Why the ability to circumvent TPMs is important

This letter is a response to the essay entitled Legends and reality about the 1996 WIPO Treaties in the light of certain comments on Bill C-32, by Dr. Mihály Ficsor; published June 17th, 2010 at the linked location.

I read a least half of your essay. It did not say anything that contradicted what I already knew.

In my 2009 Copyright Consultation submission, I suggested Canada may have to pull out of the 1996 WIPO treaties to avoid giving effective technological measures legal protection. The alternative would be to define the term effective technological measures so narrowly (irreversible physical media destruction), nobody would be charged.

As you point out, the drafters of the WCT and WPPT treaties had to realize that any measure, no matter how sophisticated, would never work. IMO, that makes article 11 of WCT and article 18 of WPPT, self-contradictory. Having self-contradictory legislation is generally considered a bad thing.

The ban of circumvention devices would necessarily ban "general-purpose computers," a great source of innovation over the past 30 years. A computer that cannot circumvent a TPM because it is designed not to is, by definition, no longer a general-purpose computer. This raises the question: Why is the ability to circumvent TPMs important?

  1. TPMs can be used as a censorship tool.
  2. The programmers of TPMs can not be trusted to follow the law.
  3. Nor should they be Judge, jury and executioner.
  4. Barriers to entry for creating new creative works are raised.
  5. Such broad, contradictory legislation will have unintended consequences.

The ease of copying afforded by digital copying is not new; indeed, the rise of low-cost cost, digitally reproduced copies is what first prompted the invention of copyright law. What is different is that copies now happen in the mathematical domain. A fixation intended for personal use can be transformed into a format suitable for public performance. Text mediums can be transformed into audio books by a robotic reader. Ads can be painted on blank walls for a video destined to Internet distribution. Savvy viewers can later remove those same ads using similar techniques. Banning the circumvention of "Mathematical Locks" will not prevent that, only push it underground where it is harder to monitor and regulate.

Valid HTML 4.01 Strict Valid CSS!

Edited: July 6, 2010.