Editorial: The Importance of the Anti-Circumvention Debate in Canada

With the Canadian DMCA about to be tabled this week I thought it would be important to talk about DRM and why the debate around it is important in the copyright reform debate.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

It’s interesting to note that the Canadian government says that they are willing to negotiate the provisions of the bill after it is tabled — particularly when all indications say that this will be just another critically flawed Canadian DMCA. While foreign lobbyists keep telling us that reforming copyright laws are suppose to catch the evil bad guys online. Unfortunately, the kind of laws being discussed — mainly through back doors it seems — will go well above and beyond bootlegging let alone a teenager in a basement downloading bad mainstream music pushed by the major record labels. One of the topics that goes above and beyond what the smaller, though more financially influential side, is the discussion of anti-circumvention.

Anti-circumvention laws sound like some obscure technical term to the laymen, but it is also a huge game changer that will affect every Canadian citizen who wants to actually enjoy their media. The idea behind Digital Rights Management (DRM — or digital locks or Technical protection Measures (TPMs) as they seem to be referred to in Canada) is that it’s suppose to stop unauthorized uses of the content — that somehow, by putting on this magical piece of software on a music CD, software, movie, ebook, or any other digital media one can consume, it would magically delete all the unauthorized copies on file-sharing and stop bootleggers on the street corner from selling unauthorized copies as well. Of course, if you know a thing or two about computers, such technology amounts to little more than snake oil that only the major entertainment industry corporations would be foolish enough to buy in to.

It’s been my experience that there are three kind of digital locks in existence today — the ones that have been broken in to, the ones about to be broken in to, or the ones not protecting content (and thus, not worth breaking in to). In fact, being the first to break new digital locks is practically a sport amongst those who, well, know what they are doing at the very least. Sometimes, copy protection is broken in hours, sometimes days, or in the best case scenario of the copy protection, within weeks.

If you are thinking that only those with serious skill would be the ones with access to cracked software, well, you’d be mistaken. All it takes is one copy of cracked software for there to be thousands of copies of said cracked software for instance. Copy protection has no real measurable effect on content being posted without authorization — content will be posted whether it was packaged with copy protection or not.

If it’s technically impossible to stop circumvention, then what’s the point of trying to enshrine it in to law since the determined will have the software cracked anyway? It’s a bit more difficult to answer, but the answer was ultimately control.

The most common example of copy protection is the copy protection found on DVDs. Have you ever seen a preview on a DVD — or even an ad for that matter — and hit the skip or fast forward button? Were you greeted with that circle with the line through it indicating that you weren’t permitted to skip it or fast forward through it? That is copy protection at work. You paid for that DVD with your hard earned money. You aren’t the one going online and downloading the latest movie for free. You are that honest consumer that chooses legitimate channels for your entertainment. Guess what, you are the one that is being punished. If you obtained that movie through unauthorized channels, you wouldn’t really see the previews or those ads. You could skip forward, go back and pretty much do whatever it is you want with that movie, but because you purchased that movie legitimately, you are the one suffering the consequences.

Because Canada does not have anti-circumvention laws, there’s nothing really legally stopping you from taking that movie or software, running it through, say, Alcohol 120%, removing all that junk, re-burning that DVD and enjoying that movie or game on your terms. If anti-circumvention laws were to take effect, then suddenly, you are on the hook for hundreds of thousands of dollars in damages regardless of paying the levy on blank media so that creators are compensated anyway — and yes, you pay a levy every time you buy a blank CD or DVD.

If you think that if not being able to skip ads in your movie is all you have to worry about, think again. Media companies have been thinking of ways to make consumers — the legitimate people who pay for their content — lives worse. Earlier this month, I reported on how movie executives in the US successfully killed TVs record button. Think about how you are able to record TV shows on VHS tapes or on your PVRs. You can basically do what is known as time shift your TV shows. All that means is that you record your favorite TV show that aired at one time and watched it at a different time (i.e. after dinner). The TV industry is currently hammering out plans after this legal victory in the US to make it impossible to record that show of yours. So if you hit record, you’ll get a message saying that you can no longer record that show because the broadcaster has prohibited that. While this is happening in the US, TV shows between US and Canada are closely linked together, so it wouldn’t take much to import this new restriction in Canada — and since anti-circumvention laws could take place in Canada, it would be illegal to bi-pass such restrictions and you’d be on the hook for hundreds of thousands of dollars.

Music fans are, by far, not immune to being restricted. There are several cases where it makes it possible for music fans to purchase a music album, come home to their Apple computer and discover that the copy protection is for Windows only. In the US, the DMCA prohibits bi-passing that copy protection and if anti-circumvention laws are passed in Canada, the same story would apply. If you think that copy protection is nothing more than a nuisance, think again. In 2006, there was the Sony Rootkit fiasco which obliterated the argument that paying content is the only secure way to get content without viruses. The reason that argument ceased in 2006 during this controversy was because by simply inserting that CD in to your hard drive, your computer would be compromised by software that opens up huge security vulnerabilities. Not only did it open up huge security vulnerabilities on unsuspecting users computers, but it also took information of people’s listening habits and forwarded them to a database over their own internet connections. It sparked a lawsuit and, in Canada’s case, forces Sony to make a settlement with its own customers.

Gamers don’t fare much better either when it comes to digital locks. The recent Ubisoft DRM provided, yet, another perfect example of why digital locks harms legitimate consumers more than anything else. Ubisoft announced a new form of copy protection that was suppose to be impervious to video game crackers. It required a constant internet connection between the user and a server responsible for the authentification of certain video games. Without an internet connection, you couldn’t play the game. The digital lock was circumvented within 24 hours after the game encoded with the digital lock was released out in to the market. Shortly after the news surfaced that the digital lock was circumvented, the server that was suppose to allow gamers to play that game went down. That means that the only people that were able to play that game were the people with the hacked copy. Those that did the honest thing and purchased the game found themselves locked out of their own game.

Those who innocently read ebooks are definitely not immune to the dangers of copy protection either. In 2009, Amazon was selling, of all books that were affected by this, works by George Orwell. While readers were enjoying the works of George Orwell, the publisher had a dispute with Amazon. Ultimately, everyone who purchased their book on the Amazon Kindle woke up the next morning with their legal purchase remotely deleted from their Kindle thanks to the digital locks that came with the ebook.

There is a few common trends when going through all these cases. One of these common trends is that those who find the unauthorized copies of a protected work would never experience any of these problems. Those who did the hones thing and paid for the content, for lack of a more accurate term, got screwed. People have learned from these experiences that honesty is a punishable offense when it comes to paying for copyrighted works — it just depends on who the rights holders — not necessarily the creators — are. If you are an honest consumer and also want to avoid the hassles and inconvenience of digital locks, the wisest thing to do is make a back-up copy for yourself in the event your purchase may contain security holes or is deleted completely from the seller. What anti-circumvention laws would do is make that act of protecting yourself a copyright infringement. All this, believe it or not, is a very narrow example on why consumers should oppose anti-circumvention legislation. There’s a host of other reasons to oppose anti-circumvention legislation. These examples just graze the surface of the dangers of copy protection and what kind of technology is legally protected by to-be proposed anti-circumvention laws.

One question one might have is, do these laws work? The answer is no. All one has to do is look to the US for answers. The US copyright reform laws known as the DMCA prohibit circumvention of copy protection. So what? Many Americans acted like reasonable consumers, saw the law as so ridiculous that it doesn’t apply to them, and continued on their circumvention ways to properly enjoy content they pay for. The real question is, how can the Canadian government push for such ineffective laws with a straight face? It quite possibly could be that there’s a certain amount of willful ignorance on the part of lawmakers. If lawmakers did their homework, it wouldn’t be very hard to find that anti-circumvention laws only punish law abiding citizens, fail to stop copyright infringement, and stifle innovation which is vital for a vibrant economy. It lawmakers did their homework to find out how effective such laws are (which they are not), how effective the technology is (it’s not), what effect laws would have (angry consumers, less votes and driving small businesses out of the country) and the potential benefits there are (nothing outside of satisfying any lobbying obligations), the common sense thing is to reject any such laws as little more than a collection of really bad ideas.

The bottom line is that anti-circumvention laws are a no-win situation. We all are better off without them.

Drew Wilson on Twitter: @icecube85 and Google+.

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