first on general issues in the bill, second on C-32's circumvention exceptions, and third on the missing exceptions. Today's post discusses the consumer-focused provisions in the bill. For those that want it all in a single package, I've posted the full series as PDF download.
The Consumer Provisions
This section features answers to the following questions:
- Bill C-32 purports to allow consumer to legally shift music from CDs to their iPods or other devices. Do they lose that right if there are digital locks on their CD?
- Does Bill C-32 allow consumers to make legal backup copies of most commercial DVDs?
- Does Bill C-32 allow consumers to shift content from a DVD to a portable video player such as an iPad?
- C-32 purports to allow consumer to legally record television shows, yet cable companies are increasingly inserting anti-copying technologies into some broadcasts? Does C-32 allow for those programs to be recorded?
- C-32 includes an exception for unlocking cellphones. Isn't that a positive new development?
- Does C-32 require businesses to notify consumers about the presence of digital locks?
- Isn't there an "analog hole" that would allow someone to record a DVD without circumventing the digital lock?
Bill C-32 purports to allow consumer to legally shift music from CDs to their iPods or other devices. Do they lose that right if there are digital locks on their CD?
Yes. The new right to legally shift music is subject to an anti-circumvention limitation. In other words, the right to shift music to your iPod is not a right that you control. It is a right that is effectively dictated by the record label who can easily remove the right by including copy-controls on the CD release (there are thousands of these kinds of CDs owned by Canadians). In fact, the anti-circumvention limitation even applies to private copies onto blank CDs. This means that consumers pay for the CD and pay the levy on a blank CD that nominally gives them the right to make a personal copy, yet violate the law if they circumvent a copy-control in order to do so.
Does Bill C-32 allow consumers to make legal backup copies of most commercial DVDs?
No. The new backup copy provision are subject to an anti-circumvention limitation. Since most commercial DVDs currently contain several TPMs, consumers would not be able to legally make a backup copy of their own personal DVDs.
Does Bill C-32 allow consumers to shift content from a DVD to a portable video player such as an iPad?
No. The format shifting provision is subject to an anti-circumvention limitation. Since most commercial DVDs currently contain several TPMs, consumers would not be able to legally make a backup copy of their own personal DVDs.
C-32 purports to allow consumer to legally record television shows, yet cable companies are increasingly inserting anti-copying technologies into some broadcasts? Does C-32 allow for those programs to be recorded?
No. If there is a digital lock (often referred to as a broadcast flag) included with the broadcast, you can't legally circumvent it in order to record the program. Note that the U.S. has established limits on the use of the broadcast flag, but no such limits exist in Canada. As Canada transitions to digital, it is possible that broadcasters will increasingly institute anti-copying notices to stop the very recording rights that C-32 purports to provide.
C-32 includes an exception for unlocking cellphones. Isn't that a positive new development?
The inclusion of a circumvention exception for unlocking cellphones is certainly a good thing, yet the net effect is merely to retain the status quo. It is currently legal in Canada to unlock a cellphone, with the primary barriers being carrier contracts and technical inability to do so. The new exception does not create any new rights to unlock the cellphone, but rather merely retains the current right to do so.
Does C-32 require businesses to notify consumers about the presence of digital locks?
No. Bill C-32 does not contain any notice requirement regarding the limitations imposed by DRM on a consumer product. Most consumers know little if anything about DRMs and the limitations that may be placed on consumer entertainment products such as CDs, DVDs, video games, or digital download services. While there may some limited disclosures – DVDs indicate the region code, if your eyesight is good enough you might notice that some copy-controlled CDs warn on the back corner that they may not play on all computers, and digital download services all feature lengthy user agreements that few consumers will ever read – they are plainly insufficient and the government should not support the legal fiction that "informed" consumers are knowingly purchasing products that contain a host of limitations.
For many consumers, these DRM products are simply not fit for purpose – they often won't play on your DVD player, on your iPod, or permit usage that most would expect is permissible. Moreover, consumers frequently can't obtain a refund for their purchases as many retailers won't accept returns on opened CDs and DVDs and digital download services do not offer refunds to disgruntled downloaders.
The federal government might argue that this is provincial problem, since consumer protection issues typically fall under provincial jurisdiction. The reality, however, is that the federal government can and should play its part to address the issue given the manner it which it is supporting the use of DRM through Bill C-32. It should consider establishing DRM labeling requirements (an approach also advocated by the Society for Law and Computers in the UK) so that consumers will be able to quickly identify capabilities, compatibilities, and limitations. The Competition Bureau is currently responsible for two labelling statutes – the Consumer Packaging and Labelling Act and the Textile Labelling Act. If labelling is required for upholstered furniture, surely it can be added for consumer entertainment products.
Isn't there an "analog hole" that would allow someone to record a DVD without circumventing the digital lock?
Yes. It is true that rather than picking a digital lock on DVD, a person could try to camcord an analog version of a film. In fact, this is precisely what the MPAA argued last year, claiming that there was no need for a film studies exemption in the DMCA since there is an analog way to create film clips. Rather than break the encryption on a DVD, teachers could camcord the same film clips. In fact, the organization showed a video demonstrating how to effectively camcord clips of DVDs without breaking the encryption on the DVD.
Leaving aside how surreal it is to see the same organization that travels the world demanding anti-camcording legislation now citing it as a solution, the analog hole is not a solution for making backup copies of DVD or format shifting. It might only be used for a very brief clip, but given the government's stated goal of modernizing Canadian copyright law, it is worth asking whether a law that proposed using camcording films to preserve basic copyright rights has struck the right balance. Note that the Film Studies Association of Canada was outspoken on C-61.
The last question was interesting, however rather then camcording I would be interested in your opinion on the other analog hole, namely recording from component connection. As you probably know, component is an older connector that transmits HD through an analog signal over component cables which consist of three separate cables for red, blue and green. The component signal is not protected and can be readily copied with consumer level devices such as the HD-PVR from Hauppauge.
While not a long term solution since the industry is moving away from component and embracing HDMI, would recording component be legal under the new bill?
worse yet for “analog hole” – FCC in US allows them to be turned off
OK – yes, you can still put a mic in front of the speakers or use a cam-corder on the TV (which works better now that we have LCDs instead of video tubes) but the only way to not get background noise or radically drop the resolution/quality is the actual analog output jacks.
Now they’re going to control them too!
I would argue putting a camera in front of your TV is still circumventing the digital lock. To me it seems like splitting hairs. They only “allow” this because they know 99.99% of consumers wouldn’t bother. If this became a common practise, you damn well know they would push to make it illegal. And how is this an analog loophole anyway? Most cam-corders these days are digital? You’re still copying digital to digital, just going around DRM to do so.
This “exception” is no more than throwing a bone and smoke screening to try and shut people up.
If cam-corders exploit an “analog loophole”, then why are they so incredibly illegal in theatres? You could still do the same thing at home, even on SOC controlled feeds that the MPAA is pushing for so they could stream first-run, still-in-theatre, movies to one’s home.
I wouldn’t count on the “analog loophole” being a loophole for a lot longer, especially if SOC is widely adopted.
I am not buying this
Usually during any negotiation you put things in writing that you intend to remove later as a bargaining chip. The Digital Lock trumping all other rights seems to be something that is so out of whack that it must be something the Government will remove later so to be able to say they listened. They can’t possibly think people would see this as a “fair bill”, do they think we are that stupid? This also says that there are other things in the bill they want to push through but have used this as a focus point.
Wouldn’t use of the analog hole still count as circumvention?
the real question
What benefits do digital locks provide to consumers?
Is the broadcast flag a TPM by itself?
I’m curious about whether ignoring the broadcast flag is really circumventing a TPM. Is the broadcast flag a TPM by itself? Or is it only a TPM when combined with a device that doesn’t ignore it?
Maybe splitting hairs, but the broadcast flag seems like a signal message equivalent to the FBI copyright notice that shows visually at the beginning of some films. If I’m not infringing then I can safely ignore it.
Digital locks affect more then just media
MG – I was thinking this morning while buying a printer refill for my printer and remembered a lawsuit in the states that they used the DMCA to try and block a competitor selling ink cartrigese that worked in their printer. I think that the original company lost but wasn’t sure. If we have this digital lock provision, then anything electronic can have a lock placed on it. If the lock says only x company can service this appliance, then everything from cars, boats, washers, dryers, fridges, stoves, phones, tv’s computers, etc can be locked so the seller of said merchandise can force consumers into their service model. This is similar to what IBM did during the punch card era… licensed (leased) the puch card readers and processers, but was the only source for servicing or actual puch cards that were needed to use the machines.
Can you give us your thoughts on what these digital locks will mean to the average person if any electronic piece of equipment a company put a lock on it? Wouldn’t this just kill the after market industry, repair companies, recycling stuff. What is to prevent a company to install a digital lock that will force someone to come in for service every 6 months or the piece of equipment would not function any more….this is in essence what is being proposed here. It is not just for media…or is it.
You are probably thinking of this case:
Yes, the spinoff effects of the DMCA in the USA are wide spread. It has also been used to “protect” diagnostic equipment in automotive electronic modules. The list of inappropriate application of these laws goes on and on. The success in reducing “copyright infringement” is very little, if anything at all.
I believe strong proponents of DMCA style DRM protection haven’t thought through all the ramifications. If they had, they wouldn’t be strong proponents.
I’m not against the technology per se, I’m against enshrining legal protection for such technology in law. Let companies implement whatever they wish to support their particular business model. But don’t restrict competition, innovation, and anti-DRM tools either.
The way I understand bill C-32, if passed, it is technically possible to be in violation of DMCA style protection without actually being in violation of copyright law. This would be plain wrong.
If the law is rephrased to require proving copyright violation before being liable for DMCA style violations, what is the point of the DMCA protection?
Widespread Digital lock (TPM) abuse
Yes that was the case I was thinking about, from the ruling this is what troubles me.
“The Sixth Circuit ruled in favor of SCC, holding that (1) some of the Lexmark software was insufficiently creative to deserve copyright protection and (2) the authentication handshake did not effectively protect the software because printer owners could directly access the software through other open interfaces. ”
If a company improved on number 2 above then they could claim that it was a true TPM. The basic TPM issue is at heart, and I have not heard anyone say it before, but I would think that:
“If the law is rephrased to require proving copyright violation before being liable for DMCA style violations, what is the point of the DMCA protection?”
Might be more of a balance but still haven’t though of all the implications…is it copyright violation (CV) if I flash a engine chip with my own algorithms that make the engin better and sell them? Is it a CV if I write a new software algorithm that makes the dishwasher more efficient, both of the above requires me to get rid of the TPM that is placed on the product. The whole media industry is just a drop in the bucket and should not control the wide ranging implications of this bill.
Who in their right mind would vote for this type of anti-competitive/anti-consumer law…I guess only people that want to retain monopolies.
One thing I think many have missed is that open-source software such as Linux is entirely dependent on cracking the “encryption” on DVDs in order to play them. Would the bill then turn all of us Linux users into criminals?
… “entirely dependent on cracking the “encryption” on DVDs in order to play them”
DeCSS. Yes, you would be in violation of DMCA style law. But you would not be in violation of copyright law. This is a perfect example of what I surmised above, and doesn’t even have to be extended beyond the realm of pure copyright law.
Even a few minutes analysis of how practical, everyday, application of DMCA type law to various situations makes it obvious that such laws are poorly thought out.
I know this whole situation started out with WIPO and an insistence by the USA to see such measures as part of the treaties. But these were supposedly intelligent people at the negotiating table. What happened? Likewise, it should have been pretty obvious to the thoughtful people that drew up C-32. Again, what happened?
If everything relating to digital rights protection were ripped out of C-32, it might not be a bad bill. Still far from today’s reality, but usable. If we really need legal protection for poorly implemented digital rights measures, to meet international obligations, place it in it’s own bill and write it so it stands on it’s own and is measured on it’s own merits and flaws. It really has no place in copyright law. It’s flaws become very obvious, and it can be contained and constrained to reduce the side effects of it’s flaws.
Re: Isn’t there an “analog hole” …
While it may be true that the “digital lock” does not have to be broken to use the analog hole, you are still circumventing it, thus running contrary to the legislation.
I would like to re-iterate that the bill is *not* restricted to “digital locks.” Depending how the courts interpret “effective technological measures” a scrap of paper or sticker telling you how to behave may be considered a TPM. (Paper is technology, language is technology, ‘effective’ can mean “in place” or “in existence”)
I am not a lawyer, but my interpretation of the interoperability provisions is that your are allowed to to circumvent the DRM for play-back under Linux (or other OS); if an only if no “licensed player” is available. The corollary is that if the industry consortium releases an “authorized player” that works under Linux, you may be required by law to use it.
The IMO, the bill is not fixable because the 1996 WIPO (copyright / performances and phonograms) treaties it is based on are broken by design. To ban the circumvention of “effective technological measures” is to ban general-purpose computers.
… “Depending how the courts interpret “effective technological measures” a scrap of paper or sticker telling you how to behave may be considered a TPM”
And a black marker would be considered a circumvention device.
The definition of an “effective technological measure” will be a fast moving target. What would reasonably be considered “effective” yesterday could be considered “ineffective” tomorrow. This could lead to court cases where the definition would change drastically from the beginning of the case to the end. A nightmare for the legal profession, they really do depend on words that have a long term consistent meaning.
I take a simpler view. If it’s “effective”, it works. The moment it is cracked, broken, or bypassed, it’s “ineffective”. Legal protection for “effective technological measures” is a non sequitur.
Effective Technological measures
@old Guy – So since CSS has been broken for years then it is no longer a effective technological measure and that means we can back up DVD’s and play DVD’s on linux as the protection device is ineffective?
“I take a simpler view. If it’s “effective”, it works. The moment it is cracked, broken, or bypassed, it’s “ineffective”. Legal protection for “effective technological measures” is a non sequitur.”
Under this definition everything becomes ineffective since it is generally broken shortly after coming out. There are very few TPMs that go unbroken for any length of time. If they make breaking, even Mickey Mouse, TMPs illegal, then they are covered, which is the goal. Anti-innovation legislation. To say “effective technological measures” is an oxymoron these days as thy have yet to find one.
One of the few TPMs that have stood the test of time is Steam from Valve Software. To my knowledge there are no known cracks for Steam delivered software. On the other hand Steam tries to satify both the rights of the property holder while keeping the rights of the consumer intact, which makes it unique. On top of that, it’s convienient and easy to use. The only issue with Steam is that, without the ability to back up locally, if Valve suddenly goes under, then so does your software. As long as Valve runs Steam, you have offsite backups maintained by them solely for the cost of the software. You give up a little control to gain a little added convieniance in this model, but you don’t give up an unreasonable amount of rights, such as in C-32.
A black marker is a “censorship device”, a different, but just as serious issue. ;-P
Effective Technological measures
… “since CSS has been broken for years”
I’m not a lawyer, I take a simpler view. This is essentially the field of cryptography. The term “effective” as used in the field is fairly straightforward.
So check with a lawyer, they have different meanings for words. Sometimes those meanings are counter to what most people consider as common sense.. The issue of being allowed to backup or play those DVD’s using deCSS is a legal one, not a cryptographic one.
But based on how I have seen these laws applied, you would still be in violation of DMCA law if you used a black marker to defeat DRM measures, or removed your yellow sticky label. It seems “effective” is often defined by the manufacturer when used in DMCA type law.
Hmmm.. You have just opened up a possible way to clean up C-32. Simply get the authors to add a complete ironclad legal definition of the term “effective technological measures” as used in the law. If we get a bunch of politicians, lobbyists, and lawyers arguing about the proper definition of this term, they might just start to see how misguided, and stupid, these laws can be.
>While it may be true that the “digital lock” does not have to be broken to use the analog hole, you are still circumventing it, thus running contrary to the legislation.
Not quite that simple as my dvd player has legally opened the lock and the video stream is lock free coming out of it.
When your DVD player got the license to “unlock” your DVD, it was required to meet some design constraints. The video stream is protected by an “analog lock” called Macrovision, as required by the license.
Because Macrovision was designed to work with standard TVs, you are correct: no special license is needed to “decode” the stream.
However, in the near future, video players will use an all-digital, encrypted connection from the disk (AACS) to the display (HDCP). This is not publicly available information (so I am speculating), but I suspect that every device in the HDCP chain embeds a watermark in the signal for “traitor tracing.”
If your camera is digital, it has a choice:
1. ignore the watermarks, record anyway.
2. Refuse to record video with the watermark present.
The step that concerns me: When analog cameras (or displays) are no longer commercially available, will using them constitute circumvention?
What if your use “antique”, possibly refurbished hardware?
What if you custom build an analog camera? Will it be considered a “circumvention device” because the main advantage over digital is no DRM?
hmm: I just realized an analog camera will likely implement option No.1 (ignore watermark). Due to physical imperfections in the sensor it may effectively “watermark” the image as well.
Does C32 ban the use of OpenSource Software?
Yes, but not all! If you use open source software to access a commercial DVD you are violating C32 because the DVD consortium refuses to provide a DVD decryption license to opensource projects.
I don’t diagree with you and I think the way this is going and how Canadian citizen are being ignored it won’t be far fetched to think they would eventually out law older devices.
I’m at awe how a small segment of the whole industry that is refusing to adapt with the times can dictate and change laws at will to keep their business model from failing. If the gov just kept their dirty hands off the laws the media companies would eventually evolve or die and be replaced fairly fast with companies that cater to consumers while making huge profits.
My wife still loves when i make her a ‘mixed tape’ though
I have moved on, of course, from making her cassette tapes. Traded my reel-to-reel and phonograph for this swanky, new-fangled computer gizmo years ago. I’m producing studio level recordings of love songs for my dear’s MP3 player now.
So what you’re all saying is I’m not going to be able to use my gizmo to please my wife any more?
Considering I’m a pack rat and kept all my old recording equipment safely stored away under a nice thick layer of dust I could go back to mixed tapes, I guess, but I always felt that technology, and the creative type people involved with all that, should get folks like me to move forward with the times – not backwards.
I hope Canadians get together and quash this nonsense. The wife won’t approve when analog tv needs to be reinstated and I drag out the floor model with the 4-ft bunny ears either. God bless you all.