Feedback on #C32: Constructive, Destructive or Pointless?

While some of the feed-back on bill C-32 (Copyright reform) seems to be constructive, much of it has become a foray of personal attacks on Conservative MP and Minister of Canadian Heritage and Official Languages, James Moore, who tabled the legislation with Tony Clement, Minister of Industry, on June 2. Of course, his remarks on the subject weren’t very welcome either, calling opponents of the bill “radical extremists”. So, the debate is on on what should probably be one of the more boring subjects in Ottawa: copyright legislation.

Heated debate

According to Michael Heist, law professor at the University of Ottawa, those radical extremists would include Liberal, NDP and Bloc MPs – meaning they constitute the majority of the House of Commons. In the fall, the bill is going to go through the House committee, where those very MPs will be debating the bill and amending it in order for a majority of the House to support it. This is, after all, a parliamentary democracy: if you have something to take up with the government w.r.t. proposed legislation, you do so through your representative in parliament – the MP of your particular riding.

Of course, that doesn’t mean Twitter isn’t a good forum as well: the last few days, there’s been quite a bit of noise on twitter about C32 (enough to coax me into putting a hash tag in this post’s title). Some of these, again, were just personal attacks on MP James Moore – which is perhaps part of the reason why he made his “radical extremist” remark. Some are pretty insightful, though. Most of them, however, attack only one thing: the digital locks provisions in the bill.

The subject of the debate

Let’s have a look at the principles underlying the bill before we get to that: the first principle would be “thou shalt not copy” – i.e. the creator of a work holds the rights to that work, whether it be music, software, a performance, … etc. Other people have no rights to that work whatsoever, except as provided by copyright law or provided by the owner of the work. In fact, if I write a piece of software on my computer, you have no claim on that software: no licence to use it, distribute it, etc., unless I give you such a licence or decide to publish my work. If I decide to publish my work with no other licence attached to it, copyright law applies to it.

So the basic principle of copyright law as I see it is to provide a set of exemptions to the basic principle that no-one but the owner of the work has a right to the work. Those exemptions include the right to broadcast, the copy, to loan, etc. under certain conditions. Anything that is not implicitly allowed by me making the content available without further licensing (implicitly allowed by the fact that the copyright act explicitly allows it and I do not say otherwise), is not allowed.

Now imagine I’m a publisher: an author comes to me and wants to make a bit of money from their content, by publishing that content using my services. Say the content in question is a collection of short stories written by the author. We decide to publish the short stories as a paper book, an eBook and an audiobook, and to create packages of the tree (e.g. a version of the book that comes with a CD with the audiobook and/or the eBook on it; different versions of the eBook for the iPad, the Kindle, etc.). Each of these is brought to market as a different product for a slightly different audience, and with competitive pricing for each. Each of these involves work from the publisher, who has to invest in creating the eBook, the audio book (hiring an actor, etc.), etc.

The competitive pricing part is important: if the author and the publisher are to make any money from the work, the work has to sell. In order to sell it, it shouldn’t be too expensive to the consumer. One way to bring down the price is to put DRM on the digital versions of the book: if you want both the iPad and the Kindle version, that means you will have to buy both. If you want to have a CD with the audiobook and you want to be able to listen to it on your iPod, again, you have to buy both. This is a deliberate choice on the part of the publisher, whose business is to make money off the work of an author buy marketing that work. In order for this scheme to work, though, the DRM must protect the rights on the work from piracy, which is what the law allows. In fact, while for non-locked works it is perfectly legal to “format-shift” the work, for locked versions it isn’t. If you’d want to buy the work in a format that allows you to use it on your iPod, iPad, Kindle, CD player and book shelf, contact the publisher and try to get a package deal. If enough people do that (i.e. there is a demonstrable market for it) the publisher will sell it.

Now, let’s see some of the arguments against this (from A Canadian author’s perspective on “radical extremism” and copyright by Cary Doctorow):

They don’t work. Even the most sophisticated digital locks are usually broken in a matter of hours or days. And where they’re not broken, it’s mainly because you can get the same works by another means — rather than breaking the iTunes lock, you break the easier Zune lock (or vice-versa), because you can get the same songs either way.

In my opinion, this is all the more reason to make breaking the locks illegal. I’ll go back to my example from my previous post on this subject: just because it’s really easy to pick a lock on a door (and believe me, it is really easy) doesn’t mean it should be legal. If that argument would hold, breaking and entering would be legal just because lock-picking is easy!

They transfer power to technology firms at the expense of copyright holders. The proposed Canadian rules on digital locks mirror the US version in that they ban breaking a digital lock for virtually any reason. So even if you’re trying to do something legal (say, ripping a CD to put it on your MP3 player), you’re still on the wrong side of the law if you break a digital lock to do it.

The whole point of putting a digital lock on something is to disallow such “legitimate” ripping – e.g. to bring the price down. Note, though, that there are no sanctions for ripping the CD anyway, unless you do it for other than personal use.

Here’s what that means for creators: if Apple, or Microsoft, or Google, or TiVo, or any other tech company happens to sell my works with a digital lock, only they can give you permission to take the digital lock off. The person who created the work and the company that published it have no say in the matter.

That really depends on the contract that the person who created the work has with the company: if he signed off his rights to the work, he indeed no longer has a say in the matter. However, if he’s any good at all at negotiating, there will have been a clause in the contract saying that access to the work will not unreasonably be denied. But let’s also take a look at what the bill says:

41.1 (1) No person shall

(a) circumvent a technological protection measure (…);

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

(c) manufacture, import, distribute, offer for sale or rental(…)

(2) The owner of the copyright in a work, (…) 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.

If you apply the strict letter of the law, no person shall (…) would include the person that put the lock on there – i.e. it would prevent anyone from unlocking the work. That should be OK, though, as a non-locked version of the work would normally still exist (it would be rather silly to destroy the master copy). Note, though, that it is the owner of the copyright that is entitled to remedies – not the person who sold the lock. That does mean that the copyright holder can’t give you the right to remove the lock, but it also means that they can give you an unlocked of the work – which amounts to the same thing.

This means that an author who may have put a lot of energy into his/her work does not lose any of his/her rights if a DRM-tech giant decides to ship the work with a lock on it unless they have a contract with that DRM-tech giant that says otherwise.

A more level-headed response

I must had it to Michael Geist: his first response to C-32 was to propose amendments to it which is probably the most constructive way to go about criticizing the bill and in any case a better idea than simply attacking the messenger. The proposed amendment would be a good thing, in my opinion, as it allows for an easier way for a copyright holder to provide a consumer with an unlocked copy. However, as long as the manufacture, import, distribution, etc. of tools that allow breaking the locks is illegal, allowing breaking the locks with those tools doesn’t help much either: if you’re allowed to pick a lock with tools that you are not allowed to have, it still amounts to not being allowed to pick the lock. He does ask for the provisions that ban the tools to be dropped in the full version of the document.

Even though I support the bill in general, including the provisions banning the breaking of the digital locks, I would tend to agree that the ban on the tools should be dropped. The bill bans the tools 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 technolog- ical 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.

I have argued that this means that a media player which primary purpose is to play media but which “happens to allow” playing media with digital locks on it would still be legal. However, though I have not changed my mind on this argument, I must concede that it would mean that software architecture would ultimately be dictated by the law, which in this case is not beneficial either to the community as a whole, or to the industry (be it the software industry or the industry the copyright holders belong to). Furthermore, it is unnecessary if the breaking of the locks is already illegal.

In a way, putting DRM on content should make it sufficiently more difficult to access the work in unintended ways to get the consumer to buy a second copy of the work. That is what the DRM is there for. Requiring notices on the work, and perhaps on the tools, to advise the consumer that what he/she is about to do might be illegal should be sufficient to dissuade a law-abiding citizen from doing anything illegal. Criminalizing the creators of the tools used by criminals doesn’t make much sense to me.

The tone of the debate

Has anyone noticed that most of the bill is actually being welcomed as an improvement on what was there before? The one thing that so many people differ on is the part that talks about the digital locks. Granted, it is an important part of the bill, but it is perhaps less important than it is made out to be. The music industry, for example, is moving away from DRM use.

Sadly, the debate has turned into a flame-war directed at James Moore. Comments like these “Dear @mpjamesmoore it’s not that all of C-32 is bad. It’s just that all the balanced fair use support is trumped by the digital locks clause” by digitaldolphin are, sadly, rare. By far most are upset by the “radical extremist” remark, but even before that remark there were already personal attacks on the minister on Twitter.

Of course, that doesn’t warrant his “extremists” remark.

Personally, I think letters like these (second letter in the post) by Ann Douglas are much more helpful than rants on twitter calling the minister a liar.

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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10 Responses to Feedback on #C32: Constructive, Destructive or Pointless?

  1. TPM is bad for opensource says:

    Look, legal protections for TPM allows publisher to play a game of Calvinball with you. But in this version of Calvinball you’re not allowed to make up new rules and if you break any of the imagined rules of the publishers you’re fined for it.

    http://uncyclopedia.wikia.com/wiki/Calvinball
    3. in http://web.archive.org/web/20110808215017/http://www.mentalfloss.com/blogs/archives/17862

    The TPM provisions basically make it illegal to write buggy software and distribute buggy software. If you’ve ever written software you’ll understand how dangerous this is. If not, trust us, software is buggy by default and never non-buggy.

    • “If you’ve ever written software”? Have you read anything other than the last two posts on this blog?! Writing software is what I do for a living!

      As far as Calvinball is concerned: I really don’t see what you mean. If you’ve ever negotiated a contract you’ll know that the rules aren’t just made up on the fly and the same rules apply every time.

      I also don’t see how writing buggy software would become illegal with this bill – though it should be avoided, btw.

  2. DRM may be moving away from music, but that’s about it. Can you find legal movie downloads not crippled with DRM? Also, think of the game companies which are now adding DRM that requires a permanent internet connection, even when not playing over the internet. It’s a new trend, and that sounds like more DRM, not less.

    What happens when that authorization server is shut down? What will happen to those games ten years from now? They’ll be totally lost, even if you still have your original CD and a compatible computer. That is, unless you have some crack or some other sort of ‘circumvention device’, but now they want to make it illegal. The same apply to DRM protected e-book or movies: they generally don’t require a permanent internet connection, but they often require the device to be authorized by an authorization server. That server will be shut down eventually. How are libraries supposed to archive those works in the long term if they aren’t allowed to circumvent the locks (and if there is no tool to do that)?

    If this law comes in place, it means that everything “sold” to you with DRM is in reality “lent” to you for as long as the publisher’s authorization framework is still in place. Why they just not lend it to you instead? Because the consumer wants to own his copy, and does pay for that privilege. But with DRM, especially if you can’t circumvent, the part about owning what you buy is just an illusion that will last until the new technology arrives, or the authorization servers are shut down, at which point it doesn’t matter if you own it or not because the part you own will become useless. But most consumers don’t realize that… yet.

    • Hi Michel,

      As a matter of fact, you can find non-DRM legal copies of movies to download if you know where to look, but I don’t think that is the point of your comment: I guess your point is to say that if a customer buys a copy of something (a game, a movie, etc.) he/she should be able to use that copy without an Internet connection and without fearing that a decade later he/she’ll no longer be able to use it. However, that is not how copyright works.

      When you buy a computer game that has a DRM on it that requires a connection to a master server to unlock it whenever you play they game, you are buying into two things: a licence to the computer game, in order to be allowed to use it, and a service level agreement that would stipulate such things as availability of the licence server. If that service level agreement says that after a certain amount of time the service is no longer guaranteed and the company you bought the service from decides to shut down the server well after that time, they have upheld their end of the bargain. If they breach the contract, you can sue them for statutory damages. There’s no need to break the DRM for that.

      I can understand that that might be an inconvenience, but it’s an inconvenience you’ve signed onto when you bought the game. The argument that “you bought it therefore you own it” simply does not hold with copyright – that’s not how copyright works. In fact, there are certain moral rights that you cannot sell.

      In daily life, this is usually not a problem: do you still play Leisure Suit Larry?

  3. Ronald, in my commentary I forgot to say that your piece is quite good and well researched. A few more points:

    * You say: “it would be rather silly to destroy the master copy”, but you have to acknowledge that silly things like this do happen in our world. Who has never forgotten the car’s key in the locked car? Imagine if it was illegal to pick your car’s lock! 🙂

    * You surely know that already: most people are not knowledgeable enough to know what they’re doing with a computer. How would a regular person know that downloading VLC and using it to play a DVD is now illegal? With the current bill, just downloading VLC and keeping it on your computer would be illegal because it’s a tool that can circumvent DRM.

    * Digital locks are often abused to provide “protection” beyond copyright, such as preventing users from skipping advertisements and artificially locking users to a particular technology or platform manufacturer. Picking the lock should be allowed to work around these hindrances.

    I’m not against digital locks per see, just against unreasonable ones: digital locks should be there to help people respect the law, not to allow publishers to grant themselves additional rights to what they sell.

    • Hi Michel,

      On your second comment: it would be a bit awkward if picking the lock on your own car would be illegal, which is why I agree with the proposed amendment from Michael Geist that would render picking the lock legal if the copyright holder agrees to it. I wouldn’t call my support for that “staunch”, though, as intellectual property is much easier to keep around and safeguard than physical objects are.

      Downloading VLC will not be illegal under C-32: its primary purpose isn’t to break locks, but to watch movies (whether or not they’re locked) and it is not marketed as a tool to break locks. The wording of bill C-32 is clear on this subject:

      (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 technolog- ical 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.

      (emphasis mine).

      DRM cannot grant additional rights, but it can be part of a licence agreement between the publisher and the consumer. By the way: the licence agreement usually states more stringent wordings w.r.t. the breaking of the DRM than the proposed bill does.

  4. TPM is bad for opensource says:

    Sorry if you’re insulted by the “if you’ve ever written software” bit but that was so the comment could be used by others to highlight the ludicrous nature of TPM.

    Have you ever clicked accept on a license? Have you ever read the license to see that they inserted a clause saying they may change the license later? Have you ever been emailed by a website saying their services TOS has changed? This is an aspect of Calvinball, the ground changes beneath your feet because the rules have suddenly changed and you had little recourse.

    There is little that the consumer can truly negotiate and to suggest that the consumer can negotiate in most situations is erroneous. Try negotiating with any service offered. Try negotiating with a retailer or a service. Maybe you can pay less, but those other parts of the contracts are fixed. Rogers used to make consumer sign contracts which in the case of a disagreement the consumer had to pay for arbitration (which cost more than a few thousand dollars).

    We’re dealing with real laws, about real people with real companies in the current context in the world, sure in the mathematical sense you could negotiate and get what you want, as in there exists X where you can negotiate but the set of X is very tiny and this is where the real world comes in and smacks you in face. It’s like saying sure opensource programmers can write a DVD player that plays all DVDs and technically doesn’t “crack” CSS, they could license it from the DVD consortium, there’s a possibility — but it isn’t realistic, it isn’t what is happening or what has happened. I think it is really dangerous to try to live in the realm of the mathematical absolute when what we’re really witnessing here is that consumer have very little freedom to negotiate beyond not buying something.

    Summary:
    A. You don’t get to negotiate the majority of the time.
    B. Licenses change and even contracts can change due to clauses within them that allow them to changed, which you didn’t have a chance to negotiate.

    • Sorry if you’re insulted by the “if you’ve ever written software” bit but that was so the comment could be used by others to highlight the ludicrous nature of TPM.

      No problem 🙂

      Have you ever clicked accept on a license? Have you ever read the license to see that they inserted a clause saying they may change the license later? Have you ever been emailed by a website saying their services TOS has changed? This is an aspect of Calvinball, the ground changes beneath your feet because the rules have suddenly changed and you had little recourse.

      I think the answer to your first and second question are clearly “yes”. In fact, I’ve been on the other side of the fence as well, writing a licence that included a clause that I could change the licence at some point. I currently have at least three of those licences out-standing with customers who are using my software under a licence that I can change and they cannot. Should I change it, however, and that change is “radical” enough to upset their business, they can get a court injunction against the change. Such is the principle of negotiation in good faith as it has been explained to me. My customers aren’t playing Calvinball with me.

      On some of my licences, there is also an arbitration clause: in case of a disagreement between myself and my customer on the interpretation of the licence, we have to go to an arbiter. Before we get to that point, though, a lot of water has gone under the bridge.

      The point is: copyright law provides a framework for these things. It prescribes what is to be considered the “default licence”. When you download iTunes, you already enter into a contract that includes the following clause:

      (x) You agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any security technology or software that is part of the Service or used to administer the Usage Rules, or interfere with, remove or alter any rights management information on the Products.

      which means the DRM on iTunes is already legally protected and statutory damages can already be claimed against you if you break the DRM – as that would be a breach of contract. The bill basically provides a framework for those damages and, because it includes a similar clause, means providers aren’t obliged to put such a clause in their licences.

      what we’re really witnessing here is that consumer have very little freedom to negotiate beyond not buying something.

      … which is really the biggest leverage we can have…

  5. Whether VLC is built “primarily for the purposes of of circumventing” is for the courts to decide, but I think your affirmation that VLC does not infringe stands on shaky grounds. One could say that only research tools about DRM are built “primarily for the purposes of of circumventing DRM”; what people want is not to circumvent DRM, they want to view a movie, they want to copy-paste a paragraph or a portion of an image to use as a quote, they want make backup copies and they want to play the game they bought. In all these events, the primary intent is not circumventing. But how would a court interpret that? In my opinion this bill either outlaws VLC, or it outlaws practically nothing.

    Also, don’t forget that VLC has transcoding and streaming capabilities too, so it’s not just for viewing. And it builds on some other components which are much more geared towards circumventing (it includes DeCSS for instance), is distributing VLC with those components legal.

    DRM cannot grant additional rights, but it can be part of a licence agreement between the publisher and the consumer. By the way: the licence agreement usually states more stringent wordings w.r.t. the breaking of the DRM than the proposed bill does.

    But enforceability of a click-accept licence agreements is debatable. The law is much less. If the law forbids circumventing a digital lock in all circumstances, the digital lock becomes the contract. Contracts can have unenforceable clauses invalidated in court, but does contract law apply to digital locks? Can a digital lock be invalidated in court? Are digital locks limited in time like contracts (the 99 years rule), or limited in time by copyright (50 years after author’s death)? With that bill, the protection of digital locks is mostly unlimited in time and in scope. Can the “terms” enforced by the digital lock be changed at will by the owner of that lock? And how is the consumer made aware of the lock’s limitations? If you replace the contract or the click-accept agreement with a digital lock, how can the buyer know what are the terms of this digital lock “contract”? Must he reverse-engineer the lock?

    Here’s how it should work. When a digital lock protects more than what’s afforded by copyright law, what it protects and how it works should be written in understandable terms for the buyer prior purchase. And if the written description differs from what the lock does, the written description should prevail because that’s what the buyer agreed to. In other words, you still need a written contract, and the lock should be protected only when it enforces that contract. If you need to pick with the lock in order to do something allowed by the contract (or allowed by a law superseding the contract), then you should be entitled to.

    … which means the DRM on iTunes is already legally protected and statutory damages can already be claimed against you if you break the DRM – as that would be a breach of contract.

    What the iTunes Licence says is reasonable, but only because it’s not law and a court can still allow circumvention to proceed if that is deemed necessary to protects the buyer’s rights. The situation is much less clear with a law protecting digital locks whatever they do.

    • Hi Michel,

      In my opinion this bill either outlaws VLC, or it outlaws practically nothing.

      That’s more or less my point: it outlaws practically nothing – at least nothing legitimate. The primary purpose of VLC is legitimate: it is not intended as a tool to enable copyright infringement and piracy, nor marketed as such, etc. Don’t forget that judges have to be reasonable as well – and they can listen to expert witnesses if it comes to that.

      As for your arguments on the iTunes licence: if you’re saying that you could ask an injunction against a licence but you can’t against a law, you’re right. That’s one reason why a law is needed. The digital locks provisions are part of copyright law. I would be surprised if the time limits of copyright law don’t apply to them.

      What I see in this debate is a lot of fear, but not much reason for that fear: the government isn’t out to stop legitimate practices but it does want to crack down on piracy (part of their “tough on crime” policies) and I don’t personally see much wrong with that – as long as legitimate practices remain legitimate.

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