Harris July 29

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Harris July 29

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS


Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

Submission from Sandy Harris received on July 29, 2001 9:13 PM via e-mail

Subject: About a Canadian DMCA

Parts of your consultation paper (http://strategis.ic.gc.ca/SSG/rp01099e.html) interspersed with my comments. | indicates quotes from the paper. Unmarked text is mine.

From your section 4.2 "Legal Protection of Technological Measures"

| Proposals
|
| Domestically, some copyright stakeholders have indicated that in the absence of a prohibition against the manufacture and traffic in circumvention devices, would-be infringers can legally access the means that enable infringement. ...|

| The departments acknowledge the concerns of these copyright stakeholders, but must consider these concerns within the framework of Canadian copyright law, where certain uses of works and limitations on copyright protection are recognized as serving legitimate and important public policy objectives. ... Any attempt to affect that balance may require a reconsideration of the current extent of the exceptions provisions.|

[snip a paragraph]

| ... the departments question whether it is possible to establish a legal framework which, on the one hand covers virtually all activities that undermine the use of technological measures, but at the same time continues to reflect the policy balance currently set out in the Act.|

I'm impressed. This is a long way from the position I feared you might take. It is extremely refreshing to see Canadian bureaucrats doing something this difficult well, not just kowtowing to big industries and the US Embassy.

| Such a change in the Copyright Act could potentially result in a new right of access, the scope of which goes well beyond any existing right, and would represent a fundamental shift in Canadian copyright policy. It could serve to transform a measure designed for protection into a means of impeding legitimate uses.|

"The primary function of the DMCA is to prevent fair use". I'm not certain who I'm quoting. I am certain I agree.

Actually, this understates the problem. An overly broad restriction on "circumvention devices", such as the DMCA, not only conflicts with fair use provisions in copyright law. It also intrudes on free speech, preventing analysis and discussion of the weaknesses, and on the legal principle of "first sale", that the vendor loses control once he sells the product.

My guess is that the most powerful restriction you could place on such devices without harming fair use, free speech or consumer rights would be a provision to have use of such devices affect criminal sentencing or civil damages. Once the other side has won a case against someone for copyright infringement, the penalty may partly depend on the methods used.

I'm not certain even that is a good idea. I am, however, quite certain that any restriction stronger than that is a really bad idea.

Until an actual violation of copyright is proven, "circumvention devices", and their owners and vendors, are "innocent until proven guilty", under one of the oldest principles of British and dervied legal systems.

| In essence, a change of this nature would be tantamount to bringing within the realm of copyright law, matters (e.g., restrictions on use) which may be more properly within the purview of contract law.|

Again, it is worse than that. Consider the two best-known cases brought to date under the DMCA in the US:

The DeCSS case:
http://www.eff.org/IP/DMCA/

The arrest of Skylarov:
http://www.freedmitry.org/
http://www.freesklyarov.org/

Skylarov's conference presentation is at:
http://www.treachery.net/~jdyson/ebooks/

None of the victims charged or sued in these cases had any contract with their attackers. Nor is their any evidence at all that they violated copyright, or even that users of their software had.

These people are being sued for breaking incompetent encryption. In one court document, archived on the EFF site above, Berkeley's David Wagner say he plans to use breaking the DVD encryption as an undergrad homework assignment next term.

I have not heard of any case in which the DMCA was used to attack people who actually were violating copyright.

| Given the rate at which the technology underlying protection measures is changing, it is difficult, under present circumstances, to evaluate the public policy implications of such a step. ...|

Some essays:
http://www.gnu.org/philosophy/right-to-read.html
http://www.toad.com/gnu/whatswrong.html

| The departments consider that the issues relating to anti-circumvention | measures raised in this paper may serve as the departure point ...
|
| The most basic form of prohibition would be to restrict specific acts. The | Act would specifically prohibit the circumvention, for infringing purposes, ...
|
| At the other end of the spectrum, the most extensive form of prohibition | would entail a prohibition on circumvention devices in addition to a | prohibition on acts, as above. Thus, there could also be remedies against | importing, selling, letting for hire, by way of trade offering or exposing | for sale any device whose purpose is to circumvent any technological measure | used to protect a right or rights conferred under the Copyright Act.

I don't think the above covers the full range. Perhaps the range you're currently considering, but not the full range of possibilities. I'll try to be a bit provocative below, pushing the boundaries.

| Further questions arise with respect to possible measures at this end | of the spectrum. For example, to conserve the current contours of our | copyright law, should rights holders be under a positive obligation to | provide access to a person whose use falls within an exception to or | limitation on copyright set out in the Act?

Why stop there? If we're going to consider taking extreme measures against citizens -- such as prohibiting publication of circumvention code, a clear violation of free speech principles -- then let's talk about measures to take against some of the companies involved.

A good example is the region coding on DVD disks, part of the CSS access control system. What this code does is control which disks play on which players, so that for example, a disk sold in North America will not play on a European or Asian player.

It is abundantly clear that this violates both the fair use principles in copyright law and the legal notions around "first sale".

For example, if I go on holiday to Europe, I can neither expect to play DVDs I might take along on equipment belonging to friends there nor plan to bring home some European films and play them here. Even with DVDs I own, on equipment I or my friends own, I cannot play what I please.

Arguably, most DVD players sold in Canada are defective -- BAD, Broken As Designed -- since they fail to play certain disks when there is absolutely no technical reason why they should. Similarly, many of the DVD discs are BAD since they are coded so they will not play in Europe.

Could our consumer protection laws be invoked here? If so, should they be? Can I sue the vendor of such defective products? Should some gov't or NGO consumer protection agency be charging them?

Should our laws require that players sold in Canada have the region code restriction disabled? Or that disks sold here be coded to play in any region?

The region codes are clearly the product of a conspiracy aimed at controlling marketing of this material. Could the conspirators be charged under our competition laws? I think so, but would doing so be useful? Since the conspiracy is international, is this an issue Canada should raise at WTO or some other organisation?

Should Canadian law permit a service aimed specifically at circumventing fair use restrictions?

For example, although the DVD vendors routinely lie about it and claim their CSS encryption prevents "piracy", it doesn't. It is trivially easy to make a bit-for-bit copy of a DVD, just copying the encrypted data with no attempt to decode it. Such a copy will play just fine on any machine that the original wouuld play on. Not on all machines, because of region coding.

Change one byte and you remove region coding. My understanding is that doing this on a commercial DVD disk would be difficult.

What if the owner of a DVD disk makes a copy with that byte changed? Then the copy plays anywhere. As I see it, it is absolutely clear that no rights of the copyright holder have been violated. The owner has merely corrected a (deliberate) flaw in the product.

Perhaps the copyright holder's rights would be violated if the owner then gave away the defective region-coded copy, or sold it to recover the cost of fixing it. They can avoid the problem by not selling deliberately defective products.

What if I offer a service where, for some fee, I'll take your DVD disk (or sell you one off my shelves) and make such a copy for you? Again, I see no copyright violation.

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