Thursday, July 29, 2010

Exit Strategy for Digital Locks Dilemma of Canada's Bill C-32

(Harry Houdini in 1899 - Wikipedia)

Pressure mostly from the American entertainment industry and, as a result, the US government itself has got Canada locked into a very divisive battle over digital locks. While there was cause to hope that the "made worse in Canada" DMCA-like provisions of Bill C-61 might be more balanced in the next bill, Bill C-32 proved to be a big disappointment in this respect. This issue has once again threatened to block progress and passage of copyright reform in Canada. Now, two extremely important authorities in the US have provided the exit strategy and tools to enable Ministers Clement, Moore and the PMO to escape from the digital and political conundrum into which they were locked with time running out before a possibly sooner rather than later election.

The United States Copyright Office, which is part of the Library of Congress, is about as independent as a government organization gets to be in the Washington government structure. It has immense prestige, power, and influence in copyright matters - both domestically and internationally. Under its remarkably competent and balanced succession of Registers, currently Marybeth Peters (soon to retire) and her predecessors such as Ralph Oman (who was instrumental in bringing the US into Berne), David Ladd, and the late Barbara Ringer who was greatly influential in the monumental 1976 legislation, it has shown itself to be fair, erudite and devoted to consultation, consensus where possible, and research and evidence based rule making within its mandate. Officials whose sympathies were too pro-industry have tended to leave to pursue careers as lobbyists. Those who have stayed have done a great job overall and are a real credit to the legal and governance professions, as well as those who have appointed them. Nobody could possibly see the US Copyright Office as “radical extremist” or “copy-left” when it comes to copyright policy.

Here is the Copyright Office’s recent fair and balanced rulings on various DMCA related issues allowing exemptions for such practices as cell phone “jail breaking” (which goes way beyond simple unlocking) and copying of DVD excerpts, both of which would be illegal under Canada’s proposed Bill C-32.

The recent ruling also allows for circumvention of eBook digital locks when when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format. This was a close call, since the Register (with apparent reluctance) recommended against this exemption this time around on the basis of a lack of evidence presented by the proponents. Interestingly, the Librarian of Congress himself, James Billington, overruled her and continued the previous exemption granted in 2006.

Ironically, not only are the exemptions far more generous to users than what is proposed in Canada’s Bill C-32. The much disliked DMCA at least allows for exemptions based on fair use principles. Bill C-32 makes is absolutely clear that anti-circumvention protection for DRMs and TPMs trumps fair dealing in Canada.

While Bill C-32 does make provision for regulations that could be made to provide exemptions in some very limited circumstances, that is no answer to why Canada would start out with far harsher anti-consumer, anti-user and anti-innovation legislation that the USA now has. Michael Geist's Toronto Star column talks about this today.

Nor is the United States Fifth Circuit Court of Appeals, which has just upheld a district court ruling on DMCA circumvention that is far more generous to users than Bill C-32, an example of a “radical extremist” organization. Texas districts courts are not known for being very “user friendly” on IP matters.

Here’s the ruling that will upset pro-digital locks lobbyists no end. It confirms the legality, even under American DMCA law, of users’ rights in respect of anticirumvention behavior that would clearly be illegal under Canada’s proposed Bill C-32.

The ruling states:
However, MGE advocates too broad a definition of “access;” their interpretation would permit liability under § 1201(a) for accessing a work simply to view it or to use it within the purview of “fair use” permitted under the Copyright Act. Merely by passing a technological protection that restricts a user From viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.
(emphasis added)
Despite this quite clear language and the fact the appeals court upheld the district court and the fact that General Electric (hardly an “enemy of copyright” or a “radical extremist” - it has filed 20,000 patent applications in the last decade) was the successful defendant/respondent, it should be noted that a well known Canadian lawyer who has been a lawyer and/or lobbyist for the Canadian trade associations that represent the American recording and motion picture industries has gone so far as to disagree with this ruling. Not surprisingly, he also criticizes Michael Geist’s perfectly reasonable, succinct and timely summary of it. It will be interesting to see what expert American expert scholars and lawyers who are not lobbyists have to say about this decision.

All of this should come as great news for embattled Government Ministers Clement and Moore. It shows that even the very prestigious, powerful and influential United States Copyright Office and the very important and usually very IP friendly Fifth Circuit Court of Appeals do not have the slightest concerns about such issues as spurious and misleading red herrings about international law and the 1996 WIPO treaties raised by certain lobbyists and some associated with them with respect to Bill C-32 in Canada. One can be quite confident that if such arguments had any weight, they would have been made in these US proceedings. The Copyright Office did consider the WIPO treaties and was clearly not distracted by them. If the WIPO treaties were raised in the 5th Circuit, the Court was clearly not the slightest bit impressed and doesn't even mention them.

These very important and virtually simultaneous American developments provide a great exit strategy for Ministers Moore and Clement on Bill C-32, which Minister Clement, the lead Minister on this Bill, has clearly already perceived.

As it happens, Minister Clement is also much embattled on the census front. Ironically, the arguably minimally intrusive privacy implications of the mandatory long form census pale in comparison to those of the Bill -32.

Bill C-32 will expose Canadians to massive commercially and quite possibly criminally motivated privacy invasion by protecting the invasion tools but preventing Canadians from easily and effectively protecting themselves from the countless ways in which the most intimate information about their reading, listening, browsing, book buying, hobbies, innermost thoughts, and other personal information can be harvested, sold or otherwise abused against their free and informed will. This is seriously a crucial privacy issue - and, with all respect, much more so than the number of bedrooms or bathrooms in ones’ house, which is readily available public information anyway.

Minister Clement (whose is the lead Minister on Bill C-32) has been the nice cop on the DMCA anticircumvention issue. It has fallen to Minister Moore who, for whatever reasons, has taken the unpopular side of the US entertainment industry, to defend that the air tight digital locks provisions. These provisions jeopardize the viability of the whole bill - even without the above developments.

Now both Ministers (particularly Minister Moore) and the doubtless interested PMO have a graceful and convenient exit strategy made available to them by fate, the US Copyright Office of the Library of Congress and the US Fifth Circuit Court of Appeals.

There is no reason why Canada would want to enact a law that is contrary to the interests of Canadian consumers, copyright users, educators, innovators and creators themselves for the benefit of the luddite faction American entertainment industry when US law itself has been authoritatively interpreted in a far more "large and liberal" user friendly manner than Bill C-32 would provide.

Now that Canada has been handed the keys to unlock itself from the digital locks dilemma, hopefully, we can at last get on with some serious, balanced and long overdue copyright reform that will operate in Canada’s interest and be fully consistent not only with international law but even international law as authoritative American sources see it.

Then, let's see who the real "radical extremists" will be who will oppose copyright reform. Access Copyright has already declared itself here and here and elsewhere for starters. The next in line will predictably be CRIA and CMPDA, and organizations that they have managed to influence up till now on the copyright front.


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