ARCHIVÉE — Marcel VanDalfsen (En anglais seulement)
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PROCESSUS DE RÉFORME DU DROIT D'AUTEUR
SUGGESTIONS REÇUES RELATIVEMENT AUX DOCUMENTS DE CONSULTATION
Les documents reçus seront affichés dans la langue officielle dans laquelle ils auront été soumis. Toutes les suggestions sont affichées comme elles ont été reçues par les ministères; toutefois, toutes les informations sur les adresses ont été enlevées.
Suggestion de Marcel VanDalfsen reçue le 12 septembre 2001 par courriel
Objet : Comments - Copyright Reform
This document comments on the issue of Legal Protection of Technological Measures as discussed in ``Consultation Paper on Digital Copyright Issues''. Industry Canada & the Department of Canadian Heritage believe that it is ``an opportune moment to initiate consultation with stakeholders on whether the Act should be amended to ... prevent the circumvention of technologies used to protect copyright material''. It is the opinion of this author that technological measures which are used to protect copyrighted works should not be given legal protection, since there are always legitimate, non-infringing reasons to circumvent said technology. This will be illustrated through analogy and description of recent cases in the U.S.A. related to the Digital Millennium Copyright Act (DMCA). These cases deal with movies (DVDs), music (CDs), and books (e-books) and their related circumvention devices, and their relation to copyright issues, free-speech, and issues regarding fair-dealing.
We must first address some concepts surrounding copyright. The idea behind copyright, as taken from the U.S. act, is as follows: ``To promote the Progress of Science and the Useful Arts, by Securing for limited Times to Authors and Inventors the Exclusive Right to their respective Writings and Discoveries.'' There is a balance between the copyright owner and the users of copyright material, in which the owner is granted the right to copy their work for a limited time, and the user is granted certain rights as well, under the subject of fair-dealing (``fair use'' in the U.S.).
The first issue here, is that copyright is for a limited time. In other words, copyright expires, and then the work is placed in the public domain. Recently, corporations have been lobbying governments to extend the duration of copyright. It's no coincidence that these `extensions' occur whenever the copyright on Walt Disney Corporation's ``Mickey Mouse'' is about to expire. The most recent of these extensions was in 1998, with the Sonny Bono Copyright Term Extension Act, yielding a length of time of life plus 95 years. This is much longer than the original 28 years of the copyright act of the beginning of the 20th century. If we now add in Technological Measures which protect copyright material and also laws against the circumvention of these Measures, we run into the scenario in which copyright never expires! This is clearly contrary to the intent of copyright in the first place. Thus, barring other instances of fair-dealing, circumvention devices will be necessary in order to access works which contain protection measures, yet have fallen into the public domain. This is already the situation, for example, as there exists e-Books containing ``Moby Dick'' and ``Alice in Wonderland'', both of which are currently in the public domain.
The second issue regards the concept of fair-dealing. This allows the owner of a copyright work to make a copy of the work for their own personal use (like a back-up copy on which to highlight, write notes, or simply protect in case the original becomes damaged). Fair-dealing also allows one to make a copy for the purpose of space-shifting or time-shifting (such as the normal use of VCRs, or transferring CDs you own to a portable mp3 player) so that one can use the work in another place or time of their choosing. Another aspect of fair-dealing is so that the work can be used in the creation of parody or satire.
As has been described in the previous two paragraphs, it can be seen that circumvention devices (devices or methods used to circumvent the technology protecting copyright works) may be needed in order for one to exercise their fair-dealing rights or to access a protected work which has fallen into the public domain. Thus, the tool (the circumvention device) or possession of such a tool should never be made criminal or illegal. Even though these tools may possess illegal or infringing uses, they should not be criminalized, since they also have legal, non-infringing uses. Some real-world analogies are in order here, in order to show how tools, which can be used both legally or criminally, are not banned or made illegal.
a) Crowbars and screwdrivers (in the next section, the DeCSS routine has been likened to a `digital crowbar') can be used to fix or repair things, but can also be used as tools to Break and Enter. Even though they have criminal uses, it is legal to own or purchase a crowbar from a store such as Sears. We don't arrest and imprison people who simply own a crowbar, and we don't arrest and imprison the Sears employee who sells the crowbar.
b) Cars have obvious non-criminal uses, but they can also be used as murder weapons by running over their victim. Cars are not illegal, and it is not criminal to own or sell a car.
c) Pantyhose can be used to cover the face of a robber during a bank-heist, yet you can still buy and own pantyhose.
Further analogies follow, but this time dealing with copyright issues and tools which can potentially infringe on copyright:
d) Xerox machines and photocopiers have legitimate uses and also obvious copyright infringing uses. If someone goes to the library and photocopies an entire book, that is obviously copyright infringement. The actual person infringing copyright is guilty and should be charged, not the Xerox engineers who designed and made that particular photocopier!
e) VCRs can be used to bootleg movie video-tapes and distribute them for profit. This is obviously an illegal activity. Is the electronics company who made the VCR, or the store that sold the VCR guilty of copyright infringement? No, of course not, the person bootlegging the movies is the guilty one.
f) If someone burns a copy of someone else's music CD, it isn't Hewlett Packard (the manufacturer of the writable CD drive) who is guilty of copyright infringement.
The point here is that illegal conduct should be criminalized, not the tools! The possession, creation, or distribution of a tool which may have illegal uses (as well as legal uses) should never be criminalized. Piracy and copyright infringement are wrong and worthy of legal action; knowledge, tools, and fair-dealing are not.
The criminalizing or making illegal the circumvention of copyright protection measures has several chilling effects. Testing a system's security or testing encryption routines becomes very difficult or even impossible, since the person finding a flaw in such a system cannot discuss or point out these flaws or they face criminal prosecution. Thus we get a situation in which security/encryption technologies stagnate and do not improve, with the consumer or corporation believing these technologies to be secure, though the criminal underground will know about all the flaws in the system (much to their delight). How can flaws in security/encryption programs be discovered, if they can't be discussed or explored without fear of criminal prosecution? Corporations which rely on this type of law will lose their competitive edge, by inviting them to protect their products through lawsuits and intimidation, instead of through innovation. As a result, the DMCA, which makes circumventing copyright protection measures illegal, has been called by some people ``The Snake Oil Protection Act''; a manufacturer who makes a defective product is protected by the DMCA by making it illegal to show that the product is defective. This illustrates the chilling effect this kind of law would have on Consumer Reports, where pros and cons of different products are routinely discussed and shared. It essentially criminalizes saying ``The Emperor has no clothes''. In a related issue, it also affects issue of reverse-engineering, essentially making it illegal. Where would we be without computers and cars? The PC BIOS was reverse-engineered from the IBM BIOS back in the early '80's, and now most people have access to computers. Cars are routinely reverse-engineered and books are written based on the results : How-to-fix-your-car books and other car guides.
Just from the analogies in this section, it should be obvious that the circumvention of copyright protection measures should not be made illegal or criminalized. The next three sections discuss these issues further in the context of three ongoing cases in the U.S. dealing with the DMCA. These are the kinds of situations Canada should avoid, in which activities/incidents which should be considered legal, have been made illegal by the DMCA.
Before I discuss details about the DVD/DeCSS case I would like to describe certain aspects of DVDs and the Technological Measures protecting it. DVDs are effectively large capacity CDs, and will typically contain a movie. It has a couple of different layers of protection. The contents (i.e. the movie) on the disk are encrypted by a system called Content Scramble System (CSS). Basically, the DVD player contains a key which unlocks a key on the disk, which in turn unlocks another key which is used to decode the movie content, which allows the movie to be viewed. Hardware companies that wish to produce DVD players must license CSS from the DVD Copy Control Association (DVD-CCA). If a company were to produce a DVD player without licensing CSS, they could be charged with trafficking a circumvention device under the DMCA. At this time I would like to point out that CSS restricts access to the contents of the disk. Contrary to what the DVD-CCA would claim, it does not prevent copying of the disk. A disk does not need to be decrypted in order to copy it because it is the player which decrypts it to be viewed. This can be easily illustrated with the following example:
I have a secret message which is encrypted here: ``Bfpne Crgrefba vf pbby''. In order for you to copy this message, you do not need to know what the message says; you just copy each letter as you see it ``Bfpne Crgrefba vf pbby''. When you bring it to someone who knows how to decode the message, it doesn't matter if you bring my original message or the one you copied. Both copies will be decrypted to ``Oscar Peterson is cool'' using an encoding scheme known as rot-13.
This illustration applies directly to DVDs; a DVD can be copied bit-for-bit, without ever decrypting it, and the copy will work just as well in the DVD player. Thus CSS does not restrict copying, it merely restricts access. This fact, along with the DMCA, sets a dangerous precedent: it transforms copyright into accessright, and grants the copyright holder new controls not previously granted by traditional copyright law. It allows them to decide who can view their content, and also when and where the content can be viewed. This brings us to the second layer of protection on DVDs: region coding. DVDs bought in a certain region will only be viewable on players bought in the same region. For example, if you go on vacation in Europe and purchase a few DVDs while there, they will not play on your DVD player when you return to Canada (I suspect a large portion of the public does not realize this fact). The DVD-CCA and the movie industry (the MPAA) claim it is so they can stagger the release dates of new films. If this were truly the case, then why aren't older movies (which have already finished being in theatres world-wide) set with no region-code? Some people would claim that this allows the MPAA to engage in price-fixing (which is illegal in some countries). To summarize: DVDs are protected by both CSS encryption and by region-coding.
Finally, we get to the DVD/DeCSS court case. DVD movies can be viewed on stand-alone players as well as on computers with a DVD-drive. The one problem is that the software DVD-players only exist for the Microsoft Windows Operating System. Back in November 1999, a 15 year-old Norwegian programmer by name of Jon Johanson, was working on making a DVD player for the Linux Operating System. Along with a couple other individuals, they reverse-engineered a DVD-player to discover how the CSS algorithm worked. They then wrote a piece of software, known as DeCSS, which decodes a CSS encrypted DVD disk, and would have formed the core of a Linux DVD player. Unfortunately, the MPAA cried foul and citing the DMCA's anti-circumvention clauses, took legal action. The MPAA declared that this program would result in rampant piracy of DVD movies, and they called DeCSS a `digital crowbar'. However, recall the discussion and example in the previous paragraph: DeCSS and decrypting the disk is not required to copy a DVD disk. In fact, before DeCSS ever existed, DVD piracy was already occurring, since the pirates were using bit-for-bit DVD burners.
This legal battle becomes somewhat more complicated. A Computer Programmer Publication known as 2600, published the source code to DeCSS, as well as hyper-links to other web-sites which contained either the source-code or information regarding DeCSS. 2600 was called as one of the defendants to this trial, and were ordered to stop publishing the source-code as well as hyper-links to the source-code. Even though 2600 was enjoined from publishing DeCSS source-code and links, it did not stop the rest of the world's computer scientists from posting DeCSS on their own web-sites. It even went so far as the source-code being printed on t-shirts currently being sold by a company called Copy-Left (yes, it fits on a t-shirt!). Computer Science students at MIT made an even smaller, more efficient version of the code using another programming language (which is now also on a t-shirt). Dr. David S. Touretzky, a Computer Science Professor at Carnegie Mellon University, has a web-site which is `Gallery' exhibiting many different forms of DeCSS and methods of descrambling CSS, as well as describing how source-code is speech to computer programmers, and thus deserves protection under Freedom of Speech. His gallery is found at: http://www.cs.cmu.edu/~dst/DeCSS/Gallery/.
It seems like a lot of trouble and toil just to make a DVD player for the Linux Operating System. I would have thought that the MPAA would be happy to see a DVD player on Linux, as that would increase the number of customers purchasing DVDs (I for one, am refusing to purchase any DVDs until this issue is resolved). It must be difficult being a Corporation like the MPAA, when they assume that all their customers are pirates. In conclusion, DeCSS (and whatever form it has certainly evolved into) are circumvention devices which allow owners of DVDs to be able to watch their legally purchased DVD under the Operating System of their choice, and thus should not be made illegal.
This case deals with music that is protected by audio watermarks. The Secure Digital Music Initiative (SDMI) is the organization attempting to make a watermark protection system for the Recording Industry (RIAA). In September of 2000, SDMI held a public ``Hack-SDMI Challenge'' and invited programmers and encryption specialists to attempt to crack their proposed watermarking technologies. The challenge was to last for three weeks, and offered a prize of $10,000 to anyone who succeeded in cracking the watermarks. Individuals were only eligible for the prize money if they gave up their rights to publish the crack information.
Before I go into further detail regarding the Challenge, I would like to briefly discuss audio watermarks. Watermarks can be considered to be both Copyright Protection Measures as well as Digital Rights Management (DRM). It is a very fuzzy line between Protection Measures and DRM in general, as they both accomplish the same thing. As for the actual watermarks, the RIAA and SDMI claim that the watermarks are inaudible, but they also claim the watermark will survive if the music is compressed into an mp3 file. This is a contradiction, as the entire basis of the mp3 compression algorithm is to remove the inaudible parts, leaving only the audible parts. Therefore the watermarks are audible! One audio expert reported that the watermarks sounded like a buzzing fly in between the speakers. Another ``protection measure'' the RIAA has recently tried is by deliberately introducing errors to the music CDs. When these CDs are played on normal CD players, these errors are not heard because of error-correction built into the player. But when these CDs are put in a computer (for being transfered to a portable mp3 player, for example), all the errors are still in the music file, and as a result the music is filled with noise, clicks, and pops.
Back to the subject of the SDMI Challenge. One group of cryptology scientists from Princeton University led by Dr. Edward Felton managed to crack all the SDMI watermarks. Being scientists, they decided to forego the monetary prize in order to be able to publish their findings in an academic setting. In April of 2001, Dr. Felton was going to present this information at an academic conference as a paper talk (i.e. a talk, in which the contents of the talk are also published in the conference proceedings). Just before the conference, Dr. Felton received a letter from the RIAA, threatening to sue him under the anti-circumvention clause of the DMCA if he continued with the presentation. As a result, he pulled his paper from the conference and did not give his talk. He is now counter-suing, to have the DMCA stricken, declaring it unconstitutional as it prohibits the Freedom of Speech and the Freedom of Academic Speech! Because his information is considered to be a circumvention device, it has been declared illegal by the DMCA. This is precisely what Freedom is Speech is meant to prevent, as quoted from a www forum on this case: ``Freedom to speak should exist even when governments or US corporations find such speech uncomfortable''. With the RIAA's permission, Dr. Felton finally presented his paper entitled ``Reading Between the Lines: Lessons From an SDMI Challenge'' on August 15, 2001 at the Usenix Security Symposium. This presentation was live-web-cast around the world at the time, and included a discussion about how the DMCA is stifling Free Speech and Academic Freedom.
This case illustrates how the anti-circumvention clauses in the DMCA have the ability to prevent Academic Freedom and Free Speech. No law should have that ability. We should not make this same mistake by making circumvention of Copyright Protection Measures illegal in Canada!
Dmitry Sklyarov is a 26 year-old Russian Ph.D. student at Moscow State Technical University, who also works as a programmer for a software company called Elcomsoft. Elcomsoft has an application known as ``Advanced eBook Processor'' (AEBPR), which allows the owner of an Adobe e-Book to make a back-up copy of the book. The software is also capable of allowing blind people to read their e-Books through a braille display or through speech software. Dmitry was attending a computer conference in Las Vegas on July 17, 2001, where he was presenting his work on AEBPR and the security/encryption used within the Adobe e-Books. His talk was entitled: ``eBooks Security: Theory and Practice''. During his presentation it was revealed that a large part of the encryption used in e-Books is based on rot-13 (remember our example in the DVD/DeCSS section). Rot-13 is the simplest form of encryption available, very similar in idea to the ``Little Orphan Annie Secret Decoder Rings'' of the 30's and 40's, but is even simpler because rot-13 always sets the ``decoder ring'' to position 13.
After Dmitry's presentation was finished and he was at the airport waiting to go back home to Russia, the FBI arrested him and imprisoned him for violating the anti-circumvention clauses of the DMCA. Dmitry remained in prison for three weeks before bail was finally posted, and another two weeks passed before he was indicted. He faces up to 25 years in prison for violating the anti-circumvention clauses within the DMCA. This should not be! Even rapists and murderers get less prison time than that. All this time he is being held in the U.S., without being able to see his wife and children, waiting for his trial. He is going through all this hardship because of a presentation he gave and because he helped write some software which enables individuals who have purchased e-Books to exercise their right of fair-dealing in order to make back-ups or use the work in an environment of their choosing!
Here we can see the extreme of what can happen when the technology that protects copyright work is given legal protection, and circumvention devices are declared illegal. Software which enables one to exercise their rights of fair-dealing, or simply to access protected works which they have legally purchased should not be illegal to possess, create, or distribute. Because of this incident, the Russian government is urging computer programmers not to visit the United States!
The points and issues I have raised in the previous four sections should make it clear that circumvention of Copyright Protection Measures and the possession, creation, and distribution of devices which circumvent Copyright Protection Measures must not be made illegal. The Copyright Protection Measures must not be given Legal Protection. I have pointed out that circumventing these protection measures is necessary in order to give access to copyrighted works that people have legally purchased and legally own. Some uses of circumvention devices are simply to provide access to the work. Other uses may allow the user to exercise their fair-dealing rights in order to make back-ups or to copy the work for their own personal use, or to use the work in a time or location or environment of their own choosing. Traditional Copyright Law will protect works against copyright infringement, regardless of whether a circumvention device was used or not. As mentioned earlier: punish the conduct, not the tool.
From the examples I have used in the previous sections, it can be seen the chilling effect that anti-circumvention laws will have regarding Freedom of Speech and Academic Freedom. Consumer Reports, and discussion of computer security technology, and criticism of products involving technology will all suffer drastically due to anti-circumvention laws. I urge the Canadian Government not to make this grave mistake, a mistake that, in the author's opinion, would surely take us back into the Dark Ages!
I leave you with this quote from Dr. Felton:
``only in computer science, but also across all scientific fields, skeptical analysis of technical claims made by others, and the presentation of detailed evidence to support such analysis, is the heart of the scientific method. To outlaw such analysis is to outlaw the scientific method itself.''
The author is a Ph.D. student at McMaster University, in the department of Physics & Astronomy. My dissertation deals with the globular cluster system surrounding the Sombrero Galaxy. I have held numerous academic scholarships, including the prestigious NSERC PGS B scholarship awarded to top Ph.D. students in the Sciences, awarded by the Natural Sciences and Engineering Research Council of Canada. Due to the nature of the research in this field, I have developed a great number of computer related skills dealing with programming, imaging and graphics, data manipulation, scripting, and system administration. Many of my interests are also computer-related. Because of my computer skills and interests, this issue of anti-circumvention laws hits very close to home. Who is to say that the very knowledge I have learned and possess may be in violation of such anti-circumvention laws? With laws like the DMCA, I feel we are rapidly approaching a world like that envisioned in ``1984'' by George Orwell; quite a frightening prospect!
This document was originally prepared using LATEX on the Linux Operating System (RedHat 7.1), and converted into a PDF document using the utilities contained within LATEX. I release this document into the Public Domain.
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