Canada's Own Justice Department Worried That Digital Locks Provision Is Not Constitutional

from the open-to-challenge dept

Wed, Jun 27th 2012 3:03am — Mike Masnick

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

29 Comments

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Alana (profile), 27 Jun 2012 @ 2:25am

Why question copyright law when you can interrogate it?!

*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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Anonymous Coward, 27 Jun 2012 @ 3:17am

i'd like to know how anyone is supposed to be able to make a 'legal copy' of something, when the something has a type of protection on it that is illegal to circumvent?
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Anonymous Coward, 27 Jun 2012 @ 3:22am

Copyright maximalists have a natural foe in userfriendliness, which should be curtailed as much as possible. That's the answer to the last question in the article.
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Anonymous Coward, 27 Jun 2012 @ 3:56am

> 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?

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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Anonymous Coward, 27 Jun 2012 @ 4:03am

Re:
@4

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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John Doe, 27 Jun 2012 @ 4:09am

Can we get an anti-circumvention clause on the constitution?
I wish we could get an anti-circumvention clause on the constitution so that the government would quit going around it.
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Anonymous Coward, 27 Jun 2012 @ 4:12am

Re:
It's a way to apply secondary liability to a party (tools maker) which is easier to find and sue, and which has deeper pockets (hopefully) than an anonymous private individual. Plus, by being able to go after companies they can go for willful copyright infringement, which as we all know carries MUCH higher statutory damages.
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Anonymous Coward, 27 Jun 2012 @ 4:41am

Re:
i'd like to know how anyone is supposed to be able to make a 'legal copy' of something, when the something has a type of protection on it that is illegal to circumvent?

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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Richard (profile), 27 Jun 2012 @ 4:42am

Re: Re:
Sorry - not signed in - comment above is mine!
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Anonymous Coward, 27 Jun 2012 @ 4:48am

Re:
Let's forbid knives first - they can be used to cut food, but we all know they can be used for killing people. Killing people is illegal, right? Actually, just about everything in the world can be used for killing people, with some creativity, so let's just ban everything and live happily!
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AB, 27 Jun 2012 @ 5:05am

Well, I have to admit, this may be the first time since we got it that the constitution has actually done something good.
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Anonymous Coward, 27 Jun 2012 @ 5:22am

Re:
Hope you're in Canada; in U.S., our constitution is still not doing us much good. Sadly, this is by and large with our own consent, deserving sheep that we are.
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Anonymous Coward, 27 Jun 2012 @ 6:26am

Re:
Backup copy for personal use only and not to be shared, of game, movie, music, or other media locked down to a single copy either by being a physical format, or just DRM on software.

That a good enough example?
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Anonymous Coward, 27 Jun 2012 @ 6:27am

Re: Re:
They only care if you kill people they own the rights to, but we don't really let them own many people anymore. That is why knives are fine and computers are evil
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jakerome (profile), 27 Jun 2012 @ 6:29am

But... but ...
but... PIRACY!
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Anonymous Coward, 27 Jun 2012 @ 6:56am

Re:
Technically, Canada doesn't have an all-in-one type document similar to the US. Here it's a collection of various acts that are recognized by the Constitutional Act of 1982 (Formally the British North America Act 1867, before we patriated it from the British). One of the most important for the constitutional rights of Canadians is the Charter of Rights and Freedoms.

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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trish, 27 Jun 2012 @ 7:09am

drm
The point of drm is to make it technically impossible to copy or whatever. If you have a technical measure to disallow certain types of use, why the hell do you need a law that makes it illegal to circumvent? If it actually worked the way it' ssupposed to, Drm WOULD ACTUALLY DISALLOW the behavior it is designed to disallow. This is as ridiculous as selling you a video game console and making it illegal to open the thing and change the piece of hardware you bought.
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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Adam Bell (profile), 27 Jun 2012 @ 8:15am

DRM is really useless and this law doubly so.
The thing about the prohibition of DRM circumvention that amazes me is that it is virtually unenforceable. If want a backup copy or a clone for my car to protect the original from the kids, I can make it in a few minutes and no one will ever know. I have done no harm. If I try to sell my copy at the local flea market, then I am doing harm.

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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slopoke, 27 Jun 2012 @ 8:22am

Re: drm
That's the whole point. DRM doesn't and can't work. One of the basic rules of encryption is that you have to keep either the message, the decription method or the decription key away from the person wanting to crack the message. In any DRM scheme you have to, by necessity, hand all three to the potential hacker. Otherwise you couldn't play the content. The ONLY way to make DRM even appear to work is to outlaw the ability to circumvent the encription. And, as the AC stated above, it's a lot easier to forbid the tools than go after individual cases.
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Anonymous Coward, 27 Jun 2012 @ 9:38am

Re:
read it as 'it would be a legal copy without this clause'.

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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Mason Wheeler, 27 Jun 2012 @ 10:10am

Doesn't surprise me.
Makes sense that it would be unconstitutional in Canada. It's unconstitutional in the US too, blatantly so. The 5th amendment says that no one may be punished for any crime without due process of law. DRM says that if the DRM software concludes that you're infringing, whether that's actually true or whether there's a bug in the DRM itself (or a server that's down/overloaded/whatever), then you're guilty, with no trial and no appeal, and (the DRM writer's private interpretation of) the punishment for your infringement is enforced upon you.

How is that legally justifiable in any way?
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Hephaestus (profile), 27 Jun 2012 @ 11:37am

Re: Re: Re:
The easier way to say it is...

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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Anonymous Coward, 27 Jun 2012 @ 12:15pm

It's quite interesting how many laws are being found unconstitutional in Canada recently. Hopefully this one makes the cut and is found unconstitutional as well.
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Anonymous Coward, 27 Jun 2012 @ 1:57pm

A Justice Department that uses the standard definition of "justice" instead of Chris Dodd's personal interpretation? Man, Canada gets all the luck.
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TtfnJohn (profile), 27 Jun 2012 @ 6:20pm

Re:
The DOJ seems to think that if you're breaking the DRM for the purpose of making your own archival copy and not for infringement the C-11 is open to constitutional challenge. This includes, if I read it correctly regional restrictions under most circumstances.

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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TtfnJohn (profile), 27 Jun 2012 @ 6:34pm

Re: Re:
What we did have was the Diefenbaker era Bill of Rights, Magna Charta, the English Bill of Rights and the Bill of Right. Magna Charta we still have as it forms the legal basis of all of this. The courts pre 1982 were getting around the direct emphasis the Charter has by invoking the Diefenbaker era bill, practice and precedent or the requirement of reasonableness. Not the best way, I know but it worked when needed.

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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TtfnJohn (profile), 27 Jun 2012 @ 6:57pm

Re: Re: drm
The thing is though that you can't fobid what's already in your device that allows you to play the DRM protected material to start with. The tools are already there and have to be.
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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AB, 27 Jun 2012 @ 7:00pm

Re: Re: Re:
Thank you. That description actually makes some sense of the whole mess. It always did give me a headache.
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TtfnJohn (profile), 27 Jun 2012 @ 7:05pm

Re: DRM is really useless and this law doubly so.
Sadly for some, the current state of copyright enforcement has created a generation of scofflaws of its own. It's becoming circular in the sense that increase the enforcement, ban the tools and what is likely to happen is that infringement is likely to increase not decrease. Things like today's 6 strikes story. Even though we know about all the false positives yeilded by relying on an IP address to identify a human being the 6 strikes are going that way again this time with some American ISPs lining up to help out. You'd think someone would want to try a different way that actually reduces infringement. But no, let's go with this. We're familiar with it even if the results tend to be something along the lines of the square root of negative one.
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