An Analysis of Bill C-61: It Sucks, But It’s Not As Bad As You Think

by Eric March on June 12, 2008 at 10:55 pm

Canadian Industry Minister Jim Prentice introduced Bill C-61, a revision of his proposed amendments to the Canadian Copyright Act to parliament today. Being that parliament is a mere three days away from its summer break, this is the very definition of a dump & dash — but that’s another issue. His revisions have fortunately eased some of the concerns of consumers by making some concessions for personal use copying, but from where I sit, they neither go far enough, nor does the wording of the bill seem to indicate that Prentice has a firm enough grasp on the technology he is proposing to regulate more firmly to have any business crafting this bill in the first place.

For those that don’t want to read the entire bill, or don’t have a firm enough grasp on the legalese it contains to understand what’s what, the government has helpfully provided a Cliff Notes “Fact Sheets” version that goes over the salient points and explains them in plain English for everyone to see how flawed this bill remains and how it can still interfere with common uses of personal media players like the iPod.

This is going to be a long and fairly dense one, fellow Canadians, but if you’re interested in where your digital rights may be headed, it’s worth a read.

Let’s have a look at a few of the more salient points from the fact sheets here:

Format Shifting
Format shifting is the simple process of copying media from one format — like CD or DVD — to another format — like your iPod. Where music is concerned, fortunately, you are allowed to format shift to your heart’s content, any music in any format (CD, DVD-A, SACD, whatever) you legally own to any other format, for personal, private use. The catch? In what you will shortly see is a recurring theme, you cannot circumvent any digital copy protection measures (DRM) in order to do so. That means that even if you bought two copies of a CD — one for your CD player, one for your MP3 player — you still couldn’t shift formats without breaking the law because you would need to circumvent the DRM in order to do so. Other restrictions are of the obvious sort: You can’t sell or give away the copies or make copies of anything you don’t legally own (i.e. borrowed or stolen material), etc.

Things get much stickier when it comes to other media, however. You are allowed to make personal copies of books, newspapers, periodicals, photographs, or video tapes you legally own in any format you want to store them in — one copy for each device you want to format shift to. That’s all fine and well, great for making eBooks and whatnot, but do you notice anything missing from this list? If you said DVD (including HD-DVD and BluRay) then you get a cookie. This part of the bill states, “With respect to audiovisual material such as films, the format-shifting provision would apply only to videocassettes and would not allow you to make copies of material stored on other media, such as DVDs.” I suspect Prentice has hopped straight into bed with the MPAA on this one because of all the whining they did last year about what horrible, horrible movie pirates we Canadians are. (Not that it makes much difference in the end, but the vast majority of those pirated movies came out of Quebec, though I’m not sure why — lax movie theater security in La Belle Provence, perhaps?)

Also, as with music, you can’t circumvent any copy protection in order to format shift — not that it matters. It’s a bit hard to apply DRM to paper media, and while many video cassettes did include copy protection in the form of Macrovision, this wasn’t really protection so much as simply putting randomly flickering black and white borders in the overscan area of the video frame in order to make the recording device’s automatic gain control go nuts with the brightness levels to compensate, which resulted in a copy that would randomly appear too dark in places. You can’t circumvent that because there’s nothing to disable; it’s embedded into the video frames. I suppose you could capture it on your computer and crop out the overscan area if you really wanted, but that’s too much work to bother.

Time Shifting
This is the bit that concerns PVRs, and was one of the points of contention in the unfinished draft that caused much speculation. (Not that the rest didn’t.) Time shifting is simply recording a television broadcast for later review, and the bill says that this is A-OK. BUT (oh come on, you knew there was going to be a but) you can’t keep the recording forever. Section 29.23(1)(d) of the proposed bill says, “the individual keeps the recording no longer than necessary in order to listen to or watch the program at a more convenient time;” The implication here is that you’re cool to TiVo it and watch it later, but you can’t hang on to it, and they’d probably give you a bit of the stink-eye if you watched it more than once. This is one of those fuzzy propositions where there’s no set time limit, but, y’know, you really should get to watching that episode of That’s So Raven that you recorded two weeks ago, and then maybe delete it, yeah? There’s a good citizen. The rest includes the usual restrictions that have already been in place for ages — no public broadcasts, no selling it or giving it away, yadda yadda yadda.

It is revealing that these sections are introduced with the statement that the current copyright act does not specifically provide for copying of media to other devices or legally define what’s right or wrong — as though the introduction of this bill would finally clarify that and put a good citizen’s mind at ease by clearly defining that once gray area of copyright law. It speaks to the knowledge of its drafters that this bill is going to leave a bad taste in the public’s mouth and so needs to be spun as though the clarification this bill provides is a good thing that will finally say “this is good” and “that is bad.” Fact is, the copyright act as it stands didn’t specifically forbid any of this either, because at the time of its revising in 1998, none of these were issues and so could not be addressed.

Limitations on Statutory Damages
Okay, this part of the bill is pretty good. Under the current legislation, you could be liable for up to $100,000 in damages if found guilty of copyright infringement, the actual amount depending on the number and severity of infringements. Under the new proposed bill, statutory damages on copyright infringements would be limited to a maximum of $500 for the first infringement, and actual damages (meaning the actual value of the work you copied) for all subsequent infringements. While I do not by any means advocate going and infringing your fool head off because the damages are comparatively small, I do applaud this measure for the simple fact that it would severely limit how much the CRIA could hit you up for. Unlike the RIAA in the US, where they spit out hundred thousand dollar lawsuits against infirm octogenarians for allegedly downloading bootleg Lawrence Welk CDs, this new proposition would put a huge kybosh on the non compos mentis that make up their Canadian chapter by limiting the amount they could sue for to $500 plus actual damages for any further infringements. This effectively eliminates those absurd $2,000-per-infringement suits that the RIAA is so fond of south of the border. If you are sued for and subsequently found guilty of copying, say, ten CDs of ten songs each, then you could be fined a theoretical maximum of $599 — that’s $500 for the first infringement (assuming the maximum penalty is granted) and $1 per song thereafter (assuming the current going rate of individual digital downloads through iTunes.) That’s not to say they won’t still snoop at your net connections and sniff around for evil, evil piracy.

The penalty differs significantly for those who are found guilty of providing the means for circumventing copy protection (cracking). Those who design and distribute cracks or other means of bypassing copy protection could be held liable for between $500 and $20,000 per infringement. Clearly, they’re really stomping on the heads of the hackers who make piracy possible in the first place.

Liability of Internet Service Providers

Currently, ISPs are not held liable for the copyright violations of the users, and do not divulge subscriber information without a court order — and even then they will usually challenge the order to protect the privacy of their customers. Instead, they voluntarily participate in a “notice and notice” system, where the owner or representative of an owner of a copyrighted work who finds (through whatever means) that you have infringed on their copyright will send a notice to the ISP, who will then forward that notice to the offending subscriber. It’s usually on the order of a warning for first, and possibly one or two subsequent offenses, but repeated offenses can generally result in legal action being taken against you. It is a good system because it prevents the RIAA style of lawsuit where they file suit against an IP address rather than an actual person, and then file for a court order to get the ISP to divulge the identity of the user who had that IP address at the time of the infringement. The good news is that ISPs will be allowed to continue to follow the “notice and notice” system — actually, it will become mandatory rather than voluntary under the proposed bill. There is no information here on whether or not ISPs will be compelled to reveal the identity of a subscriber if the rights holder or their representative gets a court order ofr it — that is to say, there’s no information stating that ISPs would not be allowed to challenge said court orders, so for all intents and purposes it seems as though it’s going to be more or less business as usual on this front.

Technology Measures and Digital Locks
Ah. Now we come to a bone of contention that is a huge sticking point for many — the big one, as it were. Speculation has run wild that this would apply to anything from console mod chips to cell phone unlocking. You’ll recall above that I went over the penalties for those who design and distribute means by which copy protection could be circumvented — cracks and such. This is where we get to the language that describes what exactly is verboten that could incur such penalties. Well, sort of. You see, this section of the proposed bill is incredible vague.

Section 41 describes “circumvention” as “in respect of a technological measure within the meaning of paragraph (a) of the definition “technological measure”, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological measure, unless done with the authority of the copyright owner; and in respect of a technological measure within the meaning of paragraph (b) of the definition “technological measure”, to avoid, bypass, remove, deactivate or impair the technological measure.“

In other words, any crack or means to bypass a method of copy protection. By this alone, you could take it to mean any kind of hack — be it a crack, a mod chip, a DRM stripper, or a program to unlock a cell phone. But this alone is an incomplete assessment, because it is used in conjunction with circumventing a technological measure, or TM.

“Technological measure” in this case is defined as “any effective technology, device or component that, in the ordinary course of its operation, controls access to a work, to a performer’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; or restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.“

Ooh. Murky. Although it seems to go on about a performer’s sound recording, the lynchpin of this paragraph is the word “work” which, oddly enough, includes sound recordings. Why they called out a performer’s sound recording outside of the umbrella term “work” is beyond me. Nevertheless, the term “work” is quite broad in that it can mean any piece of intellectual property that can be copyrighted and for which there are technological measures in place to prevent it from being copied or otherwise used in a manner other than the rights holder has intended. Still, most of this is relatively meaningless without context, so let’s look a little deeper.

Section 41.1(1)(a) says, simply enough — or as simple as the legalese in a bill can be — that no person shall “circumvent a technological measure within the meaning of paragraph (a) of the definition “technological measure” in section 41;” In other words, no cracking or stripping of DRM.

Sections 41.1(1)(b-c) are a little long winded:

(b) [no person shall] offer services to the public or provide services if

(i) the services are offered or provided primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological measure, or

(iii) the person markets those services as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market those services as being for those purposes; or

(c) manufacture, import, provide — including by selling or renting — offer for sale or rental or distribute any technology, device or component if

(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a techno- logical measure, or

(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

In brief: No cracking or stirpping DRM for other people, no making hardware or software components that are pretty much exclusively designed to crack or strip DRM from a copyrighted work, and no supplying people with such circumvention technology even if you’re not the one that designed it unless you have a damn good and legal reason to do so. (eg. there are some exemptions to some of these restrictions for educators and officially sanctioned archivists and such, and there are provisions for the purpose of reverse engineering — in other words, many of the same things that follow the fair use doctrine.)

So what does this mean in practical terms? Well, I suppose that’s the problem. It’s a bit hard to nail down exactly what it’s referring to. What are the boundaries of “a work?” Where does simply hacking (gaining access to by means of circumventing measures to prevent such access) end and full-on cracking or bypassing protection measures begin? Is there a difference in the eyes of this bill?

It’s probably a good bet to say that mod chips are a big no sir. Mod chips have been outlawed elsewhere, so it would come as no surprise if Canada followed along.

What about cell phone unlocking? Jailbreaking of the iPhone and iPod Touch? There’s a bit more uncertainty here. With regards to unlocking cell phones, that doesn’t seem to be covered here. Locking cell phones to carriers isn’t under the purview of the copyright act because it’s not a means of copy protection — a “technological measure.” It’s just a way for a carrier to keep you from leaving to go somewhere else.

Jailbreaking? I’m still going to have to say that this bill is not applicable here, either, because again, you are not circumventing a means of copy protection. You are simply gaining access to a system’s architecture, generally for the purpose of enhancing its functionality. You aren’t copying anything here, nor are you cracking anything, strictly speaking. The “work” — the operating system in this case — for all intents and purposes remains intact. It’s really no different than hacking your way into a person’s computer who has placed a password or a biometrics system on it to prevent unauthorized access. At best it is a civil matter, not a criminal one.

All in all, this is still a bill with some significant flaws in it, but it is not quite as bad as I feared. It still needs a lot of work, though, and the vague and sometimes obfuscatory language used makes it clear that this was rushed to parliament while the ink was still wet. Even so, Bill C-61’s chances of being ratified by Harper’s minority government aren’t that great, and in the end this may just become something they can chuck back at WIPO while muttering a placatory “oh well, we tried.”

I wouldn’t sweat it too much, fellow Canucks. The bill has teeth, but they’re small, they’re dentures, and the Tories might not have enough Super Polygrip to make them stick anyway.

Disclaimer: I am not a lawyer, nor do I play one on TV, so should this bill defy the odds and get its bad self ratified, do not take any of this as legal advice. For all you should be concerned, I could be talking out my buttcheeks in a manner not entirely unlike Jim Carey as the wacky Ace Ventura, because that’s what my legal advice is worth. I’ve tried my best to boil this bill down into manageable, bite-sized chunks fit for human consumption on a level only slightly better than a store-brand meat pie, but I may be wrong in places and I may have misinterpreted things in others, so if you decide to take any of this at face value, you do so at your own peril, and should the CRIA or MPAA or some other four-letter word come pounding on your door looking for compensation for that Celine Dion CD you downloaded as a result of the mistaken belief that I told you it was OK to do so (and for the record, Celine Dion is never OK), don’t come crying to me. And don’t harsh on me about my run-on sentences. I have freakishly large lung capacity.

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