Wednesday, October 12, 2011

when is a lock not a lock?

There's a lot of panicked talk in the free-culture world about Canada's new Bill C-11 and its legal protection for technological protection measures (TPMs) and digital rights management (DRM). Somehow, the most vocal opponents of creator copyright have convinced teacher, library, student and even civil liberty advocacy groups that "digital locks" are about to imprison our culture, censor us, and take away our ability to access and use creative material.

Canada's free-culture commando, law-professor Michael Geist, has been loading his blog recently with carefully culled and meticulously edited statements from various groups worried about the TPM protections under C-11. That these complaints against TPMs are almost word-for-word quotations from the past writings of Michael Geist himself is no coincidence. Geist's sensationalist claims about existing copyright mechanisms, his coining of the term "digital locks," and his populist (and highly political) campaigning on behalf of consumers are all very quotable. Accurate? Not so much. But Geist isn't the first fellow to use highly quotable inaccuracies to muddy the waters around artists' rights.*

Viewed from the perspective of a professional artist, this collection of lockdown worries is a very strange response to Bill C-11, since the legislation actually greatly expands the freedom users have with works they've legally accessed. The bill contains a host of new provisions that broadens existing fair dealing. In fact, users are feeling so free right now that a bunch of universities and colleges in the country (some of the biggest "users" there are) have decided they don't have to license publicly available material through copyright collectives anymore.

Locks, really?

Consider the quaint little lock on a child's diary? Like the tiny padlocks on suitcases or the hook-and-eye locks on gates, diary locks are ridiculously bad at providing security in the face of a determined trespasser.

Now consider TPMs and DRM. Copyright holders sometimes use these to manage access, and control copy permissions for creative works in the digital environment. They are technological solutions to technological problems imposed on creators wishing to work professionally online. They can be as simple as the password you use to enter into your e-mail provider, or as complicated as the code that allows you to view publicly available text on the Internet but not use your computer's copy and paste function on that text. They also - according to all technical experts - are completely inept at stopping the determined hacker from breaking the code and either accessing the material or copying it (or both).

Vocal opponents of these protection measures are fond of calling them "digital locks" (thanks, Professor Geist), but as working locks they're about as daunting as a piece of tape. We are told again and again there isn't a digital lock that can't be broken. Ironically it's very often the same folks complaining about our use of TPMs who tell us they don't work.

So, why do we bother with TPMs?

Well, why do we bother with diary, luggage or gate locks? None of them work very well. All of them can be broken with little to no effort. As serious efforts at security, TPMs are... well... lame. But ask any kid whose little brother has broken into her diary why that useless little lock is there, and you begin to understand why we use these things. They're not really locks at all - they're declarations of private property.

Artists and our industry partners need to be able to declare when access is permitted, and when it is restricted. Furthermore, we need to be able to declare when copying is permitted and when it's restricted. These actions are key to the exercise of an essential human right, one recognized by the United Nations and detailed in its Universal Declaration of Human Rights.  

We declare our right to private intellectual property in many ways - most often with a simple © or a Creative Commons alternative. And we also recognize that a copyright declaration requires the force of law behind it to have any hope of setting a behavioural standard. Even Creative Commons licences are legal documents.

The same goes for TPMs and all digital rights management systems (DRM). Without the force of law protecting an artist's choices about her own work, there are simply no fair, effective choices. We'd all like to think our brothers won't read our diaries (and most of the time we're right), but that's not really the world we live in, is it? Especially not on the Internet.

What are we worried about?

The main worry, expressed over and over again by those quoting Geist is that new and established user provisions within the Copyright Act (e.g. fair dealing) would be "trumped" by TPM protection.

I use fair dealing all the time - quoting and taking extensive notes from others' work as I create my own work. Would a TPM stop me from doing that now that C-11 is here? I can't see how.

Let's say I download a new book to my Kobo e-reader. Will Kobo's proprietary DRM and TPMs stop me from exercising my fair dealing right to quote from that work or to copy portions for my own private use? Not at all, because I own one of these:

and one of these:

Using my beautiful LAMY Safari fountain pen, I copy fair dealing portions of any e-text into my beautiful Moleskine notebook, and no big, scary digital lock can stop me from doing so. No laws broken, all rights respected.

Now, I'm not (just) trying to be clever here. I recognize there are some forms of creative expression more dependent on digital technology for the creation part (digital film-making, for instance), but I don't recall the fair dealing provision ever stipulating that copyright owners must provide perfect copies in the exact format requested for those users wishing to exercise fair dealing. Fair dealing is not free delivery -- there is some work involved. The idea that, as a user, I must be able to copy and paste from the Kobo electronic file rather than do the work of making my own notes is a bit, well, entitled, isn't it?

I just want to assure Canada's students, teachers, librarians and civil libertarians that I - as both user and creator - intend to continue exercising fair dealing no matter how TPMed or DRMed is the content I legally access. I'm not worried, and I really think everyone else should re-examine their own worries.

Worries, Re-examined:

Folks worried about legal-protection for TPMs can start their healthy re-examination of this issue by breaking the Michael Geist habit. The crusading professor is not the only legal mind at work on copyright in Canada, and neither is he even close to the authoritative word on this subject.

IP Osgoode is the blog site for Osgoode Hall's Intellectual Property Law and Technology Program. With the release of C-11, IP Osgoode republished this examination of the previous copyright bill's identical TPM protections:

Acting as the Fulcrum between Owners’ and Users’ Rights

Similarly, the Entertainment and Media Law Signal had this interesting analysis of the so called "digital lock" protections:

A Practical Solution on Digital Locks?

Finally, two of the keenest minds on copyright in Canada question the very idea that C-11 contains blanket protection for TPMs and DRM. Barry Sookman and James Gannon provide detailed analysis of the new copyright bill and the TPM protections it includes.

James Gannon - TPMs: A comprehensive guide for Canadian copyright law

Barry Sookman - Some observations on Bill C-11 

Sookman (who is himself often quoted by Geist) makes no bones about his opinion of the free-culture academic in his analysis:
Opponents of legal protection for TPMs — such as Michael Geist — have made inaccurate statements about the legal protection for TPMs. Michael Geist’s relentless misinformation campaign against them makes it difficult and confusing for many Canadians to form informed views about the Bill’s TPM provisions.  
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* Terry Hart over at the Copyhype blog has an excellent posting showing how many of the anti-copyright arguments of today are just copies of the attacks against artists by past new-technologists trying to expropriate property.

Lock image by Carlos Luz on Flickr, licensed with a Creative Commons Attribution 2.0 Generic license.


James Gannon said...

Some great observations here, John. What I think is also important to note is that there is some advantage here for Canada to be such a laggard on the implementation of protection for TPMs. Anti-circumvention laws such as those in Bill C-11 have been in place in the US for over 12 years now and 10 years in many EU countries and other countries like Japan. A full list of signatories to the WIPO Copyright Treaty and the date of ratification is found here:

What we haven't seen in any of those country is anything near the kinds of "locking down" of content and culture that you hear about from opponents to these measures. The entire world has been our test case for these laws and those fears have all been proven false. What's the real concern then?

Anonymous said...

I guess you are using the Fair Dealing exceptions for News Reporting for grabbing these photos from these All Rights Reserved sites?

John said...


Actually, I'm respecting the terms of use of those sites, which explicitly permit me to use those photos for this non-commercial purpose.

Nice try, though. And soooo courageous of you to attempt this standard free-culture zing from behind the mask of anonymity.

Stay classy.

John said...


You make an excellent point. I spend a lot of time in the United States, home of many exaggerated free-culture claims against the DMCA, and my cultural excursions there have been entirely lock-free.

In fact, half my family lives, frequents libraries, studies and/or teaches in the United States, and I've never heard a single story of cultural lockdown.

Pieter Hulshoff said...

Dear John,

Once again you, and all your linked post authors seem to miss the important points. I've already pointed them out in previous comments, but let me mention them again:

The articles you link to say circumvention laws are not a problem due to two reasons:
1. Breaking a TPM for personal purposes does not carry statutory damages.
2. Breaking a TPM is only illegal for access TPMs.

Both reasons are irrelevant for very simple reasons:
1. Since no-one is allowed to make the tools needed to break a TPM for personal purposes, you can't actually use this exception. The same goes for all those groups who've been exempted from the anti-circumvention laws: they can't get the tools they need to actually use their exemption.
2. Practically all TPMs are access TPMs. The mentioned protection on dvd/blu-ray disks is an access TPM, not a copy TPM.

I'm glad you can still use your fair dealing rights when it comes to books, but such a thing becomes a whole lot harder when it involves music and video. The quality will be greatly degraded for sure.

Yes, as a lock a TPM is worthless, but anti-circumvention laws prevent companies from making otherwise perfectly legal software and hardware to make use of legally purchased works. There's no other law preventing me from making an Open Source dvd-player or a dvd-player that can play all-region dvds, or a dvd-player that can skip those 10 minutes of pre-views.

When it comes to copyright: rights holders were given certain rights, but also certain limitations to those rights. If I purchase a work, it is not for them to decide which of those limitations they will actually grant me via DRM. Those are not their rights, they're mine.

If you want to license me your work, that's also fine, but then you need me to sign a license agreement, so I know what limitations I accept before I purchase. That is not the same as what e.g. iTunes has done, by changing the agreements one-sidedly several times after a work has been purchased/licensed, and using their TPM/DRM combination to enforce those new limitations.

As for the DMCA not having caused any problems, I suggest you read the list the EFF has created:

No John, I am very much in favour of rights holders being allowed to protect their rights, but it would be nice if they respected mine as well. Nothing good can come from anti-circumvention laws; nothing good has come from them so far, 13 years and counting...

Anonymous said...

In what way do you consider their terms of use statement of "personal, noncommercial use" to include posting their content on a public web site?

That phrase does not mean "personal OR non-commercial" it means personal use on your own computer or device for a non-commercial purpose. You are republishing their content publicly.

John said...

Ah, so, Pieter, you (in the Netherlands) are expecting Canadian law to be changed to weaken my Canadian rights to my own Canadian work so that you (in the Netherlands) can have special access to build follow-on technology (in the Netherlands) that has nothing to do with my creative work.

I wish I could find a way to express how sorry I am that my rights prevent you from skipping previews on a DVD you want to play in another country.

Thanks for coming out.

Pieter Hulshoff said...

Now John, I know you generally avoid answering good arguments brought against your position, but you've really outdone yourself here.

In all honesty: it doesn't matter to me what Canadian law says. I'm in the Netherlands; I only have to deal with Dutch law. I'm just trying to shed some light on the discussion by giving information about law and technology. You can ignore it as you please, but the articles you linked to are wrong, both from a law and a technology perspective.

Darryl said...

"I wish I could find a way to express how sorry I am that my rights prevent you from skipping previews on a DVD you want to play in another country."

Yes well, it will be the same in this country wont it John. It will also be illegal to root your iPhone/iPod, your Andriod device, or anything else hardware makers want to put locks on.

Here is a good website for you:

You see John, it is not the locks on the media that concern me. It is the locks that also have to be present on the hardware that I worry about. You dislike Apple's vertical market where creators face a 20% fee in order for iPhone uses to access their works? Just wait until it is 50%.

This sort of legislation will be handing Apple and others a monopoly on a silver platter, as there will be no way to legally compete with them selling software or other works for use on the devices they make.

I can live with DRM, and I agree that left on their own DRM will die and we will all be better off. However this legislation gives huge incentives to use DRM, and will cause far more market segmentation and loss of competition then we have seen in a very long time.

Your question should not be "when is a lock not a lock?" It should be "When can anything act as a lock?" The answer of course is when it has the rule of law telling you that is what it is and that is how you have to treat it.

Gruesome said...

I agree in a great deal of what John says, the impact here is minimal. Although one would wonder why defend something that has such little impact so passionately.
Personal copying in Canada is part of our culture. It's been illegal for years and yet we've never had a problem with it.
Digital locks have encumbered products for years and we've pushed through those as well.
So the idea that this law will have any impact on the average citizen doesn't seem to carry any wait.
Especially given this law has no chance of ever being enforced at that level.
True some individuals or groups such as documentary creators may have some difficulty. But their are ways around it.
I've already seen a program that will take a poor quality video of another video and turn it to dvd quality. And I'm sure that there will be more and more sophisticated programs for this type of work.
Most of us will continue on doing what we've always done, using programs that don't even give an indication that there is any access or copy protection exists.
We've copied records dvd's Blu-ray's and video games, no law that won't be enforced is going to change that.

Sorry to those that develop software in these areas but let's face it Canada's not exactly a thriving tech country any way.

Darryl said...

"So the idea that this law will have any impact on the average citizen doesn't seem to carry any wait."

It will have an impact on the average citizen in that the average citizen will not be able to turn to legal competition to get a fair deal.

Here are some example for you.

1) PVRs will start carrying a broadcast flag which restricts what shows can be recorded and when. Cable companies will charge extra for the privilege and setting up your own PVR will become illegal. As such there will be no one to offer the 21st century equivalent of the VCR except your cable provider.

2) ebooks will be encumbered with DRM which will lock users into one of a handful of vertical markets. Without being able to easily change to a competing ebook vendor ALL ebook vendors will be able to charge both authors and consumers far more than they otherwise would if we were not locked into their markets. Yeah! lets bring the duopoly of Rogers/Bell into other markets. It's worked so well for us so far!

3) computers will join some cell phones in being only able to access and run software which the hardware manufacturer permits. A premium will be charged to both consumers and software vendors for access to these markets. This is much like what Apple already does, and will become the norm.

4) the concept of actually owning a copy of anything will become quaint as we move into a permission and tenant based society. People once complained about having to repurchase their LP/8TRACK/TAPE/CD. Well this will entrench the perpetual payment model for access to things you will never be able to afford to own it again. We will all either become tenants or pirates.

No Gruesome. You are dead wrong. This is setting the foundation for some truly hideous business practices, and the price in the run will be great indeed.

Pieter Hulshoff said...


So if I understand you correctly: Implementing this law won't be a problem, because no-one will obey it anyway (your opinion), and because people massively disobey the law we need to increase surveillance and invade people's privacy (entertainment industry's opinion). Somehow that doesn't give me a very good feeling.

IMHO democratic laws should reflect the general view of society, so people are likely to obey the law. Criminalizing a large part of your population by enacting laws that practically no-one will obey is generally bad political policy.

John said...


I am confident in my interpretation of their terms of use, my own use of the work, and the interaction of these things. If you think I've infringed their copyright, I invite you to let them know that fact. Of course, if I'm wrong, I'll take the photos down, as that would be the respectful thing to do. But I think it'll all be just fine.

When you do get back to us all on this, you might want to use a name so we know who we're talking to.

Pieter, I answer all good arguments in my comments section. Offer a good argument and it will be answered.

Darryl, you seem to be pining for a golden era that never actually existed. People may have complained about "repurchasing" media, but no-one was forcing them to do so. 8 track tape cassettes work as well today as they did in my Chevette in 1980. I don't think it's fair to blame the content industries for the consumer's insatiable acquisitiveness for new toys. The fact has always been that to buy a copy is to buy a copy. If you want another copy of the same thing, you have ALWAYS had to buy that other copy.

Gruesome, my passionate defence is, and always has been, for creator rights. I have said many, many times that whether DRM stays or goes is meaningless to me, but laws protecting DRM are brought in defence of creator rights so I support them. You may agree with my points, but no-one should conclude that means I agree with yours.

Pieter Hulshoff said...

Dear John,

"Pieter, I answer all good arguments in my comments section. Offer a good argument and it will be answered."

I've offered very good arguments on why the articles you based your post on are incorrect, both from a law as well as a technological perspective. That you're unable to counter them does not invalidate them. That you may feel different about TPM/DRM than I do despite those arguments is also fine (and quite understandable), but the basis of your blog post as such is factually incorrect. Simple as that.

Darryl said...

"People may have complained about "repurchasing" media, but no-one was forcing them to do so....bla bla"

Once again John you prove that you DON'T address the arguments.

The main point of the paragraph you attempted to address here has to do with the ownership of the copy, and the fact that we moving into an age where we will no longer even own copies. You missed that. TAPES and CD's actually exist. They are not a non-existent golden era.

As well you ignore the previous 3 paragraphs entirely. No surprise.

John said...


Whining again and again about me "not addressing arguments" in the comments section of a blog pretty much dedicated to knocking the stuffing out of ridiculous free culture arguments is tired - very, very tired.

Believe me, I get that you disagree with me. That's pretty clear. Nevertheless, you are entirely unconvincing (despite your very high opinions of yourselves).

I've made my case on TPMs. Lots of folks are reading it. You've tried to knock it down. You've failed.

Move on.

Gruesome said...

I swear John you should really seek some help, I've suspected you might be at least somewhat narcissistic and perhaps more.
We agree on almost everything.
I have strong support for artists rights, more than many artists I know. I believe if someone wants to sell material with a tpm then they should be allowed to.
I have 2 problems with c-11,1- it should not protect tpm's where the use is fair. In doing so there is no true fair use provisions.
I'd rather see an honest approach and just eliminate fair use.
John can you tell me if the use is fair, what artists rights have been violated?
And 2- it does not provide any realistic approach to stop wide scale infringement.
Digital lock enforcement may also do more harm than good. It now becomes legal to record streams as long as the tmp is not interfered with.
This would make it legal to capture Netflix, streaming music services(which is already legal in the US) and anything else once it has been decoded.
Do artists really know what the trade off here is?
I did a test this morning and recorded a show off Netflix, using a method of screen capture and and capturing the line audio from a sound-card (which is all done with a simple software program still legal under c-11) I was able to capture a duplicate of a News Radio Episode that was all but indistinguishable from the original. Under c-11 this becomes legal format/time shifting.

Do we really have a problem with people breaking locks when fair use is involved, or is this really about eliminating fair use as much as possible?
I'm sorry but the facts don't add up

Darryl said...


Who has the unconvincing argument John? and who failed?

Sadly our government, as in the US and Europe, takes its queues from big industry that has nothing to do with what is ultimately good for society.

Your side will likely win this in the short run, but the cost will be high with loss of innovation, loss of freedom, loss of privacy. In the long run you will lose as people will also lose respect for copyright (is there any respect left to lose?) and ignore these laws.

Now excuse me, as I have a little bit of personal private pirating to attend to. You would be surprised at the number of people who want to do the same, and have asked me for help in setting up torrent systems so they can ditch Rogers. I can only imagine this going up as Rogers uses this new law to extort even more money from people wanting to use their PVRs.

John said...


What's that? Someone thinks they've found a technical loophole through which they can ignore the valid copyright of cultural workers? Words cannot express my surprise.

I'm no big-city lawyer, but wouldn't making a back-up copy of a TV show imply that you had legally purchased a copy of that TV show from which to make the back-up? Since Netflix does not sell copies of movies or television shows, I doubt very much that what do with old Dave Foley sitcoms would ever be considered legal under such a defence.

But by all means, take that sucker to the Supreme Court and ask them to salute. Or, you could just respect copyright and realize there is more to life than making copies of sitcoms from the 90s.

See how we disagreed there.

John said...


To answer your two questions - you, and you.

The PVR as a tool of extortion? Why there's nothing unconvincing about that.

I'll bet you think you would have won this round of copyright reform too, if it hadn't been for us meddling teenagers and our dog.

Darryl said...

Oh sure John, the rhetorical questions you answer (incorrectly of course). Go figure.

BTW, it's not the PVR which is the tool for extortion. It is the expanded rights granted to copyright holders. I thought that was obvious.

Pieter Hulshoff said...

"I've made my case on TPMs. Lots of folks are reading it. You've tried to knock it down. You've failed."

Actually, I've completely demolished your case, which is plain for anyone to read. I'll let the readers draw their own conclusions. :)

I'm sorry to see you're either unable or unwilling to debate the situation on logical arguments; I actually had a higher opinion of you than that.

Your post was based on articles, which in turn were based on two propositions. I've addressed both of them, and shown why they were either irrelevant or false. You have no counter arguments: QED.

That brings your article back from: "I want TPM protection in the law, and it won't cause any harm" to "TPM protection may cause harm, but I want it anyway". A valid argument in itself, but not nearly as strong.

Let me ask you this though John: if you have so little respect for our rights, why should we have any for yours? I'm slowly starting to understand why the Green European parties have adopted the Pirate Party line on copyright as their own: if you keep demanding everything, you may end up with nothing in the end.

John said...


It's nice that your arguments were able to convince you. Congratulations.


Funny, what you write and what you think "was obvious" are so often at odds with each other.

Both you fellows keep promising that you've given up on me and are off to more worthwhile pursuits..., Darryl to a lucrative life of piracy and now, Pieter, you are off to run for the Green Party or something.

Please, don't let me keep either of you one second longer. I wish you both the best in your new post-copyright-loss lives.

Gruesome said...

John your intelligence is quickly degrading. It's not a technical loop hole, it's fair use under the law. Technical loop hole? Really?
So then a vcr is a technical loop hole, when I record News Radio off Cable will that be a Technical loop hole? I don't remember buying a sitcom from anyone.
Under c-11 these become legal as fair use, I'm sorry your unhappy with that. You call it a technical loop hole, I call it the law.
As Mr Moore stated c-11 makes what Canadians have always done now legal under fair use.
Seems straight forward to me.
As I said it was a test, call it research under copyright, that little fact escaped you like so many others.

Gruesome said...

Also let's repeat the telling question that seemingly can't be answered
"If it's fair why do TPM's make it unfair?"

Pieter Hulshoff said...

Well, with regards to those articles you linked to being dead wrong, my arguments were indeed very convincing. Assuming however they did not convince you, I take it you have some very good counter arguments to prove me wrong. Where are they, John? :)

I don't recall writing anywhere that I was tired of watching you squirm your way through a logical debate to be honest. As I wrote in an earlier blog post: I'm here for the entertainment. :) It's very clear that debating to you means ignoring the points people make, and attacking points people never made in the first place. Sad, but entertaining nontheless. :)

So, how about we have a real debate, John? One based on arguments and counter arguments in stead of what you've been doing here so far. Sure, I absolutely applaud you for the comment freedom you allow on your blog, but due to lack of actual participation on your part it's not really a debate this way.

John said...


First of all, there is no such thing as fair use in Canada. If you want to go through technical gymnastics to timeshift Netflix, have at. If you see that as a substitute for purchase and ownership of a copy, you're up against the law. The same is true for other time shifting where there has been no content purchase. Take it to court. I really don't think you'll win.

Pieter, you keep suggesting you are calling me out to a debate that I refuse to participate in. I've made my points in my blog posting. You have not convinced me my points are wrong. The debate for my purposes is over. You lost.

When you say anticircumvention makes something impossible, I don't believe you. The law as laid out is nuanced and subtle. Nothing legal is impossible, it is merely regulated.

When you point me to the EFF to prove your point, I have to laugh. They don't present facts, they present interpretations, and usually panicked sensationalistic interpretations.

I won't address any of your other points because, as I said, they've done nothing to effectively argue against what I actually wrote. They actually barely address what I wrote. Again, "debate" concluded, poorly for you I'm afraid.

I hope that was as satisfying for you as it was for me.

I'm absolutely sure you'll find some other way to accuse me of ignoring you, and it will be as insulting and dense as the rest of your accusations.

Gruesome said...

Pardon me yes I get them confused. In Canada it's called Fair Dealing and to refrase
If it's Fair Dealing how does a tpm make it unfair?
If it's Fair and a lock is broken how are an artists rights trampled upon in any way?

Pieter Hulshoff said...


Again: your entire post was finding its base in linked articles, that all hinged on two propositions. I've given strong arguments against them, which once again you haven't countered at all.

True, most of the rest of my first post consisted of debatable opinions, to which you can either agree or disagree to your hearts content, and even ignore if you like. The first part however was a simple statement of facts, that so far you haven't addressed at all. Not a single counter argument that gives any indication why my arguments were unconvincing to you. Was I wrong? If so, where was I wrong? That's not a debate John, at least not from your side, and as such you can't claim you won it either.

Let me repeat the part of my post that I'm talking about, just so we don't have any misunderstandings:
The articles you link to say circumvention laws are not a problem due to two reasons:
1. Breaking a TPM for personal purposes does not carry statutory damages.
2. Breaking a TPM is only illegal for access TPMs.

Both reasons are irrelevant for very simple reasons:
1. Since no-one is allowed to make the tools needed to break a TPM for personal purposes, you can't actually use this exception. The same goes for all those groups who've been exempted from the anti-circumvention laws: they can't get the tools they need to actually use their exemption.
2. Practically all TPMs are access TPMs. The mentioned protection on dvd/blu-ray disks is an access TPM, not a copy TPM.

Indeed, my last post might have been a tad insulting, but no more than you've done towards us in the past. To you, anyone who even slightly disagrees with you is automatically a Geistoholic free culturist that wants to take away your precious copyright. Fact of the matter is that most of us commenting here are more pro-copyright than the average citizen you meet on the street.

Gruesome said...

As for time shifting you do not need to purchase a copy to make it legal(why would you time shift your own copy...really astounding)

Fixing Signals and Recording Programs for Later Listening or Viewing
Fixation d’un signal et enregistrement d’une émission pour écoute ou visionnement en différé
Reproduction for later listening or viewing

29.23 (1) It is not an infringement of copyright for an individual to fix a communication signal, to reproduce a work or sound recording that is being broadcast or to fix or reproduce a performer’s performance that is being broadcast, in order to record a program for the purpose of listening to or viewing it later, if

(a) the individual receives the program legally;

(b) the individual, in order to record the program, did not circumvent, as defined in section 41, a technological protection meas- ure, as defined in that section, or cause one to be circumvented;

(c) the individual makes no more than one recording of the program;

(d) the individual keeps the recording no longer than is reasonably necessary in order to listen to or view the program at a more convenient time;

(e) the individual does not give the recording away; and

(f) the recording is used only for private purposes.

Pieter Hulshoff said...

"When you point me to the EFF to prove your point, I have to laugh. They don't present facts, they present interpretations, and usually panicked sensationalistic interpretations."

Oh, I'll readily admit the EFF sensationalises its reports, though no more than the RIAA or MPAA do. That however doesn't disqualify the report they wrote.

"When you say anticircumvention makes something impossible, I don't believe you."

Ah, so Dmitri Sklyarov wasn't arrested for writing a program that could convert e-books to PDF files? 2600 Magazine wasn't barred from publishing the DeCSS program that made an Open Source dvd player possible? RealNetworks wasn't forced to stop the sale of their RealDVD software? Streambox didn't get an injunction against its Streambox VCR software? Sima Products wasn't forced to stop selling their analog-to-digital video enhancement software?

Just a small selection of anti-circumvention lawsuits that took place in the USA. Sure, they may not be problems to YOU, but you can hardly argue that this law doesn't prevent certain uses that are now legal or the tools needed to do so.

Gruesome said...

"The debate for my purposes is over. You lost."
You can't make this stuff up, I love it it, John declares himself a debate winner!

John said...


I see how this works. You say something that's wrong; I tell you it's wrong, so then you repeat it.

So, here goes. My entire post was not in fact "finding its base in linked articles." My entire post was the creative work of my own analytical powers. If you have arguments to offer the authors of articles I linked to for further reading, you should go argue with them. I'm sure they'd be happy to tell you you're wrong as well.

I will say, though, that the excuse "practically all TPMs are access TPMs" is about as lame a whine as I've heard. Darryl's fond of that one as well. If it's your choice to not fight for what you see as your "right" to make a back-up or fair dealing copy after you've legally obtained access because you can't differentiate between access and copy functions, you are lazy as well as wrong. As I've said before, the law is nuanced. Ignore the nuance to your own detriment. I won't.

Gruesome, you stopped making sense a while ago. I'm not arguing against time shifting. Have I ever been arguing against time shifting? I do kind of wish this brand new "right" was accompanied with balancing compensatory mechanism for the copyright holders, but I don't argue against the function.

My concern with someone copying from Netflix was pretty clear in my first response to you - such a copy cannot be seen as a back-up copy (which implies a certain permanence). You can't very well back-up something you don't own. Your own quote from the actual law supports my concern. You can't keep timeshifted Netflix. So, you know, if you can figure out some way in which you and I were actually debating as point there, I need to let you know that you lost.

If I misunderstood and your intention was not to use time-shifting as an excuse to compile a library of content (which has always been and remains illegal) then I apologize for the misunderstanding, but not for being right.

Gruesome said...

Well I never mentioned back-up, doesn't even make sense to back-up Netflix.
I don't know why you got on a tangent about backup.
But in my opinion the language is weak
"the individual keeps the recording no longer than is reasonably necessary in order to listen to or view the program at a more convenient time"

Reasonably necessary?
That could be open to some pretty varying interpretation.
What's reasonable?a week , A month?
This is junk law
And worse it's confusing to your average user

Pieter Hulshoff said...

It's easy to say something is wrong, John, That's not a counter argument to an argument; that's a simple nay-saying to everything I say. Monty Python already did that sketch once, and they did it better than any of us ever could.

Sure, you wrote a nice and original blog post,but your entire chapter on "Worries, Re-examined:", as to why these laws will not be a problem consist of links to people who made that argument for you. Countering those arguments here removes the basis for your justification as to why these laws will not be a problem.

"As I've said before, the law is nuanced."

It wasn't so nuanced in the lawsuits I mentioned above though, now was it? We've had 12-13 years of DMCA to show us how the court interprets the difference between access and copy TPMs, and generally they hold close to the technical definitions.

So why is CSS an access TPM and not a copy TPM? Simple: it's encryption. Encryption doesn't prevent copying. I can copy the data without trouble. I just can't access the movie data without the key(s), which fortunately was available in every dvd-player. John Lech Johansen was kind enough to extract it for us so he (and others) could write a dvd player for Linux. For his trouble, he was charged, but since Norway didn't have anti-circumvention laws (at the time?) he wasn't convicted. That did however happen to 2600 Magazine, who were kind enough to post an article on it in the USA, where they did have anti-circumvention laws.

So John, you can try as hard as you can to convince us that the law is nuanced, and that it won't be a problem, but the courts in the US have already proven you wrong time and again. These aren't theoretical worries anymore (like they were when the US introduced the DMCA); the courts have already spoken.

Pieter Hulshoff said...

Dear John,

I'm still trying to follow your reasoning: How do you define the difference between an access TPM and a copy TPM, and why is the dvd CSS encryption a copy TPM rather than an access TPM in your reasoning?

Darryl said...

"I will say, though, that the excuse "practically all TPMs are access TPMs" is about as lame a whine as I've heard. Darryl's fond of that one as well"

Oh I see now. Facts you don't agree with are excuses. I say John, claiming that gravity is holding you down is a pretty lame excuse for not being able to fly. Don't you think?

While some forms of TPM may have some copy-control features (including DVDCSS), all currently employed TPMs are most definately access control. You may not be happy with that fact as it negates the arguments you, Gannon, and Sookman are putting forward, but that does not change what the facts are.

John said...

Yes, Darryl, considering airplanes and hang-gliders and such, gravity is a pretty lame excuse for not flying.

And that's about all I can say about your powers of lateral thinking and nuanced argumentation.

I've taken you kids as far as I choose to take you on the logical path to understanding this new law. The rest of the way you're going to have to make it on your own.

You can choose to stay morbidly focused on a 13 year-old US law and the half dozen or so instances when you feel it might have been abused, or you can try to figure out how to work within the current Canadian law (you know, unless you live in the Netherlands).

I can pretty much guarantee creators and their reps will be going to court to better define certain sections of this new legislation. Of course, staying home and whining about TPMs might be a better tactic for your side, so keep it up.

Pieter Hulshoff said...

"I can pretty much guarantee creators and their reps will be going to court to better define certain sections of this new legislation."

As well they should; if certain sections are unclear at the moment, they should be clarified. Nobody benefits from an unclear law.

"Of course, staying home and whining about TPMs might be a better tactic for your side, so keep it up."

Well, I'll continue to clue in politicians from all over the world, in person here in the Netherlands, and via the internet for those abroad. Luckily Canada seems to have a lot of groups ready to do it in person there as well.

"I've taken you kids as far as I choose to take you on the logical path to understanding this new law."

You're not old enough to call me kid, John, not by a long shot. :) You're passionate about your rights, I'll give you that, but if you debate in politics the way you do here, it should be a very interesting debate to follow, and I'm sure I will. :) I doubt just nay-saying every argument your opponent gives you will get you very far in politics, but we'll see. Stranger things have happened. :)

Darryl said...

"And that's about all I can say about your powers of lateral thinking and nuanced argumentation."

Well that is understandable John, considering that to say more might actually require to to address the technical distinction between a copy control and an access control, and how that relates to this law. You know. Facts.

"I've taken you kids as far as I choose to take you on the logical path to understanding this new law."

Yeah, thanks for that. The mountains valleys, and occasional abyss one has to traverse to follow your logic is astounding. We are all better off.

John said...


I'm not sure where you got the impression I have or intend to have a career in politics. This must be more of your famous grasp of the facts.


Glad I could help. So, you're leaving now, right?

Pieter Hulshoff said...

"I'm not sure where you got the impression I have or intend to have a career in politics."

I didn't; I was talking about the discussions with politicians you and yours are having to get this law passed the way you want to, and the counter arguments you'll get from other interested parties. In those discussions, just stamping your foot saying the other party's wrong without giving any kind of counter argument, like you've been doing in the comments of your blog, will not get you very far.

Now I understand perfectly that it's annoying to you that Darryl and I come here with logical arguments against your position to which you have no counter arguments, but the discussion would go a lot smoother if you actually responded to arguments with counter arguments in stead of just saying we're wrong.

Crockett said...

John, I have to agree that calling other people's logical arguments weak and pronouncing yourself triumphant, without having a logical rebuttal is, in itself ... well weak.

Your pen 'infringement device' example while trying to be clever actually shows the fallacy of your argument. You mention other mediums being more difficult to exercise fair use rights upon then brush that off as if it does not matter?

Everyone has a pen but how can one exercise fair use rights if the more technical tools needed to do so are in themselves banned?

Your suggestion then is to 'stop being lazy' and ramp up with lawyers to battle in court what could easily be fixed with 4 simple words ... 'for non-infringing purposes'?

I know the economy is in turmoil and all, but I can think of much better make work projects than one for lawyers!

John said...

Thanks for your very late participation, Crockett. I see you still like to tell me what I'm thinking before disagreeing with those thoughts.

As with Pieter and Darryl, it is sort of key that you actually understand what I'm saying before you load on your "facts" and reasons for deciding I'm wrong.

So, the pen is not an infringement device. That you think of it that way shows you haven't bothered to try and understand what I wrote.

There are perfectly legal ways to continue with fair dealing (that may actually require a bit of work on the user's part). Those of us who are actually interested in real fair dealing will continue to use it. Those of us who are using fair dealing as a disguise for larger, commercial infringement wishes might just be out of luck with C-11 - especially if they don't plan to do any more work.

Annnnyway, I will write your name down on the "disagrees with John" side of the ledger for this topic.

Oh look, it was already there. Shock and surprise.

Moving on.

Darryl said...

" it is sort of key that you actually understand what I'm saying before you load on your "facts" and reasons for deciding I'm wrong."

'tis a good point Crockett, and I think he's snookered you here. This is such a high hurdle that John himself is having difficulty surmounting it.

John said...

Hmmm, from the man who doesn't know the difference between an original and a copy.

Darryl said...

No doubt that is what you believe, and at the same time you get upset when you think your opinion is misrepresented. Go figure.

John said...

The famous Darryl zing! "I know you are, but what am I?"

Gruesome said...

Wanted to respond to some of Daryl's points from earlier
1-It's almost impossible to stop someone from setting up their own pvr, whether it's illegal or not, it's irrelevant as in reality the VCR is technically illegal in Canada but still widely used, Remember if it can be seen and heard it can be recorded.

2-Except that the pressure is already towards dRM free e-books, If you look at the success of the self publishing function Amazon in the US is now offering, it's clear that drm free e-books are a significant selling feature. Amazon's Self publishing has taken off with certain authors already making millions from it selling their books drm free.

3-Again , can't see it happening, the first hardware vendors to go this route would lose massive sales, there are quite a few competitors in the hardware area, cpu's and gpu's the exception but if one went this direction the other would gain huge market share. Apple is only allowed to act the way they do because of this competition.

4- I believe this will eventually happen anyway, I'm nit as interested as I thought in owning physical product. Part of the reason I've always burned my DVD's to my media centre is hating the idea of shelving the dvd's and having to mess with them when I want to watch something. Now I just use my media centre and the DVD's go into a box in the basement.
In the future I believe services like Netflix will end all my media buying. The government will keep a close eye on this, they've already intervened in mp3 price collusion in the US.

I only see downward price pressure in the future
While I agree with you on the value of consumer rights and that making something that is under law fair unfair because it has digital locks makes no sense, I also believe that Canadians will carry on with practices that the majority believe to be legitimate.
Which will just make these practices similar to the VCR, illegal but done by just about everyone.

Also we already see pushback in the US and I see that continuing, evidence is mounting that the claims made for the justification of tpm's were way overblown. For instance when Apple went before the Copyright office claiming Jail breaking would kill their business model. Jail breaking the Iphone(or any smartphone) is legal in the US and as we know Apple enjoys unprecedented success, even though cydia has been installed on more than 9 million iphones.
Since their original claim of harm app sales went from 1 billion to 8 billion a year. I can see what they fear.
I wouldn't be surprised to see game consoles fall next.
One last point, Canadians are rather apathetic when it comes to politics and the law, many don't care about copyright law, but if we start to head in the direction you suggest there would be a revolt.

And at this point I actually think competition is greater than it ever has been

Having said all that I believe we need to support a balanced approach to copyright and remember that user rights are not a loop hole and that copyright is not the exclusive territory of creators but a agreement for the betterment of all Canadians.

Gruesome said...

Darryl, one other thing, if it became so difficult for people to to say format shift, time shift and other fair dealing then I see that only further encouraging illegal avenues.
If it became too difficult for me to format shift a DVD, I would find justification in owning the DVD copy that I might download something I could use on my media played.
Then I wouldn't even have to break the cellowrap ;)

Darryl said...

Thanks for the reply Gruesome. It is a pity John does not engage in the same kind of thoughtful commentary. Such is life.

TO respond.

1) Indeed it is impossible to stop someone from setting up their own PVR/VCR, and even with digital locks, those who really want too, will. However it will mean the market for this equipment will be non-existant/no/none/nil/zilch/nada . The two choices will be to build your own, or pay the cable companies extortion rate. Most people will still go with the latter.

2)I've seen no signs that DRM on books are really on the way out. Look at what Apple is doing. Also Amazon still has DRM on all their main titles. There is a strong self interest for these companies to maintain DRM as long as possible.

3)I disagree, iPhones and iPods are not suffering in the least. Most windows users don't care about OSS for example, and if they can get more assurance that they will not have malware, they will be happy. Hardware vendors will benefit because locking down the boxes will mean fewer service calls due to bad IT management or malware. Of course you will always be able to pay more for an unlocked box if you don't mind bending over for it.

4) Funny, I only see upward price pressure, as the copyright holders start charging for every conceivable use as it becomes more and more possible to monitor/regulate those uses.

I would also like to see a balanced approach toward copyright. A balanced approach is not the "protect-creator-rights-at-the-expense-of-everyone-elses" kind that John supports. Frankly for me to consider it balanced would require a bit of a role back to something more along the lines of what the US had BEFORE they signed Berne.

John said...

You know, Darryl, you and Gruesome could just exchange e-mail addresses and then you wouldn't have to hang out here all the time - on my blog - where I clearly do not engage in "thoughtful commentary."

Darryl said...

So true John. So true. On both points. But then if we didn't hang out here you wouldn't get any of the benefit of our thoughtful commentary would you? I couldn't do that. That wouldn't be fair. I mean, think of the children... ummm... creators.

Gruesome said...

No John,I'd miss you too much.

Darryl, I was being sarcastic on the iPhone comment, if Apple were any more successful...
That's why I said that evidence is mounting that claims for protections are over stated.

Anyway I talked to my MP yesterday and while she understands my argument in classifying non-infringing practices where tpm's are broken legal, she was basically telling me that there is no way that will ever be negotiable.
This bill will pass as is as far as the tpm's go.

Anonymous said...

Take your pen, show 5 seconds of any movie to aid in a review of that movie.

There's a simple problem, you're assuming all TPMs are on books. Why is that?

The problem is Fair Dealing, which is one of my rights as a Canadian, being taken away due to the actions of another. If my proerty rights to ride my bike were taken away by you putting a lock on it keeping it in place, I would speak to a police officer. You want me to endorse your desire to put locks on my items? Why?

Russell McOrmond said...

Not intending to engage John yet again, but in case anyone reading this hasn't seen it I will direct people to

People need to be aware of the 4 potential owners implicated by the Paracopyright ("technological measures", "digital locks") aspects of C-11 in order to understand how it will impact each of these classes of owners.

John has chosen to ignore the impacts to anyone who isn't a non-software copyright holder, and in doing so he is advocating policy which will also harm the interests of non-software copyright holders.

The primary problem with C-11 style anti-circumvention is that the most problematic "digital lock" isn't the one on content, but the lock on our devices.

I say "our" devices because it is inclusive: having someone other than the owner of a device control the keys to our devices will harm fellow creators as much (actually, far more) than it will harm the interests of simple audiences of creative works.

I know that John doesn't want us to talk about devices, but that is where the core policy of all these "technological measures" are implemented. We both wish we weren't talking about devices, but C-11's protection of locks on devices forces us to do so.

The only thing you can do to content (which is passive) is deny access to any device that doesn't have the right unlocking keys. All the enforcement of contractual terms (copyright licenses) happens in software running on hardware. These technologies are under the control of the software authors and device manufacturers: not non-software copyright holders, and not the owners of these devices.

This effective transfer of control from copyright holders and technology owners to the providers of the technology will greatly harm the copyright and non-copyright related rights and interests of these owners.

I wish the government would take that section of the bill out of C-11, and then we could all have a much more reasonable conversation about actual Copyright law. As it is, discussion of the Copyright aspects of C-11 are being overshadowed by the problems created by trying to incorporate Paracopyright concepts into the law.


I recognize that part of your lobbying is to suggest there is only one way to implement the two 1996 WIPO treaties. Obviously many of us strongly disagree:

Most of our concerns about legalizing abuses of non-owner locks on our devices would be alleviated if we stuck to what the two treaties said.

Talking about the "locking down of content and culture" tries to shove under the rug the lock on devices. It also ignores the fact that WIPO never called for Paracopyright that wasn't tied directly to otherwise copyright infringing activities, never enabled non-owner locks on devices, and didn't have a prohibition on multi-purpose unlocking technology.

All we on this side of the debate are asking for (ignore the inflammatory terms John has made up for the moment) is that Canada stick to what WIPO said, and not enable these abuses by non-owner keyholders.