Canadian Copyright Reform Authors Know The Law Outlaws Circumvention Even If No Infringement… But Don't Seem To Care

from the have-they-learned-nothing dept

We’ve been expecting Canadian politicians to re-introduce last year’s bad copyright reform bill without any changes. Despite widespread public complaints over the bill, the supporters of the bill (who are being pressured heavily by US lobbyists and diplomats), insist that there’s no real issue and that those arguing against the bill are merely radical extremists.

Of course, as Michael Geist has discovered, by obtaining last year’s clause-by-clause document that explains the bill to Canadian Ministers, that those behind the bill seem to recognize that it goes way beyond copyright law in the arena of digital locks. That is, it’s against the law to circumvent digital locks even for non-infringing works and the common defenses against infringement are not allowed for the digital locks/anti-circumvention rules. This is not unlike the US, but it’s still quite troubling. Remember, this is from the Canadian government itself:

The Bill introduces new causes of action (such as those relating to TPMs and RMIs) that could be used in civil lawsuits regardless of whether or not there has been an infringement of copyright.


Generally, an owner of copyright in a work or other subject matter for which this prohibition has been contrevened has the same remedies as if this were an infringement of copyright (proposed s.41(2)). However, a contravention of this prohibition is not an infringement of copyright and the efences to infringement of copyright are not defences to these prohibitions.

As Geist notes, this might make the bill unconstitutional:

The constitution grants jurisdiction over copyright to the federal government, but jurisdiction over property rights is a provincial matter. Digital lock legislation that is consistent with existing copyright law – ie. one that factors in existing exceptions – is more clearly a matter of copyright. The C-32 provisions are arguably far more about property rights since the provisions may be contained in the Copyright Act, but they are focused primarily on the rights associated with personal property and expressly exclude copyright defences.

What amazes me is that this remains such a big issue. I can’t believe anyone can credibly claim that it makes sense to block all circumvention of digital locks even in the cases of non-infringement. I know we have some supporters of such laws who read this site, and I’d like to see an honest explanation for why an anti-circumvention provision cannot include a clear exception for cases of non-infringement, and why standard defenses to copyright infringement can’t apply to breaking digital locks?

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Comments on “Canadian Copyright Reform Authors Know The Law Outlaws Circumvention Even If No Infringement… But Don't Seem To Care”

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Chosen Reject (profile) says:

Given the propensity of copyright maximalists to claim that IP is indeed physical property, and their confusing of theft and infringement, my guess is they think that breaking these locks is equivalent to breaking and entering. That some people break the locks to commit infringement, they probably equate to burglary. Given that, I will now use this information to good effect in a strawman (can’t you see I like to follow in their footsteps?) and I will now refer to Mike as the Burglar Mike. But in the interest of getting more IP confused, I’ll infringe on McDonalds Hamburglar trademark and up the ante:

Why do you hate freedom so much, Mazburglar?

Anonymous Coward says:

“Hi! I’m Mike Masnick. I’ve never had an original idea in my life. I truly don’t have the first clue what it means to innovate, create, or originate something new. Hell, I ripped off the idea for this blog from the Huffington Post, who also just use other peoples original work. Makes sense to a guy like me!!!!
Either way, it’s quite obvious I’m a leech that will never contribute anything new to society. So I will just hope I can continue to be a boat rocker and that I’ll make enough money to send my kid to school on that. Thanks a lot for being a sucker and clicking on my site.”

“oh, and by the way, copyright is bad.”

Prisoner 201 says:

Re: Re:

While it’s got all the quality trolling components, the presentation and …density of the trolling makes it far too obvious that it is a troll.

It is unlikely to evoke any responses other than reactions to the fact that it is a troll rather than the contents of the troll, and as such can really not be considered successful.

I give it a 4 out of 10.

Prisoner 201 says:

Re: Re: Re: Re:

Calling it a “dissenting opinion” is an insult to dissenters worldwide. Call it what it is – a troll, and not a particular successful one at that.

But you know what they say, dont think of it as a failure on your part, think of it as room for improvement!

One day you can be a skilled troll.

PaulT (profile) says:

Re: Re: Re:3 Re:

I love the fact that the things you apparently object to are an abbreviation for the groups referred to, one of the major issues facing the industry and a general example of history.

But no, we’re all the same, right? Distortions, personal attacks and name calling are the same thing as stating facts and historical examples?

If you get labelled as a troll a lot, you might want to rethink your logic there…

PaulT (profile) says:

Re: Re:

“Hell, I ripped off the idea for this blog from the Huffington Post, who also just use other peoples original work”

Techdirt: founded 1997 (

Huffington Post: founded May 2005 (

Christ, even when you admit you’ve got nothing and resort to childish comments like this, facts are your enemy!

PaulT (profile) says:

Re: Re: Re: Re:

Yep, the old idiot rebuttal “I won’t provide evidence for my own assertion, YOU do it”. How about, just once you provide a verifiable basis for your own assertions and present them without insults against any of the posters and commenters?

It might be a learning exercise for you, and you could use the same technique in other threads where you’re insulting people like a child (i.e. all of them).

(FWIW, I did try myself just for the hell of it, but it’s not working. Might be my 3G connection as I’m on the road…)

Chronno S. Trigger (profile) says:

Re: Re: Re:3 Re:

Damn it, I forgot the HTML tag support.

I was going to say that it looks like a 1998 version of Techdirt, stories about what’s happening in business, suggestions to make things better. No comment section, but who had them back then?

Hell, the “10 Habits for IT Success” has something just like has been said here since I started reading; “New technology will not go away, so play now or pay later”

PaulT (profile) says:

Re: Re: Re:2 Re:

“Was that so hard for either party?”

Apparently so. I already stated it wasn’t refreshing properly on 3G for me. The AC has a long history of not actually researching facts, so I assume he either hasn’t bothered or has realised he can’t back up his original assertion and has fled the thread. Yet again.

Jesse (profile) says:

Re: Re:

T….,.h..i…s ………p…o.,,.s,…t ..,..i.,.s.,,.. e.,,..n.,.c…,r…y.,.p,..t,..e,..d…,.,., I.,f…,,. y,o.u b.,.r.,..e,.,.,a.,..,k.,.,.,., t.,,.h.,.i,..,s D.,,,.R.,.M.,,. y.,,.o.,,.u ,..,,.w,..,.i.,,.l,..,l .,..,,.b.,,.e s.,,.u,…,e…,d.,.,.,.,., f.,,.o,..r c..,.o.,..p,..,y..,,.r.,.i,..,g.,,.h.,,.t .,,.i,..,n..,,.f.,,.r.,.,i.,.,n.,.,g.,.e,.,m.,.e,.n,.,t a.,.,n.,.,d.,./,.o,.r,.,.,. ,.,c.,h.,.a,r.,g.e,d., .,wi.,t,.h .,t.h,e.f,.t..,

cgibinladen (profile) says:

Re: Re:

So is Roger Ebert a leech? What about Fox “news”, CNN and every other news outlet in the world? They create no more or less than the author of this site. He’s creating articles, based on his own opinions and observations which (as you must have noticed) are shared by thousands of other people. Your opinion is no more or less valid than Mike’s and unless you’re willing to provide proof of your creativity then your argument rings hollow and meaningless.

Anonymous Coward says:

Legislative Capture

This proposal to outlaw circumvention is a fine example of legislative capture. How is it that the ruling Canadian pollies have not realized that this will come back to bite them, hard, come election time? The pollies just trash the property rights of all ordinary voters, then they expect to get voted for again? Any other party could run an intelligent campaign claiming to truly respect property rights, then make mincemeat of them. Ranting about the government selling out Canadians to abusive US companies, that will also go over well. Do they have no idea how vulnerable they are making themselves?

freak (profile) says:

Re: Legislative Capture

Do you realize we just re-elected the conservative party?

They just got kicked out of office, that’s the reason we needed another election, for being held in the highest contempt of parliament any party in Canada has ever been.

They just pulled the most illegal bullshit a Canadian political party has ever pulled, and Canadians re-elected them with a higher % & # of seats than they had before.

No wonder they feel invincible.

Goyo says:

why an anti-circumvention provision cannot include a clear exception for cases of non-infringement, and why standard defenses to copyright infringement can’t apply to breaking digital locks?

Because as you know it’s not easy to tell which is infingment and which is not. IP maximalists know it too so they do not want to discuss actual infringment before a court. Hence the n-strikes laws in France and other countries, the Sinde law in Spain and this one.

Richard (profile) says:

The reasonable reason

The reasonable reason for these laws is that once you have broken the digital lock for non-infringing purposes you now have the knowledge required to break it for infringing ones. If you add to this the fact that such knowledge, once acquired, tends to get passed around, then you can probably see the logic behind it.

It sounds very plausible – and I’m sure it is the argument that was in the minds of the non- specialist politicians who agreed to the law. However it is a deeply flawed argument because it ignores Kerckhoff’s principle – one of the cornerstones of modern cryptography.

In practice the effect of these anti-cirvcumvention laws is to make DRM technically ineffective. DRM is generally made just strong enough to enable lawsuits against those who attempt to sell equipment that might break the system. Thus DRM is generally inadequate to prevent piracy – but strong enough to protect the monopoly of the (consortia of) equipment manufacturers who define the standards.

The more you look at it the more you realise that the monopolists in the hardware sector have actually hoodwinked the monopolists in the content sector into support a system that benefits big hardware manufacturers and does nothing to prevent piracy of content!

Josh in CharlotteNC (profile) says:

Re: The reasonable reason

The reasonable reason for these laws is that once you have broken the digital lock for non-infringing purposes you now have the knowledge required to break it for infringing ones. If you add to this the fact that such knowledge, once acquired, tends to get passed around, then you can probably see the logic behind it.

That’s not reasonable, even if you can follow the thought process behind it.

Having knowledge of something or how to do something is not illegal. How someone decides to make use of the knowledge (their action) is the factor.

Anonymous Coward says:

Re: The reasonable reason

Richard, you are correct. It’s the same reason why you can’t buy slimjim style tools at your local NAPA store. If you do have them in your possession (even without actually being caught in the act) law enforcement has a whole lot of probably cause on you.

The digital lock thing is very simple: You can’t have the tools to break the digital lock, because nobody knows how they will be used, and while there are a few non-infringing uses possible, the reality is that the tools would be used almost exclusively to pirate stuff. So why make them legal?

It’s just inviting trouble.

It would be on par in my view to make possessing heroin legal, making having all the drug paraphernalia legal, but make it illegal to actually be high on heroin. While it would be the theoretically correct place to charge someone, the reality is that with all that heroin legally available, plenty of people would be getting high where they can’t be seen. That would just sort of defeat the purpose. So it’s better to go after supply than it is to try to punish only the result.

Chronno S. Trigger (profile) says:

Re: Relevant

Well, with newer versions of Windows, autorun has changed. It doesn’t just run the program any more, it asks what you want to do with it; run setup.exe, play in windows media player, open folder. Does that count as breaking the DRM? Does making the registry change that disables autorun entirely count (or that new check box in Windows 7)? How about MAC and Linux, I doubt that the DRM can run at all on those.

crade (profile) says:

I don’t think it’s fair at all to say that they don’t seem to care. They did a copyright consultation and they know this is the largest problem with the bill for nearly all of Canada. As we have seen from some leaked cables they know it’s bad for us, but are doing it because the US won’t budge on that issue and will cut off our hands and feet if we don’t put it in.

Anonymous Coward says:

To try and understand why this approach to address the “picking” of digital locks, resort is necessary to the discussions of the provision in the various committees that have to date considered the provision.

Without this information one is left to simply engage in conjecture, an insufficient basis upon which to articulate a possible defense of the approach. For example, while Geist has suggested this is almost surely controlled by general principles of property law, it may very well be another principle that underlies the provision.

In other words, “More data, please.”

Tech42 (profile) says:

How about a password on a laptop?

If Canada Border Services Agency (formerly Canada Customs) or the RCMP (formerly a respectable police force) wish to view the contents of my laptop and bypass the password to do so, will they be guilty of a criminal offense under this new act?
Will I be able to launch a civil suit for damages caused by this wanton act of DRM circumvention?

Anonymous Coward says:

Geist is chasing ghosts here. The federal / provincial split on these things isn’t a real issue, because clearly all of the laws pertain to copyright related activities, and as such fall under federal domain. The provinces do control property, but federal controls the contractual rights.

Basically, the provinces can control the shiny plastic discs themselves, but they do not have control over what is on them. You don’t “own” the content, you own the disc (and for those pricks who will spout off about discs being old, you can replace disc with “digital file” or whatever it is you prefer, things don’t change). The content is licensed by contract, and not sold outright, therefore is not specifically property when in the hands of the consumer.

It’s sort of the trouble many people have. The original work is in fact property, the copies of it are not really.

Prisoner 201 says:

Re: Re:

I am not a lawyer, but surely I must sign a contract for it to be legal? Or at least know it exists before I make the purchase?

In the mind of most people, you buy a CD, including songs. You dont say “hey guys, I just leased Hammerfall’s latest album!”, you talk about how you bought it.

At best it could be an EULA thing (by buying this CD, you agree to…).

Or am I totally confused? I am fairly sure I did not sign a contract last time I bought a CD/DVD.

PaulT (profile) says:

Re: Re: Re:

It’s a control thing. They’ve realised that a lot of their plans aren’t really possible if you can be said to have bought something. You see, they can’t actually *stop* you from reselling or altering goods you’ve bought, or making backups of legally obtained media for personal use. If they can pretend that a license has been agreed to, then they can try to stop things that aren’t permitted under said license.

So, they’re trying to retroactively change things so you have to give them more money. After all, they can’t force you not to rip a CD you own but they could enforce a licence that means that any MP3 have to be purchased from an approved outlet. It’s doomed to failure, of course, and completely unworkable, but that’s never stopped them.

Jimr (profile) says:

With this new bill I would expect the media levy (tax) will be removed. After all you are a criminal now if you break any digital locks. It should also now be much easier to prove tangible dollars in lost revenue to these new criminals that will be filling up the new prisons that are to build (really really, it is in another bill). I wonder who will welcome the new release of threatening to sue for copyright infringement, or settle, and/or NOW face federal prison time.

Richard says:

Anti-circumvention law versus fair use

From what one remembers, in the book “Digital Copyright” (Prometheus Books, 2001), law professor Jessica Litman mentioned a third-party argument that was raised in favor of anti-circumvention law not allowing for fair use, which was that fair use does not guarantee a right to access a work. In particular, in a paper on copyright, it was argued that fair use would not allow a person to break into an author’s home to take or use the author’s personal copy of a work. Ms. Litman mentioned that this example was problematic because it relied on physical property rights, i.e. a homeowner’s right to restrict access to works within their home would not necessarily allow them to restrict access to works located in a different location such as a public gallery.

Mr Big Content says:

This Law Will Not Prevent Anything Legal

All it’s doing is delegalizing the breaking of the locks. You will still be allowed to do things that don’t break the law, just as you always have. Why should you be allowed to do things that break the law? Only criminals ask for that. So if you’re against this law, you must be a criminal.

Be grateful to be allowed to do things that don’t break the law. Some wanted to go further, and criminalize those acts, too.

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