Why I'm offering moral support, but no signature/tweet, to @ccercanada campaign.

The Canadian Coalition for Electronic Rights has a campaign currently that encourages people to tweet out the following:

ACT NOW - Speak out against the anti-consumer copyright Bill #C11 being rushed into law. Takes 2min. ccer.ca/speakout via @ccercanada

While I agree with the text contained in their letter writing tool (even if I would have worded it differently), I feel their campaign page is misleading.

I'm a Canadian who is concerned not only for the rights of fellow software authors, but more importantly fellow technology owners who must their property rights protected. Technology owners are not simply consumers, but creators, audiences and citizens. I know that tweets are limited in space, but I believe we lose out when we use the phrase "anti-consumer" as if this were in contrast with something that could be alleged to be pro-creator.

The page at ccer.ca/speakout contains 5 highlighted concepts and their status under current law and under Bill C-11. While the exact text offered isn't incorrect if interpreted very narrowly, I feel this table is very misleading.

"Unlock a DVD or video game you own for fair dealing purposes"

While unlocking is not regulated by current law, and will be under C-11, this statement begs one to ask what type of fair dealing purposes we are discussing? Fair Dealings is far more restrictive than US Fair Use, and there are a large number of activities people carry out every day that are already infringing in Canada.

"Obtain the tools required to unlock a cell phone or transfer a commercial DVD to another device."

Correct, but misleading given the focus of the sentence is on "obtain the tools" which isn't currently a regulated activity.

Transferring a commercial DVD to another device is currently an infringing activity. In the presence of a digital lock it will remain an infringing activity, but in those rare scenarios where a DVD is unlocked it will no longer be infringing under C-11 as that type of activity would easily be covered under "Reproduction for Private Purposes".

Mentioning cell phone locks confuses many people, given there are two different locks one often sees on cell phones. One is a lock to the carrier, and the other is a manufacturer hardware/software lock. The two are not the same: you can acquire an "Unlocked iPhone" which means it is not tied to a specific phone carrier, but you still have to "Jailbreak" it in order to harness your property rights and make your own software choices.

Don't get me wrong: I disagree with locks on content which tie access to specific devices (or any mention of access in a Copyright act), or non-owner locks on devices, but from a narrow discussion of what one can do with a DVD it is easily possible you can do more under C-11 than is allowed under current law.

"Unlock an eBook for research or private study purposes."

I have a hard time understanding this one, once one goes past the question of digital locks to what one can do with books for "research or private study purposes". If you compare a book to a locked eBook, they are equivalent: you can read from them, you can re-type quotes from them, and so-on.

While it is true you can do more with an unlocked eBook than a locked eBook, such as cut-and-paste, the ease at which this can be done isn't really a matter I believe the law should be involved in. It is also true that when there is no physical media that the work is stored on, there is also no "first sale" or other such tangible property-related rights that might exist with tangible media. This fact alone suggests that physical books offer their owners far more than the license (IE: not ownership) of an eBook offers.

Again: anti-interoperability and non-owner locks are wrong (harmful to creators and audiences) and should be illegal, but the discussion of books and eBooks in the context of fair dealings is misleading.

"Legal obligation to destroy new educational course materials deployed in an electronic format."

This is not a digital lock issue, and one where I believe CCER and many others interpreted the policy backwards.

Under current law, creation and distribution of these materials without permission from the copyright holder is infringing at time zero (IE: was never lawful, so simply don't do it!).

Under C-11, creation and distribution of these materials without permission from the copyright holder is infringing at time X (where X is roughly 30 days after final course evaluations).

In other words, the government is delaying having to get copyright permissions for the length of the course plus 30 days. After that time the works can be properly licensed, or they should be destroyed. This is beyond reasonable on the part of the government as yet another federal handout to provincially funded educational institutions, and a handout funded on the backs of copyright holders.

I don't have sympathy for those on the education or student side of the debate who are misunderstanding and then complaining about this generous handout.

I understand how the rhetoric of "self destruct", "time bombs", "destroy new educational course materials" and "won't they think of the children" are powerful in politics. I don't think we need to stoop to that level. The fact that the key-holders to digital locks can circumvent copyright and non-copyright related rights of copyright holders and technology owners is bad enough without using misinterpretations to try to make a point.

"Record a TV show with a PVR until broadcasters use broadcast flags and then it will be illegal."

The attempt here is to tie the sentence to the "broadcast flag", which could be alleged to be a "technological measure" that trumps copyright and other laws.

But lets discuss the rest of the sentence, and ignore "technical measures" for a moment.

It is not lawful under current law to record a TV show without the permission of the copyright holder. The 1984 Betamax case where the United States Supreme Court clarified that time-shifting was lawful was based on the USA's living Fair Use regime. This regime is far more liberal than Canada's extremely weak Fair Dealings regime. While I have had many non-lawyers or non-Canadians suggest this common use of a VCR would be just as legal in Canada, I have never heard a Canadian lawyer suggest this. While I'm not a lawyer, it looks clear to me that time-shifting without permission is not lawful in Canada.

Bill C-11 would (in the absence of a technical measure) allow for this recording without permission for later listening and viewing. This is only a delay, and the recording can only be kept for "no longer than is reasonably necessary in order to listen to or view the program at a more convenient time".

In the case of the USA, their DMCA is far more fair than C-11 in that their anti-circumvention laws do not trump their already expansive Fair Use regime. As bad as the DMCA was said to be, C-11 is far worse.

That said, C-11 does legalize a few common activities of Canadians than is allowed under current law. Granted it makes more perfectly legitimate common activities illegal due to technical measures trumping copyright and other laws, but that doesn't mean we should ignore those few areas where C-11 improves things in the absence of technical measures.

I wish I didn't feel forced to offer this analysis. The overall thought from CCER is correct, but the use of examples that can be easily misunderstood makes an already complex situation more complex.

The primary blame for much of the confusion lies with the government, given many of the misunderstandings come from the excessive complexity of C-11.

It could come down to a difference in campaign tactics between CCER and what I'm comfortable with. I try to focus on the harm that comes from anti-interoperability and non-owner locks.

While I believe these abuses of locks should be made clearly illegal (under appropriate competition and property laws), my shorter-term suggestion remains to amend and remove the non-WIPO non-copyright part of the bill entirely. This is (in different words) what CCER is suggesting in their letter where they state that the bill should "clearly link the act of circumvention to infringement, remove the all-encompassing ban on circumvention tools".