Canadian DMCA Introduced; Digital Lock Provision Trumps Any And All User Rights

from the with-this-lock,-i-control-all dept

As was widely expected, Canadian politicians have introduced their version of the DMCA, dubbed the “Copyright Modernization Act” (or Bill C-32 if you want to get technical). Michael Geist runs down the good and the bad at the link above, but it appears there’s a lot more that’s bad than good. While the plan tries to add “balance” by extending fair dealing provisions just slightly wider than before (though, still pretty limited), it undermines that very concept with a heavy anti-circumvention clause. This is the worst aspect of the DMCA exported north to Canada. Basically, as long as a rights holder puts some form of DRM/copy protection on their work, all those exceptions go out the window. You can’t circumvent, even for non-infringing reasons.

What this does is change the basic contours of copyright law. It gives the rights holders the ability to define the exceptions, and take away the right of users. It’s this very aspect of the DMCA that needs to be fixed, not expanded to other countries. It goes against the core principles of copyright law, which include exceptions for the sake of important modes of expression. By letting the rights holder determine what is and what is not allowed as an exception, simply by letting the rights holder put any kind of digital lock (no matter how weak) is a travesty of copyright law. It’s not copyright law at all, at that point. It’s really a law to lockdown content away from the public, and to have the government declare a particular business model as supreme and protected by the government.

Filed Under: , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Canadian DMCA Introduced; Digital Lock Provision Trumps Any And All User Rights”

Subscribe: RSS Leave a comment
57 Comments
James Carmichael says:

It's still a free market

I think people will slowly start to hate DRM, and demand their products come without it. Companies will notice, and adapt.

Well… in theory.

I live in Ontario, and I’m not too happy about this one. It’s worse how they make it sound like it’s for everyone’s best interest, while it’s really not.

Can we at least stop paying ‘levies’ on blank CDs? I mean if they sell something which they assume will be used to do something illegal… why sell them at all?

Jay (profile) says:

Re: It's still a free market

Huh? People in the gaming world already hate DRM. It limits what people can do arbitrarily and makes money for businesses artificially. For example, Microsoft puts a limit on their CDs of one use for students. It’s not the fact that they can’t make the CD run on more laptops or desktops. It’s a limit to control where their money is coming from

Regarding levies, no one can stop a free market. There’s still a demand for CDs even as hard drives become cheaper to make with larger loads of space. Why sell them? Demand continues. Even as the industry of music falsely decries that every last download hurts them.

crade (profile) says:

Re: It's still a free market

Might work for entertainment media, although I think companies will just try their best to hide the fact that they are using DRM until they want to sue.

Trouble is the way they want to set it up, DRM won’t be limited to products that are part of the free market or that people have a choice about in any way. It can be used by employers, govt, hackers, terrorist groups, you name it! It would be illegal to check to see what they are hiding behind the lock or even create the tools that can do it, so entertainment media is really the least of your worries.

Adam Bell (profile) says:

Basically, this would make criminals of us all. Who doesn’t make copies of kid’s games to preserve the original, rip a CD for viewing on an alternative device or even for viewing from a laptop HD instead of a spinning plastic disk running their battery down?

If we come to a red light that doesn’t change, eventually we go through it.

TW Burger (profile) says:

Re: Copying

C-32 allows you to copy what you bought onto other or duplicate media for personal use or backup. However, it seems it also makes breaking a copy protection (no matter how lame) punishable by 5 years in prison whether or not you bought the right to use the content and even if you do not sell it illegally or even if you break it accidentally as a result of a flaw in the CP. This is sounding like the long arms registration all over again. It cost 2 billion dollars, never worked, and made a large percentage of Canadians instant criminals.

Anonymous Coward says:

drm is just a way of saying “dont go here”. unlike the us, the canadian constitution doesnt suggest absolutely unlimited free speech rights, and as such, limiting “fair dealing” does not violate any rights. mike, you would learn a lot by not applying a us mentality to the laws of other countries.

Anonymous Coward says:

Re: Re: Re: Re:

Fair use in the U.S. is based on the purpose of the patents & copyrights clause of the U.S. Constitutions, which states that the purpose of authorizing Congress to grant patents & copyrights is to promote the development of science and the useful arts.

So, when preventing uses of copyright-protected material could contravene that purpose, such use is considered “fair” and deemed an exception to the copyright monopoly.

It’s a judge-made doctrine.

Anonymous Coward says:

Re: Re: Re:

i am not this tam person please stop mike. the last time anything like this hit parliment in canada, there was no uproar. please, point to a news story (not from smug mr fiest) that actually tells the story. i suspect you will see it was attached to a bunch of legislation lost at the end of a minority government or similar.

Anonymous Coward says:

Re: Re: Re: Re:

Ok kaboose.

Well Canada tried to pass those laws 2 times in the past and never got it to the end, maybe the third is a charm who knows.

The first 2 were met with protests from the public and that is why they even called for opinions that the industry tried to stack the deck in various occasions.

Blaise Alleyne (profile) says:

Re: Re:

“unlike the us, the canadian constitution doesnt suggest absolutely unlimited free speech rights, and as such, limiting “fair dealing” does not violate any rights.”

Man, do your research.

http://en.wikipedia.org/wiki/CCH_Canadian_Ltd._v._Law_Society_of_Upper_Canada#Fair_dealing

The Supreme Court of Canada has ruled that: “The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”

The digital lock provisions in Bill C-32 would undo any fair dealing exceptions. Mike’s not imposing a U.S. mentality, he’s just point out what’s common sense, and what current Canadian law and the Canadian Supreme Court have affirmed.

BigKeithO (profile) says:

Re: Worse thing will be the extortion lawsuits.

True. One of the good points of C-32 is they have separated out commercial and non-commercial infringement. Non-commercial infringement damages go from $100 to $5000 which is a very nice change from the $20,000 for commercial damages. I believe its a step up from the US damages as well, correct me if I am wrong, I believe damages in the US go up to $120,000 per infringement?

The cap on damages makes those extortion style lawsuits a lot less attractive in Canada I’d think. It would be hard to recoup the lawyers fees from a maximum $5000 per infringement award.

Hephaestus (profile) says:

Of course it needs to be expanded into other countries ...

“It’s this very aspect of the DMCA that needs to be fixed, not expanded to other countries.”

They also need to expand the financial judgements available to the copyrights holders for infringement in Canada to 1 million dollars per infringement. Criminalize infringement with the following penalties, 3 months per song shared on a p2p network, 1 year per movie or TV episode shared, 2 years per OS shared. Allow for the court to liquidate all personal assets of infringers to pay for the judgements. Make all private residents with access to an internet connections liable in both civil and crimal cases.

Yeah thats the ticket …

statismwatch.ca (user link) says:

About that notice-and-notice provision...

One aspect that I think might get overlooked as we go about analyzing this thing (new exemptions good, digital locks still very bad) is notice-and-notice. We need to see a lot more info on this provision, which requires ISPs to keep personal info. How broadly is personal info defined? Does this tie into Van Loan’s requirements for ISP surveillance which Prof. Geist covered so thoroughly in Sept 2009? http://www.thestar.com/news/article/701824 It would be unsurprising if this enables certain police state ‘cybersecurity’ aspects that are being chased internationally.

And speaking of international issues, what happens when we sit down at the CETA negotiating table with this? It could all be superceded. http://www.michaelgeist.ca/content/view/4914/125/

BigKeithO (profile) says:

Re: About that notice-and-notice provision...

I was under the impression that notice-and-notice was an improvement over the US style notice-and-takedown. Could you elaborate why you are concerned with this? ISP’s keep your personal info anyway I don’t really see the big deal with this one. We still have privacy laws in Canada that the ISP’s are subject to, they aren’t just handing out your info if someone complains about something you put on YouTube, it would take a subpoena to release that info.

NAMELESS ONE says:

Section 12 of the Charter of rights and freedoms

Section 12 of the Charter of rights and freedoms
CRUEL AND UNUSUAL PUNISHMENT……
LORD HERE COME THE LAWSUITS

38.1 (1) Subject to this section, a copyright
owner may elect, at any time before final judg-
ment is rendered, to recover, instead of damages
and profits referred to in subsection 35(1),
an award of statutory damages for which any
one infringer is liable individually, or for which
any two or more infringers are liable jointly
and severally,

(a) in a sum of not less than $500 and not
more than $20,000 that the court considers
just, with respect to all infringements in-
volved in the proceedings for each work or
other subject-matter, if the infringements are
for commercial purposes; and
(b) in a sum of not less than $100 and not
more than $5,000 that the court considers
just, with respect to all infringements in-
volved in the proceedings for all works or
other subject-matter, if the infringements are
for non-commercial purposes.

WHY a non commercial infringement can be more then a
commercial infringement is beyond me and might even be
equated to the charter of rights and freedoms under
section 12 CHARTER of RIGHTS and FREEDOMS as a definite form of
CRUEL and UNUSUAL PUNISHMENT

NAMELESS ONE says:

@TW Burger

actually you get that 5 years , (AND/OR)a 5000 or 10000$ fine for breaking the locks then it depends on what you were doing with it.

SO way law works you gt the 5 years
then a 10000$ fine per instance say 14 songs thats 140,000$
/10 = max time when you cant pay that fine either to be done concurrently ( take which ever i s longer in this case the fine time at 38 years ) or consecutively adding both times ot gther to get a possible whooping 43 years in prison as a maximum for 14 songs YOU infringed by breaking the locks…
NOT DONE YET THOUGH

non commercial 100-5000 more bucks for all infringements
thats up to a maximum of another 1.36 years in prison at ten dollars = one day in jail
totals max time so far now is 44.36 years

So i started to tell people take a single levied cdr with copyrighted music when the law passes and say 5-7 million of us turn ourselves in in one day.

THIS CANNOT BE ENFORCED

NAMELESS ONE says:

and what happens when i sell for cost the levid cdr?

so 26.7 cents to the levy per cdr
and aobut 25 cents a cd
so if i sell it to my bud for 51 cents
and take a .7cents loss

the law will then call that commerical sale and that 100-5000$ fine becomes up to 20,000$ thats a nice added max jail time when yu cant pay of when someone commits manslaughter

THIS again raises the issue of CRUEL AND UNUSUAL PUNISHMENTS in the form of the scales of the punishments compared to the crime and as compared to other crimes

ya think its ok to have on the books a law that could give your 18 year old kid effectively life in prison for a single music album?

YOU ARTISTS better start speaking up or some baseball bats are gonna start swinging.

NAMELESS ONE says:

@ 8 have you read Canada's charter of freedoms and rights?

doesn’t sound like it cause free speech is in there as is right to be presumed innocent. and to be treated without CRUEL and UNUSUAL PUNISHMENT

this extremist copyright law, is not only a tax on culture and knowledge but a form of economic terrorism the USA is waging on the world and it needs to lose and lose NOW.

Section 2
Fundamental freedoms (section 2), namely freedom of conscience, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press and of other media of communication, freedom of peaceful assembly, and freedom of association.

Section Seven of the Canadian Charter of Rights and Freedoms
Secondly, there is the right to liberty, which protects an individual’s freedom to act without physical restraint (i.e., imprisonment would be inconsistent with liberty unless it is consistent with fundamental justice). However, the right has been extended to include the power to make important personal choices. The court described it as “[touching] the core of what it means to be an autonomous human being blessed with dignity and independence in matters that can be characterized as fundamentally or inherently personal.”

DRM to me is a constraint on my person as is a TPM.
ASLO in that section it refers back to section two and yuo can read it further….

Various liberties not covered by the section 7 right to liberty include religious liberty and liberty of speech, because these are more specifically guaranteed under section 2,

ALSO of section 7 it might even be argued that such a law thats sooo broad reaching and encompassing of previous activites that were legal may Breach this section of the charter, regarding the mental integrity form the govt putting such a law on the populace that is clearly not wanted or needed and they keep doing it over and over and over again= stress:

Thirdly, there is the right to security of the person, which consists of rights to privacy of the body and its health[9] and of the right protecting the “psychological integrity” of an individual. That is, the right protects against significant government-inflicted harm (stress) to the mental state of the individual.

Vagueness
The “Principles of Fundamental Justice” require laws to have a clear and understandable interpretation so as to properly define the rule or offence.
A law is unconstitutionally vague if it does not have clarity enough to create “legal debate”. There must be clarity of purpose, subject matter, nature, prior judicial interpretation, societal values, and related provisions. This does not prevent the use of broadly defined terms so long as societal objectives can be gleaned from it. (Ontario v. Canadian Pacific Ltd., 1995)
[edit]Overbreadth
The “Principles of Fundamental Justice” require that means used to achieve a societal purpose or objective must be reasonably necessary.
This principle is violated when the government, in pursuing a “legitimate objective”, uses “means” that unnecessarily and disproportionately interfere with an individual’s rights.

—-
Section 12
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Cruel and unusual punishment was thus defined as punishment “so excessive as to outrage standards of decency” or “grossly disproportionate to what would have been appropriate.”

Darryl says:

It's just another form of lock or safe.

If you have problems, or even perceived problems with loss of product, it is their responsibility to take measures to protect against that loss.

Banks employ guards, camera’s, safes, locks and so on.

People have keys for their car, their house and so on, giving access to only the rights holder of that product or item.

If no one ever broke into houses or banks, or went places that belonged to someone else, then there would be no requirement of safes, locks, guards, keys, or DRM.

It’s only to address a problem, and I know you deny there is even a problem, but there is certainly a perceived problem, and potential for more problems, and a way to legally protect from that.

Sure, it’s very annoying for anyone who wants to make copies or to file share, just as it annoying that we cannot just go into any bank and find all the money there for the taking.

So once again, this is a response to file sharing, file sharing is real, and the damage it causes is real as well.

Just as bank robbery is damaging to the bank, the bank still makes a profit, but it has a loss from being robbed.

So saying the music industry is ‘making a profit’ so a bit of theft is ecceptable in well, not really accecptable at all.

So basically if people did not file share, as opposed to purchasing a legal version, which is against the existing laws, then those who are the victims of that loss are abliged to take measures to protect the investment of the stakeholders.

What they are saying is, if you cant be trusted to not be responsible with filesharing copyrighted material, (others peoples property), then we’ll take that ability away from you.

If you cant be trusted not to take money from an unlocked bank, then we will put locks on ‘just the keep you honest’.

So now, everyone is disadvantaged because a few took things way to far. we all suffer from the greed of a few.

Richard (profile) says:

Re: It's just another form of lock or safe.

You miss the point here. It is illegal to enter someone else’s house to steal stuff – but not fro a bunch of kids to retrieve their own ball. This law makes otherwise legal acts illegal simply because you got past a security mechanism in order to do it.

There are laws against stealing, and there are locks that stop you getting in – but there is no law in the physical world against picking a lock unless you do some damage in the process.

This law does two things that the ordinary “physical world laws” you compare it with don’t do.

1. It enables rights holders to enforce rights that they don’t legally hold.

2.It makes it an offence to infringe these illegal rights if you pick a lock to do so.

Let’s give a proper physical analogy.

A farmer owns a piece of land with a right of way across it.

Legally he has no right to block the path but physically he might do so. Let’s say he puts a gate across the path and secures it with a combination padlock.

A hiker trying to walk the path encounters the gate and

a. Climbs over it

or

b. Idly fiddles with the lock and accidentally finds the combination.

In the physical world the farmer is guilty of an offence (legally he cannot block the path). In this new digital world the hiker is guilty – even though he has done nothing that he was not entitled to do. in law.

Darryl says:

A bank vault of files instead of money.

“It gives the rights holders the ability to define the exceptions, and take away the right of users.”

So replace ‘rights holders’ with bank sharholders, and the ‘file’ being ‘shared’ is money. Then the bank has the right and ability (via locks and guards) to define the exceptions and take away the right of the users. (people who want money).

Again, if no one tried (alot) to take the rights (copyright) as a personal right of users there would be no requirement for DRM, or guards and locks in banks.

And the only person who owns the right to copy or share the work is the person who owns the copyright of that work.
It’s his right, he can do what he likes with it, if he only wants to make his work available to only one person, or no people that is his right.

If he wanted to make it available for free to everyone, he would release it under public domain. If he does not want everyone to copy it, and they do, he would put locks in place to protect his work.

Richard (profile) says:

Re: A bank vault of files instead of money.

And the only person who owns the right to copy or share the work is the person who owns the copyright of that work.
It’s his right, he can do what he likes with it, if he only wants to make his work available to only one person, or no people that is his right.

Wrong.

He has , in law, specified set of exclusive rights. They do not extend anywhere near to what you claim. In particular once a copy is sold to one person he cannot prevent that person selling the copy on to a third party, and at any time the current owner of the copy is entitled to various fair dealing/fair use rights (exact details depending on the country in question).

The only time he has true exclusive rights is before distribution of the first copy. After that point his rights are limited by the law.

MadderMak (profile) says:

Re: Bank analogy

Agreed.

Also the whole analogy of locks and so forth is flawed…

1 – lock my car, house etc… no law says I must have locks.. I can choose.

2 – banks – banks hold other peoples property and those people ask/expect locks.. again a choice not a law.

3 – I legally purchase a movie DVD and legally try to make the backuop copy (I have kids… DVDs have very short lives) and If the publisher *chooses* to put DRM/Encrypt on it then I will have broken the law… in following the law.

point – the first 2 are my choice regarding my property. The 3rd is someone else’s choice regarding my property.

I beg to disagree such a law should be passed unless it contains clear and explicit protections for legal uses.

Darryl says:

@Richard

“There are laws against stealing, and there are locks that stop you getting in – but there is no law in the physical world against picking a lock unless you do some damage in the process.”

That is absurd !, sure there is no law stopping you from purchasing a lock, and breaking it.

But there certainly are very well defined laws and definitions agaist gaining access by ANY means where you are not supposed to be.

Look up the laws on “Break and enter” for example, You say there is no law agaist opening locks, there certainly is if that lock belongs to someone else, and you do no have permission to open it.

canadian law:

“321…. break means … to break any part, internal or external, or … to open any thing that is used or intended to be used to close or to cover an internal or external opening.”

That means to gain access to any mechanism (door, lock etc) that is intended to KEEP YOU OUT.

Once you have gain you’re illegal access, the law assumes you’re there for illegal purposes (probably to steal). It is up to you to prove you were not there “for no reason”.

These days, “a lock or “opening” would also be considered as a security mechanism to stop you entering a computer, or network, or accessing files or data that you dont have the right to access, as clearly shown by the producer of that work placing his own locks on this works.

So to “break” a lock on a warehouse to ‘enter’ the building, it will be assumed you’re there to take stuff, is just the same as if you break the lock of DRM and go agaist the wishes of the owner of that property, who has locked his product, just like the guy who owns the warehouse.

The same laws apply, and there is no reason why the person who owns the warehouse should be able to lock up his building and protect his product, but the producter of copyright works, is not allowed to apply the same level of physical security as banks, warehouses, houses, cars, well just about everything else is allowed to be protected from theft, so why not books, music, movies, software and other products.

And for that person who says, you have the right to copy a work after that work has been published, that is wrong, you do not own the COPYRIGHT, therefore you do not have the right to copy that work, funny, that is what COPYRIGHT means, the right to copy, a right you do not have, but a right the producer of the work has. And like the warehouse owner, he has every right to put locks on his doors, employ security staff, and prosecute those that steal from him.

Thats a right everyone has, to protect you’re own works, and to have a say in how it’s used.

Just as it’s you’re right to own things, and to lock them up, it’s an illegal act to breach those locks and gain access to the contents, and it does not matter a squat if you damage anything or not.

If fact you just have to be there, that is enough, and guilt is assumed, and onus is on you to prove you’re intensions were not criminal, and if you cant, it is assumed it was criminal.

Life in prison in canada for break and enter of a home, that would easy apply to break and enter of a part of you’re home, (any opening), and that would include you’re home computer.

Therefore, if you broke into a home computer in canada, you are “break and entering” into a residential premises, and that is a manditory life in prison.. Enjoy

Aaron says:

Re: @Richard

I normally just enjoy reading the comments here and abstain from joining in, but that was just, I mean… I don’t think I have ever read anything that stupid in my life. I’m incredulous.

The producer of a work has absolute rights on it from first sale to infinity and beyond. Um, you’re insane or trolling (at the end of a thread, good plan)

Mandatory life in prison… wha? who? Oh god my head….

Either you just drove the crazy bus over satire gorge and I missed it, or your understanding of, well, reality is broken. I award you no points, etc.

Brendan (profile) says:

Re: @Richard

What if somebody came by and put a padlock on the front door of my house?

I bought the house, I own, I am allowed into it. Sadly, I cannot get into my house because somebody (without asking me or giving me the key) has put a lock on it.

Can I break that lock legally?

(SPOILER: The answer is: “Of course!”. And from there we make extension to other items we have paid for, ie music.)

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...