Friday, November 05, 2010

of locks and signs

The Copyright Modernization Bill (C-32) has today passed second reading in the House of Commons and is moving on to committee, presumably to hear testimony about amendments to make sure the bill gets copyright right.

The debate during second reading was, as noted earlier, somewhat confused, but that's understandable because there has been a very organized and relentless campaign afoot to confuse the already complex copyright reform file.

Nowhere is this confusion more apparent than on the issue of legal protection for technological protection measures or TPMs (well, fair dealing gives the TPM issue a good run for its money on the confus-o-meter, but let's leave that for another posting).

The House heard lots of fretting and worrying about so called "digital locks," and how their use and protection will trump and remove both new and old use provisions. Confusing things further, even the Ministers responsible for the Bill occasionally refer to TPMs as digital locks. I've used the same words myself as a short form in conversation.

I think this is an unfortunate misnomer, and a deliberate one encouraged by consumer advocates bent on stripping Canada's laws of legal protection for the choices creator's make about how, and when, and how far to distribute their works.

I actually think of TPMs as signs, not locks. Imposing a technological protection measure on my content - for instance, using computer code to take away the copy and paste function on specific texts - is like a property owner placing No Trespassing signs in their woods. Woods are lovely, dark and deep after all, and it's easy enough for a hiker to not realize she has strayed from public property to private; so the TPM acts as a helpful notice.

Oh, here I was thinking I'd copy and paste this whole article for my friends, but I see now that I shouldn't because it's copy-protected. That must mean the owner doesn't want me to use the whole thing, so I guess I'll just exercise my fair dealing rights and quote from it. Good then.

Much of the fretting and worrying over TPM protection has to do with the idea that "locks" will trump all other rights as we move forward with digital content. NDP digital issues critic Charlie Angus made just that claim in the debate:

"I am at a loss to understand how simply codifying absolute legal protection for digital locks, even when it overrides rights that exist within the bill, would actually make the market rebound and how artists would be able to make a living, because, as we know, anybody can pick any digital lock that exists now if they so choose."

Here's where the "lock" criticisms fall apart for me. Yes, anyone can pick a digital lock - and anyone can take a sledgehammer to a traditional lock as well. So what? When you see a padlock on a gate, or even better, when you see a No Trespassing sign on a gate, you are receiving a message. That message is - you better have a pretty good reason for coming through this gate because you'll have some explaining to do.

Angus' worry seems to be that no amount of explanation will make a difference with TPM protection, but I'm pretty sure that's not accurate. And for help on this point, I refer to IP lawyer James Gannon who has posted a remarkable clarification of this issue on his own blog.

Here are the highlights:

The TPM provisions in Bill C-32 aren’t overly complicated to read. Certainly, they should not be too difficult for the NDP expert on copyright and digital issues to understand. However, given the widespread misunderstanding of the “digital locks” part of Bill C-32, here is a quick summary of the Bill’s TPM provisions:

•A technological protection measure (TPM) is a device that a copyright holder uses to restrict access to or copying of a work (s.41)

•It is an infringement of copyright to circumvent a TPM (s.41.1(1)(a)), provide circumvention services (s.41.1(1)(b)), or provide circumvention devices (s.41.1(1)(c)).

•There are eight exceptions to the circumvention prohibition, including for persons with perceptual disabilities (s.41.16), and the government can enact new exceptions through regulation as needed (s.41.21).

•There are no statutory damages (i.e. “default damages” of $100-$5000 per infringement) for private TPM circumvention (s.41.1(3)). Those found to have circumvented a TPM for private purposes will only have to reimburse the copyright holder for the damage caused by their act of circumvention (s.41.1(4)).

•Large-scale, commercial and purposeful infringement of TPMs is punishable as a criminal offense (s.42(3.1)), except for libraries, archives, museums or educational institutions
.

(image courtesy Brian J Matis on Flickr - under a CC Attribution-NonCommercial-ShareAlike 2.0 Generic licence)

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18 comments:

Gruesome said...

John I have to say you're becoming quite the spin master. If Digital locks are there as a no trespassing sign(and no one has said that you can not use digital locks), then why not allow bypass for legal use.
Your arguments are getting more desperate as time passes.
How can I not question your motives, I once thought you were just passion-et about creator rights.
But these week attempts at justifying restrictions on rights already allowed are beyond ludicrous.
You're talking about putting up a no trespassing sign for someone who has a right to be there.
Where is the sense in that?
Also tell me if importing or selling tools to bypass tpm's is illegal, how will the blind get buy them to exercise their rights?

Chris A said...

No, they're still locks. No Trespassing signs are warning labels not to copy it, not removing the ability to use something you legally bought in ways you are legally allowed to.

And no, as I pointed out, I don;t think that article you linked makes it any more clear that its for "commercial use only". I've read it, no where does it say only commercial use. Not even in the part you linked.

Chris A said...

Just to expand, it says that the large scale breaking of digital locks will be a criminal offence, but it still leaves breaking the locks for legal non-commercial a civil offence.

John said...

Honestly Gruesome, I am not trying to justify anything. You and I simply interpet fair dealing and TPMs differently.

I have the feeling C-32 shares my interpretation. I have absolutely no objection to clarifying the TPM sections if that's what's required. I think the law should be as clear and unequivocal as possible.

Chris A said...

So John, question for you. If TPMs are nothing more than no trespassing signs, why does it need to be made illegal to go around them?

The Mad Hatter said...

Only problem is that James Gannon doesn't know what he's talking about technologically. I've covered his mistakes several times in the past. It's too bad that we can't get him to take some computer science courses.

http://madhatter.ca/2010/11/04/the-tpm-provisions-in-bill-c-32-are-not-in-compliance-with-the-wipo-internet-treaties/

Wayne

Sandy Crawley said...

@Gruesome,

Your alias is exceedingly well-chosen. May the best metaphor prevail. I believe TPM stands for Technical Protection Measure. A lock would be one. A notice would be another. John's analogy to the physical object is perfectly clear.

James Gannon said...

Wayne, I have an undergraduate degree in systems design engineering from the University of Waterloo. I've covered past attacks on my "tech cred" before at the end of this article: http://jamesgannon.ca/2010/06/03/top-5-myths-about-the-new-copyright-bill-and-digital-locks/

PS: John, thanks for the link and your kind words!

Gruesome said...

John, if that's the case why clarify TPM's?, why not clarify fair use?
As you've called for under educational copying
Because you know that your interpretation is not in line with what the fair use truly intended and you know you'll lose that battle.
Again you fail to answer the question, if the use is fair why not allow it to occur when tpm's are present?

Chris A said...

@James

Yeah, the section you linked that says it allows for fair use? Doesn't say what you say it says. At least not remotely in any clear version. And no, your explanation doesn't make it any better.

joeclark said...

So in other words, in this, the latest instance of your own relentless misinformation campaign, you admit that TPMs trump fair dealing.

There are reasons why your own comments section attacks you with every post. It’s because your every post has at least one honking error.

Incidentally, have you registered as a lobbyist yet?

Anonymous said...

John,

Thanks for this ...I've long despaired that we've allowed the freeloaders to demonize useful and necessary tools like DRM and TPM's. I think the warning sign analogy is actually very accurate.

Steve

Chris A said...

Yes, because being able to use what I pay for without having to worry about it not working or breaking my computer means I'm totally a free loader.

Anyone who think that TPM or DRM is a good thing and liked be people who are not freeloaders, I have about 50 bridges to sell you.

Gruesome said...

Steve do you honestly think freeloaders will be deterred by a warning sign?
Freeloaders bypass tpm's and drm more easily than I can post this message.
The only thing protecting tpm's in legal cases does is frustrate the very people who support the creative community.
If freeloaders break tpm's to "freeload" than they're breaking the law whether there is tpm or not.
I just can't understand that kind of approach.
I wish someone could make sense of it for me
But when asked these kinds of logical questions supporters of this nonsense remain quiet.
My feeling is that by making fair use more difficult we will just drive consumers to piracy.

mdfrncs said...

Saying TPMs aren't digital locks is like saying copyright infringement isn't theft. While technically true, the intent and effect is the same.

They are most certainly not like signs. As pointed out before, a "sign" would be a label on the CD or a notice when you start up the software. A "No Trespassing" sign does not restrict your legal rights - there's no fair dealing provision for physical property. TPMs, however, restrict your otherwise legal use/access to whatever it is protecting.

It doesn't matter that they're "easily bypassed". I have a master's degree in computer science, and it would take me a long time to break many modern TPMs. While the act of bypassing the lock may not be a criminal offense, the creation/distribution of tools to do so certainly is.

Your example is also flawed. Copy/pasting an entire text article would obviously not fall under fair dealing, and a viable (though annoying) solution would be to type an excerpt manually. While that may work fine for text, let's consider music and video, with the same TPM restriction. It's fair - no matter what opinion the copyright holder has - to use a portion of that work in a mashup, or in a parody/satire, or any other category of fair dealing. Yet, besides either hacking the TPM (which you can't do legally, and even if you could you can't aquire the means to do so legally), or using a camcorder pointed at your screen (which I think may have been proposed by the MPAA as a "legal" means to backup your home blu-ray collection), how would you obtain that excerpt?

Pieter Hulshoff said...

Dear John,

How you can say that a law on bypassing TPMs that makes it illegal for me to write an Open Source application that plays dvd/blu-rays should be compared to a no trespassing sign is beyond me.

Anonymous said...

I'm surprised to see you are using a "Share-Alike" image in your blog. This license requires you to share your work in the same manner as the creator of the image, but your work is "all rights reserved". Not a good idea.

John said...

anonymous, if that is your real name,

I have not altered, transformed, or built upon the image, I am using it as illustration for my posting, I have credited it properly and I claim no copyright over it.

I believe I have respected the license. I tend to respect licenses.