U.S. Developments Demonstrate Canada’s C-32 Digital Lock Rules More Restrictive Than DMCA

Since the introduction of Bill C-32, I have consistently argued that the digital lock provisions are far more restrictive than what is required under the WIPO Internet treaties.  Now two recent developments in the U.S. demonstrate that the Canadian proposal is also considerably more restrictive than what is found in the U.S.

First, a significant new appellate court case from the 5th Circuit Court of Appeals has concluded that the restrictions on circumventing an “access control” (ie. a digital lock that restricts access to a work rather than a copy control which restricts copying of a work) are far more limited than previously thought.  With language that bears a striking similarity to those arguing circumvention should be permitted for lawful purposes, the U.S. appeals court states:

Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.

In other words, the U.S. court has found that DMCA is limited to guarding access controls only to the extent that circumvention would violate the copyright rights of the copyright owner.  This is very similar to what many groups have been arguing for in the context of Canadian legal reform.

Second, this morning the U.S. Copyright Office released the results of its anti-circumvention rulemaking process.  The process, which runs every three years, identifies the new exceptions to its anti-circumvention rules.  The recommendation covers six exceptions including circumvention of DVDs for short clips for education, documentary filmmaking, and non-commercial videos, circumvention to unlock and jailbreak cellphones, circumvention of video games for testing of security flaws, and circumvention of access controls of e-books where all available e-book editions contain restrictions of the read-aloud function. 

While Bill C-32 has a similar exception for locked cellphones, the U.S. version includes both unlocking and jailbreaking to allow users to play unapproved applications on their devices.  Moreover, the U.S. DVD and e-book exceptions go much further than the Canadian proposal.  In the DVD context, Canadian documentary film makers have raised precisely this concern, yet the U.S. now has an exception for it and Canada would not under C-32.  Similarly, the new YouTube exception in the Canadian bill – trumpted as progressive – is still subject to digital locks, while the U.S. has specific exception for it.  Taken together, it becomes apparent that the Canadian rules are far more restrictive than even the U.S. DMCA.


  1. At least US law-makers are starting to see the light of reason…will it take 10 years here or will we learn from the mistakes of others? My gut says Moore is beyond learning and unwilling to listen to the light of reason…even something so compelling as the above mentioned US court rulings.

  2. American lobby groups believe they’ve found a soft target in small-town James Moore, who is easily convinced when exposed to someone with any kind of celebrity status. Despite urging others to do so, his utter failure to be able to defend the more controversial parts of Bill C-32 is shocking. He is completely reliant on parroting industry lobbyist talking points and unable to go any deeper when questioned, choosing instead to withdraw into silence, ignoring his critics.

    The corporate lobby groups are hoping Bill C-32 will pass as currently written, and they can then start over again in the US, pointing out how ‘weak’ the DMCA is compared to Canada.

  3. Crow? .. tasty.
    So now the US DMCA and the lost ground in the ACTA negotiations make them both LESS restrictive than the proposed Bill C-32? Wow .. good governance there Minister Moore, by standing your ground your government is looking more ridiculous each day. I know the conservatives never like to admit they are wrong, but as the good book says, pride cometh before a fall.

  4. schedule for the house?
    well, thank crikey for an outbreak of common sense.

    it had been previously mentioned by clement that this bill would be fast tracked through the house over the course of the summer. from what i have ‘found’ so far it would appear to have only had a first reading according to this: (last update 13july10)–CE913A3173AD419196B4FAB221B4DBF6 does this fit a schedule of fast tracking? what is the likelyhood that mp’s would be made aware of this fresh bit of info within a reasonable timeframe as a counterpoint to lobbyist’s opinions?

    i also can’t help but note very, very, very little action and attention on the bill since it’s flaming paperbag debut on the doorstep. does this suggest action under the water? or an attempt at distance and hopeful disappearance?

    far to many questionmarks in that post.

    /happy trails.

  5. No mention today of how CMEC got whipped at the FCA?

  6. Keith Rose says:

    No fast-tracking
    No, the bill isn’t being fast-tracked, as it turns out. The “fast-track” would have involved holding committee hearings over the summer. But as you note, the Bill hasn’t received second reading, and it can’t go to committee until it does.(*)

    I don’t know what priority (or lack thereof) might be on the bill, within the government’s agenda. But seeing as there is a minority parliament, the government can’t fast-track *anything* without cooperation from at least one of the opposition parties.

    (*) In unusual circumstances a bill can be referred to committee before second reading, but this wouldn’t normally *speed up* the process. Quite the opposite, really, as it would involve committee review of the *scope* of the legislation, not just the content.

  7. passing info says:

    Soon legal in USA, but illegal in Canada !
    New American Gov rules will make it Legal, to jailbreak an iPhone, or unlock any phone, and also legal to break keys on DVDs for educational reasons.

    Yet our new copyright bill is going to make these same activities illegal here in Canada????

    I thought we were changing the rules to keep Americans happy, turns out even Americans realized it was a stupid idea to make this illegal in the first place.

  8. Read Acted says:

    New exemtions by US Copyright office to DMCA ‘digital lock’ restrictions
    Statement of the Librarian of Congress Relating to Section 1201 Rulemaking

    It seems that the use of circumvention methods for digital locks is being relaxed in some cases. I am not a lawyer but this is new I think for the U.S. copyright provisions.

  9. While news likes this can only help defeat C32 in its current form, I’m not likely to breathe easily about it until I can know for sure that C32 will not have the unreasonable prohibitions on circumventing copy protection that make the fair dealings exemptions that the bill also supposedly grants all but irrelevant.

  10. I’m eagerly anticipating Mr. Moore’s official statement the the US 5th Circuit Court of Appeals and Librarian of Congress are a bunch of radical extremists.

  11. pat donovan says:

    yahoo, eh?

    not that politicos have much of a prob flip-flopping, but HOW the conservatives do it will be interesting.
    who gets the credit for listening to the DIY crowd.

    Mike, can we weasel fair comment in now?


  12. Richard Pitt says:

    The legal differences between Canada and US
    Another reason to oppose this law – it does not contain the 3 year review and our courts simply don’t seem to do what the US courts do in upholding rational use.

  13. Grr
    Frustrating to say the least, and I had a extremely aggravating discussion with Mike Lake who is Tony Clements pool boy. They actually think what they are doing is right for Canada. Completely ignoring that in the US DCMA is being successfully changed over and over again. I wish the current crappy spend spend spend conservatives we got in government would get a brain. By the way conservatives are supposed to spend less money and reject Americans. What we have now is American puppets.

  14. “@mgeist: RT @TonyClement_MP: To all those interested in the US DMCA ruling I’ve asked the Dept to study its implications for Bill C32.”

    Implications? Can I ask why the hell the U.S’s law should have ANY implication for our own domestic laws? what the hell is this !?

  15. This aint the USA we don’t sell out our liberties….
    I wasn’t aware we were under fascist control by foreign powers who needs come before the people’s technological growth of the actual nation that is making the laws…

  16. Manifest Wisdom in only 12 years
    Why are they even protecting anti-circumvention? So they can spend time and resources reviewing every 3 years? Just because the exceptions are allowed, it doesn’t mean it’ll be permanent.

    It took 12 years just to make these small exceptions? Congratulations!


  17. The (US) amendment is spurious — as is the argument made here
    The US amendment argues that to force entry into a house is not inherently criminal in and of itself i.e. contents from within the house must be removed (“distributed”) before criminality is realized.

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