ARCHIVED — Thomas Fitzsimmons
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Copyright Reform Process
SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS
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Submission from Thomas Fitzsimmons received on September 15, 2001 via e-mail
Subject: Comments on Consultation Paper on Digital Copyright Issues
I am very impressed by the reasoned evaluation presented in section 4.2 of the Consultation Paper on Digital Copyright Issues. However, I believe that the discussion of circumvention devices fails to address some of the issues that pertain to legislation against such devices. This may be a result of the concern, which I share, that "the Copyright Act may not be the proper instrument for protection measures that, prima facie, are extraneous to copyright principles." Hopefully issues pertaining to circumvention devices will not be examined until a more appropriate instrument is devised, however, I feel I should raise my concerns now as a precaution.
The issues that concern me were first brought to my attention because of prosecutions or threats of prosecution under the DMCA that are taking place in the United States. Two high-profile cases in particular underscore the problems associated with anti-circumvention legislation.
First, the Dmitry Sklyarov case(http://www.usaondca.com/press/html/2001_07_17_sklyarov.html). This situation shows that anti-circumvention legislation can severely hamper copy-protection research. The issue is "How can someone show that a copy-protection scheme is invalid if it is against the law to attempt to break it?" Related to this is the issue of reverse engineering. Reverse engineering is an extremely important practice, especially in the computer industry. It allows engineers and programmers to understand how existing products work. This fosters competition, and public knowledge. However, under the DMCA, companies can employ an arbitrarily simple copy protection scheme to protect the workings of their design, then threaten to charge anyone who reverse engineers their product with circumventing the copy protection. This could chill the development of technological devices. Copy-protection research and reverse engineering are integral to the computer industry and a Canadian anti-circumvention law must ensure their protection.
Secondly, the DeCSS (http://www.7thzone.com/cgi-bin/page.cgi?id_page=decss1) controversy. This situation clearly shows that under the DMCA, publishers are able to dramatically extend their rights by developing appropriate content-protection schemes. The DeCSS code was written for one purpose: to allow people to play DVDs on the Linux operating system. Prior to DeCSS there was no way to play a DVD under Linux because there was no MPAA-supported DVD player available for that platform. So people could legally own a DVD, and be restricted from viewing it in the way they wanted. The way in which you view a DVD would otherwise be totally out of the scope of copyright law, yet the MPAA, using the DMCA, was able to expand their copyright by imposing viewing restrictions on users of DVDs.
DVD technology also restricts copying the disc's data to a different source. This creates an interesting legal paradox. The right to make a backup copy, for personal use, of any media you own is well established under US "fair use" exceptions. However, under the DMCA, it is illegal to circumvent a DVD's copy protection. Thus, if you want to make a backup copy of a DVD, you have to break the law in order to exercise your fair use rights. Again, the rights of users have diminished, and those of the copyright holder have increased. A Canadian law that backs content-protection schemes must not allow this. The Copyright Act represents a delicate balance between many competing interests. The government must ensure that this balance is not disrupted. However, if the Canadian law has provisions similar to the DMCA, publishers will create their own policies and enforce them using copy-protection schemes.
The MPAA vs. 2600 case (http://eon.law.harvard.edu/openlaw/DVD/NY/appeals/010530-us-supp-brief.html) highlights the need to be explicit in defining the terminology related to copy-protection schemes. Using phrases such as "manufacture or distribution of circumvention devices" can lead to a great deal of uncertainty, especially with respect to software. Is linking from a web site to a site that has the DeCSS code considered "distribution?" Is writing code considered "manufacturing", or is it considered writing and therefore covered by copyright laws? These questions are not addressed in the DMCA, and thus must be addressed and resolved by American courts. These questions should be answered by Canadian legislation. Otherwise, Canadian courts will need to hear many wasteful lawsuits so that they may clarify the meaning of the law.
In the United States, the DMCA threatens to dramatically extend the rights of copyright holders at the expense of the rights of the public. I hope that Canada will take a more reasoned approach to copyright law in the digital age. If prudent decisions are made, the balance between the rights of users and the rights of publishers can be properly maintained.
Thomas Fitzsimmons
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