Industry Canada disappoints anti-TPM petitioners

The federal government ignored key elements of a petition asking for protection of IT property rights, according to the lobbying activist group who says Ottawa is protecting legacy business models.

The petition, which was brought to the government by Digital Copyright Canada earlier this year, called for a prohibition on technological protection measures (TPMs) that are used in hardware devices without the consent of the device’s owner. It also asked for Parliament to recognize the citizen’s rights to control their own communication devices and have the freedom to choose any software they wish.

According to the lobbyist group, the government’s response – signed by former Industry Minister Maxime Bernier – avoided technology property rights issues and instead focused exclusively on copyright issues. Industry Canada said the government is continuing to review Canada’s Copyright Act to weigh effective deterrents to copyright infringement versus the legal realities which innovation, research and consumer choice.

“The government will be mindful of the perspective raised by the petitioners as it considers copyright amendments to address the Internet and new technologies, including the use and application of technical protection measures to copyright content,” the Industry Canada response read. “The government wishes to thank the petitioners for drawing attention to these important copyright issues involving technological protection measure and their use, and looks forward to hearing from Canadians, whether rights holders, intermediaries or users of copyright material, as it moves forward with copyright reform.”

Russell McOrmond, an Internet consultant and head of Digital Copyright Canada, said he was frustrated by the government’s off-topic response. He said the petition was primarily concerned about locks being put on hardware devices, rather than on merely copyrighted content.

“If somebody put a lock on my house and said that I’m not allowed to enter it without somebody else’s permission, most people would think that’s illegal and some would go as far to suggest that’s theft,” McOrmond said. “So, why is it that if a lock is put on our iPod that it isn’t theft? Well, it’s actually the same thing because it’s somebody other than the owner putting a lock on it.”

McOrmond considers TPMs, which is defined as the use of technological tools to restrict the use of a digital work, to be counterproductive in protecting copyrighted content. He said the idea of using technology to protect content is absurd and works to sacrifice tangible property rights for the sake of protecting business models.

“If you look at the platform of pretty much every conservative party all over the world, usually platform plank No. 1 is the protecting of private property rights,” McOrmond said. “And in this case, they’re saying, ‘Well, we have some high powered lobbyists that have come in and for the sake of protecting they’re outdated business models, we’re essentially going to eradicate private rights.’”

As for why the government chose to ignore the property rights issue, McOrmond has a theory. He said the Canadian government might be thinking the same way on this issue as south of the border groups like the National Information Insfrastructure (NII) task force.

“They might have drank the same Kool-Aid that the U.S. did about a decade ago,” McOrmond said. “The theory [the NII] came up with was that if new technology can be abused to infringe copyright, then non-professionals should be allowed to own and control them. This is a ludicrous suggestion.”

And as troubling as the situation is now for McOrmond, it’s the future of TPM in hardware devices that he worries about most. To illustrate his fears, McOrmond warned of the potential consequences a TPM can have if into a device such as home camcorder.

“Let’s say you were trying to record the first steps of your child and you happened to have a television set with an episode of The Simpsons in the background of the shot,” McOrmond said. “If the content on the television has an encrypted watermark, your camcorder would just shut off because it has no way of telling the different between a pirate and a parent.”

This debate is also of interest to IT security researchers, some who say that a poorly drafted law around TPMs could restrict their ability to protect their clients from viruses. Brian O’Higgins, CTO at Ottawa-based Third Brigade, said that making it illegal to remove a TPM, which could appear on malware files, could be the unintended negative consequence to the copyright reform laws.

“Security researchers look at potential schemes, break existing ones, and try to build a better protection,” Higgins said. “Well, this could mean that kind research is illegal. For example, what if there’s a vulnerability in a commonly used piece of software that lives in all servers and that vulnerability is related to a TPM mechanism. What do you do?”

Despite these concerns, O’Higgins has hope that the government will continue to work on this issue in the near future and hopes efforts such as the Digital Rights petition plays a role in influencing that.

“Input goes into the system, it gets to the staffers, and I know from my own interaction with some of them that they are generally working hard and looking for the a good solution,” O’Higgins said. “We hope that something good comes out from this and also that people who have concerns continue to make it clear to the government.”

But McOrmond isn’t so sure of that, and said that he doesn’t want Canada’s copyright laws to continue following the lead of legislation like the U.S.’s Digital Millennium Copyright Act. That law criminalizes production and dissemination of technology, devices, and services used to avoid TPM measures.

“Disallowing people to control their own devices means that software embedded in any communication technology would be under the control of the device owner,” McOrmond said. “Everything we’ve learned from hundreds of years of property law should be included in this debate. As soon as you allow people other than the owners to put locks on things, you’re going to violate property rights.”

Industry Canada did not respond to requests for an interview at press time.

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