TPM provisions should be closely tied to copyright law as suggested in 1996 WIPO treaties

[The following article was first published in the Nov 21, 2001 issue of the Hill Times on page 13]

OTTAWA -- While Bill C-11 has the title of "An Act to amend the Copyright Act," it includes provisions that will impact our usage of modern technology far beyond activities related to copyright. This bill includes policy which fits within traditional copyright law, and parts that are often called Paracopyright which offer legal protection to specific uses of technology. While the copyright parts of the bill are important, it’s the implication of the Paracopyright provisions that are cause for alarm.

The two World Intellectual Property Organization treaties Canada signed in 1996 use the term "technological measures," and Bill C-11 uses the term "technological protection measure." Understanding what these terms mean is an obvious place to start in understanding the paracopyright part of C-11.

I am a technical person who has had many jobs related to both hardware and software. My current job is as a system administrator and software developer. While I have nearly three decades of experience in technology, I can not translate the term "technological protection measures" as described in Bill C-11 into real technology. When I demand specific examples from the lawyers and other policy people proposing this language, I am offered science fiction, problematic abuses of technology, or otherwise inappropriate changes to the law.

Some proponents have suggested that pay walls are an example of a C-11 protected TPM. While pay walls are used by copyright holders such as newspapers, pay walls are used by many more online services. It would be inappropriate to protect pay walls in copyright law given it would be unfair for only a subset of online services to be offered adequate legal protection.

Some proponents have suggested that copyright holders should have the freedom to create whatever restrictions they want in contracts, and be legally protected in their use of technology to enforce these contracts. Whether this is valid or not, it doesn’t excuse adding this legal protection in copyright law. Canadian copyright law has statutory damages, and it is unjust to suggest that one party to a contract should be able to elevate an otherwise minor contractual dispute to having statutory damages while the other can not.

Some proponents have suggested that TPMs are something that are applied to copyrighted works which can determine whether something can be copied, how many times, or other details of the agreement under which the copyrighted work is licensed.

Content alone is passive. Digitally-encoded content can’t make decisions any more than a paperback book is capable of reading itself out loud. If there are any rules to be enforced they are encoded in software which runs on some device. It is science fiction to believe that a TPM applied to content alone can "make decisions." In order to understand the implications of the technologies proponents believe should be legally protected, you must include the motivations and interests of software authors as well as the property rights of device owners.

Some proponents believe that TPMs, which tie the ability to access copyrighted works to specific technology brands, should be legally protected. This is inappropriate. Copyright holders should have no more say in what brands of digital technology I buy than physical book authors had in what brands of eyeglasses I might wear. Most countries have competition (anti-trust) laws which prohibit the tieing of the purchase of one product as a condition of purchasing another (Sec. 77 in Canada’s Competition Act). This disallows a possible monopoly in one market to manipulate another. I think that this specific abuse of technology should be prohibited under competition law, not protected in copyright law.

Some proponents believe that TPMs which lock down mobile phones, video game consoles, and other digital technology should be legally protected. I believe this needs to be treated as a property rights issue. Locks where the keys are held by the owner should be legally protected, but locks where keys are abused to deny lawful uses by the owner should be legally prohibited.

The conflict between the desires of some copyright holders and the rights of computer owners was articulated well in 2005 by Stewart Baker, then U.S. Department of Homeland Security’s assistant secretary for policy. Speaking to a group of the larger media companies he said, "It’s very important to remember that it’s your intellectual property—it’s not your computer. And in the pursuit of protection of intellectual property, it’s important not to defeat or undermine the security measures that people need to adopt in these days."

The implication was clear: if computer owners are undermined in their right to control their own devices, this would have serious security implications.

I doubt we would even be having this discussion if we were talking about any other type of property. The governments would never legally protect non-owner locks to all guns in a country where many are uncomfortable with the mere registration of long guns. Governments would also never legally protect non-owner locks on our homes, alleging for example that it was necessary to protect the insurance industry from fraud. Finally, governments would never legally protect non-owner locks on our cars, allegedly to ensure that automobiles could never be used as a getaway vehicle. Why should we allow someone other than the owner to control what we can and can’t do on our computers?

While accessing eBooks or DVDs are examples where the devices are owned by audiences, non-owner locks on devices harm creators as well. There is no way for technology to differentiate creativity from infringement, as they are the identical technological acts: you record, edit, communicate, and access content. Any attempt to control technology to limit infringement will also limit creativity.

As a software author the most important thing to me is that device owners be protected in their right to make their own software choices. If owners can’t make their own software choices, how can they possibly choose my software? While policy which revokes software choice may benefit those few imposed software authors, it would greatly harm the majority of the software sector.

For the reasons already discussed and more, locks on devices should clearly not be protected in copyright law.

Tory MP Lee Richardson told a constituent in a letter not to worry about C-11 since, "If a digital lock is broken for personal use, it is not realistic that the creator would choose to file a lawsuit against the consumer." The question that Mr. Richardson should be asking is not whether a copyright holder will sue private citizens for unlocking content. He should be asking if hardware manufacturers will sue owners or providers of tools/services used by owners to change the locks on what they own. Has he polled the video game console, cellphone, mobile computer/tablet, or similar manufacturers that lobby hard to make lock changing by owners illegal?

We are all legally able to hire a locksmith to change the locks on our homes. Why is this Conservative government stepping in and disallowing the same activity when it applies to our technology?

I hope this is helpful in understanding why the sections of Bill C-11 which talk about the vague term "technological protection measures" are so controversial. Whenever a proponent of these provisions suggests we shouldn’t worry, demand real-world examples and examine them as I have. If you do, I believe you will join the majority of stakeholders who have expressed opposition to these provisions, and the many harmful abuses these provisions enable.

The fix is relatively easy. When TPM provisions added to copyright law are not closely tied to copyright, technology can be legally abused to circumvent laws including (but not limited to) contract, e-commerce, property, competition, trade as well as copyright. If TPM provisions are closely tied to copyright law as suggested in the 1996 WIPO treaties, the most harmful abuses can be avoided.