In an interview by Jesse Brown of CBC’s Search Engine,
Jim Prentice suggested that “even for private personal use … one should
not be breaking a digital lock”. This statement, along with many others
made in the interview, suggest that Minister Prentice does not
understand the controversy around the uses and abuses of digital locks.
His suggestion that the recording industry has been moving away from
digital locks also reminds us that he is unaware that most of the
controversy is not around locks applied to content, but locks applied
to devices (Even in the “DRM” debate, Content is not King).
Minister Prentice is not alone in not understanding the issues. In conversations with Canadian creators who are thus far proponents of anti-circumvention laws,
they believe these locks are like the locks on their own houses — locks
being used to keep intruders out. With this belief they suggest further
that it should simply be illegal to break digital locks.
Locks are a generic technology that is neither good nor bad. A lock
can be used to help reduce unlawful activity, but it can also be abused
to hide an unlawful activity or be abused as part of committing an
unlawful activity. There should not be a law against breaking locks,
digital or otherwise, since the law must be focused on the underlying
activity (and whether it is lawful or not) and not the generic
technology.
For physical locks on our homes we recognize that breaking a lock as
part of a break-and-enter is entirely different from the home owner
breaking a lock (or hiring a locksmith) to allow them to enter their
own home if they lost all their keys.
In a previous article titled “Access and use “technological measures” - a legal distinction without a technological difference?” I discussed the legal distinction being made in C-61 between “access controls” and “use controls”.
In an article titled “Technical Protection Measures (TPMs) and Educational Use of the Internet”
I made a different set of distinctions between Technical Control
Measures (TCM), Technical Access Measures (TAM), and Technical
Information Measure (TIM).
With these two articles as background, I would like to go through a few quick examples and discuss the controversies.
eMusic
I am a subscriber to the eMusic service for both music and audio books. In a previous article
I went into details of the technology behind the service. The summary
is this: It is an electronic commerce site where subscribers securely
log in and are able to download unencrypted audio files encoded in the
standard MP3 format.
Does this service use any digital locks? Yes: The web server is
itself locked down and makes use of a Technical Access Measure (TAM) in
order to ensure only paid members can access the site, and they only
download the number of songs/books they have paid for.
Is this use of digital locks controversial? No: The lock is being
applied by the owner of the computer (eMusic’s web servers), and they
are not being used to hide any unlawful activities.
Is the protection of this type of lock in the Copyright act
controversial? Yes: While this specific electronic commerce site
happens to be selling access to copyrighted works, this is simply an
electronic commerce site.
In his paper Constitutional Jurisdiction Over Paracopyright Laws, University of Ottawa law professor Jeremy F. Debeer said it this way:
“Although paracopyright provisions are in a way connected to
copyrights, they simultaneously implicate issues typically reserved for
provincial legislators, such as contractual obligations, consumer
protection, e-commerce, and the regulation of classic property.”
The controversy could be avoided by simply having all the aspects of
this type of electronic commerce service adequately protected under
provincial law, including any digital locks used to restrict access to
the electronic commerce service to paying customers. This would be far
more beneficial anyway given it would protect the interests of all
electronic commerce services, not just that extremely narrow subset of
services that happen to be selling access to copyrighted works.
What has been surprising in the Canadian debate is that the two
parties who would otherwise be protecting of provincial jurisdiction
(the Conservatives and the Bloc) are the two parties who appear to be
most supportive of anti-circumvention laws being added to federal
copyright law. I am left wondering if they don’t understand the issues,
or whether they really have any respect for provincial jurisdiction.
Apple’s iTunes
Does this service use digital locks: Yes, and many of them.
Apple’s iTunes service is an locked end-to-end delivery system where
Apple controls everything from their online store (e-commerce
services), to the locked-down desktop software that must be used to
access the store, locks applied to the legally purchased content, and
locks on the subset of devices which must be used to access the
purchased content.
The controversies for each of the locked down component are different.
The locks on the electronic commerce site are no different than the
eMusic service, where the only controversy is the misplacement of the
protection in the federal Copyright act rather than the appropriate
provincial laws.
The locks on the content are controversial as the legal protection
of these locks represent an extension of copyright to include a new
“digital access” right. Copyright holders will now be granted the
exclusive right to decide what specific brands of access technology, or
possibly even individual devices, that are allowed to access the
content. None of the activities which copyright previously regulated
(section 3, 15 or 18 and any act for which remuneration is payable
under section 19) restricted access to a work, but restricted
activities which someone could do once they already had access to the
work.
This new “digital access” right can be harmful in many ways, often
causing the harm which is discussed under section 77 of the competition
act under “refusal to deal” or “tied selling”. Copyright is already a
government granted monopoly over doing specific activities with a work,
and it should be obvious that we need to be very careful extending the
law in ways that will be harmful to the overall economy and to other
non-copyright related markets (such as the market for access tools).
The locks on the desktop software, and the locks on devices are
controversial for what should be obvious property rights reasons. These
locks are being used to protect the rules expressed within the software
from the owner of the device. In the case of the device the analogy
would be to someone other than the owner of a home placing a lock on
the home, and then regulating the activities of or making other demands
of the owner. When we recognize that these are foreign locks, and not
locks applied by the owner, it should follow that we should not be
legally protecting but legally prohibiting this type of harmful
activity.
So, should we be breaking digital locks? The answer, like many
things in law, is: it depends. What it should be dependant on are
things such as who owns what is locked, and whether the lock is being
used to stop an unlawful activity or to perpetrate or hide an unlawful
activity. Recognizing this, it should be obvious that we need the law
to focus on the underlying activity, and not be confused by the fact
that digital locks are involved.
