ARCHIVED — Alan DeKok

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

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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.

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Submission from Alan DeKok received on September 14, 2001 via e-mail

Subject: My submission on "Consultation Paper on Digital Copyright Issues"

This submission is also available on-line, at:

http://www.striker.ottawa.on.ca/~aland/digital_copyright.txt

Submitted by:
Alan DeKok
(Address removed)

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Response to "Consultation Paper on Digital Copyright Issues"

Copyright 2001, Alan DeKok.

This document may be freely reproduced by the Government of Canada.

Executive Summary

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The consultation paper discusses the extension of copyright protection to dissemination controls. The purported reason for doing so is to maintain copyright control in the digital age. I will show below that in fact, these dissemination controls offer no protection whatsoever against dissemination of copyrighted materials. For that reason alone, Canada should not extend legal protection to dissemination controls on copyrighted material.

But the problem gets worse. Since the "dissemination controls" offer no protection against unauthorized duplication of copyrighted materials, they must have some use in practice. I will also show below that the primary use of the alleged "dissemination controls" is to control access to copyrighted materials. The copyright holders may use these access controls to remove many rights currently enjoyed by Canadians, which are protected under the existing copyright law.

If that were not enough, these access controls may additionally be used by some copyright holders to deny other copyright holders access to their own materials. So while someone may be able to create their own copyrighted materials, others may deny him the ability to access those materials, or to add the same "dissemination control" protection that they enjoy for themselves.

I will show that all of these repugnant scenarios, and more, are occuring today, in the United States. The average citizens rights are being removed, to allegedly "protect" the rights of copyright holders. It is our strongest desire that these rights will not also be removed in Canada.

If we are to have a just and a free society, we must not remove rights from a large portion of the populace, in order to extend additional rights to a small subset of that populace. In order for dissemination controls to be given the protection of law, a number of conditions as to efficacy and side-effects must be met. I will show below that the proposed protection for dissemination controls fails all of these preconditions.

As Benjamin Franklin said, "Those who would trade liberty for security will get and deserve neither." This proposed law gives more security to some, while removing liberties from others. The anti-circumvention measures must, therefore, be given no protection in law.

Introduction and layout

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The rest of this response is divided into three parts. The first part gives the conditions which dissemination controls must satisfy, before they are protected by law; the second part gives a general response to the consultation paper, and presents my opinion in detail; and the third part consists of my answers to some of the many questions posed in the discussion paper.

Conditions for legal protection to "dissemination controls"

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It is claimed by a number of parties that dissemination controls provide some benefit to copyright holders. In order to agree that protection for dissemination controls is warranted, I must therefore agree that they have the claimed benefits.

The protection afforded to rights holders by these benefits must also outweight the removal of rights currently enjoyed by the citizens of Canada. In order to weigh these protections against their cost to society, we must come up with a number of conditions which dissemination controls must satisfy.

These conditions are listed below.

1. The dissemination controls must provide true control of dissemination.

If the controls do not protect against dissemination, they must not be protected by law, as they are not dissemination controls.

2. The dissemination controls must afford the citizens of Canada the full use of the copyrighted material that they currently enjoy. These uses include, but are not limited to,

a) quotes for "fair use";

b) free use after the copyright term has expired;

and

c) the full ability to use or privately dispose of via sale, any legally purchased copies of that material.

If the dissemination controls remove any of these rights, then they must not be protected by law, as they are limiting access to content, not controlling unauthorized dissemination.

3. Any copyright holder must have the ability to add the same dissemination controls as enjoyed by other copyright holders. That is, if a company makes "dissemination controlled" video tapes and video tape recorders, they must provide the ability in their recorders for anyone to add dissemination controls to material that they create.

If the dissemination controls can only be used by a select few copyright holders, then they must not have protection in law.

4. Any dissemination controls must not affect any part of activities enjoyed by the users of copyrighted materials, which do not involve using the copyrighted material.

If the controls affect any activity other than that of using the copyrighted material, then they form an unwarranted burden on users of that material, and should not be protected by law.

It is my belief that the existing dissemination controls fail all of the criteria mentioned above. The allegest "protection" offered to copyrights holders is, in reality, nothing more than the illicit removal of rights currently enjoyed by Canadians. The proposed law must not, therefore, be enacted.

Response to "Consultation Paper on Digital Copyright Issues"

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In the United States, under the Digital Millenium Copyright Act (DMCA), legal protection for "dissemination controls" is currently the law of the land. The Canadian government is currently discussing the possibility of enacting similar legislation here. While on the surface, the issue appears to be one of copyright control, in reality, the issue is access control, and non-legislative extensions to the Copyright Act, by third parties.

Throughout the rest of this response, the case of Digital Versatile Disks (DVD's) will be used as an example of the pernicious abuse of anti-circumvention measures. All of my concerns about abuse of digital rights management technology are being played out in the United States today, with the DMCA and DVD's.

If "dissemination control" protection is added to the current Copyright Act, then we will have the following situations in Canada, in addition to their current occurance in the United States:

1. Material which is "protected" by digital rights management technology will be pirated without hindrance.

Encrypting a DVD is no protection against piracy. It is still possible to create a verbatim image of that disk, and sell it without compensating the copyright holders. This is known as "piracy".

Note that all of the anti-circumvention measures on the DVD are still intact. The pirate does now know how the disk is protected, and does not care. He is simply betting that his final price for the DVD is less than that of the legal one. As he does not have to pay royalties, this case is always true.

The final consumer who buys a pirated DVD can play it in the comfort of their own home, under all the same conditions that a legal DVD may be played.

Condition 1), above, therefore cannot be satisfied.

It is undesirable to restrict consumers legal uses of copyrighted material under the guise of "dissemination" control when that restriction does not, in fact, prevent any dissemination of the copyrighted works.

2. The right to "fair use" of materials will be denied.

The current law allows for certain limited uses of copyrighted material, without compensation to the copyright owner. Examples include quoting a section from a play, or showing a still scene from a movie. When dissemination controls are added to copyrighted materials, then this right will be effectively removed. In order to permit people of his choosing to have access to copyrighted materials, the copyright holder will be able to prevent anyone of his choosing from accessing those materials.

For examply, DVD's have no provision for "fair use".

Condition 2a), above, therefore cannot be satisfied.

It is undesirable to remove the right to quote from copyrighted materials, in the guise of "dissemination" control.

3. The term of copyrights will be extended indefinitely.

Any copyrighted material can be protected from "dissemination" by encrypting it, and engaging access controls. These access controls will not automatically expire with the copyright, and it will be illegal or impossible to circumvent them.

If we are to have dissemination and access control protected by law, then the citizens must be have the right and ability to use material after the copyright term has expired, and that right must be protected in law. The implementation, therefore, of dissemination controls must be time dependent, and must remove all limitations on use after the term of copyright has expired.

Digital Versatile Disks (DVD's) are currently "protected" from dissemination through encryption and access controls, yet there is no provision for the legal use of the material after the copyright term has expired.

Condition 2b), above, therefore cannot be satisifed.

It is undesirable to remove the current right to use copyrighted materials after their term has expired, in the guise of "protecting" the rights of the copyright holders.

4. The right to legally use material legally purchased will be curtailed.

Once dissemination controls are mandated by law, it is trivial for them to be abused to create access controls. DVD's are a current example of this abuse. DVD's and DVD players are region controlled, so that a player will only show a DVD if the regions encoded into each one match.

For example, suppose I buy a DVD in Australia, or Europe. I will, however, be denied the ability to play that DVD in my player here in North America. I have every legal right to do so, yet I am denied that ability under the guise of "dissemination control".

Condition 2c), above, therefore cannot be satisfied.

The reasons for the access controls on DVD's are generally given by the large movie companies as "dissemination and copyright control". Yet even they admit that these access controls do not in any way prevent the exact duplication of DVD's. So it is possible to visit China, where illegal duplication is rife, and pay one or two dollars for an illegal copy of a DVD. It is similarly possible take a DVD, and duplicate it many times over the Internet. The DVD "dissemination contols" do not prevent any such activity.

It is undesirable to remove my legal right to use legally purchased material, based solely on the desire of a rights holder to extend his rights past their legal protection. It is especially undesirable to do so, when the alleged "dissemination controls", in fact play no part whatsoever in controlling dissemination. The only part they play is in removing existing rights enjoyed by legal users of copyrighted materials.

5. The ability to enable dissemination controls for copyrighted material will be limited to a small subset of copyright holders.

DVD writers are currently being sold in the marketplace. Yet people who purchase these writers discover that they are unable to write the DVD "key blocks", which enable dissemination controls for DVD's. The major rights holders (generally large corporations) reserve this right for themselves.

The only just way to legally mandate dissemination control, then, would be to additionally legally mandate that the ability to add dissemination control to copyrighted materials must be given, where possible.

Condition 3), above, therefore cannot be satisfied.

It is undesirable to give some rights holders the ability to protect their rights, and to deny other rights holders that same protection.

6. Scientific research will be stifled.

No matter how the law is written, any research into existing dissemination controls will be stifled. Rights holders will be able to threaten researchers with lawsuits, for circumventing their dissemination controls.

We see this today in the United States, where researcher Edward W. Felten, an Associate Professor at Princeton University, was sent a letter demanding that he stifle his research.[2] He is currently engaged in a lawsuit to get a judgement that his research is, in fact, protected under the law.

Condition 4), above, therefore cannot be satisfied.

It is undesirable to have to engage in a lawsuit to verify that you are, in fact, legally allowed to engage in behaviours explicitely permitted under the law. It is incredible that someone is threated with a lawsuit for engaging in those behaviours.

All reasonable conditions which predicate the legalization of dissemination controls cannot be satisfied.

In summary, we need to distinguish between copyright protection, and access control. While I am in favour of copyright protection, I am completely opposed to legislated protection for "dissemination" controls, access controls, or for making "circumvention tools" illegal. The sole purpose of dissemination controls, as practiced today in the United States, is to limit people's ability to enage in activites which are permitted under the law.

It is not just I who believe that dissemination controls mean access controls. In a presentation at a conference last year, Microsoft Corporation has admitted that Digitial Rights Management technology can only be implemented through access controls. [3] (slides 27 and 28).

Any extension of copyright to dissemination controls is therefore reprehensible to a just, a fair, and a free society. Canada should refuse to enact any law similar to the DMCA of the United States. Canadians should be expressly permitted to engage in activities permitted under the law. And any right by third parties to limit those activities through access controls should be expressly denied by the law.

Comments by Section of the Document

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Section 1

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The language in this section appears to assume that the purpose of the Copyright Act is solely to protect the interests of the "copyright stakeholders", and that these "stakeholders" are large corporations.

I disagree with both assumption.

The Copyright Act serves to protect the interests of the citizens of Canada. In return for giving up the short-tem right to freely distribute copyrighted works, the citizens give some limited protection to the holders of those copyrights, under the condition that those works will eventually enter the public domain. This exchange of rights and responsibilites encourages holders of copyrighted works to distribute those works, and ensures that they may be compensated for those works.

To me, the important idea behind that exchange of rights and responsibilities is that the works eventually enter the public domain. If copyright protection is extended to include access control, then the term of copyright protection is extended indefinitely. We see this happening now in the United States under the DMCA, where Digital Versatile Disks (DVD's) have no provisions for entering the public domain once the copyright term has expired.

This infinite extension of the copyright term allows the copyright stakeholders to break the contract between themselves and the citizens of Canada. In my opinion, the interests of the citizens should be paramount in the law, and their interests should be upheld over the interests of the copyright stakeholders. This means that the stakeholders should not be permitted to break the contract of the copyright law, and by extension, the copyright law should therefore not be extended to include access controls.

The second assumption, that the copyright stakeholders are large corporations, is also invalid. The stakeholders are once again the citizens of Canada. I am concerned that their interests are not addressed.

If we are to assume that the only stakeholders are large corporations, then we would bias the law to again protect their interests above the interests of the citizens. For example, I can purchase a personal digital audio recorder, and make a record of any audio I want. But because the corporations in the U.S. have determined that the primary use of such recorders is duplicate copyrighted materials, they have made it impossible to move those recordings off of the digital device.

The side effect of these access controls is that I can record my own wedding, but it is impossible for me manipulate that recording in any manner whatsoever. The makers of the recording device, therefore, have become judge, jury, and executioner, with the full force of the law behind them. And because they are protected under the DMCA in the U.S., I have no recourse to modify the recorder, to enable it to allow me to copy my own copyrighted material.

This is an important point. Extending copyright protection to access control means that other copyright stakeholders can deny me access to my own copyrighted material. Such a perversion of the law means that the law should never be passed.

A few paragraphs later, the following statement is made:

"Specifically, these issues are whether or not:

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* legislative measures are needed to deter the circumvention of technological measures that are used by rights holders to protect their rights;"

As I will discuss below, the "technological measures" used are often laughably simple. The devices required to circumvent those measures, are thus likewise laughably simple. Giving those trivial "technological measures" the full protection of the law means that simple, every day devices will be made illegal. This illegality then means that most Canadians will immediately become criminals, due to their possession of trivial technological devices.

Any law which makes most citizens criminals, for possession of common tools, should never be passed.

In addition, the assumption that these technological measures are used "by rights holders to protect their rights", is also incorrect. The primary effect of these measures is not to protect the rights, but to serve as access controls. These access controls (as I will illustrate below) serve to deny the citizens of Canada the ability to legally access material they have purchased. This denial makes a mockery of the copyright act.

Later in the document, the statement is made that:

"* Some rights holders may be deterred from making their copyrighted materal available on-line."

I have no problem with such a deterrant. It is the free choice of the rights holders when and where to make their material available. A following sentence in the document makes that clear:

"Some rights holders are prepared to make their material available now, while others would make their material available if they could control when and how their material would be disseminated."

This sentence makes it clear that copyright control is not the issue here. The issue is access control, and such access control will be abused. Examples of such abuse are noted in reference [1], summarized in part here:

* Competing products are driven off the market

By "protecting" their copyrighted material, companies can prevent anyone from making products which use that material in non-infringing ways.

* Companies don't disclose copy-protection restrictions

When buying a product, it's not clear how the access controls limit non-infringing use of copyrighted material. That information is kept well hidden by the manufacterer.

In addition, the products available to the average consumer do not permit them to use the same access controls to protect their own material. Many copyrights holders are thus denied protection, under the guise of enabling it!

Section 3

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One of the core principles is given as:

"* The framework rules should be clear, and allow easy, transparent access and use."

A further sentence says:

"By the same token, rules that are unclear may have a chilling effect on legitimate uses of works that are nonetheless permitted under copyright law."

To be realistic, the vast body of the law is unclear to the average citizen. What this means is that the lack of clarity, and peoples ignorance of the law, can be abused to stifle legal activities. That abuse is occuring now in the United States, where companies send letters to individuals alleging violations, and threatening lawsuits. Most citizens can ill afford to fight large corporations in court, even if the end result is technically a victory. The cost of these victories may be ruinous, and therefore stifles personal expression.

This cost is noted in the document, in the principle immediately following:

"* The proposals should promote a vibrant and competitive electronic commerce in Canada."

As I have descibed above, unclear rules and laws can only serve to have a chilling effect on legitimate uses of works, and serve to stifle personal expression. In addition, the primary purpose of dissemination controls is not copyright protection, but access controls. These access controls are most often used for abusive purposes, and to prevent specific legal uses of copyrighted works, which the rights holders wish to arbitrarily deny. Therefore, adding legislative protection to access control for copyrighted works is undesirable in Canadian society.

Section 4.2

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Question 1

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Few, if any, factors suggest legislative intervention. The ACT of circumvention may be made illegal, if it is not already illegal under the law. However, making technological measures themselves illegal has serious consequences, as seen in the answers, below.

Question 2

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The only activites which should be dealt with in relation to the Copyright Act are activities related to copyright. Possession of copyrighted material without a license should be illegal. Distribution of copyrighted material without permission of the copyright holder should be illegal.

However, we *must* distinguish between copyright control and access control. A copyright holder may implement access controls to control access to their copyrighted material. But access controls may have far-reaching side effects, which are *all* unrelated to copyright control.

For example, Digital Versatile Disks (DVD's) have access controls which limit the use of a purchased DVD to a time and a place determined by the copyright holder. For example, a DVD purchased on vacation in Europe may not play in your DVD player at home, despite that being a legal use of the DVD.

In the United States, access controls fall under the same protection as copyright controls, under the Digital Millenium Copyright Act (DMCA). So if you try to circumvent the access control of a DVD to exercies your legal right to view the movie you purchased, that circumvention is illegal.

It is one of my strongest desires that we do not have such copyright "protection" in Canada. Giving government protection and enforcemnet to access controls means that the decisions of the personing determining the access controls have the full force of law.

I can therefore write software which prevents it's use by anyone I choose. Visible minorities, blind people, or any other interest group can be denied access to software that they have legally purchased. And because the access controls and the circumvention thereof are protected by law, it is *illegal* for anyone to examine the software to prove that it is denying them access!

The copyright and access control laws can thus be abused to protect nearly any criminal activity. I do not believe that this protection is warranted, or needed by the citizens of Canada.

Question 3

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No response.

Question 4

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As noted in the document, a serious issue which must be taken into account when addressing technological measures is the non-infringing use of technological devices. I work as a computer programmer, and many of the tools I use every day could be used to circumvent access controls. These tools MUST NOT be made illegal, even under the most liberal interpretation possible of the law.

I would agree that the act of using tools to circumvent protection may be made illegal, but the tools themselves should be legal.

For example, screwdrivers and bent wire may be used to gain illegal access to a house, for the purpose of robbing it. No one pretends that we should be making screwdrivers illegal. Yet this is the exact change proposed by people who wish to extend copyright protection to access controls.

For example, one "protection" method which is in use today by companies is called ROT13. All it means is that in a document, all instances of a letter are translated 13 characters ahead in the alphabet, with letters wrapping around at the end. So 'a' becomes 'n', 'b' becomes 'o', etc., with 'n' becoming 'a', and 'o' becoming 'b'.

As one can see, this "protection" is trivial, naive, and possibly even fraudulent, if it's sold as "access control". Yet this access control has the full protection of current U.S. law, and any circumvention device is illegal.

Why does this matter? The tools I use every day can be trivially used to circumvent the alleged "access control". Are the tools of my trade to be made illegal? If an anti-circumvention law is passed, how can I be sure that I will not suddenly be arrested for possession of circumvention devices? For example, the following shell script, when executed on my Unix computer, completely bypasses the trivial ROT13 encryption:

cat protected.txt | tr '[n-z][a-m]' '[a-m][n-z]' > unprotected.txt

Yes, circumvention devices are *that* easy. And yes, that short piece of text is illegal in the United States, as a circumvention device.

The only rational response to such laws is incredulous laughter.

As a computer programmer and a consultant in the field of computer security, I am well aware that most people are uninformed as to the capabilities of computers. I do not have *any* confidence in the ability of the average person to judge the non-infringing uses of standard programming tools. This lack of confidence extends to the police, who are not trained in the every day use of these tools. Despite this lack of training, they will have the singular power of arresting me, if in their opinion, such tools MAY be used as a circumvention device.

The thought of such arbitrary arrest and detention upsets me. Any response which attempts to defuse my concern through re-assurances about the intentions of the police and the proper application of the law, will simply not be believed. Similar reassurances were given about the child pornography laws, that legitimate "artistic expression" would not be punished. Yet the *first* arrest under the law was of an artist, in Toronto. Although the charges were later dropped, such an example shows how the laws may be abused, and just how far-reaching their side effects may be.

I do not wish to be abused in a similar manner. I do not want reassurances that I will not be arrested for possesion of common programming tools. I want the law to be clear that possession of such tools is legal, despite any possible abuse of such tools as circumvention devices.

Another issue which must be taken into account when addressing technological measures is the issue of informed consent. If a provider of computer software has the legal power to limit access, and to prevent disassembly or circumvention, then they have the power to do anything they want to me, or my computer.

As an extreme example, a writer of a computer virus may copyright his work, and through anti-circumvention laws, prevent anyone from disassembling his virus to gain the knowledge of how to halt it's spread. While the author may be liable for the damages caused by the virus, we will have no recourse under the law to prevent ourselves from being infected by it, or of discovering the identity of the author.

In addition, any company providing computer software can run any program they want on my computer, using my resources without consent. And any attempt by myself to discover that fact, or to prevent the misuse of my personal resources, would be illegal under the anti-circumvention laws. I would be powerless to protect myself from the use or abuse of my personal property.

I am *deeply* worried about the side effects of extending access control protection to copyrighted works. While such extension may initially appear to be useful, the side effects alone should bar any attempt to extend copyright protection to access control.

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For further information, see:

[1] http://www.toad.com/gnu/whatswrong.html

[2] http://www.cs.princeton.edu/sip/sdmi/riaaletter.html

[3] http://www.microsoft.com/winhec/presents/Security.zip

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