The Fatal Flaw in Bill C-32 or The Wrong Form Senseless Copyright Act

I am a bit annoyed with what seems to be happening with respect to Bill C-32. There is an anti-circumvention provision for digital locks in this proposed act that is in many ways, as hard as it is to believe, worse than the US DMCA. In fit of frustration I have written something in the form of a letter to the editor or an op-ed. I’m not sure for which editor or for which newspaper but I needed to get some things out in the open. It may never appear in print anywhere else but I can guarantee that it will appear here.
 

 
Subject: The Fatal Flaw in Bill C-32 or The Wrong Form Senseless Copyright Act
 
I have an issue with Bill C-32. They ought to call it, “The Not Longed For, Not Entirely Dissimilar To The Long Gun Registry, Long Form Copyright Act”. The current title of Bill C-32, “The Copyright Modernization Act”, sounds too innocuous. The title for this bill should really, at the very least, contain the word “Long” in order to make it a little more obvious that it actually has something in common with both the long gun registry and the long form census.
 
You may ask, “What can they possibly have in common with Bill C-32?”.
 
It turns out that the most contentious part of Bill C-32 can have an effect quite similar to both refusing to register your closet full of rifles or refusing to complete a mandatory long form census. It will make criminals out of otherwise law abiding citizens.
 
There are many things to like about Bill C-32. For the most part, it defines a balanced approach that considers both the rights of the consumer and of copyright holder. It clearly enshrines what common sense already understands to be fair use of copyrighted works. It is, except for a fatal flaw, a fair compromise between the different stakeholders.
 
This fatal flaw is that Bill C-32 will make it a crime to circumvent digital locks. At the moment, this is not a crime and it should remain this way. Let me be clear, there are legitimate reasons to circumvent digital locks. In fact, there are times when it is necessary to circumvent digital locks. Sometimes, in order to realize a fair use of something you have acquired that is encumbered with a digital lock, you may have to break it. In such a situation, Bill C-32 would make you a criminal even though your only crime would be to circumvent the lock.
 
Let me offer a couple of examples of activities that I currently do which will soon be examples of my future criminal behaviour.

  1. I watch my legally purchased DVDs on my HTPC (Home Theatre Personal Computer).
  2. I put songs I purchased through iTunes on my MP3 player.

You might wonder, “What could possibly be wrong with that?”. The problem is that I am watching the DVDs on a platform that I made and that I am listening to songs on my MP3 player and not on an iPod.

The digital locks that I’m talking about, and that most of us are afflicted with, are part of a scheme known as Digital Rights Management (DRM). DRM doesn’t have anything directly to do with copy protection. What DRM is intended to do is restrict the platform you use. It is meant to take the choice away from the consumer.

Without circumventing a digital lock, most DVDs may only be played upon approved devices in approved regions. When you buy a DVD it will come with the added bonus of being encumbered by a scheme known as CSS (Content Scramble System). This ensures that you won’t be able to play that movie you bought while visiting the UK, on your sanctioned DVD player that you purchased in Ottawa. We all know that you wouldn’t want to do that. It will also be more difficult to play in your Linux based home theatre computer. Don’t worry. Usually DRM is an impediment that can be overcome and then the choice can be yours again.

Some of the first songs that I purchased from iTunes were blessed with DRM. I have a Sansa MP3 player. In order to play my songs on my device I have to first strip the DRM from the songs and convert the songs to MP3 format. Apple DRM only allows songs to be played on Apple devices or with iTunes. It is there to protect their platform and provide a beachhead against competition. You are likely to keep using iTunes and Apple if your music has to stay with Apple.

The irony is that it is easy to make exact copies of DVDs and iTunes songs without having to circumvent DRM at all. I only need to circumvent DRM in order to change platforms and use devices of my choice. You can copy encrypted data easily. You may not know what is being “protected” but you can still copy it and the copy will play quite well with an officially sanctioned device.

Write this down: GUP LV ZURQJ

Congratulations! You’ve just made a perfect copy of something that was protected. Even your copy can be decrypted by an approved device with the correct key. I will now give you the key (it is a simple Caesar cypher) so that you can decrypt your new copy as if it was the original, and you yourself were an industry approved DVD player. You’ll find that your copy is just as good as the original. Here is the key:

Plain:  ABCDEFGHIJKLMNOPQRSTUVWXYZ
Cipher: DEFGHIJKLMNOPQRSTUVWXYZABC

It is bad enough that companies make it difficult for me to enjoy content that I pay for, using my own devices. But now my own government is going to make it a crime for me to try to circumvent those impediments. This can’t be the same government that thinks it shouldn’t be a crime to not report one’s inventory of firearms. There are going to be far more ordinary Canadians who are made criminals by Bill C-32 than there could ever be as a result of the census or the gun registry. Where is the balance in this bill if it’s anti-circumvention provisions make it a crime to try to make use of media in what would otherwise be a fair and acceptable way?

DRM provides little benefit to society or consumers. Trapping media within particular delivery platforms reduces choice, decreases innovation and will make it a victim of obsolescence. What will you do with your Blue-Ray discs after the last Blue Ray player has been sold? If you can’t pick your platforms then they will be decided for you. If you can’t move your media then you will either lose access to it or you will end up buying it again. If you even can. If your library has a 100 year old book in it’s collection, you may check it out and read it. In 100 years from now you may find it difficult to read a 100 year old DRM encumbered eBook from their collection. In fact, you may have trouble reading that eBook from the library in our current time. If it becomes a crime to circumvent DRM in order to play a movie that was legally purchased then it will become more enticing to copy a pirated version of that movie which will be far easier to play. There will be less respect for the law when the law stops respecting consumers.

When Tony Clement was talking about the long form census he said, “Even if there’s one complaint, if it’s a legitimate complaint, even if there’s one complaint from a Canadian about the coercive tactics used by a government agency we have to consider that complaint a valid question about public policy.” I hope this applies to their intent to criminalize circumvention of impediments to fair use. Despite their position on the long form census I would hope that the government still values information from the public.

Regarding the title of Bill C-32. Maybe we shouldn’t use the word “Long”. Perhaps a better word is “Wrong”. They should call it “The Wrong Form Senseless Copyright Act”. What is the point of enshrining our consumer rights in law and then making it so that companies become the gatekeepers who can and will decide to never let us exercise them? In Brazil’s proposed copyright reform they actually intend to have penalties and sanctions for those who are found to be hindering fair use. That actually sounds like it makes sense. There is no need to make circumvention for non-infringing purposes illegal. No need has ever been demonstrated. Making circumvention for non-infringing purposes illegal is akin to making gun ownership and gun use illegal even if it isn’t for the purpose of committing a crime. If anything should be protected, it should be fair use and freedom above all else. There is far more public good in that. Let’s not make criminals out of ordinary Canadians, no matter how many, no matter how few. Even if it is just me.

Sincerely,

Paul Cullum
Ordinary Canadian and Future DRM Criminal
Chelsea, QC

PS. If you have no intention of decrypting my message then I’ll provide you with the answer. DRM IS WRONG.

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