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Wednesday, June 23, 2010

My Take on Bill C-32 (Part 10) - 'Digital Lock' edition

Alright, today's the big day.

I've finally worked my way through to the 'Digital Locks' part of the Bill and that's what I'll be focusing on.

There's a LOT here so, hey, feel free to come along and read with me.

WARNING: There's a LOT here. Just sayin'.

You can read the new, proposed Bill C-32 here and the original Copyright Act here.

Also one reminder: All links provided below are for comparison purposes and they load, where possible, the section that's available in the original Copyright Act.

Okay so, since this is a whole new section, the first thing you have to get out of the way is the new definitions for the terms you're going to be slinging.

And as far as sections 41.1 to 41.21 are concerned the word "circumvent" means (and I'm trimming things a bit here):

"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; and to avoid, bypass, remove, deactivate or impair the technological protection measure."

But... wait! What is a 'technological protection measure'? (More trimming ahead)

"any effective technology, device or component that, in the ordinary course of its operation, 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; or
restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19."

In essence, thy CDs and DVDs shall remain slowly degrading hunks of plastic (uh yeah, these disks aren't exactly 'archival quality') and thy iPods shall remain shackled to iTunes, untouched and unloved by Sharepod or other useful programs that help you maximize that tech you dropped several hundred dollars on only a year or two ago.

But I digress... please, do go on.

In the new Section 41.1(1) "Prohibition" we start off with some lovely language that says "No Person Shall"

And then they hop to it. Plain and simple: No Circumventing of 'technological protection measures' [TPMs]. Period. End of story. If it's there and you, somehow, find a way around it and use it you're a criminal.

You're also not allowed to offer "services to the public" that are primarily for the purpose of getting around TPMs (Sharepod would be in SO much trouble); offer services that have no commercial significance other than when they're being used to circumvent TPMs or market (or work with someone to market) a service that's for the purpose of circumventing a TPM.

Essentially: I can get in deep doggy doo doo simply for mentioning 'Sharepod' let alone linking to their site. Gawd, I'd probably even be in more trouble for linking to Wikileaks earlier (and now). At least under that little bit of language.

Anyways, it's also going to be illegal for you to manufacture, IMPORT, offer for sale or rent, or provide (in any way) any technology, device or component that is designed or produced primarily to circumvent a TPM; any technology, device or component that has little other 'commercial significance' other than when it's being used for the purposes of circumventing a TPM; or market (or work with another person to market) any technology, device or component that is used for those purposes.

In 41.1(2) "Circumvention of Technological Protection Measures" they say that the owner of the copyright in a work that has been infringed by someone who has circumvented a TPM is entitled to any and all 'remedies' that are or "may be conferred" by law -- be they injunction, damages, accounts, delivery up or otherwise.

Section 41.1(3) "No Statutory Damages" says that the owner of the copyright of a work cannot elect to receive 'Statutory Damages' from an individual who bypassed a TPM for their own private purposes.

So, while 41.1(2) seems to open the door for all sorts of wonderful lawsuits from record companies (you know, those who actually own the copyrights to most musicians music these days), 41.1(3) says that they can't come after you for 'statutory damages' as long as you're using it for personal use. Ie: if you rip it and share it, you're in trouble.

Pause here for a moment while the building around me stops shaking from the earthquake...

Okay, still alive... excellent.

Moving on.

Section 41.1(4) "Services, technology, device or component" pretty much says the exact same thing as 41.1(2) but changes the context to 'services' and/or 'people who market those services' -- aka, what's mentioned in 41.1(1)(b) and (c).

In section 41.11(1) "Law enforcement and national security" says that it's not infringement if a TPM is circumvented for the purposes of investigation for enforcement of an Act of Parliament or Legislature of Parliament or protection of National Security.
Subsections (2) and (3) are basically the same language but now dealing with 'services' and/or 'technology, devices or components'.

Basically, the general feeling I'm getting here is that digital locks are for Citizens.

41.12(1) "Interoperability of Computer Programs" says it's not infringement for you to break a TPM as long as you own the program, a copy of the program or have a license to use it and are using it to get information that will make the computer program 'interoperable'. Subsections (2) and (3) are pretty much the same language except (2) says it's okay if you're offering a service that makes the program and any other computer program interoperable.

(3) says it doesn't apply to a person who manufactures/imports/provides a technology, device or component as long as it's to make a program and any other program interoperable AND that tech/device, etc is only for that purpose; or provides that tech/device or component only for that purpose.

41.12(4) "Sharing Of Information" says you're allowed to communicate the information obtained to another person for the purpose of making the computer program and any other program interoperable.

ie. You can tell them how to do it without infringing.

41.12(5) "Limitation" says the information that's communicated under (4) can only be used for making the computer program and any other program interoperable.

41.12(6) "Non-application" says you get no protection under the Act if while making that computer program interoperable you do an act that constitutes an infringement of copyright.

Uh... wow, I can see how this whole thing builds into its own little labyrinth.

And, just to be clear on this 41.12(7) says you're not allowed to share information gathered (covered in subsection (4)) if the person, while making the programs interoperable, does an act that's an infringement of copyright OR an act that contravenes ANY Act or Parliament or ANY Act of legislation of a Province.

In short: You folks better bone up on your Provincial and Federal regulations/Acts, etc. You breach ANY of them and you're in serious shiat my friend.

Now we step into 'Encryption Research' territory with 41.13(1) -- and, not surprisingly, a lot of this language seems to be cut and pasted in with a few notable changes from the earlier 'Encryption Research' section.

Long and short of it: It's okay to break a TPM -- by means of decryption -- as long as you're doing it for encryption research, have 'lawfully obtained' the work, informed the owner of the copyright and you wouldn't be able to do it otherwise.

Also, again, (2) says you're not entitled to benefit from the protection in (1) if you do an act that's an infringement of copyright OR an act that contravenes ANY Act or Parliament or ANY Act of legislation of a Province.

And (3) says pretty much the same thing again but in regards to tech/devices and components.

(Copy & Paste, people!)

41.14(1) "Personal Information" says it's not illegal for you to break a TPM if the work is not accompanied by a notice that states that it's use will allow a 3rd party to collect your personal information -- or, if it does exist but you have no option to prevent it without the restricting your use of the program -- and you're only breaking the TPM to confirm and stop it if the program does collect or communicate personal information.

41.14(2) says you can offer a service or manufacture/import or provide tech/devices or components that circumvent the TPM for the above purpose as long as they don't 'unduly impair' the TPM.

41.15(1) "Security" says it's okay to break a TPM if you're a network admin or owner and you're doing it only to test for system or network vulnerabilities and security flaws. It's also okay to do this as a service and to manufacture/import/provide (including rent or sale) or distribute tech/devices or components as a service provided.

This, of course, carries the regular proviso in (4) that you're unprotected if you do an act that's an infringement of copyright OR an act that contravenes ANY Act or Parliament or ANY Act of legislation of a Province.

(say that 3 times fast!)

Section 41.16(1) "Persons with Perceptual Disabilities" says it's okay to break the TPM if you're doing it for the sole purpose of making it perceptible to the person with a perceptual disability. Same goes for those who offer services and/or manufacture/import/provide tech/devices or components... as long as you're not 'unduly imparing' the TPM then you're golden.

41.17 "Broadcast Undertakings" says it's okay for a Broadcaster to break a TPM for the sole purpose of making an ephemeral copy of a work; a performance fixed in a sound recording or a sound recording otherwise covered in 30.9 UNLESS the owner of the copyright brings the means to enable that reproduction in a timely manner (in light of the broadcast undertaking's business requirements).

Sooo, yeah, does that mean that it's okay for a Broadcaster to break a TPM, rip songs from a CD or DVD and air them, you know, 'ephemerally'? 'Cause I thought that 'ephemeral' recordings were for live, one-off shows?

41.18(1) "Radio Apparatus" says it's okay to break a TPM for the sole purpose of gaining access to a telecommunications service by means of the radio apparatus. It's also okay to provide that service or manufacture/import/provide the tech/devices/components necessary to do it.

For what a "Radio Apparatus" is, see section 2 of the Radiocommunication Act or section 2(1) for the definition of "telecommunications service" (of course, not helpfully shared with us here in the bill -- though, I don't know why not, they could've just copied and pasted it in)

In section 41.19 "Reduction of Damages" the court is allowed to reduce or remit the amount of damages awarded in the circumstances above if you can prove to the court that you were unaware -- and had no reasonable grounds to believe -- that you had contravened that subsection of the Act.

Over in 41.2 "Injunction Only Remedy" they say that if the defendant is a library, archive, museum or educational institution and they can prove they were unaware their actions were in contravention of the subsection the plaintiff is not entitled to any remedy other than injunction.

I wonder if it'll be easier or harder for these institutions to prove their innocence than an average citizen...? How far does the "well, I didn't know!" defense stretch for Joe Schmoe verus Joe Schmoe Academy...?

(note to self, start 'Joe Schmoe Academy').

Section 41.21 is all about "Regulations". Subsection (1) basically says that if it turns out that there's a TPM that would "unduly restrict competition in the aftermarket sector in which the TPM is used" the Governor in Council can make a regulation excluding it from the application of section 41.1.

In subsection (2) the Governor in Council is given a whole host of other regulatory abilities -- including, but not limited to -- prescribing additional circumstances in which 41.1(1)(a) does not apply.

Yes, if this bill is passed, the Governor in Council could just make a regulation stating that you're okay to break TPMs for personal backups.

Whether or not that would actually happen... that's a whole other story. See, there's a bunch of 'factors' they would have to consider first (and I'm paraphrasing directly from the Bill here):

'(i) whether not being permitted to bypass a TPM could adversely affect the use a person may make of the work, the performer’s performance fixed in a sound recording or the sound recording -- let's just simplify and call this 'The Work' -- when that use is authorized, (Aka, when you bought/own it)

(ii) whether 'the work' is commercially available,

(iii) whether not being permitted to circumvent a TPM could adversely affect criticism, review, news reporting, commentary, parody, satire, teaching, scholarship or research that could be made or done in respect of 'the work',

(iv) whether being permitted to circumvent a TPM could adversely affect the market for 'the work' or its market value,

(v) whether 'the work' is commercially available in a medium and in a quality that is appropriate for non-profit archival, preservation or educational uses, and

(vi) any other relevant factor; and

(b) requiring the owner of the copyright in 'the work' that is protected by a TPM to provide access to 'the work' to persons who are entitled to the benefit of any of the limitations on the application of paragraph 41.1(1)(a) prescribed under paragraph (a). The regulations may prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with.'

So, yeah... possible... but not likely.

Section 41.22(1) "Prohibition-Rights Management Information" says that you are not allowed to knowingly remove or alter any electronic rights management information without the consent of the copyright owner or if you know, or should have known, that removing or altering the information would facilitate or conceal any infringement of their copyright or otherwise effect their right to get paid under section 19.

41.22(2) "Removal or Alteration of Rights Management Information" says that the owner of the copyright can come after you (if you infringe on subsection (1)) for any remedies -- injunction, damages, accounts, delivery up or otherwise -- that are or may be conferred by law.

In subsection (3) "Subsequent Acts" The copyright owner has the same remedies available to them against anyone who, without their consent, knowingly removes or alters the rights management information of their work and then sells or rents it out; distributes it to an extent that the copyright owner is 'prejudicially' affected; trades it, distributes it, offers it for sale or rental or exhibits it in public; imports it into Canada for those purposes or uploads it to the internet for access by the general public (telecommunication).

Subsection (4) "Definition of "Rights Management Information"" clarifies this term as information that is:

"(a) is attached to or embodied in a copy of a work, a performer’s performance fixed in a sound recording or a sound recording, or appears in connection with its communication to the public by telecommunication; and

(b) identifies or permits the identification of the work or its author, the performance or its performer, the sound recording or its maker or the holder of any rights in the work, the performance or the sound recording, or concerns the terms or conditions of the work’s, performance’s or sound recording’s use.
"

Wow.

Everyone still here? Still with us? Did we lose anyone (everyone)?

Yeah, this is not the easiest pill to swallow but I guess, having read this whole thing now the best simplification I can give to this whole section is this:

Digital Locks are for 'regular Citizens' only. Yes, pretty much everyone and their monkey has an excuse to break these TPMs... except the general user.

If you're acting in some special post or job then Digital Locks are just an annoyance. IF you're a tax-paying, otherwise law-abiding citizen... and acting in that capacity... then you're a criminal just waiting to happen.

Ahh yeah, I can see why people are somewhat pissed about this.

That said, my solution to this wonderful 'digital lock' problem is actually somewhat simple:

Put it right on the front of the box that the content inside is locked to that form and that form only.

I guarantee you that if you put that regulation into place and make it just like the front of a pack of cigarettes "STOP! The content inside is LOCKED to this disc and may not be transferred" then guess what? You're going to see a whole whack of a drop in sales.

To me it seems like the entire nature of this 'digital lock' strategy relies on the lazy nature of the consumer, that if they don't know it's locked they'll buy it first and find out later. Ie. Money is still made and the consumer is screwed.

CRTC, if you want to show some balls, regulate that if this bill comes into force then all packaging that's 'digitally locked' should be signaled as such to the consumer.

Right on the front of the box.

'Cause the moment I see that sign there, I can guaran-damn-tee you that I'll put it back on the shelf and thank whomever warned me about it.

Anyways, that's just my 2 cents on this whole 'Digital Locks' thing.

Part 11 tomorrow folks!

Cheers,
Brandon

4 comments:

OneOff said...

No read 41.1.3 again:


(3) 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 may not elect under section 38.1 to recover statutory damages from an individual who contravened that paragraph only for his or her own private purposes.

It doesn't say CANNOT.

You said CANNOT
it says MAY NOT ELECT
There's a big difference.

Do you see what it means? It means if you break one of my locks but do it for personal use, I can choose not to follow through and ding you for statutory damages. This is likely necessary because it is a criminal offense, and it is no longer ME versus YOU, it is the STATE versus YOU and the state could choose to carry on to make an example of you. So I guess this gives me the power to say to you oh well just give me $5 and pay for my lawyer too.



So I think you have misinterpreted the meaning of may not, it is an optional choice. It says you will be fined the statutory damages unless I the copyright holder take pity and say no in this case where you using it in your home it is ok.


I'm pretty sure we're still not allowed personal lock breaking privileges.

OneOff said...

Perhaps we're both wrong but it seems that 41.1.3 is not great for anyone anyways. So these guys are suggesting that 41.1 is already about when you have infringed so you could get double dinged.

The may not elect language is not used much in the bill so it hard to tell what they mean.

Check out 41.1 here:
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.

Brandon Laraby said...

Hi OneOff!

Thanks for your replies - and especially thank you for pointing me to this clause-by-clause break down (from someone who actually understands the significance of these changes).

I started out reading this as a writer who's trying to break into the industry (so I figured it'd be good to read this) but over time I've come to realize that, essentially, I'm reading it from an average citizen's perspective.

Now I kind of want to show just how little we're (average citizens) included in this process.

The language is definitely not 'for' us and, the more I've read of this bill the more I've realized how much that is by design.

I'm an actively interested, patriotic Canadian who wants to form his own understanding of what changes are coming and, by and large, simply by reading this bill I'm left with nothing but my own common sense of right and wrong to guide me.

(let alone all the other acts and treaties I have to read in order to get a full view of what's going on).

It's kind of a scary thing to realize, in a very real and tangible way, just how far removed we Canadians are from the running of our own government.

And how happy our government appears to be to keep it that way.

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