. Is Canada Headed Toward a Canadian DMCA?

[David Farber <dave () farber net>]

_______________ Forward Header _______________
Subject:        Is Canada Headed Toward a Canadian DMCA?
Author: Michael Geist <mgeist () pobox com>
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: 613-562-5800, x3319     Fax: 613-562-5124
mgeist () pobox com              http://www.michaelgeist.ca


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