TPM on your content under #c32 – handing away your rights?

Under bill C-32 it would be illegal to remove TPM under by far most circumstances. Does that mean that, if you decide to publish software you create with TPM, you’re handing away the rights of your software to the TPM manufacturer? No, it doesn’t.

Let’s say you’re writing a big and expensive piece of software: you’ve poored time and money into its development, perhaps even hired other people to work on your dime for that development, and you’re ready to bring it to the market. Like I said, this is a big and expensive piece of software: you know it’s going to be very successful and you don’t want software pirates to get their hands on it, so you decide to buy a dongle kit – which is a TPM measure.

When implementing such a TPM, you basically buy a bunch of dongles and get a licence to use an SDK or an API that allows you to use those dongles in your software. In your code, at a few strategic places, you insert the calls necessary to make sure the dongle is present. Does that mean you have signed away your rights to your own software? That you can’t change your mind and remove the dongle from your product? Of course not!

Similarly, say you take up a singing career: you chant something melodious and revolutionary into your PC’s microphone while filming yourself with your webcam and post it on YouTube. Some-one in Toronto sees you and thinks: “this kid’s got talent” but you say “nah – I can do this myself” and you decide to produce your own DVD and sell it on the Internet. For some reason, you decide to “protect” your DVD with CSS – meaning you have the DVD pressed by a company that can actually create CSS-enabled DVDs. They send you back the copies of the DVDs, which you sell on your website. Does this mean you can no longer use your master copies, raw material, etc.? Would that infringe the copyright of the guy who pressed the DVDs for you? Of course not!

In neither of these cases would you be circumventing a TPM: in the first case – you change your mind about using dongles with your software or you decide to change dongle providers – you change your source code and compile a new version of the software. It’s not like you’d have to reverse-engineer your software in order to be able to remove any calls to the dongle API, nor would you be messing with the physical dongle to make it not work. In the second case, you have a perfectly legal copy that doesn’t have TPM on it, which you can use however you want. There’s no circumventing TPM there either. In both cases, here’s what the bill says (emphasis mine):

“circumvent” means,

(a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure”, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner;

“technological protection measure” means any effective technology, device or component that, in the ordinary course of its operation,

(a) controls access to a work, to a perform- er’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner;

as the copyright holder, you can withdraw the authorization to use the TPM on your content, and you can give yourself (or anyone else) authorization to remove the TPM.

About rlc

Software Analyst in embedded systems and C++ programmer. I specialize in systems design, concurrency and language design, and am interested in generic meta-programming and functional programming and their practical applications. I take a pragmatic approach to project management, focusing on the management of risk. I have over a decade of experience as a software professional and a background in science.
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3 Responses to TPM on your content under #c32 – handing away your rights?

  1. TPM is bad for opensource says:

    So you’re perfectly right, if you own everything you’re ok (ignoring how you can can get ahold of the TPM breakers).

    Cory Doctorow talks about TPM on your work in the context of publishing where often you have copyright assignment or you license your work to someone else.

    For instance if you publish a paper with the IEEE you may not redistribute the paper they publish.

    So if you do own everything you should be ok. But if you exist in the rest of the world where you’re not Dave Sim and you’re not self publishing you will often not be the “copyright owner” even if you wrote it. Another copyright owner will use their COPYRIGHT over your work to TPM it.

  2. Eo Nomine says:

    Again. I agree with Ronald. The definition of “circumvent” means that if the copyright owner authorizes anyone to get around the TPM, it’s not an act of “circumvention” for the purpose of the Act and the prohibition wouldn’t apply. Now, large distrubtors and aggragators like Apple and Amazon may limit a copyright owner’s ability to authorize circumvention as a condition of using their service, but that’s a different issue and is between the owner and the distributor to work out.

    “So if you do own everything you should be ok. But if you exist in the rest of the world where you’re not Dave Sim and you’re not self publishing you will often not be the “copyright owner” even if you wrote it.”

    Which begs the question, if you’ve assigned the copyright in your work to someone else (presumably for some kind of payment and/or back-end royalty), why should you retain the authority to allow others to circumvent the TPM when you’ve given up your ownership rights in the work? And if you’ve licensed it, you’re still the owner and are entitled to authorize others to circumvent (again, unless your contract with the distributor prevents you from doing this).

    Cory Doctorow’s core complaint appears to be that he doesn’t like that certain third party distribution platforms impose conditions of use on authors he disagrees with. If so, there are plenty of other options, including self-publishing his works DRM-free on the web.

    1) If you license the copyright in your work, you remain the copyright owner.

  3. I couldn’t have put it better than Eo Nomine.

    In most copyright assignment forms/contracts I have seen so far, copyright is assigned to the publisher, meaning the only thing that the creator of the work is left with is the moral rights over the work (which he could waive, but copyright assignment forms don’t usually include a waiver of moral rights). For articles published by the IEEE, I don’t think you’ve read their copyright assignment form thoroughly enough: when assigning copyright to the IEEE, you actually retain the right to reproduce the work in whole or in part (under the heading “retained rights/terms and conditions”):

    1. Authors/employers retain all proprietary rights in any process, procedure, or article of manufacture described in the Work.
    2. Authors/employers may reproduce or authorize others to reproduce the Work, material extracted verbatim from the Work, or derivative works for the author’s personal use or for company use, provided that the source and the IEEE copyright notice are indicated, the copies are not used in any way that implies IEEE endorsement of a product or service of any employer, and the copies themselves are not offered for sale.
    3. Authors/employers may make limited distribution of all or portions of the Work prior to publication if they inform the IEEE in advance of the nature and extent of such limited distribution.
    4. In the case of a Work performed under a U.S. Government contract or grant, the IEEE recognizes that the U.S. Government has royalty-free permission to reproduce all or portions of the Work, and to authorize others to do so, for official U.S. Government purposes only, if the contract/grant so requires.
    5. For all uses not covered by items 2, 3, and 4, authors/employers must request permission from the IEEE Intellectual Property Rights office to reproduce or authorize the reproduction of the Work or material extracted verbatim from the Work, including figures and tables.
    6. Although authors are permitted to re-use all or portions of the Work in other works, this does not include granting third-party requests for reprinting, republishing, or other types of re-use. The IEEE Intellectual Property Rights office must handle all such third-party requests.

    In effect, you sign away your right to publish the same work elsewhere (e.g. with the ACM).

    As for the reason why I didn’t include the case in which you decide to not self-produce/self-publish your work: the argument being made on Twitter and in the blogosphere at large was that by contracting TPM on your work you were signing away your copyright. The argument was not that by signing away your copyright you were signing away your copyright (which I hold to be self-evident).

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