Excessive TPM & DRM - forfeiture as an antidote?

A possible antidote to excessively intrusive and even harmful TPMs and DRMs (e.g. Sony’s Rootkit) and to excessively protective legislation for such measures in the name of implementing the WIPO treaties might be quite simple.

There could be a provision inserted in the Canadian Copyright Act that would provide a forfeiture of copyright for those who inflict damage via malware that goes farther than reasonably necessary to protect copyright. So, if a record producer inflicts another Rootkit fiasco upon Canadians, copyright in Canada in the sound recording would be forfeited. Of course, this shouldn’t affect the copyright in the underlying musical compositions or performances, unless those creators are complicit.

There can be little doubt that such a provision would be intra vires the Federal Government and its copyright powers. If CRIA et all are begging for Copyright Act protection for TPM and DRM - it would be hard for them to argue that protection from it is ultra vires the Feds.

Frankly, I must confess that this is not entirely an original idea. I was inspired by none other than Judge Richard Posner of the 7th Circuit in the USA, who is much more favourably disposed to IP owners and much more sceptical of antitrust complaints than most judges or scholars. And speaking of scholars, his accomplishments are legendary and extraordinarily prolific.

Here’s his view of forfeiture, which he posted in a guest appearance on Larry Lessig’s blog in 2004:

What to do about such abuses of copyright? One possibility, which I raised hypothetically in my opinion in WIREdata, pp. 11-12, is to deem copyright overclaiming a form of copyright misuse, which could result in forfeiture of the copyright.

(emphasis added)

This was suggested in the much less egregious context of “systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth”.

In fact, Judge Posner’s logic might suggest that the use of DRMs and TPMs to prevent otherwise lawful exercise of user’s rights should result in copyright forfeiture. Hmm.., Not a bad idea.

The music industry wants access controls that could eliminate the concepts of insubstantial copying, fair dealing, fair use, access to orphan works and ultimately to the public domain itself. These controls could also result in “pay per use” and a regime in which there is no right to make private copies or to shift formats. Regional access controls could become effective tools for anticompetitive price discrimination (they already have done so for DVDs) and – worse still – for censorship.

And if this isn’t bad enough, they want legislative sanction for all of this and to make anyone who dares to get around (i.e. "circumvent”) it an infringer or even a criminal. Scary? You’d better believe it.

HPK