In an interview by Jesse Brown of CBC’s Search Engine,Jim Prentice suggested that “even for private personal use … one shouldnot be breaking a digital lock”. This statement, along with many othersmade in the interview, suggest that Minister Prentice does notunderstand the controversy around the uses and abuses of digital locks.His suggestion that the recording industry has been moving away fromdigital locks also reminds us that he is unaware that most of thecontroversy is not around locks applied to content, but locks appliedto 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 — locksbeing used to keep intruders out. With this belief they suggest furtherthat it should simply be illegal to break digital locks.
Locks are a generic technology that is neither good nor bad. A lockcan be used to help reduce unlawful activity, but it can also be abusedto hide an unlawful activity or be abused as part of committing anunlawful activity. There should not be a law against breaking locks,digital or otherwise, since the law must be focused on the underlyingactivity (and whether it is lawful or not) and not the generictechnology.
For physical locks on our homes we recognize that breaking a lock aspart of a break-and-enter is entirely different from the home ownerbreaking a lock (or hiring a locksmith) to allow them to enter theirown 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 ControlMeasures (TCM), Technical Access Measures (TAM), and TechnicalInformation Measure (TIM).
With these two articles as background, I would like to go through a few quick examples and discuss the controversies.
I am a subscriber to the eMusic service for both music and audio books. In a previous articleI went into details of the technology behind the service. The summaryis this: It is an electronic commerce site where subscribers securelylog in and are able to download unencrypted audio files encoded in thestandard MP3 format.
Does this service use any digital locks? Yes: The web server isitself locked down and makes use of a Technical Access Measure (TAM) inorder to ensure only paid members can access the site, and they onlydownload the number of songs/books they have paid for.
Is this use of digital locks controversial? No: The lock is beingapplied by the owner of the computer (eMusic’s web servers), and theyare not being used to hide any unlawful activities.
Is the protection of this type of lock in the Copyright actcontroversial? Yes: While this specific electronic commerce sitehappens to be selling access to copyrighted works, this is simply anelectronic 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 tocopyrights, they simultaneously implicate issues typically reserved forprovincial legislators, such as contractual obligations, consumerprotection, e-commerce, and the regulation of classic property.”
The controversy could be avoided by simply having all the aspects ofthis type of electronic commerce service adequately protected underprovincial law, including any digital locks used to restrict access tothe electronic commerce service to paying customers. This would be farmore beneficial anyway given it would protect the interests of allelectronic commerce services, not just that extremely narrow subset ofservices that happen to be selling access to copyrighted works.
What has been surprising in the Canadian debate is that the twoparties who would otherwise be protecting of provincial jurisdiction(the Conservatives and the Bloc) are the two parties who appear to bemost supportive of anti-circumvention laws being added to federalcopyright law. I am left wondering if they don’t understand the issues,or whether they really have any respect for provincial jurisdiction.
Does this service use digital locks: Yes, and many of them.
Apple’s iTunes service is an locked end-to-end delivery system whereApple controls everything from their online store (e-commerceservices), to the locked-down desktop software that must be used toaccess the store, locks applied to the legally purchased content, andlocks on the subset of devices which must be used to access thepurchased content.
The controversies for each of the locked down component are different.
The locks on the electronic commerce site are no different than theeMusic service, where the only controversy is the misplacement of theprotection in the federal Copyright act rather than the appropriateprovincial laws.
The locks on the content are controversial as the legal protectionof these locks represent an extension of copyright to include a new“digital access” right. Copyright holders will now be granted theexclusive right to decide what specific brands of access technology, orpossibly even individual devices, that are allowed to access thecontent. None of the activities which copyright previously regulated(section 3, 15 or 18 and any act for which remuneration is payableunder section 19) restricted access to a work, but restrictedactivities which someone could do once they already had access to thework.
This new “digital access” right can be harmful in many ways, oftencausing the harm which is discussed under section 77 of the competitionact under “refusal to deal” or “tied selling”. Copyright is already agovernment granted monopoly over doing specific activities with a work,and it should be obvious that we need to be very careful extending thelaw in ways that will be harmful to the overall economy and to othernon-copyright related markets (such as the market for access tools).
The locks on the desktop software, and the locks on devices arecontroversial for what should be obvious property rights reasons. Theselocks are being used to protect the rules expressed within the softwarefrom the owner of the device. In the case of the device the analogywould be to someone other than the owner of a home placing a lock onthe home, and then regulating the activities of or making other demandsof the owner. When we recognize that these are foreign locks, and notlocks applied by the owner, it should follow that we should not belegally protecting but legally prohibiting this type of harmfulactivity.
So, should we be breaking digital locks? The answer, like manythings in law, is: it depends. What it should be dependant on arethings such as who owns what is locked, and whether the lock is beingused to stop an unlawful activity or to perpetrate or hide an unlawfulactivity. Recognizing this, it should be obvious that we need the lawto focus on the underlying activity, and not be confused by the factthat digital locks are involved.