Does DRM and anti-circumvention legislation increase unauthorized P2P?

There is an all too common belief that putting a legal layer around“Digital Rights Management” (DRM) to encourage its usage will decreasecopyright infringement. The USA, being the primary source of thatthinking from their National Information Infrastructure Task Force workin the early 1990’s, was of course the first country to implement thisthinking in their Digital Millennium Copyright Act (DMCA).

The USA DMCA was signed into law on Oct. 28, 1998, and nearly adecade later every report I see suggests that unauthorized P2P sharingof copyrighted files is on the rise in the United States. While thiswill come as a shock to people who thought the DMCA would (or think theCanadian Bill C-61 will) decrease copyright infringement, the increaseseems very logical to me.

Citizens of both Canada and the USA want to access the content theyhave legally acquired over the years on all the devices that theycurrently own. As 8-tracks went out of style they made cassette tapes,and eventually as time goes on their media ends up as digital files intheir computers and other digital media devices. They quite reasonablybelieve that once they have paid for the content that they shouldn’thave to pay for it over and over again with every new format or device.

In the past the technology to do this conversion was readilyavailable and reasonably easy to use, so people were doing thisconversion in the privacy of their own homes or at a friends house.When you introduce technical measures you introduce a level ofcomplexity to this conversion which requires additional technicalknowledge. When you add a legal layer on top, you push the toolsnecessary to do this conversion into an underground where the generalpublic is not able to go to a store and purchase the tools required todo the conversion.

It will always be technologically possible to someone to circumventthese technical measures. Internationally renowned securitytechnologist and author Bruce Schneier has said a few timesthat, “trying to make digital files uncopyable is like trying to makewater not wet”. Most people are not computer security experts, so thisdoesn’t apply to most citizens.

Along side this perfectly legitimate conversion is a publiclyavailable pool of already converted files on P2P networks. All it takesis one technically sophisticated person to circumvent any technicalmeasure and share the results with others. P2P tools are easy to use,even easier to use than many of the tools used to time and format shiftcontent.

People who previously did the time/format shifting themselves willbe driven to P2P networks by DRM. They are told that time/formatshifting of the DRM infected media is already illegal when they head tothese sites to do something that replaces what was previously perfectlylegal and which remains perfectly legitimate. If acquiring time/formatshifted files of content they own is already illegal, they may feelthat acquiring other content that they never had before isn’t any worse.

While I don’t personally use P2P to infringe copyright, I have toagree that it is perfectly logical that other people will be doing so.It also seems perfectly logical to me that the USA’s DMCA and (ifpassed) Canada’s Bill C-61 will only make the problem worse.

For greater certainty: I am not apologizing for the increasingnumber of people who infringe copyright, just helping to explain thatit is a logical and understandable behaviour. Policy makers should betrying to understand this behaviour in order to reduce it, rather thanincreasing the behaviour by making more perfectly legitimate activitiesillegal.


If I were the government wanting to reduce copyright infringement, I would take a very different approach.

1) I would clearly carve time and device shifting out of copyright,as well as other perfectly legitimate private activities. This would bedone in part by Canada adopting a US-style living Fair Use regime toallow what is considered legitimate private activities to moredynamically change to match the times.

Neither government nor copyright holders have any business in the bedrooms (or other private rooms) of our nation!

2) I would disallow the abuse of technical measures to attempt tomake this shifting harder, including disallowing the locking of contentto only be interoperable with specific brands of devices

3) I would ensure that no law (copyright or otherwise) disallowedthe owner of a device from removing any foreign locks on their devices.I would use the law to discourage this harmful activity by devicemanufacturers and software authors, and clearly enable hardware ownersto make their own software choices.

(These are all re-wordings of proposals that are part of the CLUE Policy Summary)

If activities which the majority of citizens consider perfectlyreasonable were legal, and activities which the majority of us thoughtwere inappropriate were illegal, then there would be far more respectfor the law. The direction we are currently heading will only increasedisrespect for the law and thus increase copyright infringement.

The stronger that inappropriate laws are enforced, the more we mightsee an increasing disrespect for other laws which could have adevastating effect on society.

Legality of time/device shifting

In the United States, time and device shifting was consideredperfectly legal under their living Fair Use regime. This was a key partof their Sony Betamax Case in 1984which said that Sony was not liable for contributing to copyrightinfringement because the VCR had substantial non-infringing uses. Theuses that were considered non-infringing included time and deviceshifting.

In Canada people have been told that Canadian Copyright law issomehow “weaker” than US law. Canadians legitimately believe that ifAmericans are legally allowed to time and device shift withoutpermission, then we must be able to as well. While Canadian copyrightlaw is tilted more in favour of copyright holders than US law in anumber of ways, copyright holders have not wanted to sue Canadians forthis type of infringement as it would be a public relations nightmare.It is the same reason that music labels have not been suing forunauthorized P2P filesharing in Canada, even though this is clearlyillegal under current Canadian law, open to massive statutory damages(maximum $20K per infringing file shared), and they only lost theircase in 2004/2005 due to lack of evidence.

The Conservative media spin around Bill C-61 claims that time anddevice shifting will be legal in Canada. Unlike the USA where this typeof activity is taken out of requiring permission, it remains part ofthe permission culture with Bill C-61. All the Conservatives did was change the default for a few special casesfrom being denied unless granted to being granted unless denied. In thevast majority of situations these activities will continue to be deniedin Canada under technical measures, contracts, or both.

In other words, those wishing to time and device shift in Canadawill be less able to do so under Bill C-61 than the status-quo, giventhe Conservatives have turned the situation from one where lawsuitswould be unlikely to where lawsuits will be considered reasonable.

Where the Conservatives are trying to spin C-61 as balancing therights of users with those of copyright holders, I feel that even theprovisions they have claimed will help copyright users will only causeharm.

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