Copyright Act Amendments and Rootkits

The following letter was sent to me by Larry Lean (Personal contact information removed), a constituent of Thornhill, and was copied to the leaders of the 4 parties with seats in parliament.

Hi Russell,

I am just one of likely a zillion Canadians who occasionally send you an email out of the blue of good wishes, or bad tidings. This is good wishes.

Briefly, I am a government auditor by day who has recently specialized in intellectual property, particularly Copyright, in the past 3 years and over the past 12 years have held strong interest in the area (post my degree in economics where I studied well "information theory", etc.).

As a private citizen I have of late been very critical of where the government is going on copyright with presumed accession to the WIPO and TRIPS agreements in the forthcoming amendments to the Copyright Act should a Liberal Government survive. The Conservatives apparently have no policy beyond their current duties as official opposition. The NDP, no known policy. The Bloc maybe they have one for a sovereign Quebec. In essence, the battle seems over but as only the brave and strong can say, the war is not ended and the outcome is not certain until it is over.

On copyright law itself, I would say I am in the late Gordon Henderson camp whereby the law is written such that it does not need amendment for modernity, as the drafters were originally clever enough to write sufficiently the law, such that new things could be well accommodated. Particularly in the case of Canadian Copyright law with its origins and respect for both British and French traditions, there are alot of accommodations for interpretation in civil law jurisdictions and common law jurisdictions. The WIPO and TRIPS are new rights and appear solely of benefit to the subsequent exclusive licensees in the expansion of their rights to exploit further the rights acquired from the paternal rights holder. On this I agree with you entirely that the amendments are not in the users interests and if I read more, I have a hunch you would argue there is not much also for those paternal copyright holders either.

Of news of late, and of a sufficiency to hopefully give pause to "our" marching amendment process if it were guided with sober second thought, is the Sony story broken on October 31, 2005 by Mark Russinovich. Mark found a "rootkit" placed on one of his systems and tracked down its origins to a SONY/BMG CD. A rootkit is a piece of software that installs itself surreptitiously, and runs in the same manner, hidden. This rootkit was found due his expertise and authorship of a freeware rootkit detection tool, and his noticing that something had destabilized his system ( This one also "phoned" home which is particularly perturbing to networking security professionals who have limited outbound protections in place.

News of this finding has resulted in considerable fallout internationally, including pending class action lawsuits against SONY in California, Finland and Italy. No news in Canada though .... that I am aware of. I get 2 papers daily ... read internet stuff ... keep reasonably informed ...

"This is DRM gone bad" in the words of Steve Gibson, another individual in Mr. Russinovich's league of straight shooters technologically who one can place trust due to their distant commercial interests to their higher pursuits ( in the interests of users everywhere (noble calling).

I note as of today, wikipedia has the following entry under Rootkits ( )

" There are reports as of November 1 , 2005 that Sony is using a form of copy protection , or digital rights management , on its CDs called "XCP-Aurora" (a version of Extended Copy Protection from First 4 Internet ) which constitutes a root kit, surreptitiously installing itself in a cloaked manner on the user's computer and resisting attempts to detect, disable, or remove it. Much speculation is taking place on blogs and elsewhere about whether Sony might be civilly or criminally liable for such actions under various anti-computer-hacking and anti-malware legislation. Ironically, there is also speculation to the effect that the bloggers who point out what Sony CDs do, with technical details, may also be committing a civil or criminal offense under anti-circumvention provisions of laws such as the Digital Millennium Copyright Act in the United States . "

Notice the chilling speculation that if you point out what Sony CD's do with technical details, publicly, you may be committing a criminal or civil offence. Were our amendments in place, it would be ditto, would it not? This is no longer hypothetical but a real situation that the law has to account for or plainly ought to: it should not place users in a position of helplessness with respect to their personal property ("Can't remove the DRM") or defend a trespass and tampering with their computer equipment ("Couldn't they think of this?"). Businesses and governments are significantly exposed as employees will often use music at work as a mechanism to prevent disturbances and to focus their efforts at a task at hand. The amendments have no balance in this regards or common sense.

I note I have a strong hunch that any day soon, my employer as will many other employers, will have to systematically bring down all computer systems to inspect for rootkits, after this Sony incident. My employer is the largest in Canada. It will be a very chilling expensive exercise, leading to a very paranoiac environment when this hits "our" media first or second (the media are slow) and actions start taking place against employees who listen to music while working. Will music use expand in such an environment? It would be silly to suggest it would, so no "producer" or "artistic" interest is served in this unless one looks to music created by a previous generation representing a no growth situation to present producers, as old releases are iterated or privately copied legally: can't forget the private copy levy for the right to privately copy that Canadians do not seem to have much knowledge of.

Any politician contemplating the amendments to the Canadian Copyright Act should read what the US is going through now nicely summarized by Declan McCullagh on the ramifications this incident and the related Acts they they have, that the apparently unwise Paul Martin government is going forward on and the conundrum it places users under as well as producers.
In my opinion a levy similar to the private copy levy could address the "leakage" of royalties that some perceive to have occurred due to technological change: you may disagree. The Copyright Board of Canada was and is well able under the present law, to balance the interests of producers and creators against the interests of users. The people positing such leakage could present their evidence and request just tariffs to address their perceptions and needed rewards. Was such an "ISP levy" considered in the realm of musical works? Likely it was and likely it was opposed to by non-creative elements in the business as the distribution of such royalties would be beyond their control and affect the collection of advances paid to artists but not insurmountably: a large stream would be diverted through our copyright collectives for the direct distribution to the creative elements with implicit information for the purposes of offset. A mandatory licensing regime under Sections 67 thru 68.2 thus could have accomplished the same royalty revenue overall, to the paternal copyright holder and could also have provided for the secondary exploiters / promoters but obviously this did not serve the apparent interests of those propelling the amendments thru WIPO / TRIPS and on down to each nation-state (appears to me to be the "literary works" i.e. the software industry which has so much to gain from DRM and protecting their own products "legally").

I hope that you are able to better communicate some of my concerns as you appear much more motivated on this single issue than my work and family life can provide for. If I had more time, I would debate these issues with the sorry lots we seem to have as representatives of us, reminding them all, that corporations and unions do not vote. We should be represented first and we should not be forgotten in any debate particularly one granting special rights to special interests. The recent Private Satellite Broadcast decision seems to fit this 100%: the interests of the Canadian songwriter embodied in the Broadcasting Act (the "CANCON" rules) were ignored. Each and every elected politician should challenge any special interest and every measure that rewards special interests above the interests of Mr and Mrs.. Joe Average Canadian. I cannot see any interest of mine served in the copyright act amendments and I hold no special interests. I do see my private property threatened by the amendments by the surreptitious use of DRM. I think anyone would as well who was informed on these amendments.

If any information was useful to you, I say Godspeed to you.

Larry Lean