Canada's Own Justice Department Worried That Digital Locks Provision Is Not Constitutional
from the open-to-challenge dept
In our post game analysis of Canada's new copyright law, we noted the surprising number of good things in there. But, still, much of the focus (quite reasonably) is on the really awful "digital locks" provision, which has many similarities to the US's anti-circumvention clause in the DMCA, and similar copycat DMCA-like provisions around the globe. There is one piece of the DMCA and the digital locks portion of the C-11 bill which has simply never made any sense to me at all: it's that circumvention of "technical protection measures" (generally, DRM) breaks the law even if the circumvention was to make a legal copy of something. It has never been explained why such a provision cannot be limited to cases where the tools are used to infringe. When you make such a broad restriction against circumvention, you lock up plenty of perfectly legal uses of content and (potentially even worse) open up an opportunity to deny people access to things in the public domain -- creating the potential for a perpetual copyright via DRM.And now, according to some government documents that Michael Geist obtained using an access to information request, we discover that Canada's own Justice Department appears to have worried that the digital locks provision -- when not tied to actual infringement of content -- was itself unconstitutional. While the analysis actually covers an earlier version of Canada's copyright reform effort, the digital locks provisions are still quite similar, and clearly do not address the constitutional concerns the Justice Department raised.
At the very least, this certainly opens the door for a constitutional challenge to the provision. Either way, I'm curious, for the various copyright system defenders we have in the community here, if anyone can take a stab at why it makes sense to have anti-circumvention rules apply even in cases where no content is actually infringed? Some of us would really like to know...
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Filed Under: anti-circumvention, c-11, canada, digital locks, dmca, drm
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*Arrests copyright law*
TELL ME WHAT YOUR SECRETS ARE?! DO YOU WORK FOR THE MAFIAA?! DO YOU?! ARE YOU BUILT JUST TO USE AND ABUSE IN THE DIGITAL AGE?! TELL ME! TELL ME! *Hurls copyright law against the wall*
If you don't tell me what I want to know... There will BE no copyright law! ABSTAIN! ABSTAAAIN!And then figure out what the hell you're supposed to be and do, and word it clearly, and strongly. Don't bullshit us with broad definitions and tip the favour too generously to the side of the copyright holders!
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With that interpretation DRM would create perpetual copyright. Since perpetual copyright has been repeated rejected by legislatures - even those that have accepted finite term extensions - it is clear that that cannot have been the intention of the legislatures that brpought in this law - hence the contradiction in terms.
Actually I would like to see this law interpreted as a prohibition of DRM - since DRM is itself a circumvention mechanism. It circumvents those parts of copyright law that prescribe copyright expiration and fair use/fair dealing.
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The law making it illegal to break DRM is forever, copyright is only for a limited time. Hence DRM extends the copyright beyond the legal length of copyright.
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That a good enough example?
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As for the original article question, it makes sense to me for the lobbyists to want this in. DRM is circumventing existing laws by making it theoretically impossible to use your acquisitions in every (legal) way you want. Once it's there, you can retroactively legally deny all them nasty fair use cases (foul freeloaders, not wanting to pay over and over again for the same thing!) by having such an anti-circumvention clause.
Remember, we, as the public, owe the content industries more money than exists, so anything that they can get their hands on is merely partial compensation for incurred losses.
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Perhaps more importantly the law as written prohibits the otherwise legal act of breaking DRM for the purpose of moving the software, book or whatever to another another device of allowing someone with, say, a permanent visual impairment access to what is being protected by the DRM. The problem there is that once the protected material is moved to another device, again, perfectly legal, there is no way of restoring the DRM as the bill appears to demand. Hence the prohibition of an exception to the forbidding of breaking DRM.
Reading through what Giest has posted, so far, it appears that attempting to enforce the no breaking DRM rule may very well contravene the freedom of expression clauses of the Charter unless because copyright infringement is the direct result. Marking an archival copy isn't infringement in Canada.
Perhaps there'll be more focus tomorrow when Industry Canada's concerns are posted. Right now there's a few blank spaces I'd like to see filled in a little bit.
One could argue that DRM violates freedom of expression and the right of citizens to access information kept on them by government and some private authorities and entities.
I can't see the argument that making DRM extends copyright terms to eternity though I'm open to it. At some time the work covered by copyright that the DRM is "protecting" will enter the public domain and at that point breaking the DRM will have nothing at all to do with infringing on copyright through redistribution once cracked.
Giest's post and comments indicate there are other issues around the DRM provisions which may land them in trouble too.
My sniffer always did detect the smell of something lawyers would love to challenge under the Charter. It's nice to see them listed other than just my feeling of "the smell".
As ACTA and TPP will also have DRM cracking provisions that make C-11 look tame in comparison I'd say those will land in front of the Supremes the moment they're tabled in the House.
This is going to be fun.
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I am not a copyright system defender (actually the complete opposite), but I think I can see their intention with that rule.
They want to forbid tools.
Most tools will be dual-use. For instance, a DVD CSS decoder can be used for perfectly legitimate purposes (even if you believe in copyright), like watching a DVD you bought in Australia on your US-bought Linux-based laptop.
But since that is done in the privacy of one's home (or not - a laptop is portable, after all), they cannot control what people do with that tool. It can be used to play a DVD. It can also be used to rip a DVD, save it to the disk, and play it on another computer which does not have a DVD player. It can be used to rip a DVD, save it to the disk, and play it on an airplane (while the DVD was left at home). It can be used to copy the DVD to a friend. And it can be used to distribute a copy of the DVD to the world. Even in this last case (which is not that private), it takes work and expense to prosecute the eyepatched malfeasor.
It is much simpler and cheaper for them to forbid the distribution and use of tools. They do not have to prove that the use of the tool was actually illegal. They can make the tools harder to get. They can have a chilling effect on the guys who have enough expertise to make such tools (it takes much less effort to use one of them than to make them easy to use). And so on.
Basically, it is a matter of reducing their enforcement costs, and pushing them onto the rest of the society.
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most of the software and hardware used to make copies of stuff are made by the same companies (or subsidiaries) that want to stop you from copying. they want you to buy all the needed bits but not use them or if you try, be prevented! like saying it's ok to drive under age as long as you never get behind the wheel of a vehicle. clear as mud!!
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Can we get an anti-circumvention clause on the constitution?
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It still feels odd that before 1982, Canadian's civil rights didn't really have any constitutional protections. I could only imagine the horror that would cause in the courts now, if that was still the case.
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What's recognized outside of the Charter in the Constitution Act is what came before it which is basically how government evolves over time and the power of it. Contrary to fears in Quebec the recognition of Provincial rights has increased to such a degree that the Feds always need to take that into account now when coming up with dreams of "national" programs in just about any area you can think of.
Without the Charter we wouldn't be discussing the high probability that the DRM provisions of C-11 will be challenged. Without the Charter we'd not be discussing what may happen should the courts rule them unconstitutional on various grounds perhaps including those we had before 1982 that the provisions are in conflict with one another.
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But... but ...
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drm
This copyright BS is more entertaining than most of the entertainment these people are trying to protect with copyright. The copyright story is an epic of all genres: drama, comedy, reality TV, horror...
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Let's not even mention that the tools are needed for legitimate uses such as troubleshooting on a network, connections or the health of your DVD/CD player/writer.
In many cases it's already illegal to decrypt a wide range of communication and software. Not that it's stopping the Chinese, for example.
As for an attempt to forbid the tools or to make it too expensive to develop or maintain them that's another one of those cows that left the barn years ago. And they aren't coming home.
Forbidding the tools would make the legal cracking of DRM C-11 outlines pointless and would raise a Charter challenge of its own.
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DRM is really useless and this law doubly so.
What this kind of law does do is to promote and educate a whole generation of scofflaws. I think a lot of folks make an internal distinction between the laws of the land and their own moral compass. When they perceive that these clash, i.e., when breaking the law is not even slightly immoral or harmful, but is rather convenient, they do. Draconian laws simply move the boundary in their calculation in the wrong direction. Further, outlawing the tools to defeat DRM will be as effective as the war on drugs has been or prohibition was; an underground supply quickly rises.
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Re: DRM is really useless and this law doubly so.
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Doesn't surprise me.
How is that legally justifiable in any way?
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