Digital Copyright Canada

Russell McOrmond a écrit :
> 
> Looking for feedback!
> http://www.flora.ca/russell/drafts/c60-tpm-dvd.html
> 

   Probably Robin Millette or Richard Stallman gave you my email 
address.  Anyway, I am now subscribed to the list.  I've readed the 
full law (Bill C-60 and the current law) and are still mostly sane.

>    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.
> 

   My understanding of the article 34.02(1) is that it will still be
legal to read DVD using opensource software, as long it does'nt
include code that circumvent protection against piracy with the
*purpose* to infrige the law.  That's a major point.  Using a patched
version or distributing patches that makes this software able to
circumvent a protection would still be legal if you need to do it for
some legitimate reasons (likes reading a DVD using only opensource).

   Indirectly, this law also give the possibility to the copyright
holder to forbid someone to do a private use copy or a mixed CD.  It's
nothing specific to free softwares, but it's still means less freedom
than what we actually have.

   The article 34.02(2) is not as clear as it should, but indirectly
said that to help someone to remove thoses protection is illegal if
you know that the other person will use it to break the law.  I think
that a judge would rules that distributing a free software would still
be legal, even if the patch to allow it to do illegal copies is small.
But distribution of the patch would obviously be illegal.

   More details and examples will follow.

>    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".

   According to 34.02(1), it is not illegal as long it is not done 
with the goal to bypass the anti-piracy protections.

>    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?

   I can imagine a technology that would enable such "feature" without 
encoding files in a defective way.

> 
>    I  strongly  believe  that  access control TPMs should not only not be
>    protected  in  copyright, but should be prohibited/regulated under the
>    competition act.

   Do this argument still stands if we can use free softwares?

>   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.
> 

   Yes, or at least a reason to ask for majors changes.

>    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.

   I agree.  This law makes things much more complicated than needed. 
  Some schools might even find cheaper to make special agreements than 
to comply with this law. Just look at 30.01(4)

   Normally, a law should just say what is legal or not, and be clear 
about what is the intent of the law.  Then let the juges use their 
common sense.

   You don't want people to do illegal copies?  Then the best thing to 
do is just to enforce the actual law.  People pirate softwares and 
music so much in part because they know they have almost no risk to 
get caught.  It should be quite easy for a police man to find people 
that pirate music or softwares and makes lots of publicity about it.

>      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
> 

a copy referred to in subsection 80(1).

   Probably just a cut&paste mistake, but it is very important not to 
skip the subsection number, especialy in this case.  It is the part 
about private use copy.  Section 80 currently allow us the right to 
copy songs on an iPod from CD we already bought.  It also means that 
the buffering that your computer (or any devide) are doing are legal 
with the current legislation.  34.02(1) limit this right.

> 
>    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.

   I'm one of those.

>    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?

   I really believe 34.02 is not a "NOP".

34.02(1) specifically say that it is illegal to bypass anti-piracy 
protection for the goal of making a private use copy.  So, if there is 
any anti-piracy protection, it would be illegal to makes an mp3 of a 
song you bought and upload it to your iPod (in others words, you will 
have to buy this song again).

   It would also technically makes buffering illegal unless the 
copyright holder consent to it, or if there is no anti-copy 
protection.  That's a dumb consequence of this law, and it was 
probably to avoid this problem that section 80 was created (private 
use copy).

   Suppose that someone legaly download music he buy, and that thoses 
file are watermarked so that if he distribute thoses files, the 
copyright holder will be able to identify who leaked them and sue him. 
  Then later he got caught by the police because he was using a 
software that removed the watermark.  Then even the copyright holders 
of the files that did'nt saw their watermark removed would have the 
right to sue him.  Without this section, he could only be sued for the 
files he actually riped.  It also means that it won't be necessary to 
prove he pirated a particular song, just that he already have done so 
and had the intention to do it again with other songs.

   Finally, DVD players have zones so that a DVD bought in Europe will 
not works in North America and so on.  According to this subsection, 
modififying your DVD player so that he can accept DVD from anywhere 
would be by itself a crime.  Actually, I don't think it is illegal.

   That said, there is nothing that prevent someone using only free 
softwares to enjoy copyrighted content, as long this software don't 
offer functionnalities that have for main purpose to bypass the 
copyright protections.  Any justified reasons to bypass thoses 
protections are OK according to this law.  If not, please point me to 
the relevant law sections.

34.02(2)
   It say that helping someone to bypass copyright protection is 
illegal.  I don't think it is currently illegal, at least not from the 
original section 27.

   As an example, if someone makes a website about how to bypass 
copyright protections, and maintain a forum about it, I think it would 
be considered a service helping people to break the law, and thus 
could give a criminal record to the offender.  This would need to be 
tested in court, but I see this possibility.

34.02(3)
   I think it is here only to avoid any possible hole.  If an 
authorised distributor remove an anti-piracy protection and sell it 
(and give the part of the money he normally should to the copyright 
holder) he might be breaching this subsection but without breaching 
the old version of section 27.  I would be interested to heard of any 
other situations someone could breach this subsection without 
breaching the old section 27.

>    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.

   As long we have no software patents, I think we are ok.  But if 
there is, they could just find a new standart that would use this 
patent and forbid freesoftwares to use it.

31.1(3)c
   You did'nt talked about it, but I am much more worried about the
privacy issues raised by 31.1(3)c  It means that an ISP cannot offer a 
privacy protection service against the data sended back by Realplayer, 
AcrobatReader or Flash.  It also means that companies will have much 
more informations about which data a person is accessing and how it is 
used.  They will be allowed to use it for marketing purpose (or 
anything else they wish).

   The Supreme Court  made a jugment the 19th of may 2005 in favor of
an ISP's that did'nt wanted to reveal informations about one of their
customers to a music company.  If this new law was in effect, I guess
that either the ISP would have lost it's case, or that this part of
the law would have been declared void.

Simon Valiquette
Président du Gulus
http://www.gulus.org
http://gulus.USherbrooke.ca

---
" Comme vous, j'estime que la Justice est une chose trop importante 
pour être appliquée par des juges."
   - Josée Blanchette; Le Devoir, édition du 1er mars 1996

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[d@DCC] Re: Bill C-60 test case: unauthorized players viewing DVD CSS encoded movies

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