Digital Copyright Canada

On 10-06-06 12:57 AM, Keith Rose wrote:
> I'm not so sure.  The interoperability exception does use the phrase
> "computer program", and to a software developer that might seem to
> exclude pure data.  But keep in mind that the audience of a statue is
> a court, not a software developer.  Statutory interpretation involves
> more than conventional dictionary definitions.

   I agree that definitions seem to be "flexible" in this 
political/legal climate.  Just see the re-definition of the word 
"copyleft" by the Access Copyright crowd...

   That said, your note gave me a waking nightmare.

   "Your honour, to prove that section 41.12 of the Canadian Copyright 
act does not apply to the scenario that the defendants are claiming, I 
want to use a few props.  I am holding up 4 things in my hand.  In one 
hand is ..." (Rest is in http://flora.ca/own )

   In other words, all that needs to be done is convince the judge that 
"the computer program" which can be manipulated to be made compatible 
under that exemption, and "the non-computer program copyrighted work" 
which the technical measure is applied to are two different things.

> system ..."  I think one could easily make the argument that metadata
> instructions to control the operation of a DRM system meet that
> definition.

(Take the following with a grain of salt.  Intended largely as humour)

   We would have to find a judge that could be convinced that "the DRM 
system" is one entity.   That same judge would effectively need to be 
convinced that the content was not licensed to be delivered to the 
audience member, but to the DRM provider which exists as a system.

   Then the question comes: Is the DRM provider the infringer and the 
audience the contributor, or the other way around?  Is the DRM provider 
guilty of copyright infringement (violation of the license), while the 
audience in breach of a contract with the DRM provider?  Will the 
provincial court analysing the contract recognize the circumvention of 
the technical measure as a breach of contract, given the device-shifting 
you were attempting to do would have been lawful under 29.22 if the 
audience member was a party to the license offered to the DRM provider. 
   The case might hinge on 29.22(b), and whether the audience member, 
not licensed direcly by the copyright holder, could still convince the 
judge that they "legally obtained the copy of the work or other 
subject-matter".

> Of course that is not to say that I don't agree that explicit language
> would be preferable--clearly it would.  That might even be a winnable
> fight in the policy arena.

   I really think we need to get amendments tabled and agreed to by the 
parties representing a majority that  circumvention for interoperability 
(locks on content) and circumvention for protecting property 
rights/security/etc (locks on devices) for non-infringing purposes is 
not an infringement of "copyright".

   Best is a simple tie of anti-circumvention to infringement, which 
might be what the Liberals already want to do, but otherwise there are 
other exemptions that could be used as well.   Multiple amendments 
should be proposed so that we have multiple chances to mitigate this harm.

-- 
  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!"
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Re: [d@DCC] TPM and PCs

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