Can We Stop a Canadian Copyright Disaster?

Unlike some of my friends, I rarely take any kind of significant interest in politics. I do a bit of research around elections to figure out who to vote for, and then generally leave matters to attend to themselves.

There is, however, one area of politics and law that is of great interest to me, and that is where it interacts with technology. Generally, Canada has had a fairly sensible approach to law and technology, but this may be changing due to pressure from the United States.

Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair of Internet and E-commerce Law.  Recently, he published this article, which suggests that the government may try to push through some rather disastrous reforms to Canadian copyright law without any public consultation at all, despite the outcry prompted by previous attempts.  This rather irritated me, so I actually followed the article’s suggestion, and wrote to Industry Minister Jim Prentice, Prime Minister Harper, and my local MP Bob Rae.  A version of that letter is included here.

I am writing this letter to express my grave concern over reports that new copyright reforms are going to be pushed through the House of Commons.  While (arguably) there is need for some degree of copyright reform, I am troubled by talk that the proposed reforms will mimic the draconian and useless elements of the United States copyright law, especially their Digital Millennium Copyright Act (DMCA), which has largely been a disaster and subject to much systematic abuse.

More specifically, however, I am deeply concerned by one particular element: anti-circumvention legislation.  However, I should first perhaps give a little background about myself, to give my arguments a degree of context.

I am currently a PhD Candidate in Computer Engineering at the University of Toronto.  During this degree, I have taken a course in Computer Security, and prior to this degree, my Masters degree at Memorial University of Newfoundland focussed on Cryptography and Security.  Thus, I have a deep understanding of the technological protection measures that might be covered under anti-circumvention legislation.

As an engineer (as well as an aspiring writer), intellectual property is my lifeblood.  I have great respect for copyright laws and the need for them, but not in the form suggested by the US DMCA.  Canada should be a leader in following fair copyright principles, as outlined by Michael Geist online.

But rather than simply rehash others’ arguments about the need to balance consumer rights against creator rights and corporate rights, I will instead share my own views (informed by my engineering education) on why anti-circumvention legislation is not only undesirable but potentially dangerous.

The gist of anti-circumvention legislation is that any circumvention of technological protection measures (TPMs) put in place by a content provider is a crime, as is sharing information on how to circumvent such measures.  This is deeply problematic.

From a purely academic point of view and speaking as a former security researcher, this means that no one is allowed to even try to circumvent TPMs, which is not conducive to making sure that such measures actually work.  It is a fundamental principle of security research that there is no “security through obscurity” – something is only secure if it is secure even when everything is known about it.  Thus, anti-circumvention legislation can have a chilling effect on legitimate scientific research.

Of course, TPMs are inherently flawed – giving people content secured with TPMs while also giving them the ability to view the content (however limited that ability may be) means that TPMs can never be secure.  No one has yet developed a TPM that can’t be circumvented, which is why corporations are pushing for anti-circumvention legislation, but this simply leads us to more pressing concerns about consumer rights and the law.

The purported purpose of using TPMs is to stop people from doing illegal things with the protected content.  As a side effect, it often also stops people doing legal things with the content that they own.  (For example, if I buy music from the iTunes music store, it will not work as-is on my RCA mp3 player, even though that would be a perfectly reasonable thing to do with a digital copy of music I own, and is indeed the purpose of buying a digital copy.)

Of course, as I mentioned above, no one has actually produced a TPM that works completely.  They cannot stop illegal uses of the content.  Hence, the industry pushes to make circumventing the TPMs illegal.  This defies logic in two ways.  First, anyone circumventing a TPM to use the content illegally is, well, already doing something illegal – anti-circumvention legislation is not going to deter that, nor is it necessary to make an already-illegal act a crime.  Secondly, it makes circumventing TPMs for legitimate reasons illegal, criminalizing people for using content they own in a legal manner.

So, ultimately, TPMs do not stop illegal use of material, and anti-circumvention legislation only tries to make something already illegal illegal, as well as make something legal illegal.  It will criminalize consumers for using content they paid for in a manner consistent with and allowable under all reasonable interpretations of copyright law – including some of the proposed amendments and exemptions rumoured to be in the forthcoming legislation.

This is also problematic from a consumer rights view, as it gives the content producers control over how people use and access their purchases.  This is not only inconsistent with established views on what purchasing a song, or a book, or a movie actually means, but also introduces a whole host of problems.

Already there are numerous cases where content providers have arbitrarily decided to stop supporting a particular TPM, and thus left consumers with protected content unable to view it, such as the man who could no longer watch his Major League Baseball downloads.  Even if he breaks the TPM to watch the content he purchased legally, under anti-circumvention legislation he will still be committing an illegal act.  Even companies as large as Microsoft cannot be guaranteed to support their TPMs, and as older approaches are abandoned, users who paid for legal content are left out in the cold.

More recently, we have seen examples of NBC in the United States using a TPM (a broadcast flag) to prevent TV viewers from performing time-shifting and other legal activities.  The FCC attempt to make such a rule mandatory was defeated three years ago, but NBC and Microsoft have voluntarily implemented it anyway, and now it will be illegal for viewers to circumvent that flag to use content in ways they are explicitly allowed.

Of course, this is potentially just the tip of the iceberg, and illustrates how anti-circumvention legislation takes control of content they’ve purchased out of the consumers’ hands and puts it squarely in the hands of corporate interests.  Let us consider the ramifications of this as we look to the future.

Imagine that you record a home movie of your children, and decide to edit it in a program on a Windows computer.  Imagine that program automatically saves your edited video in a protected format.  Now imagine that you want to share the video with someone who uses a Mac or a Linux computer, one without a Microsoft-supported video player.  Even though you own the content, even though you created the content, it would be illegal for you to circumvent the TPM to share your video.

This, of course, could be extended to any kind of document you create, or whose data you own: business documents, medical records, the Great Canadian Novel you’re writing.  Enacting anti-circumvention legislation would give corporate interests the ability to lock you into their product with the use of TPMs, by making such circumvention illegal.

Now, one might argue that you can legislate against these scenarios, put in exceptions for certain other matters, or simply not enforce the law in such cases.  But a law meant to be selectively enforced isn’t much of a law, so isn’t it ultimately easier to not put anti-circumvention legislation into effect in the first place?  If it doesn’t stop illegal activity such as piracy (which, to reiterate, is already illegal), and it does make a multitude of legal activities suddenly illegal, and if it gives control of consumer-purchased content to corporations, wouldn’t it be better to avoid it entirely?

The only people who can argue at all for anti-circumvention legislation are large corporate interests, and that is simply because it gives them the legal tools needed to enforce a monopoly and hold their customers’ content hostage.

Now, there are a multitude of other concerns with any copyright reform, ranging from the chilling effect of takedown notices to online sites (which can “accidentally” be sent out to take down non-infringing but disagreeable content) to overly aggressive punitive damages for non-commercial infringement.

Thus, I urge to you flat-out reject any anti-circumvention legislation that is in the works, and to give serious and meaningful thought to and get public consultation on these other important copyright issues, in order to ensure Canada’s path forward is a bright an open one.

As you may have gathered from my lengthy missive, this sort of copyright reform is an issue I take great interest in.  Out of necessity, this letter was a little glib and a touch alarmist, but I plan to elaborate on these issues in future posts.  However, in the meantime, I encourage everyone to follow the suggestions in Geist’s article and contact the Industry Minister, the Prime Minister, and your local MP to express your desire for extensive and thorough public consultation on any and all proposed copyright reforms for Canada.

2 thoughts on “Can We Stop a Canadian Copyright Disaster?”

  1. Great letter, House! Very thoughtful very reasonable.

    I can’t see why this proposed legislation couldn’t be improved by a little consumer consultation (public forums) and good sense changes in the committee stage. Like you, I find the clauses referring to circumvention of data protection (even for fair use) to be wrong minded. It makes ordinary consumers who just want to use what they paid for (in new ways) criminals.

    ~Paul

  2. Indeed… the anti-circumvention legislation is the big problem. If they actually held public consultation and listened and thought about it reasonably, I can’t imagine how anyone could think it was a good idea.

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