If lawyers are confusing copyright with other laws, what about the rest of us?

A tweet from lawyer Barry Sookman (who has also blocked me, BTW), referenced an article with Further Copyright talk. At the end the author, Todd, said:

So is circumventing a TPM (even for legal purposes) like going into a theatre without paying or taking a book from a bookstore without paying? Or is it like being able to photocopy the relevant sections of a book in a library? To me it seems more like the former than the later.

I agree with Todd in some respects, which is that circumventing a TPM in some specific instances is like going to a theatre without paying. If you did so you would not, however, be accused of violating copyright. While it is clear you are violating a law, it is entirely different area of law (most likely trespass, but I'm not a lawyer, and this is not legal advise ;-).

In other circumstances circumventing a TPM is like changing the locks on your own home after you lost your keys. This is a perfectly legal and legally protected activity, but depends on what is locked and who owns what is locked. Changing the locks on someone elses home, or making copies of keys without permission, is obviously illegal in the physical world and should remain clearly illegal if we are talking about digital locks and keys. This is a matter of tangible and intangible property law, not copyright law.

It is important to remember that with digital copyright there are potentially 4 different things which can have their owners, and may be locked. If you go through a series of real-world technical measures to protect each you will notice that it isn't copyright law being protected, but other areas of law.

I wish we could all agree that circumventing a TPM is not like being able to photocopy relevant sections of a book. Making copies of something you have legitimate access to is potentially a copyright regulated activity, and may or may not require permission of and/or payment to a copyright holder depending on the contours of copyright law.

While many technical measures exist which can help keep unauthorized persons away from copyrighted content, there is no technology that can stop an authorized person from doing unauthorized copyright related activities. TPMs can protect many things, but that doesn't include the type of activities which Copyright regulates.

Copyright has never before contemplated the concept of "access" in the hundreds of years of its existance, and has left questions of access to other areas of law. Copyright has always been a series of activities which, if done with copyrighted works you already have access to, require the permission of the copyright holder. These are activities that need to be left to copyright law, and technical measures can't help. Believing that technical measures can stop copyright regulated activities is believing in science fiction, not science.

This isn't to say technical measures aren't very valuable to copyright holders. Copyright holders make use of many laws beyond copyright to protect their interests, and legal protection for technical measures in the right laws (such as provincial e-commerce, contract and property law) would greatly help copyright holders. Any legal protection for technical measures must maintain the existing balance in the law, and technical measures should never be allowed to circumvent the contours of existing law.

Legal protection for technical measures belong in Copyright as much as energy policy does. Nobody would claim that copyright holders encoding their works digitally aren't relying on electricity for their businesses, and thus far we haven't seen calls for energy policy to be added to Copyright.

We need to get beyond thinking that everything that copyright holders do in their lives should be incorporated into Copyright law. We need to place the right legal tools into the correct laws, with these laws managed by the appropriate levels of government as set out in the Canadian constitution. If we did so I believe Copyright would become clarified and simplified, and based on this alone far more respected because it would become far more respectable.

Note: Mr. Sookman is incorrect about the TPM provisions in C-32 being from WIPO. The language in Bill C-32 is from the US delegation and was rejected at WIPO. The WIPO TPM language, as proposed in Liberal Bill C-60, doesn’t radically change the contours of copyright law with a new “access” right, while the USA DMCA and Bill C-32 language does.

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Silly TPM analogies

TPM is hard to understand by analogy because the analogies don't do what TPM does. TPM is the end result of building devices that run your choice of software in an effort to modify the behavior of a device and/or the device's user.

What does that mean, in non-technical terms? Pretty much anything you want, if you control that software. Write any rules you like. The technology can't decide whether it's ethical, legal, or in the public interest to follow them. It's no wonder people have trouble understanding what TPM is--it's legalized malware, and it does whatever it wants (sometimes a lot more than what you intended, as in the Sony rootkit case).

By the time governments catch up and start forbidding TPM rules that damage the economy (e.g. carrier-locked cell phones or DRM-enforced content stores), you'll have made a few billion, and probably thought of some new TPM rules for your next billion. A billion dollars here and there is not a very big deal on national government scales.

The movie theatre analogy works very well if you build the TPM's arbitrary nature into the analogy. Circumventing a TPM for legal purposes would be like a Ford owner disguising his vehicle so he can purchase tickets to watch a movie at a drive-in movie theatre that refuses to sell tickets to people who do not drive GM cars. Suppose that tickets at this theatre are sold by a machine at the entrance, and GM cars contain some kind of device that identifies it as a GM car which the ticket machine must detect before it will accept money to dispense tickets.

It's possible to argue that implied contractual agreements between the theatre patron and the theatre allow the proprietors to impose these restrictions on their customers. It's also possible to argue that payments from GM are good for drive-in theatre owners, and maybe there's some money going to the filmmakers to give them an incentive to only distribute their films at GM drive-in theatres too. There's no question that these arrangements benefit some of the parties involved, even though they restrict consumer choices and make it harder for filmmakers with audiences who prefer Ford cars to get their films seen. There's also no question that you can buy tickets and watch movies at this drive-in theatre without dealing with any complicated legal issues by simply buying a GM car. Some of James Moore's recent public comments under this analogy boil down to "you should choose which car you buy based on what movies you want to see," which is completely unhelpful.

Does the Ford driver and film lover who circumvents the TPM by fooling the ticket machine's GM car detector--but still buys a ticket--at the GM drive-in theatre harm anyone? The drive-in theatre owner gets their payment for the ticket purchased by the Ford driver. Some of that payment gets to the filmmaker. These parties clearly benefit from the legal purchase of the ticket, with or without TPM circumvention.

Whatever incentive GM provided to the drive-in theatre owner to cause them to exclude Ford drivers probably cost GM something (possibly money). GM obviously wants the drive-in theatre owner to enforce the no-Ford rule, so that potential theatre patrons who do not yet own GM cars will have more incentive to purchase GM cars. Does this mean that GM's cost in all this was investment, with an expected return that should be protected by government, and that GM is harmed by every Ford owner who watches a movie at this drive-in theatre? Or did GM merely make a poor business decision--spending its money with no reasonable expectation of return?

Eventually, if GM keeps paying to exclude Fords from drive-in movie theatres, but Ford drivers keep circumventing TPM, buying tickets, and getting into the theatres anyway, GM will stop paying the theatres to exclude Ford drivers. One could argue that this loss of income is harmful to theatre owners and filmmakers--but they'll lose that income anyway, since GM has no incentive to continue to pay once Ford ceases to be competitive.

Should the government intervene on GM's behalf, by arresting Ford drivers who buy tickets and watch movies? What about people who build devices that make Ford cars work with GM ticket machines, so that Ford drivers can buy movie tickets? Should Ford owners learn to enjoy not watching movies at drive-in theatres? What if GM extends its control beyond drive-in theatres to a monopoly on parking lots, so you can't park your Ford car at 90% of the parking lots in the city? Is the investment by Ford drivers in their cars harmed by not being able to use them in convenient parking lots? What does all this market bending do to Ford, anyway?

Or should the government realize that tying arbitrary, non-copyright-related restrictions to movie ticket sales is silly behavior at best, and anticompetitive market manipulation at worst? Should the government ignore GM, or prosecute GM?

"implied contractual agreements"

This is in my mind the core of the issue from a purely legal perspective. It is dishonest to rely on "implied contractual agreements" that are falsely claimed to be Copyright related, rather than actual contractual agreements. If someone is alleged to be in breach of a contract, then there are hundreds of years of contract law to sort out the validity of the contract and the severity of the breach.

No matter what contract is in place, and whether the activity is determined to be unlawful or not, it has never been (nor should it ever become) an infringement of Copyright law to watch a movie without permission from the copyright holder. Watching is not a copyright regulated activity.

Once you get past the false claim that these activities relate to Copyright in your example, you can then analyse the contractual arrangements to determine if they are in violation of section 77 of Canada's competition act. I believe that those who want legal protection for TPMs in Copyright law, especially access controls, are being both dishonest as well as trying to legalise activities that might otherwise be found unlawful under other laws.

Free/Libre and Open Source Software (FLOSS) consultant.