[d@DCC] Bill C-60 test case: unauthorized players viewing DVD CSS encoded movies
From: Russell McOrmond <russell _-at-_ flora.ca>
To: General Copyright Discussions <discuss (at) list.digital-copyright.ca>
Cc: v.simon -_at_- ieee.org
Date: Sat, 2 Jul 2005 15:38:16 -0400 (EDT)
Looking for feedback! http://www.flora.ca/russell/drafts/c60-tpm-dvd.html Bill C-60 test case: unauthorized players viewing DVD CSS encoded movies The question is whether it will be legal, under Bill C-60, for the owner of a legally purchased copy of a movie to view this movie using the technology of their choice. Most movies are encoded with a technological protection known as the DVD Content Scramble System1. Since the licensor of this technology claims that the system is a "trade secret", and only licenses the technology to vendors who agree to limit the control that owners of DVD players have over their own players, the technique can not be used in Free/Libre and Open Source Software (FLOSS2). For software to be FLOSS it requires that the owner have the freedom to run, copy, distribute, study, change and improve the software. These are all freedoms which the DVD CCA wish to deny the owners of DVD players. The DVD CCA example is the one I used in submissions to the government in 2001^3, and is always the test case I ask policy makers to think about. I also included this in submissions to the competition bureau4 to try to alert them to the anti-competitive implications of access control technological measures. While many people are expressing the view one way or the other about whether Bill C-60 makes unauthorized players illegal, I am of the opinion that this question is uncertain and that lawyers and judges will likely interpret the bill to be prohibiting unauthorized players. I am authoring this article in the hopes that it will launch discussions on this topic to try to get some clarity. Many people have written about why copy control is snake oil and does not exist5. Technological Protection Measures (TPM) protect privacy and authenticity, and can be used to make sure only authorized persons gain access to content, whereas copyright is legislation that specifies the legal limits of what a person who already has access to the content can do with it. Since TPMs and copyright accomplish quite different goals, it should be obvious that one can't be used as a substitute for the other and legal protection for TPMs has no place in copyright law. It is important that non-technical people start to ask technology companies that claim to be offering copy control how they are accomplishing this. We all need to ensure that these companies are not abusing the confusion about copy control technologies to gain legal protection for access control technologies. The two broad techniques used to give the appearance of copy control to less technical people are media defects and access control. Media Defects An example of a media defect are the so-called "copy control" on standard audio CDs. The most popular method is to put a data track at the beginning of the CD. While most audio CD players will ignore the data track, the software on a home computer will try to mount that track as if the entire CD was a data CD. Older software assumed that a CD was eithor a data CD or an Audio CD, and thus if there is a data track the audio playing software would not launch. Some "copy control" CDs are use a data track which when installed on a Microsoft Windows computer will automatically run a program that turns off features in Microsoft Windows. All one needs to do to "circumvent" these defects are to use different software. As an example, CDs that automatically run software do so using a technique that only works under Microsoft Windows. If an audience member uses any other operating system they will be entirely bypassing the "copy control". When running Microsoft Windows you can hold down the shift key when inserting the CD which will disable any automatic launching program, which is also a way to bypass the "copy control". Media defects are very ineffective in that they are always easy to bypass, but they are still a nuisance to legitimate uses by audiences. As an example, many car audio CD players have an anti-skip feature where the player will "rip" the CD and play the music from memory. In some cases these "copy control" CDs will not play in these car audio CD players. These are, after all, deliberate defects placed on the CD where an audio CD does not follow the standard format used for audio CDs. Given they are not using the standard it is expected that it will have an unpredictable effect on different CD players. I believe that consumers rights organizations and the Consumer Affairs bureau of Industry Canada should be looking more closely at the consumer impact of deliberately defective media. If media is being sold as if it is encoded using an industry standard file format, and then the file is encoded in some deliberately defective way, should there be mandatory labeling of this defect? Should consumer protection laws be enforced to ensure that customers are guaranteed that they will be able to get a full refund of defecting media? Should new consumer protection laws be enacted to prohibit this technique entirely? Access Control TPMs An example of an access control is DVD CSS used on DVD movies. DVD CSS, while it is licensed through an organization called the "DVD Copy Control Association", is not a "copy control" technological measure at all. The movie is encrypted in a way such that it needs to be decrypted using a key. Part of the key information is stored in a "hidden" part of the DVD and part is "hidden" within an authorized DVD player. In this way the viewing of the DVD is intended to be "tied" to a player that has a key. While the DVD CCA claims these keys are a "trade secret", this secret information is embedded within every authorized player and then sold (or in some cases with DVD software for home computers given away) to the general public. With this information freely distributed to anyone who wants it, I do not understand how they can claim it is a trade secret. I strongly believe that access control TPMs should not only not be protected in copyright, but should be prohibited/regulated under the competition act. "tied selling" means (a) any practice whereby a supplier of a product, as a condition of supplying the product (the "tying" product) to a customer, requires that customer to (i) acquire any other product from the supplier or the supplier's nominee, or (ii) refrain from using or distributing, in conjunction with the tying product, another product that is not of a brand or manufacture designated by the supplier or the nominee, and (b) any practice whereby a supplier of a product induces a customer to meet a condition set out in subparagraph (a)(i) or (ii) by offering to supply the tying product to the customer on more favourable terms or conditions if the customer agrees to meet the condition set out in either of those subparagraphs.6 The purpose of access control TPMs in the context of copyright is to require that a person legally purchasing content (such as a DVD CSS encoded movie) must also purchase a specifically authorized access devices (such as a DVD CCA authorized DVD player) in order to enjoy the media. If this isn't "tied selling" then I don't know what is. Once this tie is created and the market is large enough (which is the case for DVD players licensing CSS) the agency licensing the technology can dictate terms to both those who encode movies as well as those who create players. While this allows them to dictate that copying not be a feature of DVD players, it also allows them to dictate terms that have nothing to do with copyright such as region encoding (European DVDs do not play in North America and vice versa) or restricting the ability to skip commercials on a DVD. When I asked the Competition Bureau about this question I was told that since there is no legal protection for TPMs in Canada, that there is nothing under current law requiring that customers buy authorized players . Given citizens are legally allowed to bypass the access control TPMs then there is no competition policy violation. What is the effect of Bill C-60? What will the effect of Bill C-60 be? Short answer: like the rest of copyright you can ask 5 lawyers or policy makers and get 10 different answers, suggesting that there is considerable legal uncertainty. Technical people may wish to guess what a judge would say, but like lawsuits against unauthorized P2P the reality is that, where the law is not absolutely clear, the vast majority of citizens without large legal budgets will be forced to settle out of court. Only the incumbent industry associations have the legal budgets to protect their special interests, suggesting that any legal uncertainty will work in their favor. I believe we need to realize that Bill C-60 is unclear and it will be very expensive to get clarity. This alone is a reason to oppose it. Starting from the definitions7: "rights management information" means information that (a) is attached to or embodied in a material form of a work, a performer's performance fixed in a sound recording or a sound recording, or appears in connection with its communication to the public by telecommunication, and (b) identifies or permits the identification of the work or its author, the performance or its performer, the sound recording or its maker or any of them, or concerns the terms or conditions of its use; "technological measure" means any technology, device or component that, in the ordinary course of its operation, restricts the doing -- in respect of a material form of a work, a performer's performance fixed in a sound recording or a sound recording -- of any act that is mentioned in section 3, 15 or 18 or that could constitute an infringement of any applicable moral rights; Section 3^8 is copyright generally, section 15^9 is Copyright in performer's performance, and section 18^10 is Copyright in sound recordings. Starting from the definition, what type of technological protections are included? Access Control: The day after C-60 was released, CAAST, the incumbent "Software Manufacturing" lobby group, sent out a press release^11 stating that they want the bill amended to clarify that access control TPMs should be protected. This means that in their mind it is uncertain, which makes sense given that nothing in 3, 15 or 18 give any type of "Access Right" that can then be protected via access controls. Given parliamentarians will be receiving huge pressure from this special interest group that has a strong motivation to harm competitors, especially FLOSS, we need to ensure that Access Control TPMs are clearly excluded from the law. Even if it turns out that access controls are not protected in the current version of Bill C-60, this is not something that we should become complacent about. Copy Control: while there is an exclusive right to copy in the act, technological protection measures can't stop copying. We should be able to assume that something that cannot be done in technology will not be protected in the act, but the fact that copy control doesn't really exist is unknown to most people outside of the technical community. This creates further legal uncertainty as non-technical people claim that a "copy control" has been circumvented, and bring this claim to be tested in court. Whether a judge will accept technical documentation about the non-existence of "copy control" TPMs is uncertain, but it is certain that this will be a very expensive legal process that few innovators will be able to afford. Identity TPMs: TPMs can be used to identify the work, but whether these are considered under TPMs or Rights Management Information is uncertain. As one example, are watermarks that identify the author covered under Rights Management Information, under technological measures, or both, given watermarks are a TPM that provides identification. I think the definitions make the issue as clear as mud. The section of the bill that talks about circumvention does not in my mind clarify the situation. Circumvention, etc. 34.02 (1) An owner of copyright in a work, a performer's performance fixed in a sound recording or a sound recording and a holder of moral rights in respect of a work or such a performer's performance are, subject to this Act, entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right against a person who, without the consent of the copyright owner or moral rights holder, circumvents, removes or in any way renders ineffective a technological measure protecting any material form of the work, the performer's performance or the sound recording for the purpose of an act that is an infringement of the copyright in it or the moral rights in respect of it or for the purpose of making a copy referred to in subsection Circumvention, etc., service (2) An owner of copyright or a holder of moral rights referred to in subsection (1) has the same remedies against a person who offers or provides a service to circumvent, remove or render ineffective a technological measure protecting a material form of the work, the performer?s performance or the sound recording and knows or ought to know that providing the service will result in an infringement of the copyright or moral rights. Subsequent acts (3) If a technological measure protecting a material form of a work, a performer's performance or a sound recording referred to in subsection (1) is removed or rendered ineffective in a manner that does not give rise to the remedies under that subsection, the owner of copyright or holder of moral rights nevertheless has those remedies against a person who knows or ought to know that the measure has been removed or rendered ineffective and, without the owner's or holder's consent, does any of the following acts with respect to the material form in question: (a) sells it or rents it out; (b) distributes it to such an extent as to prejudicially affect the owner of the copyright; (c) by way of trade, distributes it, exposes or offers it for sale or rental or exhibits it in public; or (d) imports it into Canada for the purpose of doing anything referred to in any of paragraphs (a) to (c). Many people have read "for the purpose of an act that is an infringement of the copyright in it or the moral rights in respect of it" to mean that circumventing a technological measure for a non-infringing act is not covered. What I need to ask is this: if we are to assume that 34.02 has meaning and isn't a "null operation" it needs to change or clarify the law in some way. If infringing acts are still infringing, and non-infringing acts are still non-infringing, then what purpose does 34.02 serve? Accessing legally purchased media with any tool is currently considered lawful as there is no "access right" or right for a copyright holder to otherwise tie the access of a work to specifically authorized tools. I believe it is uncertain if 34.02 changes this, and we need to ask what the intention of the government is with this section. Does 34.02 make illegal viewing a DVD CSS encoded movie with a player that is not licensed by the DVD CCA? I believe this is uncertain, but my gut feeling from talking to policy makers is that they intended this to not be legal since they incorrectly believe the DVD CCA when they say that they license "copy control" technologies. 1DVD Content Scramble System http://www.dvdcca.org/css/ 2Free/Libre and Open Source Software (FLOSS) is defined at http://www.flora.ca/floss.shtml 32001 copyright reform: CMPDA reply, by Russell McOrmond, October 2001 http://www.flora.ca/copyright-2001-cmpda-reply.shtml 4National Consultation on Proposed Amendments to the Competition Act (2003), 5Legal protection for TPMs has no place in copyright law, by Russell McOrmond, p2pnet news, 2005-06-16 http://www.digital-copyright.ca/node/view/930 6Competition Act, section 77 http://laws.justice.gc.ca/en/C-34/36353.html#section-77 7Bill C-60, An Act to amend the Copyright Act. (2) modifies definitions http://www.parl.gc.ca/38/1/parlbus/chambus/house/bills/government/C-60 /C-60_1/C-60-3E.html 8Canadian Copyright Act, section 3 http://laws.justice.gc.ca/en/C-42/39253.html#section-3 9Canadian Copyright Act, section 15 http://laws.justice.gc.ca/en/C-42/39253.html#section-15 10Canadian Copyright Act, section 18 http://laws.justice.gc.ca/en/C-42/39253.html#section-18 11Software Industry praises federa government efforts to modernize Canadian copyright act, The Canadian Alliance Against Software Theft (CAAST), 2005-06-21 http://www.caast.org/release/default.asp?aID=138 -- Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 1800+ Canadians oppose Bill C-60 which protects antiquated Recording, Motion Picture and "software manufacturing" industries from change... Sign the Petition Users' Rights! http://digital-copyright.ca/petition/ _______________________________________________ Discuss mailing list Discuss@list.digital-copyright.ca http://list.digital-copyright.ca/mailman/listinfo/discuss
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