[Politech] Will DMCA be America's latest export? by Michael Geist [ip]

From: Declan McCullagh (declan@private)
Date: Mon Jan 31 2005 - 21:00:53 PST


-------- Original Message --------
Subject: 	Is Canada Headed Toward a Canadian DMCA?
Date: 	Mon, 31 Jan 2005 20:56:07 -0500
From: 	Michael Geist <mgeist@private>
To: 	declan@private


Declan,

Of possible interest to Politech -- my weekly Toronto Star Law Bytes
column examines whether Canada may be headed toward a Digital Millennium
Copyright Canada Act. The column explores the risks associated with
technological protection measures alongside anti-circumvention
legislation and the potential that Canada may adopt DMCA-like provisions
into its copyright law.

Column, posted in full below, at
<http://geistcanadiandmca.notlong.com>

MG


*`TPMs': A perfect storm for consumers*
*Michael Geist*
*Toronto Star*

During last fall's U.S. presidential election, CBS News featured a
controversial report on President George W. Bush's military service. The
report, which relied on unverified documents, generated enormous media
coverage, eventually leading to a public apology and the upcoming
retirement of veteran news anchor Dan Rather.

  Several weeks ago, an independent panel released a 234-page report on
the incident as CBS News continued its efforts to abate the scandal. Two
days after the freely available report was released, Internet users
noticed that attempts to electronically copy and paste sentences from
the lengthy report were rendered impossible as CBS's lawyers had
inserted a technological feature into the document that prevented any
form of electronic copying.

Although the use of the technological restriction was relatively
unimportant - a speed bump rather than a full blocking mechanism - its
use highlights the increasing reliance on technological protection
measures (TPMs) to control access to, and use of, digital content. The
proliferation of technological protection measures, alongside new
legislative proposals designed to protect these digital locks, represent
a perfect storm of danger to consumers, who may find themselves locked
out of content they have already purchased, while sacrificing their
privacy and free speech rights in the process.

  Owners of online databases and other digital content deploy
technological protection measures (sometimes referred to as Digital
Rights Management or DRM) to establish a layer of technical protection
that is designed to provide greater control over their content. The
content industry has touted technological protection measures' promise
for more than decade, maintaining that technological locks could prove
far more effective in curtailing unauthorized copying than traditional laws.

While technological protection measures do not provide absolute
protection - research suggests all technological protection measures can
eventually be broken - companies continue to actively search for
inventive new uses for these technological locks.

  In certain instances their use is obvious to consumers. For example,
DVDs contain a content scrambling system that limits the ability to copy
even a small portion of a lawfully purchased DVD.

  Similarly, purchasers of electronic books often find that their e-books
contain limitations restricting copying, playback, or use of the e-book
on multiple platforms. In fact, e-books are frequently saddled with far
more restrictions than are found in the paper-based equivalent.
Sometimes the use of a technological protection measure is far less
obvious, manipulating markets to the detriment of consumers, rather than
protecting content. DVDs also typically contain regional codes that
limit the ability to play a DVD to a specific region. The consumer is
often unaware of the regional code until they purchase a DVD while on
vacation in one region only to find that they cannot play the disc on
their DVD player when they return home.

  Of even greater concern is the increasing use of technological
protection measures in completely unexpected environments. For example,
Hewlett-Packard has begun to install technological protection measures
into their printer cartridges. The technology is used to block consumers
from purchasing cartridges in one region and using them in another,
thereby enabling the company to maintain different pricing structures
for the same product in different global markets.

Despite the proliferation of technological protection measures, few
consumers are aware of their existence and many manufacturers are loath
to disclose their use. In fact, consumers may soon find that these
technological limitations force them to incur significant new costs as
they face little alternative but to re-purchase content so that it
functions on their personal computer or other favourite device. The
industry acknowledges as much, as according to Kevin Gage, a
vice-president with the Warner Music Group, this year we will begin to
see people with "large libraries of content that won't play with their
devices."

  The impact of technological protection measures also extends far beyond
consumer fairness. The same technologies can function much like spyware
by invading the personal privacy of users. For example, technological
protection measures can be used to track consumer activity and report
the personal information back to the parent company.

  There is also concern that technological protection measures can be
used to induce security breaches. Recent reports indicate that hackers
are using these technologies in the Microsoft Windows Media Player to
trick users into downloading massive amounts of spyware, adware, and
viruses.

  While the potential for technological protection measure abuse may
appear obvious, Canadian policy makers have actually been racing toward
increasing the use and legal protections afforded to technological
protection measures. Canadian Heritage has provided funding to
technological protection measure initiatives to help facilitate their
development, while parliamentarians, led by Canadian Heritage Minister
Liza Frulla and Industry Minister David Emerson, have been jointly
working on a copyright reform package that would reportedly grant
technological protection measures additional legal protections.

The experience with technological protection measure legal protection in
the United States, which enacted anti-circumvention legislation as part
of the Digital Millennium Copyright Act (DMCA) in 1998, demonstrates the
detrimental impact of this policy approach - Americans have experienced
numerous instances of abuse that implicate free speech, security, user
rights under copyright, and fair competition.

  >From a free speech perspective, the CBS News case represents only the
latest in a series of incidents where speech was chilled under the
threat of legal action due to technological protection measure and
anti-circumvention legislation. For example, several years ago Edward
Felten, a Princeton researcher, sought to release an important study on
encryption that included circumvention information. When he publicly
disclosed his plans, he was served with a warning that he faced
potential legal liability if he publicly disclosed his findings. The
impact on security, particularly in the wake of 9/11, has been similarly
disconcerting. Many computer science researchers have foregone working
on sensitive security and encryption matters due to legal fears,
pointing to the arrest and imprisonment of Dmitry Sklyarov, a Russian
software programmer who spent several months in a California jail in
2001 after he traveled to the U.S. to discuss a circumvention software
program at a conference. That incident led leading former Cyber-security
Czar Richard Clarke to acknowledge that "a lot of people didn't realize
that [the DMCA] would have this potential chilling effect on
vulnerability research."

  Companies have not shied away from using prohibitions on circumventing
technological protection measures to limit competition. Lexmark, another
leading printer company, sued a rival printer cartridge company for
copyright infringement for circumventing technological protection
measures designed to prevent consumers from using the rival company's
printer cartridges in Lexmark printers. Similarly, Chamberlain, a garage
door opener company, sued Skylink for creating a universal remote
control that interoperated with its garage door opener by circumventing
a technological protection measure. In both instances, appellate courts
recently denied the suits, but fear of a potential lawsuit may be
sufficient to stop competitive activity in its tracks.

  >From a traditional copyright perspective, anti-circumvention
legislation, acting in concert with technological protection measures,
has steadily eviscerated fair use rights such as the right to copy
portions of work for research or study purposes, since the blunt
instrument of technology can be used to prevent all copying, even that
which copyright law currently permits. They also have the potential to
limit the size of the public domain, since in the future work may enter
public domain as its copyright expires, yet that content may be
practically inaccessible as it sits locked behind a technological
protection measure.

Notwithstanding the U.S. experience, there is every indication that
adoption of these legal provisions is marching forward in Canada leading
to a potential DMCCA - the Digital Millennium Copyright Canada Act. This
despite the fact that the U.S. model need not be imitated in order to
meet Canada's international obligations and the fact that important
advocates, such as the Privacy Commissioner of Canada, who recently
wrote to Industry Canada and Canadian Heritage to request future
consultation on the privacy impact of copyright reform, have yet to be
heard.
In fact, the time has come for all Canadians to speak out and to tell
the responsible ministers along with their local MPs what is
increasingly self-evident. Canada does not need protection for
technological protection measures. In order to maintain our personal
privacy, a vibrant security research community, a competitive
marketplace, and a fair copyright balance, we need protection/ from/ them.

-- 

**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist@private              http://www.michaelgeist.ca
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