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Subject: Is Canada Headed Toward a Canadian DMCA?
Author: Michael Geist < >
Date: 31st January 2005 7:15:58 am
Dave,
Of possible interest to IP -- my weekly Toronto Star Law Bytes column
examines whether Canada may be headed toward a Digital Millennium
Copyright Canada Act. The column explores the risks associated with
technological protection measures alongside anti-circumvention
legislation and the potential that Canada may adopt DMCA-like
provisions into its copyright law.
Column, posted in full below, at
<http://geistcanadiandmca.notlong.com>
MG
`TPMs': A perfect storm for consumers
Michael Geist
Toronto Star
During last fall's U.S. presidential election, CBS News featured a
controversial report on President George W. Bush's military service.
The report, which relied on unverified documents, generated enormous
media coverage, eventually leading to a public apology and the
upcoming retirement of veteran news anchor Dan Rather.
Several weeks ago, an independent panel released a 234-page report
on the incident as CBS News continued its efforts to abate the
scandal. Two days after the freely available report was released,
Internet users noticed that attempts to electronically copy and paste
sentences from the lengthy report were rendered impossible as CBS's
lawyers had inserted a technological feature into the document that
prevented any form of electronic copying.
Although the use of the technological restriction was relatively
unimportant -- a speed bump rather than a full blocking mechanism --
its use highlights the increasing reliance on technological
protection measures (TPMs) to control access to, and use of, digital
content. The proliferation of technological protection measures,
alongside new legislative proposals designed to protect these digital
locks, represent a perfect storm of danger to consumers, who may find
themselves locked out of content they have already purchased, while
sacrificing their privacy and free speech rights in the process.
Owners of online databases and other digital content deploy
technological protection measures (sometimes referred to as Digital
Rights Management or DRM) to establish a layer of technical protection
that is designed to provide greater control over their content. The
content industry has touted technological protection measures' promise
for more than decade, maintaining that technological locks could prove
far more effective in curtailing unauthorized copying than traditional
laws.
While technological protection measures do not provide absolute
protection - research suggests all technological protection measures
can eventually be broken - companies continue to actively search for
inventive new uses for these technological locks.
In certain instances their use is obvious to consumers. For example,
DVDs contain a content scrambling system that limits the ability to
copy even a small portion of a lawfully purchased DVD.
Similarly, purchasers of electronic books often find that their
e-books contain limitations restricting copying, playback, or use of
the e-book on multiple platforms. In fact, e-books are frequently
saddled with far more restrictions than are found in the paper-based
equivalent. Sometimes the use of a technological protection measure is
far less obvious, manipulating markets to the detriment of consumers,
rather than protecting content. DVDs also typically contain regional
codes that limit the ability to play a DVD to a specific region. The
consumer is often unaware of the regional code until they purchase a
DVD while on vacation in one region only to find that they cannot play
the disc on their DVD player when they return home.
Of even greater concern is the increasing use of technological
protection measures in completely unexpected environments. For
example, Hewlett-Packard has begun to install technological protection
measures into their printer cartridges. The technology is used to
block consumers from purchasing cartridges in one region and using
them in another, thereby enabling the company to maintain different
pricing structures for the same product in different global markets.
Despite the proliferation of technological protection measures, few
consumers are aware of their existence and many manufacturers are
loath to disclose their use. In fact, consumers may soon find that
these technological limitations force them to incur significant new
costs as they face little alternative but to re-purchase content so
that it functions on their personal computer or other favourite
device. The industry acknowledges as much, as according to Kevin
Gage, a vice-president with the Warner Music Group, this year we will
begin to see people with "large libraries of content that won't play
with their devices."
The impact of technological protection measures also extends far
beyond consumer fairness. The same technologies can function much like
spyware by invading the personal privacy of users. For example,
technological protection measures can be used to track consumer
activity and report the personal information back to the parent
company.
There is also concern that technological protection measures can be
used to induce security breaches. Recent reports indicate that hackers
are using these technologies in the Microsoft Windows Media Player to
trick users into downloading massive amounts of spyware, adware, and
viruses.
While the potential for technological protection measure abuse may
appear obvious, Canadian policy makers have actually been racing
toward increasing the use and legal protections afforded to
technological protection measures. Canadian Heritage has provided
funding to technological protection measure initiatives to help
facilitate their development, while parliamentarians, led by Canadian
Heritage Minister Liza Frulla and Industry Minister David Emerson,
have been jointly working on a copyright reform package that would
reportedly grant technological protection measures additional legal
protections.
The experience with technological protection measure legal protection
in the United States, which enacted anti-circumvention legislation as
part of the Digital Millennium Copyright Act (DMCA) in 1998,
demonstrates the detrimental impact of this policy approach -
Americans have experienced numerous instances of abuse that implicate
free speech, security, user rights under copyright, and fair
competition.
From a free speech perspective, the CBS News case represents only the
latest in a series of incidents where speech was chilled under the
threat of legal action due to technological protection measure and
anti-circumvention legislation. For example, several years ago Edward
Felten, a Princeton researcher, sought to release an important study
on encryption that included circumvention information. When he
publicly disclosed his plans, he was served with a warning that he
faced potential legal liability if he publicly disclosed his
findings. The impact on security, particularly in the wake of 9/11,
has been similarly disconcerting. Many computer science researchers
have foregone working on sensitive security and encryption matters due
to legal fears, pointing to the arrest and imprisonment of Dmitry
Sklyarov, a Russian software programmer who spent several months in a
California jail in 2001 after he traveled to the U.S. to discuss a
circumvention software program at a conference. That incident led
leading former Cyber-security Czar Richard Clarke to acknowledge that
"a lot of people didn't realize that [the DMCA] would have this
potential chilling effect on vulnerability research."
Companies have not shied away from using prohibitions on circumventing
technological protection measures to limit competition. Lexmark,
another leading printer company, sued a rival printer cartridge
company for copyright infringement for circumventing technological
protection measures designed to prevent consumers from using the rival
company's printer cartridges in Lexmark printers. Similarly,
Chamberlain, a garage door opener company, sued Skylink for creating a
universal remote control that interoperated with its garage door
opener by circumventing a technological protection measure. In both
instances, appellate courts recently denied the suits, but fear of a
potential lawsuit may be sufficient to stop competitive activity in
its tracks.
From a traditional copyright perspective, anti-circumvention
legislation, acting in concert with technological protection measures,
has steadily eviscerated fair use rights such as the right to copy
portions of work for research or study purposes, since the blunt
instrument of technology can be used to prevent all copying, even that
which copyright law currently permits. They also have the potential to
limit the size of the public domain, since in the future work may
enter public domain as its copyright expires, yet that content may be
practically inaccessible as it sits locked behind a technological
protection measure.
Notwithstanding the U.S. experience, there is every indication that
adoption of these legal provisions is marching forward in Canada
leading to a potential DMCCA - the Digital Millennium Copyright Canada
Act. This despite the fact that the U.S. model need not be imitated in
order to meet Canada's international obligations and the fact that
important advocates, such as the Privacy Commissioner of Canada, who
recently wrote to Industry Canada and Canadian Heritage to request
future consultation on the privacy impact of copyright reform, have
yet to be heard.
In fact, the time has come for all Canadians to speak out and to tell
the responsible ministers along with their local MPs what is
increasingly self-evident. Canada does not need protection for
technological protection measures. In order to maintain our personal
privacy, a vibrant security research community, a competitive
marketplace, and a fair copyright balance, we need protection from
them.
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: Fax:
[for phone and fax numbers and email and web addresses, check the original
of this posting in Dave Farber's "interesting people" archives]
Archives at: http://www.interesting-people.org/archives/interesting-people/
Marcus Didius Falco (falco_marcus_didius@yahoo.co.uk)