Conservative MP on C-11’s Digital Lock Rules: No Risk of Liability for Breaking Locks

Since the introduction of Bill C-11 last month, the digital lock rules have emerged as the most contentious aspect of the bill with both the NDP and Liberals indicating they cannot support the legislation without changes to those provisions. While most of the Conservative responses have stuck to the talking point that they believe the bill is balanced, Conservative MP Lee Richardson, a member of the Standing Committee on Industry, recently provided a constituent with another reason for why the public should not be concerned by the digital lock rules.  According to Richardson:

If a digital lock is broken for personal use, it is not realistic that the creator would choose to file a law suit against the consumer, due to legal fees and time involved.

In other words, Canadians should not be concerned by digital lock rules because they can simply break the lock without fear of being sued. Richardson’s response raises several issues.

First, it is surprising to find Conservatives seeking support for their bill on the basis that Canadians need not worry about liability if they violate its provisions. Copyright reform is supposedly about updating Canada’s copyright rules and fostering greater respect for copyright law. Yet the message from Richardson suggests the opposite since Canadians will have less respect for copyright law as even their MPs tell them they need not fear violating the law given the minimal likelihood of a lawsuit.

Second, Richardson’s assurances of limited liability risk fail to account for the fact that the provisions will have a significant impact even if many Canadians choose to violate the law within their own homes. For example, if the law does not include a fair dealing circumvention exception, teachers will follow guidelines that prohibit circumvention as part of the educational process and students will be stopped from creating mashups or engaging with digital materials in certain ways.  Moreover, researchers will stop some research projects as they will be unable to sign ethics documents on grant proposals that their projects are fully compliant with Canadian law. All of these activities will stop regardless of the penalties associated with breaking the lock.

In addition to the education sector:

  • Innovative businesses may find themselves blocked from pursuing new products or services as their lawyers warn about the strict digital lock rules.
  • Journalists may find themselves unable to complete certain news reports since the news reporting exception is also included in fair dealing and would be subject to digital lock rules.
  • Some artists may be unable to complete their art as they will lose the ability to rely on the criticism and review fair dealing categories.
  • Archivists may find themselves locked out of accessing Canadian culture in their effort to rely on the research prong of fair dealing.

Third, Richardson’s comment points to the reality that there is no good answer to criticisms over the current digital lock approach. Opponents are not saying no to digital locks or even no to digital lock rules. They are simply saying that the same balance that exists in the offline world should be replicated in the digital world so that the mere presence of a digital lock does not eviscerate consumer rights, fair dealing rights, and the other balancing provisions in the copyright law. Canada could find a middle ground that offers legal protection for digital locks, is compliant with international treaties, and addresses public criticism without the need for MPs to assure their constituents that they should not worry about breaking locks or the law.


  1. So basically they’re making a law that they are okay with people breaking rather than try to make a law that fits? Isn’t this the law and order government?

  2. I think we know now just which party saddled our political system with partisan accusations. Nothing could be more partisan than the Conservative MPs blindly ramming this through against even their own supporters’ outcry.

    This is the exact reason why the majority of Canadians didn’t want the Conservatives in power. They are ruining this country.

  3. This is all a waste of time
    The Conservatives have made it quite clear that they don’t give a rat’s ass about what anyone thinks about anything just so long as they can continue to have their collective face up the arse of the US media (well, and government, but they also are just puppets for the media) interests.

    Now that the Conservatives have their majority, they have everything they need to ram this legislation through, regardless of what any and all Canadians want. And they will.

    So I don’t know why anyone [here or anywhere] is wasting their time blowing hot air about how unfair all of this is. Everyone knows that. The Conservatives know that. All of this gas-bagging isn’t going to change their opinion on that and therefore is a huge waste of time and effort.

    I hope all you Canadians that voted for the Conservatives enjoy the corporate-run police state that we are sliding into, which is funny enough, right along the police state that the US is becoming.

  4. Matthew Skala says:

    The government doesn’t care whether Canadians break digital locks; they just want to have this law technically on the books – whether it means anything or not – to satisfy their sugar daddies down south. Unfortunately, having the law technically on the books has real consequences for the reasons you describe, even if it’s easy to break the law, hard to get caught, and breaking it hurts nobody.

  5. Andrew Butash says:

    So let me make sure I have this straight. You’re saying there’s no problem with the digital lock rules, and that they’re fair and balanced…but you’re encouraging us to break those rules in our own homes because we probably won’t get sued…? Mr. Richardson…are you fucking kidding me? You’re actually saying it’s okay to break the law? That your own party is writing? I’m speechless. Absolutely flabbergasted. Words do not exist to express the sheer idiocy of this comment. We’re doomed…

  6. the slide into a lawless society
    The only thing that keeps a law abiding society abiding the law is respect for the laws and for laws to be respected they have to be fair.

    When you start introducing laws that are expected to be broken you start to introduce accepted lawlessness. Once a society gets a taste for lawlessness it spreads to more and more laws as more and more laws are viewed through the skewed lens of the ever more lawless society.

    Welcome to the slippery slope folks. It’s be the wild west here soon enough. There is no turning back.

  7. Richardson is just echoing what critics have been saying for years. NO ONE is going to listen. Nice to see a voice from within the cons realizing the truth. Too bad it’s far more damaging to education, innovation, archival services, among other things who face much higher liability.

    Here’s an interesting thought. If there is a blanket ban on breaking all digital locks, if I encrypt some data, then lose the key(s) due to system failure or carelessness, it will technically be illegal for me to break the encryption to recover my own data. How asinine is that?

  8. Wont seek legal action against individuals… really?
    I call bull on that statement. The RIAA has shown time and time again that they will go after the individual and seek huge damages even for a single movie download; they rarely go after the commercial businesses which are making profits from selling bootleg movies (when was the last time you heard the RIAA taking down a commercial bootleg operation?)

    So, if they leave the digital lock as is, I could see copyright holders going after individuals and seeing huge damages to help pad their profit margins too. The government should not underestimate the drive for corporations to increase their profits.

  9. I’ve never heard a government utter something so unbelievably incompetent.

  10. @Jason
    “So, if they leave the digital lock as is, I could see copyright holders going after individuals and seeing huge damages to help pad their profit margins too.”

    After C-11 they won’t be able to seek huge damages in Canada like they’ve done in the US. There are explicit limits on damages for non-commercial infringement. This is one of the things they got right in this bill.

  11. Contempt
    The actions of the federal government show nothing but contempt for both the law and the voices of the citizens of Canada.

  12. Russell McOrmond says:

    Digital locks on devices?
    Why is there an assumption that it will be a creator filing a lawsuit because of a digital lock that is applied to copyrighted content? Why is there an assumption that this will be the only way in which this bill will have impact?

    Content cannot itself make any decisions. Any “use control” must be encoded in software, and that software runs on hardware.

    If the owner is unlocking or otherwise changing the locks on what they own, and C-11 is alleged to discourage that activity, then it will cause harm.

    If the access control lock on content ends up manipulating the market to favor brands of devices which are “authorized” by the copyright holders, then that will have serious competition effects. While no audience may ever be sued, it will still be illegal for a competing technology company to create hardware/software that is interoperable with the content that Canadians wish to pay for.

    Overall I think this quote demonstrates just how unaware Conservative MPs are of the real-world effects of the non-WIPO/non-Copyright technological measures aspect of this bill!

  13. Digital locks
    Well at least there is now a defence argument that can be presented in court for an alleged violation of the law. Of course Mr. Richardson will need to be called as a witness for the plaintiff to explain why is was ok to break the law.

    Sometimes I am glad that the politicians (on all sides) are not able to grasp the significance of the issues at hand. Can you imagine if they actually understood all the issues of digital locks and then decided to be draconian about it,… now that’s a frightening prospect. Happy Halloween!

  14. @IamMe
    That is true, but I can still see organizations/corporations ‘representing’ copyright holders to sue individuals to pad their profits… they will just have to sue more people instead. As long as there is profits to be made, they will do it.

    Digital locks do not deserve any legal protection whatsoever. They are unequivocally against society. It’s bad enough that copyright is now, for all intents and purposes, infinite. Throw in pervasive digital locks with legal weight and in 100 years, there will be no culture left.

  16. Digital locks on devices?
    Absolutely!! We’re going to see all kinds of of ridiculous garbage.

    ** Region/System-free DVD/BD player — ILLEGAL
    ** Generic garage door openers — ILLEGAL
    ** Universal remotes — Potentially ILLEGAL if manufacturers start using encryption
    ** Home Theater PC / Media Server — Essentially ILLEGAL for the intended purpose
    ** Home vehicle computer readers/programmers — ILLEGAL!! Yes, even your car’s computer uses encryption.
    ** Hacking/modifying a game console (Wii, XBox, PS3, etc.) to play copies of games…even if you already own the game — ILLEGAL In fact…just having the hardware after it’s been modified is ILLEGAL.

    These are just a few examples that come to mind. Encryption is a digital lock, regardless of whether it apples to copyright. The implications are much further reaching than these few example I give. This will have all kinds of terrible fallout, like the DMCA and we’ll be backtracking for years…like the US. In short…C-11 will be a failure.

  17. What I liked about C-32
    You know what was great about C-32? Why we needed it? It updated copyright law to reflect reality. Minister Clement demonstrated this so clearly and succinctly when he admitted that his iTunes collection had over 10,000 tracks, mostly from ripped CD’s – an activity illegal under existing laws. This, he told us, was an outdated law, a law that Canadians flouted every single day, an unenforceable law that no-one would ever be prosecuted for. In short, we had to fix it. A law that everyone can and does ignore is not a good law. Thank goodness we’re moving away from that. Oh wait.

  18. @IamME
    I’m of the opinion that the Conservative Government is determined to do things that have proven not to work that well in the US. This bill and the various crime bills are perfect examples.

  19. @Jason
    With respect to “they rarely go after the commercial businesses which are making profits from selling bootleg movies”, don’t forget that the individuals that they go after are far more likely to give in to the suggestions that they pay an out of court settlement than a business would. Those people are generally easier to find as well, since the RIAA, et al, simply scoured the torrent directories. Low hanging fruit is the first picked.

  20. Digital locks and what I think they are really about
    I believe the digital lock aspect of the law is being placed in there, not to prevent or dissuade the breaking of digital locks on media, but to criminalize the cottage industry of unlocking phone firmwares which cuts into the profit margins of cell phone companies. People are able for a small fee to have their phone “unlocked” at almost any independent cell phone shop in the country. I believe the digital locking provisions are there to put an end to that industry which is ultimately against the interests of the large semi-monopolistic telecommunication companies that are far too cozy with their government lobbying, have the CRTC in their back pocket and would like to otherwise believe they run the show.

  21. It takes considerable knowledge and some time and resources to break digital locks, especially encryption. Only a very select few are going to attempt it, or be capable of attempting it. As such the vast majority of potential content users rely on someone else to provide the tools to be able to circumvent digital locks.

    Presumably distributing a tool that allows circumvention of such locks is also illegal. The distributor/manufacturer of such tools is a much easier target for lawsuits than individuals so to all intents and purposes Mr. Richardson’s comments about individuals being free to break the law is nonsense at so many levels. It may be theoretically true, but practically everyone will be much worse off.

  22. Digital Locks
    The government is so short sighted, so do I have to scrap my media server and go back to my 100 dvd disc player and my 5 cd disc player? We will become a technology backwater of the world thanks to this government! Then for them to say it’s ok to break the law? None of this makes any sense!

  23. Digital locks do not hurt the real pirates
    Does anyone think the real pirates download things that has a digital lock still on it? That’s the first thing to go. This only affects people that have the product with the lock still on it, i.e. the honest person that handed over their cash.

    Remember that “Matrix” poster where it compared pirated vs retail (“Insert DVD. Watch movie.” vs. “Insert DVD. Watch FBI warning (we get that plus two where Interpol expressed concerns some time in the 1970s). Watch preview #1. etc.” That alone is reason enough to rip your DVDs regardless of the CSS lock(those previews are only relevant at the time of release, not when you watch it again a year and a half later).

    Now a member of the Ruling Party tells us to just ignore the not-even-law-yet since the chance of lawsuits is negligible? This in itself should create an outrage in the mainstream media (but it’s copyright related so it probably won’t). It is a realistic view, but not one fitting for an MP.

  24. I wonder what other laws we could break without getting in trouble.

  25. @Russell
    “It takes considerable knowledge and some time and resources to break digital locks, especially encryption”

    Not really. Only one person has to write the program. Then everyone can do it.

  26. Can you post the question?
    You posted the PDF of the answer (which I suppose barely anyone will read because it’s way too much fun to bash a small out-of-context sound bite) — but where is the question? Without seeing the letter that was sent, it’s hard to gauge if this was a reasonable answer or not. Can you please post the entire context?

  27. @Russell
    “It takes considerable knowledge and some time and resources to break digital locks, especially encryption. Only a very select few are going to attempt it, or be capable of attempting it. As such the vast majority of potential content users rely on someone else to provide the tools to be able to circumvent digital locks.

    Presumably distributing a tool that allows circumvention of such locks is also illegal. The distributor/manufacturer of such tools is a much easier target for lawsuits than individuals so to all intents and purposes Mr. Richardson’s comments about individuals being free to break the law is nonsense at so many levels. It may be theoretically true, but practically everyone will be much worse off.”

    While is this true, it’s only true for applications developed and/or sold and/or distributed in Canada. DeCSS, VLC, DVD Decrypter, and such applications are freely available all over the world from countless mirrors in many countries and pretty much every public torrent service. They won’t magically disappear. Are sites like Sourceforge or CNet going to pull down all software that violates Canadian law? I don’t think so. VLC has been downloaded over 37,000,000 times from CNet alone, over 137,000 times in the last week…that’s a lot of advertizing moola. Just a quick Google search reviles dozens of sites to download DeCSS and it’s been illegal in the US for many years.

    All we’re doing is putting our own people, who might be working in the field, out of work.

  28. Un-Trusted Computing says:

    You could easily write the program in Canada, and host it on a server in the Netherlands, or some other country with sane copyright laws, distribution problem solved.

    Again this law does nothing to protect who or what it’s supposed to protect.

  29. Netherlands
    That’s where one of my web service providers is. Not really due the copyright laws, but more that it was the cheapest cost for the most space. That’s the beauty of the Internet…globalization. I have my stuff hosted on the other side of the world and it would look no different to me than if it was hosted next door. For what I’m paying $15/mo for in the Netherlands, I would typically pay well over $100/mo for here. Even then, local services would probably never be able to match the speed.

  30. GAH! The conservatives just don’t get it!

    It’s not about liability… it’s about accountability. I don’t give a rats ass that I’m not going to be held liable for breaking a digital lock when I’m doing so for strictly personal reasons… I want to know that I’m not actually breaking any laws in doing so, so that I can be honestly held accountable for everything that I do. Although I realize I’m probably an exception in this matter, I find it extremely offensive that our government is proposing that it is acceptable for citizens to be closet lawbreakers.

    And if they don’t have any intention of actually holding anyone liable for doing something that the law is apparently going to prohibit, then what the bloody hell are they making a law prohibiting for in the first place?

    The end implementation may very well amount to exactly what would happen if breaking locks were legal for personal use anyways, so why not just cut out the aspects of this bill that they don’t intend to actively enforce and synchronize it with what the other parties are actually saying?

    I need to take a walk and cool down… this whole thing has me incensed.

  31. Okay, got it. It’s fine to do illegal things as long as your not caught.
    So.. how can I make a personal copy of anything with all the tools being illegal or is it cool to sell those tools on the down low? I’m totally sure this won’t create more illegal non-taxed sales.

  32. …lets be honest…
    When otherwise honest people cannot buy the tools they previously could, to perform tasks anyone with a half a brain considers reasonable, what’s going to happen? Many, probably not all, but certainly many, will find the tools elsewhere…legal or otherwise.

    These days, what’s the first thing many people do when they can’t find something to do a task they need? They “Google it” since someone, somewhere has probably encountered the problem and has posted a solution. The reality is that most people won’t even realize they’re breaking the law and of those who do, few will care. …at least for breaking media locks. Breaking hardware locks and commercial infringement is a different and more serious issue with this legislation.

    We’re living in an ever more global world with out of touch legislation being rammed down our throat which will ultimately be ineffective.

  33. Original letter to MP
    Donald asked about the original letter to Mr. Richardson. Mr. Richardson’s reply letter was in response to a form letter that I sent to him and several other MPs, as follows:

    Oct 17, 2011

    House of Commons
    Ottawa, Ontario
    K1A 0A6

    Dear Ministers,

    I would like to to take this opportunity to convey my concerns and suggestions for points of revision and amendment in regards to Bill C-11, The Copyright Modernization Act. Although Bill C-11 appears to be more flexible than the previous attempts at copyright reform, this Bill is flawed to its core by the inclusion of strict, anti-circumvention provisions. As a Canadian, I am both concerned and disheartened by how easily my rights are trumped by the overriding and all encompassing protection for digital locks contained in the legislation.

    The anti-circumvention provisions included in Bill C-11, unduly equip corporate copyright owners and distributors in the music, movie and video game industries with a powerful set of tools that can be utilized to exercise absolute control over Canadians’ interaction with media and technology and may even undermine Canadians’ constitutional rights.

    A solution to Bill C-11‘s contentious core problem and the means to avoid the unintended consequences generated by the broad protection for digital locks is to amend the Bill to permit circumvention for lawful purposes. Not only is this approach compliant with the WIPO Internet Treaties, but it also provides legal protection for digital locks while maintaining the crucial copyright balance. I urge this Government to either add an infringing purpose requirement to the prohibition of circumvention or add an exception to the legislation to address circumvention for lawful purposes.

    I strongly believe that in addition to linking the prohibition of circumvention to the act of infringement, it is also paramount for consumers to have commercial access to the tools required to facilitate such lawful acts. It is imperative that the ban on the distribution and marketing of devices or tools that can be used to lawfully circumvent be eliminated by removing paragraph 41.1(c) and any associated references to it or any paragraphs in the Bill that would be rendered irrelevant by this change.

    Some have suggested that market forces will decide the fate of digital locks in Canada and that codifying strong protection for such measures in Canadian law is simply good interim policy. I disagree. Rather than handing control of Canadians’ digital rights over to corporations, the Government must consider regulating how digital locks are implemented to ensure they are not simply used to deny user rights. I put forward to this Government that adding a labelling requirement to disclose the use of digital locks on consumer goods be considered. A requirement as such, would permit Canadian consumers to make informed decisions about the products they purchase and the access and usage rights, or lack thereof, they can expect with the ownership of a given product.

    In review, I believe it is in the best interest of Canadian consumers and creators alike to amend Bill C-11 to clearly link the act of circumvention to infringement, remove the all-encompassing ban on circumvention tools and to establish a new TPM labelling provision.



    CC: The Right Honourable Stephen Harper
    CC: The Honourable Christian Paradis Minister of Industry
    CC: The Honourable James Moore Minister of Canadian Heritage
    CC: The Honourable Geoff Regan
    CC: Scott Simms
    CC: Charlie Angus

  34. Be careful what you ask for …
    This is a repost of mine from yesterday’s thread. Interestingly, I wrote it before Richardson commented but it is almost picture perfect response to this topic.

    Tools to break TPM (locks) is and will continue to be easily found on the internet. There is no effective way to keep people from downloading these freely available tools, all that’s needed is a simple Google search.

    Once you realize this there is really no impediment to private copying for personal use (shifting, backups, archiving), it cannot be policed and to just about everyone is seen as perfectly legitimate regardless of said laws.

    So what then is the purpose of these laws? It will affect copying at the institutional level; those few who will follow the letter of the law regardless of the inequity of it; and those who are not technically enough inclined to know the difference or do anything about it.

    Seems to me a strange way to operate a marketplace. Rather than provide simple to use and access products that meet market desires & demands, we have a convoluted layering of different access by various demographics.

    Laws that protect this inefficient and inequitable environment really only benefit the few who actually need the least protection. Consumers certainly do not benefit, nor for the most part will creators, it’s actually hard to see who comes out on top, until you follow the lobbying.

    It’s an old mantra but one that still rings true … Restrictive products based on outdated business models backed by inequitable laws will increase infringement while decreasing profits.

    Simple common sense that is somehow lost on the executives and legislators. One this is true enough, as the conservatives say, the market will decide. I’m just not sure the the marketeers are going to like the decision.

  35. I don’t get it.. If they believe it should be allowed, make it allowed, don’t make it against the law and say don’t worry, “we made it illegal, but we want you feel free to go ahead and do it because you aren’t likely to get sued”.

  36. Chad English says:

    IP violation recommendations are not uncommon in the industry
    Perhaps this is a result of the corrosion of respect in the IP industry over the years. I am a Director of R&D and heavily involved in addressing IP protection and usage (usually patents though). When I asked about the research exception for patents, I’ve had patent lawyers directly advise me that it’s not much of an issue because nobody is likely to find out we’re using their patents for research anyway, so not to worry about it. This is essentially Richardson’s point, coming from a patent lawyer and firm.

    Perhaps that’s just an indication of how useless IP laws have come over time to practical usage, and how little respect anyone has for them. I agree that the goal of laws should be to recognize practical use, especially when updating them to be more practical.

    In that context, the only explanation I can fathom on why C-11 contains the digital lock protections for non-infringing purposes is for practical policing purposes. It makes any and all circumvention software inherently illegal, with no justifications for non-infringing use. It seems to me a trade-off of citizens’ rights for practicality of policing the circumvention industry.

  37. @Chad English
    ..”It makes any and all circumvention software inherently illegal, with no justifications for non-infringing use. It seems to me a trade-off of citizens’ rights for practicality of policing the circumvention industry.”

    I follow your logic. And you may have hit upon the unstated rationale behind the way the anti-circumvention rules are placed in C-11. But that still doesn’t work.

    “Trading off” citizens rights for the streamlining of policing isn’t something to be taken lightly, in fact I would say that it shouldn’t be allowed at all. That is the fundamental driver behind all “due process” laws and procedures.

    You can guarantee that a law that prohibits commonly accepted activities will be misused. Perhaps not often, but it will. Perhaps incidentally, or perhaps out of spite, but it will be the law. We shouldn’t allow (or encourage!) laws that can be applied selectively to pretty well any one at any time. It’s not even a matter of “don’t get caught”, it becomes a matter of “don’t piss off anyone with the power to enforce such a law”.

    “Policing the circumvention industry” is a red herring. They are simply tool makers. Big and small. Open, free, or sold. It would be like making the sale of hydroponics equipment illegal because it is used in grow-ops. Or the sale of cars illegal because they are used in bank robberies.

    If your logic is correct, this situation in C-11 has come about because of too narrow a focus on the policing side of things, with a “hang the rest of the consequences” attitude. Ramrodded by single minded special interest groups.

    I have stated many times that TPM should be viewed in an economic framework, not the framework of copyright. That is it’s primary purpose. Any reference to TMP doesn’t belong in C-11, and any discussion of legal protection of TPM should be split off into it’s own bill with a focus on the economic side of things. Define limits and bounds related to economic activity, not copyrights.

  38. Careful Oldguy …
    if you keep making too much sense you might “piss off anyone with the power”

  39. Is there any possible way that the Conservatives can be made to realize the inherent stupidity in a legal policy that actually tolerates closet lawbreaking among the population of a country?

  40. @ForDonald: “Some have suggested that market forces will decide the fate of digital locks in Canada”

    Yeah, this is the biggest pile of … I’ve heard. If you want the “market forces” to work, then you have to leave those markets un-regulated – which means abolishing copyright.

  41. Napalm: Abolishing copyright would do far more harm than good. For instance, if an author were to self-publish a book, there would be nothing to stop a larger publisher from taking over the publication of that book and not actually offering the author any compensation. (or even credit, for that matter). The individual author cannot necessarily do likewise with the larger publisher because he may not have the distribution bandwidth that the larger company has.

    It is the exclusivity, which admittedly is a type of control, that copyright offers that actually gives people a significant incentive to publish in the first place.

    In fact, if this were not true, most people who do happen to choose to freely publish their works (and there is no small number of them) would immediately place them in public domain, rather than retaining copyright, yet an analysis of most freely available works today shows just the opposite to be the case.

    If you want everything you publish to be put into public domain, that’s fine… but who are you to impose that ideal on others?

  42. @Chad English
    “It makes any and all circumvention software inherently illegal, with no justifications for non-infringing use. It seems to me a trade-off of citizens’ rights for practicality of policing the circumvention industry.”

    This isn’t something I’d considered before, but it makes perfectly disturbing sense. Thank you.

    I have completely lost hope on this issue. I will do what I feel is morally acceptable and ignore whatever idiotic laws they come up with. And in 50 years I will be sad to see that much of the material I have enjoyed in my youth and early adulthood is no longer available as a result.

    Personally I am of the opinion that, as it goes directly against much of the purpose of copyright, use of TPM should immediately revoke any exclusivity rights on that content. Further, to qualify for copyright on digital works, those works must be published in formats that are fully documented and free for all users to implement.

    But good luck getting anyone to even listen to forward-looking ideas for actual reform rather than adding new restrictions to the existing model and enshrining broken technical measures in law.

    God this government makes me angry. Not that the previous one was much better on these issues.

  43. @Mark: “Abolishing copyright would do far more harm than good.”

    That’s fine, I understand what you say, my point is that if we regulate the market through the copyright law, then let’s not pretend that it is a “free market” where “market forces” will find a balance. The balance is already tipped by the regulations and no “market forces” will fix that.

  44. @Mark: Also you have to note that your example is one of financial harm created through what we would call today “commercial scale” “copyright infringement”. Let’s say we abolish just the parts referring to “private scale” copying i.e. within your household/family. Can you find me a good example in this case? (and please don’t suggest that I normally should buy 3 copies of a movie, one for me, one for wife and one for kid, and that “private copying” would kill this “revenue stream”).

  45. @Keenan
    …”But good luck getting anyone to even listen to forward-looking ideas for actual reform”

    Not everything is bad in C-11. Other than the inclusion of TPM related measures, it is a decent step in the right direction. Baby steps.
    But the inclusion of the TPM measures in C-11, and the way they are included, makes a mockery of anything else in the bill.

    The only thing you can do is to write your MP. As Prof Geist pointed out in his Cybera Summit keynote, it only takes 2 people from an MP’s own constituent for them to pay attention. Stuff from other constituents is ignored. Include your postal code in your letter/email, and a way to contact you. Be polite. Don’t assume they are stupid, or malicious. Try to figure out if your MP is a “party line” type or an individual, and phrase your words appropriately. Get their attention and get them to think.

  46. John Smith Wrote…

    “I’ve never heard a government utter something so unbelievably incompetent.”

    Really!!! Have you never heard Stephen Harper speak…ever…

    An unfair law is worse than no law at all. If you tell people they can’t do something and they know it is unfair and has been shoved illegally through the system, as in this case, they will intentionally break the law.

  47. Here is another big question
    On the date bill C-11 is passed, cause you know Harper will shove it through, what is the status of media acquired prior to that date?

    Lets say there is this guy I know, , who downloaded lets say 100 MP3s off Limewire during the surcharge on recordable media era. Technically he paid for these MP3s via the surcharge. So now, however unlikely, what would happen if the police knocked on his door and said you have 100 downloaded MP3s. Once C-11 passes, are they then illegal or not? If they are, how do we go about being reimbursed for the surcharge we paid on media players, hard drives and recordable CD/DVDs? Only seems fair right?

  48. James Plotkin says:

    @ Russell McOrmond
    “it will still be illegal for a competing technology company to create hardware/software that is interoperable with the content that Canadians wish to pay for.”

    Mr. McOrmond, I’m quite certain that there is an exception to the digital lock provision for interoperability:

    41.12 (1) Paragraph 41.1(1)(a) does not apply to a person who owns a computer program or a copy of one, or has a licence to use the program or copy, and who circumvents a technological protection measure that protects that program or copy for the sole purpose of obtaining information that would allow the person to make the program and any other computer program interoperable.

    That aside, I share your sentiment…

  49. Napalm: Private copying of audio works is already explicitly permitted in existing copyright law, and exempt from infringement. There is a reasonable argument that such permission ought to extend to all copyrighted works. As a copyright holder myself, I have a personal stake in the enduring value of copyright, but I also very firmly agree that the private copying permissions should not be limited to audio works. Indeed, there can be no remotely provable harm caused to the copyright holder if the copying were truly private because there would be no way for anyone else to have even know that a copy had been made in the first place.

    C-11 makes such an extension to private copying privileges, so that all copyrighted works can be legally privately copied, but only if the work does not contain a digital lock. This limiting criteria is an abomination that should be removed… for two very significant reasons: 1) the law appears to be grossly contradictory… essentially giving with one hand while taking with the other; and 2) by the Conservatives’ own admission, there is not going to be even any particular intent to enforce it. There are other reasons as well… ones that in particular are connected to how grossly unfair such a policy would be for the consumer, but I find this latter reason in particular to be strongly compelling because I would think that any country that creates a law prohibiting an action, and simultaneously intentionally adopts a policy around the law that tolerates closet lawbreaking is indicative of an extremely serious problem within the politics for that country. Personally, I believe that such a policy is the only natural one to take for such a law because it is such an exorbitantly idiotic piece of legislation in the first place.

    John: It depends whether the levy is interpreted as covering any and all private copying of copyrighted works, whether or not what one was copying happened to be actually infringing on copyright. Currently, the understanding is that it covers even the private copying of infringing works, but this is not necessarily the intent… only a possible interpretation owing to existing ambiguity. If this ambiguity is firmly resolved, and it determines that the levy only covers the private copying of non-infringing copyrighted works, then anyone who, with intent to receive it, downloads an infringing copy of a work would be breaking the law… and one would be doing so entirely at their own risk. (One cannot argue that photocopiers in libraries perform a similar function, because the library contains non-infringing works, not infringing ones… and if copies of such works are made within the parameters that are permitted by fair dealing, then there is no reason to conclude that the presence of a photocopier is tolerating copyright infringement.) Owing to a currently standing court precedent that has ruled in favor of the interpretation that the levy also covers infringing works, one would not suddenly be held accountable for any infringing media files that one had downloaded previously.

    Under C11, however, such private copying of non-infringing works will not even be generally possible to legally exercise when a work contains a digital lock, and is probably a significant reason why the levy will probably be discontinued under C11, unless circumvention of digital locks is permitted for non-infringing purposes.

  50. ^ Another practical purpose is because they can change their mind about “don’t worry we won’t target you” any time since that isn’t actually part of the law, and they can do it for small groups at a time to devide and conquer without too much backlash all at once like they have been doing for the past decade or so already.

  51. err, that was supposed to be in reply to chad.

  52. @James Plotkin
    ..”41.12 (1) Paragraph 41.1(1)(a) does not apply to a person who owns a computer program or a copy of one, or has a licence to use the program or copy, and who circumvents a technological protection measure that protects that program or copy for the sole purpose of obtaining information that would allow the person to make the program and any other computer program interoperable.”

    The way I read this, it only applies to “that program or copy”, not to outside content that is not usable on a target OS because of TPM measures applied to the outside content. The references in this section seem to all apply to “computer programs”, not content or data.

    Perhaps I am reading this wrong, or my interpretation of “computer program” is too technically accurate to be used in legal terminology or legal arguments. But that’s the way I read this section.
    Do you read it differently? How would you define the differences between a “computer program” vs data and/or content?

  53. Any “data or content” that is accessed from a computer boils down to a set of instructions that the computer will run, there is no technical or physical difference between “program” and “content”. The differences are just in how the instructions are perceived. If you treat programs like content, they are content, if you treat them like programs, they are programs.

  54. @crade
    A telephone book is a “program”? A star chart? An email? A blog posting?

    I can see the case of some “programs” being carried as content or data at one point in time, but that is a small subset of the class “data” or content. So your statement that treating a program as data is true at various points in time. But to extrapolate that to all data is also a program isn’t true. The subset can’t encompass the class..

    Lets take the first case I reference above, a digital listing of telephone book data. Can you describe how that *alone*, can be used as a “program”?

  55. Since a computer program *IS* content, what defines whether or not that content is a computer program really is determined by how the data is actually going to be used.

    A program is contains an explicit representation of the instructions that are to be executed by the processing unit of the system. This processing unit does not necessarily have to be computer hardware.

    It would not generally be possible to take arbitrary content and define it as a computer program, even if that data was to be interpreted by a computer in some readily definable way, unless the data unambiguously contains a representation of the instructions or steps that are going to be carried out. Conversely, it is trivial to take a computer program and have it be viewed simply as data.

  56. Thanks Mark.. Perhaps better said.

    And this takes us back to the section James quoted in reply to Russell. I don’t see how this section can be applied to “content” protected by TPM, unless that “content” happens to be a specific subset of “content” that can be classified as a “computer program”. Russell’s original statement still stands.

  57. Welcome to the 21st Century Police State
    “According to Conservative MP Lee Richardson, a member of the Standing Committee on Industry:

    If a digital lock is broken for personal use, it is not realistic that the creator would choose to file a law suit against the consumer, due to legal fees and time involved.”

    Suggesting that one break the law with little risk of being caught is as absurd as saying one can run a red light with little risk of being caught because police have better things to do. It is a clear signal we are moving towards a police state, where compliance of citizens is enforced through terror by discretion of law enforcement.

    I am SICK AND TIRED of these tyrannical laws that do NOTHING for the ordinary citizen but keep him subdued. We need LESS laws, and laws we can all live by, not more that no one will follow and give all discretionary powers to the police.

    Welcome to 21st Century Police State, where it’s OK to terrorize ordinary citizens to keep them quiet and to make sure the interests of the privileged few who have been milking the general population are maintained.

    As a citizen I DEMAND the government make a public apology for Lee Richardson’s irresponsible remarks and demand he be removed from his present position of influence!

  58. Sure, they won’t sue …
    … but, as we have seen from recent experience, they may very well send you a letter demanding a payment if you want to avoid being sued … isn’t that what lawyers do now? Extortion … sucking money out of the fearful with a new law to back them up? They don’t even want to actually go to the effort of suing you when they can just send a threatening letter and receive a cheque.

    I’ve pretty much already stopped watching movies … what else do the content providers want me to stop consuming? I can stop consuming it all right away if they just let me know … I’ve been taking books out of the public library instead … when will they start charging me for that?

    It’s kind of funny … I was talking with my brother about a vinyl record he bought in 1981 (DOA’s “Hardcore ’81”). At that time, he was the only one of 10 or so of us who actually owned the record while the rest of us taped it. As a result of that rampant “piracy” (at that point nobody had ever heard of such a concept) DOA gained 10 fans who have spent a lifetime buying their music, going to their shows, and buying their books and DVDs. If there had been a “digital lock” on that record, DOA would have had one fan instead of 10. Good luck to the artists under this insane scheme.


  59. … and since then …
    … I have bought two more copies of that same album … the system worked just fine.

  60. Right On, Mark!
    Mark said:
    “I find it extremely offensive that our government is proposing that it is acceptable for citizens to be closet lawbreakers”

    I agree 100%, because it breaks the Rule of Law and opens the door to tyranny, because it gives ‘Law Enforcement’ (guess who controls them), the power to “throw the book” at you for as simple a reason as to silence you because they don’t like your political opinions. It’s really scary.

    It’s the exact reason why I am virulently against the Un”Lawful Access” bill: free reign of terror and complete loss of privacy, the fundamental concept of which is the basis of the little democracy we do have, without which you can easily become a target for intimidation. A simple look at the consequences for US citizens of the euphemistically called ‘Patriot’ Act should be enough to convince anyone of that this law should be SCRAPPED and those responsible for lobbying our government be unmasked for what they are: the rich, powerful and politically immune transnational corporations serving the interest of the world elite who are already so rich they don’t know what to do with their money (or have to form companies for the sole purpose of trying to spend it, like Bill Gates did).

    Heil Harper, mein Führer!

  61. Chris: exactly… and it is indeed a sorry state of affairs that the conservatives don’t even seem to care. It creates the distinct impression that it might even be their actual intent to create that sort of society, but as such an intention would be grossly in violation of existing Canadian law (and even their own claimed political position), one is thus led to believe that their decisions are the result of ignorance, and not political conspiracy. Unfortunately, it seems that ignorance is not a barrier to becoming a majority governing party of Canada.

  62. @oldguy:
    A telephone book is a program when it is being processed by computer. Computers run programs, that is *all* they do.

  63. Umm, crade, that is only true if the computer is executing the telephone book.

    For example if the phone book is in a database and I query the database for the number of XX, the computer will give me the associated phone number. The value of that phone number will not make any difference to the instructions executed by the computer. You can change the number and repeat, and while the data has changed, the instructions executed by the computer will be exactly the same as they were before.

    There is a huge difference between program and data on a computer. Harvard architecture (such as on PICs) for example has physically separate pathways for data and instructions.

    While other architectures could technically execute data, unless that data was intended to be executed (I.e. a program ) it would most likely crash the computer or be terminated by the operating system.

  64. @mark,
    Except that computer programs are modular. Your distinction becomes blurred easily, the telephone book could be in HTML markup, or include loops or shortcuts or be encrypted but it doesn’t really change anything, it is part of the instructions telling the computer what to do. The HTML markup might have tags like [b] to tell it what font to use or to turn text bold, and the telephone book might let another program module decide that part, but the phone book does include explicit instructions, they just aren’t complete instructions until they are combined with other program parts, and those other program parts aren’t complete either until combined with the phone book or some other compatible module either.

  65. @crade:

    Ah the new generation that grew with the Von Neumann architecture and never heard of anything else…

    Say crade, why don’t you do a search for Harvard architecture, and think a while from that pov. It makes it easier to discern “programs” from “data”.

    And just to twist your mind a little bit more: in a Harvard architecture computer, would something that we call these days a “java program” be considered “program” or “data”?

  66. @crade
    I see what you mean by “blurred”. Interpreted languages can be viewed as a “program”, but technically it is the interpreter that is the “program” and the interpreted source code that is the data. This is the case with your html markup, along with many popular “programming languages”.

    But I think you might find it hard to convince any technical person that html is a “program”. There is a reason it is called a “markup language”, much like the various markups used in a variety of document processing. It is simply more “data” that the browser/program processes while displaying the particular page. In fact, many browsers (the “program” in this case) will display the page quite differently based on the exact same html markup page (different fonts, layout, size, etc).
    It is possible to compile an interpreted language module into a self contained “program” that is executable without the assist of an interpreter. This isn’t true of markup languages (or most of the data out there).

    When you get to a database or a ascii text file of phone numbers, you are so far from anything that might be considered a “program”, I doubt you could ever stretch it so such could be considered a “program”.

    Going back to your blurry comment, I suspect that a reasonably definable difference between a “program” and “data” would be that a “program” manipulates external data. This would encompass your interpreted languages, and allow them to be considered as programs. It still wouldn’t allow markup languages to be considered as “programs”, never mind a database or text file. Neither of these actually manipulate other data, although they may contain references to it (that the processing program then obtains and processes). And to bring it into perspective, ebook content would not be considered a “program” (markup), nor an mp3, nor video content. None of these contain the ability to manipulate external data on their own.

    Let me try another idea for you. Take a computerized temperature sensor. That reads, logs, and displays the temperature. Are the readings data or a program? Is the log, data or a program? Throw in wind speed, direction, and pressure. Humidity. History and prediction. The program is reading and manipulating data, even developing projections on where the data is trending. But the “data” itself cannot be considered a program in any way.

    Once you admit that there is a difference between “data” and the programs that manipulate it, then you can argue over where to draw the line. But the point is that there *is* a difference, and the referenced section only refers to “programs”.

  67. Richard M Stallman says:

    The term “digital locks” make these malicious features sound acceptable.
    I think the term “digital handcuffs” fits them better, and I think
    they should be prohibited by law.

  68. I like the term “digital handcuffs”. I’m not as sure they should be prohibited by law though. I think simply not providing any legal protection for them, along with guaranteeing users rights to break the locks, will be enough to keep the market fair. Their inherent fault in these systems will be sufficient to dissuade distributors from using them.

  69. Lawyer
    The idea of the supremacy of law requires a definition of law (to which the above principles may go some way). This must include a distinction between law and executive administration and prerogative decree.