James Phillips' submission to the 2009 Copyright consultation

This was originally published on the Canadian Copyright consultation website.

James Phillips


I have a general interest in computers and electronics. Because I make a reasonable effort to read EULAs, I have become aware of how various "Intellectual Property," including copyright is used in the computer industry. There is a power struggle going on involving developers, hardware manufactures and users. I don't want to focus on one of the suggested questions; I would rather focus on my most fundamental disagreement with the proposed copyright reforms. If I am required to stick to a specific topic, my comments can be construed as falling under the How do Canada’s copyright laws affect you? How should existing laws be modernized? question.

I have come to the conclusion that the nebulous concept of "Digital Rights Management," approximated by "Effective Technical Protection Measures" in proposed legislation, is an incredibly bad thing. I mean that in the literal sense: it is impossible to explain to the layperson how TPMs (don't) work. They will either conclude that there is something they don't understand, or that you are exaggerating. The reason is that DRM attempts to walk blurry lines between saleable and unusable, viewable and unpublished, user controlled and publisher controlled. To help bridge the gap, I have decided to go to the most "plain English" description of how DRM works I could find: Article 11 of the 1996 WIPO Copyright Treaty. It is one long run-on sentence, but lacks (computer) technical jargon.

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Accessed: Sunday, June 6, 2010

I assert that any legislation implementing Article 11 of the 1996 WIPO treaty must be evil because it is not self-consistent, while imposing heavy penalties. As a result, the government has two options:

  1. Pull out of the 1996 WIPO copyright treaty, as required by Article 22: No reservation to this Treaty shall be admitted.
  2. Define Effective technological measures so narrowly that even well-funded researchers won't trigger the circumvention provision. This can be done by interpreting "effective" to mean irreversible data destruction.

Article 11 requires that Contracting Parties (meaning signatories) provide effective legal remedies (meaning jail time) against the circumvention of ('circumvention' means 'to render ineffective, avoid') effective technological measures (meaning DRM) that are used by authors in connection with the exercise of their rights under this Treaty … (This part is a little muddy for me.). Truly "effective" "technological measures" would not need legal protection, hence the contradiction. This contradiction is a major problem because effective legal remedies are required to prevent you from looking behind the curtain.

Dropping the word "effective" from "technological measures" would not be any better. In that case, it would be possible to violate the law without realizing it. For example, if an auto-loading file (using autorun.ini) is used to implement "copy protection," somebody using an alternate Operating System such as Linux or Mac OS (or a locked-down Windows installation) would have no obvious way of knowing which files are "copy protected." DRM is an attempt to put the genie back in the bottle. Major electronic companies such as Hitachi, Intel, (Panasonic), Sony and Toshiba (Intel DTCP page[1]) are working hard to put it back, but there is reason to believe that DRM can never be truly effective.

Returning to that are used by authors in connection with the exercise of their rights under this Treaty …:

This implies that DRM must conform to copyright law (else be open to circumvention). The reason I call this section "muddy" is that it is a legal mess. Some exceptions to copyright law, such as "fair use"[2] are not clear until decided by a judge in a court of law. In the case of DRM, programmers for the content providers or lawyers for licensing administrators (in the distribution key sense) are interpreting copyright law. This makes any government-backed DRM scheme biased in favor of the "content producers" at the expense of the general public. There is another effect as well: with every "consumer device" locked down by DRM, the barrier to entry for distributing new, independent content is raised.

The following portion worries me as well: and that restrict acts, in respect of their works, which are not authorized by the authors concerned. Assuming that 'and' goes with Contracting Parties shall provide adequate legal protection and effective legal remedies, the above paragraph is moot. A publisher could develop some kind of weird geo-fenced DRM for their e-book that prevents you from reading it in the bathroom ("for safety reasons") and there would be nothing (legal) you could do about it. That is to say, I believe that section allows publishers to write their own arbitrarily restrictive copyright laws.

If it is not feasible to pull out of the 1996 WIPO Copyright Treaty, I propose that effective technological measures be defined as Destroying data in accordance with RCMP data destruction guidelines; as required for protected A data. This implies that popular encryption schemes (for mass media) would not be considered effective because the process is reversible. In the cases that encryption is considered equivalent to destruction, the decryption key must be secret. In the case of DRM, the key is not secret because the recipient and attacker are the same person.

In this submission I have shown that the legal protection of effective technological measures will have far-reaching consequences. They are so ineffective at their stated goal (protecting copyright) that I have to wonder how much thought went into drafting the 1996 WIPO Copyright treaty. The very design of Article 11 implies that the drafters knew that DRM was ineffective. To goal seems to be to criminalize the use of "unauthorized players." Such a move implies the end of the general-purpose computer: a major source of innovation over the past 30 years.

Computers are so compelling that the threat of jail-time will not discourage consumers and businesses from using computers for what they are intended: processing and storing information. The computer doesn't care about copyright. It is up to the user to use it responsibly. Being a technically-minded person, I refuse to buy a locked-down console. My tentative contingency plans included using older hardware, or buying low-power microprocessors intended for embedded use and using those. Recently, somebody steered me to the other end of the spectrum: old mini-computers and rack-mounted servers (not made by Intel).

Further Reading:

[1] Digital Transmission Content Protection (Intel)
Accessed Saturday August 22, 2009
The Right to Read by Richard Stallman (Short story)
Accessed Saturday August 22, 2009
GNU General Public License Version 3, 29 June 2007
Section 3 explicitly says that covered works can not be considered part of an effective technological measure under any applicable law fulfilling obligations under article 11 of the WIPO copyright treaty adopted on 20 December 1996…
RCMP G2-003 – Hard Drive Secure Information Removal and Destruction Guidelines
Accessed over two years ago. Link broken
Guidelines for Clearing and Declassifying Electronic Data Storage Devices (July 2006)
has a lot of the same information, but is not as easy to read because it goes into general details beyond physical media destruction (such as removing labels from drives containing secret information). Accessed Saturday September 12, 2009

[2] Note: Canadian Law has no concept of "Fair use." See "Fair dealing" instead.


James Phillips

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Edited: June 6, 2010.