C-60 After Death, Russell and ORC
At the last Copynight we brought up Bill C-60 again. Ren from ORC/EFF Canada was there. He mentioned that towards the end of the life of the bill ORC was pretty close to letting it go. Notice-and-notice was acceptable, and it wouldn’t have been illegal to own circumvention devices, only the use of circumvention devices to infringe copyright. It sounded like a tolerable compromise. There would still be a few things ORC would change, though.
I decided to ask one of the owners of killbillc60.ca what he thought of the bill at the end of its life. I’ve included the e-mail below. I didn’t intend for this to wind up on my blog but the response was too good not to post. Russell McOrmond agrees that notice-and-notice was fine, but disagrees on the anti-circumvention provision. Now you can read why, about the ambiguity what software is from a legal standpoint, and what sorts of explicit protections should have been included.
Lance wrote: > Hello Russel, > > At the last Copynight the issue of C-60 was brought back again. This is good to hear. Is this Q for a BLOG somewhere? If so, let me know so I can point to it as well. > Apparently after a lot of changes EFF Canada/ORC was willing to let it > pass. [ed: Maybe not, see the ORC link above] Towards the tail end of > it, it was no longer illegal to make or own circumvention devices, > although using them for infringement did increase the penalties. And > notice and notice was fine. I agree on the notice-and-notice, but not on the anti-circumvention provisions. The attitude of the lawyers (CIPPIC/etc) seemed to be one of defeatism, believing that this was better than what the USA got and thus we have to just live with it. This was largely an academic exercise for the lawyers, rather than a basic economic survival issue like it is to those of us in the software sector. I believe this was the wrong political tactic for EFF/ORC to take, given politicians take the views they hear, split the difference, and pass law. If one side compromises while the other side does not, then the side that compromised will always lose. My view was that "DRM", as the term is used by organizations like DefectiveByDesign, should not be legal at all. A political "compromise" could have been that DRM was legal, but not legally protected. We should also be pushing for stronger protection of user rights, rights of purchasers of media (first-sale++), and protection of the rights of software authors and hardware owners in all digital issues. When the USA passed the DMCA they started from more forward-looking copyright law that included a living "Fair Use" regime that could modernize with modern technology, something that Canada doesn't have with the very limited "Fair Dealings" regime. > Just before C-60 died on the table, was it in a form that you'd think > was good enough? None of this may matter given there are already rumors that the Conservatives will table a bill that will disallow the creation or trafficking in circumvention "devices", likely using the excessively broad nonsense definition of "device" that the USA has used. Had the Liberals passed a C-60, the Conservative may still be contemplating a smaller bill to add in anti-device language, so I can't see how anything could have been gained by passing C-60. The interpretation of C-60 around anti-circumvention is one of the ways in which a technical person like myself differed from what the lawyers were saying. When the DMCA passed, few could have reasonably thought that software running on a multi-purpose computer could be considered a "device". It was though that this provision related to things like unauthorized dedicated satellite TV decoding boxes, not the decrypting of content for the purpose of watching legally acquired movies using software not authorized by copyright holders. Not only has multi-purpose software been considered an anti-circumvention "device", but large prime numbers (decryption keys, publicly distributed through being embedded in consumer electronics and sold into peoples private homes), have been considered circumvention "devices". C-60 had the same problem. The lawyers claimed that the section prohibiting "services" only related to things like copy-shops providing what would reasonably be considered services. I then thought of the "devices" argument in the USA, added that to the ongoing debate about whether software was a product or a service (Sometimes the same organization would say something different depending on whether they were trying to avoid GATS vs. paying provincial sales tax), and believed that creating and distributing software would be able to be deliberately misinterpreted to being the provision of a "service". Without explicit protection of the property rights of IT owners, Bill C-60 could easily have been abused to circumvent these rights. Software is neither a "device" nor a "service", but the discussion of what software really is is not something that has really happened in the legal or legislative community. Some still think it is reasonable to run elections on voting machines with undisclosed software and without ballots, not realizing that this means that the author of the software decides elections rather than voters. All I know for certain is that it is entirely invalid for the technical community to interpret words the way a technical person normally would, given other terms such as "DRM" and "TPM" are being used in entirely different ways by the technical and legal/legislative community. For me the issue is simple: I own my hardware, not someone else, and I should have the right to make my own software choices (including the choice of authoring my own software if I so choose). This to me is a basic property right that should not be able to be legally circumvented (IE: I should be able to successfully sue anyone who abuses law or technology to circumvent this property right). A copyright holder should not be allowed to encode their content such that it can only be legally accessed on "authorized" devices using "authorized" software, thus allowing them to impose the choice of hardware on their customers where the hardware owners are not able to make their own software choices. Copyright holders may encrypt their content, but the decryption keys must be distributed to their customers -- not to hardware vendors or a subset of software authors. http://www.cluecan.ca/policy/copyright The only possible positive things that could be said about C-60 were: a) The notice-and-notice is reasonable b) The bill could have been much worse There is nothing in the bill that actually helped creator copyright holders in their battles against incumbent non-creator copyright holders (the old-economy industry associations this bill was authored to benefit), and much that harmed both creators and users of copyright works. > Regards, > Lance -- Russell McOrmond, Internet Consultant: <http://www.flora.ca/> Please help us tell the Canadian Parliament to protect our property rights as owners of Information Technology. Sign the petition! http://www.digital-copyright.ca/petition/ict/ "The government, lobbied by legacy copyright holders and hardware manufacturers, can pry my camcorder, computer, home theatre, or portable media player from my cold dead hands!"
