Bill C-32

A few days ago, I was listening to the podcast for the CBC program Spark, in which they mentioned a new bill, bill C-32. They had a person on the show, whose name I do not remember, who said it was a very “balanced” bill. That peaked my interest, so I decided to read the bill myself.

Before writing the bill, the law-makers asked Canadian citizens their opinion on copyright. One of the points that was brought forward was that users of copyright did not want stringent locks on the copyrighted material: they wanted to be able to legally create back-ups of their content and to convert it to different formats for their listening and viewing pleasure. On first sight, the bill did not respect that particular wish. In fact, it says so right in the preamble: “Whereas the Government of Canada is committed to enhancing the protection of copyright works or other subject-matter, including through the recognition of technological protection measures, in a manner that promotes culture and innovation, competition and investment in the Canadian economy;” (emphasis mine).

Personally, I think that if a copyright holder puts a lock on something, it should not be legal to break that lock. I’ll give you a dumb analog: if you put a lock on your door, breaking that lock or picking that lock would be illegal. You’d want that to be illegal because you’ve invested in that lock, you’ve put it on your door and your protecting your house with it – you would not want anyone to enter your house without your knowledge or without your permission. If I put a lock on my software or content, I similarly do not want it to be “okay” for you to break that lock and do whatever you like with that content.

On the consumer end of things, I think I have a minority position on that. The reason why I think those locks should be legally recognized, however, is because I see copyright law as a framework for negotiation: as a copyright owner I am in a position of being the author or creator of software, this blog, a podcast, etc. I am therefore a copyright holder and have certain rights on what I produce. I may choose to share my work and give you certain rights on that work. If I do that, the bill/law provides for certain rights to you, the user of the content, and to me, the copyright holder.

I can provide my content under a given licence (such as this blog, which is published under a Creative Commons licence) which may differ on some points from the law and allow you certain rights that you would not otherwise have. If you want to be able to do something that you cannot do according to the law, you have to obtain an additional licence on the content, but in order to do that, you have to negotiate with me. That means you would have to contact me, tell me what you need, etc. I would tell you what conditions you would have to meet in order to obtain those rights – e.g. pay me – and, once those conditions are met, would provide you with an appropriate licence. We would thus have entered into a duly negotiated contract.

This means that such locks are a means for copyright holders to protect themselves against what’s now called “piracy”. Let’s have a look at the bill’s wording, though:

41.1 (1) No person shall

(a) circumvent a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure” in section 41;

(b) offer services to the public or provide services if

(i) the services are offered or provided primarily for the purposes of circumventing a technological protection measure,

(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological protection measure, or

(iii) the person markets those services as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market those services as being for those purposes; or

(c) manufacture, import, distribute, offer for sale or rental or provide — including by selling or renting — any technology, device or component if

(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological protection measure,

(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a technological protection measure, or

(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

This leaves plenty of room for legally developing tools and offering services that happen to break locks as a side-effect… but that’s not all. I.e., even though “(2) The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened is (…) entitled to all remedies (…) that are or may be conferred by law for the infringement of copyright against the person who contravened that paragraph.” the bill also says that “(3) The owner of the copyright in a work (…) may not elect (…) to recover statutory damages from an individual who contravened that paragraph only for his or her own private purposes.” – i.e. if a copyright holder’s DRM is broken, that may well be illegal but, if done only for personal use, cannot warrant damages to be awarded to the copyright holder. Also – and I really like this clause:

(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.

– i.e. you can break the lock if it is for the sole purpose of making software the user owns inter-operable with other software (e.g. to read DRM-enabled music files in open source software). The list of such exemptions goes on a bit: protection of private data, correcting security vulnerabilities, circumvention to make the contents available to a handicapped person, etc. However:

41.22 (1) No person shall knowingly remove or alter any rights management information in electronic form without the consent of the owner of the copyright in the work, the performer’s performance or the sound recording, if the person knows or should have known that the removal or alteration will facilitate or conceal any infringement of the owner’s copyright or adversely affect the owner’s right to remuneration under section 19.

so the information must remain in tact, although the “protection measure” – i.e. lock – can be removed under certain conditions.

I think this is a pretty well-balanced piece of legislation, how about you?

About rlc

Software Analyst in embedded systems and C++, C and VHDL developer, I specialize in security, communications protocols and time synchronization, and am interested in concurrency, generic meta-programming and functional programming and their practical applications. I take a pragmatic approach to project management, focusing on the management of risk and scope. I have over two decades of experience as a software professional and a background in science.
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8 Responses to Bill C-32

  1. TPM is bad for opensource says:

    No it doesn’t allow opensource to read music. Think about your ipod, when you interact with it, you’re interesting with a checksumed data file, that’s not software, that a file. Therefore it isn’t interoperability.

    Please read this:
    http://ossguy.com/?p=662

    It confirms that reading DVDs with opensource will be illegal under C32. Please please read it because you’ve posted one glaring exception which doesn’t cover what you think you cover.

    The bill is bad, there’s no exemption for doing things privately in your own home.

    If you want other examples of failures of the bill:

    http://digital-tripwire.tumblr.com/ These are some concrete examples. What is important to notice is that digital locks allow people to enforce software laws or imaginary laws (business processes) and make breaking those “laws” a criminal offense. Do you know who has the right to make these kinds of laws right now? MPs. Do you know who will leverage TPM to make their own legally enforcable processes? Business.

    Our MPs have a responsibility to US, Business does not.

  2. TPM is bad for opensource says:

    http://copyright.michaelgeist.ca/fixing-bill-c-32-proposed-amendments-digital-lock-provisions

    Another link you should read. Basically there’s no way possible that your current interpretation of the bill is accurate at all. I’m sorry. Please read it.

    You’re also wrong about this:
    “(3) The owner of the copyright in a work (…) may not elect (…) to recover statutory damages from an individual who contravened that paragraph only for his or her own private purposes.” – i.e. if a copyright holder’s DRM is broken, that may well be illegal but, if done only for personal use, cannot warrant damages to be awarded to the copyright holder.

    Do you know what “may not elect” means? May not means there’s a choice, you can choose not to recover statutory damages. Generally criminals are supposed to be tried if they commit a crime, what this allows is for the copyright holder and the courts to go easy on the criminal and not go for their RIGHTFUL statutory damages. Read it. MAY NOT ELECT — it means it is optional. There is no personal use. When something is illegal and you don’t get or don’t get charged or have damages reduced it doesn’t mean it is legal, it means you’re lucky.

    • Hi (you didn’t leave a name),

      First, I am not a lawyer, so my “fault rate” when writing about legalese is going to be higher than on certain other subjects, but I have read the link and I don’t seem to see the same thing you do: what I see is that the state of CSS is still undecided – though I agree that the likelihood of it being considered TPM is considerable – and the library referenced in the post is designed to remove CSS or otherwise render it ineffective.

      Now, if CSS is deemed TPM the library would be illegal to “manufacture, import, distribute, offer for sale or rental (…)” etc. That doesn’t mean, however, that it is impossible to legally make software that would allow DVDs with CSS to be read on computers: the software in question must not have as its primary purpose to break CSS, but that doesn’t mean it may not have that feature at all.

      My point is that, as software development professionals, we are problem solvers: we see a roadblock and find a way around it. In this case, the roadblock is that a given library is no longer legal to “manufacture, import, distribute, offer for sale or rental (…)” because its primary purpose is to break a form of TPM – so, the software architecture is changed to it is no longer a separate part of the media player in question, of which the primary purpose is not to break TPM, but to play videos.

      No, that doesn’t mean that there is no room for improvement in this bill: I can see how this kind of problem can be a major pain in the ___ and I can understand why some people might even be a bit upset about it, but on the whole, I think this bill is a step in the right direction because it allows better protection for copyright holders and, on the whole, for users as well.

      I’ve also taken a look at the other link you provided and found it rather comic: a “look from the future”? Some of the cases cited are really funny – I mean: the read-only permission on a DVD would be a form of TPM? (It would, by the way, be an infringement of copyright to take an image, modify it and distribute the modified version and IMO it should be).

      As for businesses writing laws rather than MPs: that goes back to my original argument: copyright law provides a framework for licensing and negotations between a service/content provider and a user/consumer of the service/content. For an example on how that works, there was a special issue of the Cahiers de Droit (volume 47, number 2, 2006); it’s in french). Business won’t write the law, but it will write the licence under which we can use the services and content they provide – just like I write the licence (or choose) under which I provide my services and content. If you want or need more rights than those provided to you, you are free to negotiate with the owner of those rights.

      Again, that doesn’t mean there’s no room for improvement but rather than just saying how broken the bill is, I’d propose proposing a fix.

    • Hi (you didn’t leave a name, again),

      The link you posted in your second comment was very interesting – thank you for that.

      As for “may not elect”: in the context it is in, it does not imply a choice. In fact, the french version of the same text says: “Le titulare du droit d’auteur (…) n’est pas admis à recouvrir les dommages-interêts (…)”. Translating back to english and making the emphasis a bit clearer by using a passive voice: “It is not admissable for the copyright holder to recover statutory damages (…)”.

      One of the reasons I came to Canada is the fact that Canada is a bilingual country: federal law is written in two official languages which have equal weight. Among others, that means that one language can clarify the other – because both are right. If one is ambiguous and the other one isn’t, both being right, the unambiguous interpretation holds. Languages are fun!

      Thanks for your comments!

      Ronald

  3. TPM is bad for opensource says:

    For 41.1.3 check out:

    http://www.digital-copyright.ca/billc32/rwm-clause

    Subsection (3) separate out “private purposes”, and suggests that statutory damages couldn’t be used. The problem is that we are talking about an additional infringement claim, one for the infringement and one for the circumvention of a technical measure (for infringing or non-infringing purposes). This subsection appears redundant if circumvention were tied to infringing purposes. It does suggest that there is double liability, possibly for double statutory damages, in the case of circumvention for non-private infringing purposes. Statutory damages are already excessively high relative to the alleged harm, so doubling is doubly excessive.

    Summary: You don’t get dinged again?

    • Right, so there are no statutory damages for breaking the lock for private purposes – only for infringing the copyright. If your point is that that means that there would be such damages if the lock was broken for non-private purposes, I concede that that would be a “double whammy”, but that’s called piracy and should be acted upon. If you go to the lengths of breaking a lock and dustributing the thus pirated content, you’re obviously in the wrong and should be prepared to pay damages.

  4. TPM is bad for opensource says:

    No I don’t think that’s correct. It says directly that if you’re in contravention of 38.1 (using my memory here) then the statutory damages aren’t applied for breaking TPM privately. It doesn’t say you make break TPM, it says no double whammy.

    If we want to see if breaking TPM is allowed outside of the few exceptions they give, we go all the way back to 41 and we see no, TPM is not allowed to be broken.

    So when can you break TPM and not get charged $$$ for it? When you pirate! When you are lucky enough to convince a judge that your TPM breaking met on of these other exceptions. That said breaking the TPM might be allowed but someone like Apple might claim that you violated their copyright by MODIFYING their software in order to break TPM that allowed security research or interoperability, etc. So I’m not completely convinced that the exceptions really cover much.

    Summary: You can only get away with TPM breaking if you’re pirating for private use but at that point you already got caught didn’t you.

    • No I don’t think that’s correct. It says directly that if you’re in contravention of 38.1 (using my memory here) then the statutory damages aren’t applied for breaking TPM privately. It doesn’t say you make break TPM, it says no double whammy.

      Actually, I think we’re saying the same thing: you’re not allowed to break TPM, but you don’t have to pay separate damages for breaking TPM and infringing on copyright. This is consistent with my argument that the presence of TPM is a way to limit the rights of the consumer.

      Breaking TPM is not allowed in any case, but it is not (separately) penalized if done for private purposes.

      I don’t see how pirates would benefit from this, though.

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