Why Heritage Minister James Moore is wrong on Bill C-11 "technological protection measures" (TPMs)

I received a reply from Heritage Minister James Moore dated December 2, 2011. I'm not certain which letter it was in reply to, but it could have been my Who is the Candice Hoeppner for information technology owners? letter I sent to all Conservative MP's back in May/June.

While I am posting the full text of his reply, I wanted to offer a quick response explaining why I think he is wrong on the impacts of the "technological protection measures" aspects of Bill C-11. (See: earlier article for a description of real-world technologies being discussed)

In his letter he suggests that "TPMs are sometimes used as part of the business model of copyright owners to prevent copying and unauthorized access to their works". To believe that a copyright owner alone has the ability to use a TPM to prevent copying is to believe that copyrighted works can be encoded in a way that they can make decisions. 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."

Understanding the real-world market impacts of these technologies requires understanding all the components, and including the motivations of software authors (including the anti-competitive interests of DRM vendors) as well as the fundamental (but all too often ignored) rights of the owners of the devices.

The conflict between the desires of some copyright holders and the rights of device 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."

Minister Moore ends his letter with, "copyright owners may decide whether to use TPMs for their content and consumers whether to pay for such content." This is a repeat of the common misconception that free markets can solve any problems, based on the false belief that it is only the copyright holder and consumers of that specific content that are impacted.

While I discussed this in detail in "When consumer choice is not enough: Dishonest Relationship Misinformation (DRM)", a key problem is that the abuses of technology contemplated with C-11 TPMs impacts far more stakeholders than copyright owners and their potential customers. This is why I do my "I have 4 things in my hands" presentation to introduce the other two classes of impacted owners: software authors and owners of information technology.

Even if I never purchase a single work that has been infected by DRM, I will be greatly impacted by any legalization or legal protection for these abuses of technology in C-11.

The anti-competitive impacts of anti-interoperability locks on content harm me as an independent software author. People are forced to choose between a computing platform that is one of the "chosen few" by the DRM cartels, or one where the owner is in sufficient control to be allowed to choose my software.

The anti-ownership impacts of non-owner locks on devices will harm all technology owners. While some people may be unconcerned about video game consoles or mobile phones, two markets where the manufacturers are openly hostile towards the rights of technology owners, we should all be concerned if this same erosion of human rights is extended to medical devices. Infringement of IT property rights must be adequately understood and legislated against, not legally protected as proposed in the current draft of C-11.

The false claim that beyond-WIPO TPM protection was required by WIPO treaties has been addressed multiple times. Many of the worst abuses of TPMs can be avoided by closely linking anti-circumvention legislation to copyright infringing purposes.

Much of the rest of the letter makes claims of benefit to creators and economic growth of C-11 style TPM protection which lack any evidence to back them up. This is the problem with legislation lacking cost/benefit analysis which instead rely on unsubstantiated ideological belief.

If adequate analysis was done it would be found that the costs of C-11 style TPMs to all classes of owners are considerable, and the benefits are largely theoretical based on misunderstandings of the technologies involved. The primary beneficiaries of C-11 style TPM protection will be abusers of technology who seek to harm the rights and interests of copyright holders, audiences, competing software authors and/or technology owners. These abuses should be prohibited, not protected, by law.

A small but growing number of creators are realizing the harm that will come to their industry from DRM. A recent example can be read from author Charles Stross : Cutting their own throats.

These TPM policies will eventually be reversed in order to protect copyright and other classes of owners, but there will be considerable more economic harm in the interim to countries like Canada if we take the extreme approach presented in Bill C-11.

Text of letter from Minister Moore follows. Original PDF available.



Minister of Canadian Heritage and Official Languages
Ottawa, Canada K1A 0M5
DEC 02 2011

Dear Mr. McOrmond:

Thank you for writing to me about copyright reform in Canada. I appreciate you taking the time to share your views with me and have noted your concerns regarding the impact that providing legal protection for technological protection measures (TPMs) may have on different parties.

Recognizing the critical role a modern copyright regime plays in Canada's digital economy, our Government has delivered on its commitment to introduce and seek swift passage of copyright legislation that balances the needs of creators and users. On September 29, 2011, we re-introduced the Copyright Modernization Act, which demonstrates our Government's commitment to establishing Canada as a leader in the digital economy of the future.

Bill C-11 includes provisions that strengthen the ability of copyright owners to control the use of their online works in order to prevent widespread illicit use and to promote creativity, innovation and legitimate business models. Such provisions include legal protection for TPMs.

As you are probably aware, TPMs are sometimes used as part of the business model of copyright owners to prevent copyright and unauthorized access to their works. The use of TPMs can allow for the monetization of creative content and the protection of the potentially significant investments made during the development phase of these products.

Providing legal protection against the circumvention of TPMs will bring Canada in line with international standards, as this protection is a requirement of the World Intellectual Property Organization Internet Treaties. It will support creators' ability to advance new digital business models and compete on the international stage, as well as attract new investments, which will in turn promote economic growth and help protect and create jobs in Canada.

Bill C-11 also includes regulation-making powers that will allow the federal government to introduce new exceptions to the TPM provisions if they are used in anticompetative ways or if developments in the marketplace warrant them.

Copyright is a marketplace framework law. Accordingly, copyright owners may decide whether to use TPMs for their content and consumers whether to pay for such content. Detailed information about Bill C-11 is available online at www.balancedcopyright.gc.ca.

Please accept my best wishes.

Sincerely,

The Honourable James Moore, P.C.,M.P.
c.c: The Honourable Christian Paradis, P.C.,M.P.

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CLUE Policy Coordinator