The digital-copyright.ca domain was set up for a specific campaign that started in the summer of 2001 as the Canada DMCA Opponents forum.
The last post was in 2015 when that election was called, and all the electoral district boundaries would be changing.
While I won't be publishing the archive any more, all the pages are on Archive.org's WayBack Machine.
Showing posts with label DMCA. Show all posts
Showing posts with label DMCA. Show all posts
Thursday, July 15, 2021
Closing digital-copyright.ca
Thursday, December 14, 2017
We wouldn't even be having this conversation if it was cars rather than computers!
Section 92 of Canada's copyright act indicates:
On December 13'th the following was included in a motion by Bardish Chagger Leader of the Government in the House of Commons and Minister of Small Business and Tourism:
This indicates that in the new year that the INDU committee will be reviewing the Copyright Act.
I was actively involved in the process last round. I joined the process in the summer of 2001 when I heard that Canada was contemplating adding "technological protection measures" to our Copyright Act. Software authors already understood the harm from the anti-circumvention aspects of the USA's Digital Millennium Copyright Act (DMCA).
In an earlier article I discuss a layered model for road transportation, and that "technological protection measures" (TPMs) are actually a restriction on who is allowed to drive (IE: author software for), or choose drivers for, communications technology.
While I don't have a drivers license or drive a car, I have been driving computers since 1981. The rights of computer owners to drive their own computers, or choose their own drivers if they don't have the skills themselves, should be understood as fundamental a right as driving automobiles already is to the rest of society.
I had to get involved in this policy discussion, even though it never made sense to me that we were even having the discussion. I acknowledge that technology, whether transportation or communications technology, can be abused in breaking the law. While this has always been true of vehicles, there has never been a serious policy discussion about disallowing vehicle owners the right to drive their own vehicles, or disallow them to choose their own drivers if they didn't have those skills. The only reason we were having this conversation is because policy makers, similar to the general public, lack adequate literacy on communications technology which we all take for granted for transportation technology.
While the section 92 review was announced in the summer of 2001, it wasn't until October 2003 that submissions were due. My first formal submission to that process is available through my website. In the summer of 2001 I started a discussion forum called "canada-dmca-opponents" which grew into the Digital Copyright Canada website.
I spent considerable time from 2001 through the passage of Bill C-11 in 2012 active in that area of policy. This included only accepting part-time jobs so that I could participate. When I started my current job in 2011 I only accepted an 80% contract so that I could attend every Bill C-32 and Bill C-11 committee meeting.
While my focus was on the rights of technology owners, false claims were often made about my views on copyright. It was frequently suggested that if I was opposed to TPMs, the only possible reason could be because I didn't believe authors should get paid. As a software author myself this was a ludicrous suggestion, and yet even some of the most sympathetic journalists would falsely claim I was an "anti-copyright crusader".
This would never have happened if we were talking about cars rather than computers. Someone claiming that the only reason someone wants to drive their own car is because they wish to break the law or are a criminal would be appropriately laughed out of the room. Unfortunately when it comes to technological measures, few recognize just how ridiculous it is.
It took me years to realize just how low technology literacy is within policy circles. Most of the conversations about TPMs come from the belief that it is something applied to copyrighted works, and that these measures allow decisions to be made (can copies be made, under what conditions, etc). This is similar to believing that a paperback book is sentient, and can come alive and autonomously run away if the reader of the book tries to do something the book doesn't like. I have come to refer to this as the "Harry Potter" understanding of TPMs. While purely based on fiction, this is the most common misunderstanding of TPMs.
If we were talking about cars rather than computers, people with such a low literacy of the relevant subject matter would not be considered experts or be allowed to dominate the debate.
I wish the review of the Copyright act would be about Copyright law.
I've learned quite a bit by speaking with fellow creators and creator groups, and have knowledge of the wide variety of market changes each group is facing. In nearly all cases there are legitimate changes in which intermediaries are involved in the relationships between creators and their audiences. While there are many intermediaries crying fowl at these advancements, the vast majority of the changes I've observed are positive for creators and should be encouraged. In many cases when there are infringements, these are infringements induced by the harmful business practices of specific intermediaries: they are infringements that could be handled with an "inducement" regime for contributory infringements, rather than the incorrect focus of the "enablement" policy that was added as part of C-11.
I am forced again to focus on TPMs this round of Copyright Act review. While it may be true that some copyright holders use TPMs, it has no more place in Copyright law than a National Energy Program has simply because some copyright holders use electricity.
I look forward to a future when the Copyright Act only has Copyright related provisions in it, and we can finally have a proper conversation about modernizing copyright law that isn't tainted by being dominated by non-copyright related discussion.
Review of Act
92 Five years after the day on which this section comes into force and at the end of each subsequent period of five years, a committee of the Senate, of the House of Commons or of both Houses of Parliament is to be designated or established for the purpose of reviewing this Act.
1997, c. 24, s. 50; 2012, c. 20, s. 58.
On December 13'th the following was included in a motion by Bardish Chagger Leader of the Government in the House of Commons and Minister of Small Business and Tourism:
(c) the Standing Committee on Industry, Science and Technology be the committee designated for the purposes of section 92 of the Copyright Act; and
This indicates that in the new year that the INDU committee will be reviewing the Copyright Act.
I was actively involved in the process last round. I joined the process in the summer of 2001 when I heard that Canada was contemplating adding "technological protection measures" to our Copyright Act. Software authors already understood the harm from the anti-circumvention aspects of the USA's Digital Millennium Copyright Act (DMCA).
In an earlier article I discuss a layered model for road transportation, and that "technological protection measures" (TPMs) are actually a restriction on who is allowed to drive (IE: author software for), or choose drivers for, communications technology.
While I don't have a drivers license or drive a car, I have been driving computers since 1981. The rights of computer owners to drive their own computers, or choose their own drivers if they don't have the skills themselves, should be understood as fundamental a right as driving automobiles already is to the rest of society.
I had to get involved in this policy discussion, even though it never made sense to me that we were even having the discussion. I acknowledge that technology, whether transportation or communications technology, can be abused in breaking the law. While this has always been true of vehicles, there has never been a serious policy discussion about disallowing vehicle owners the right to drive their own vehicles, or disallow them to choose their own drivers if they didn't have those skills. The only reason we were having this conversation is because policy makers, similar to the general public, lack adequate literacy on communications technology which we all take for granted for transportation technology.
While the section 92 review was announced in the summer of 2001, it wasn't until October 2003 that submissions were due. My first formal submission to that process is available through my website. In the summer of 2001 I started a discussion forum called "canada-dmca-opponents" which grew into the Digital Copyright Canada website.
I spent considerable time from 2001 through the passage of Bill C-11 in 2012 active in that area of policy. This included only accepting part-time jobs so that I could participate. When I started my current job in 2011 I only accepted an 80% contract so that I could attend every Bill C-32 and Bill C-11 committee meeting.
While my focus was on the rights of technology owners, false claims were often made about my views on copyright. It was frequently suggested that if I was opposed to TPMs, the only possible reason could be because I didn't believe authors should get paid. As a software author myself this was a ludicrous suggestion, and yet even some of the most sympathetic journalists would falsely claim I was an "anti-copyright crusader".
This would never have happened if we were talking about cars rather than computers. Someone claiming that the only reason someone wants to drive their own car is because they wish to break the law or are a criminal would be appropriately laughed out of the room. Unfortunately when it comes to technological measures, few recognize just how ridiculous it is.
It took me years to realize just how low technology literacy is within policy circles. Most of the conversations about TPMs come from the belief that it is something applied to copyrighted works, and that these measures allow decisions to be made (can copies be made, under what conditions, etc). This is similar to believing that a paperback book is sentient, and can come alive and autonomously run away if the reader of the book tries to do something the book doesn't like. I have come to refer to this as the "Harry Potter" understanding of TPMs. While purely based on fiction, this is the most common misunderstanding of TPMs.
If we were talking about cars rather than computers, people with such a low literacy of the relevant subject matter would not be considered experts or be allowed to dominate the debate.
I wish the review of the Copyright act would be about Copyright law.
I've learned quite a bit by speaking with fellow creators and creator groups, and have knowledge of the wide variety of market changes each group is facing. In nearly all cases there are legitimate changes in which intermediaries are involved in the relationships between creators and their audiences. While there are many intermediaries crying fowl at these advancements, the vast majority of the changes I've observed are positive for creators and should be encouraged. In many cases when there are infringements, these are infringements induced by the harmful business practices of specific intermediaries: they are infringements that could be handled with an "inducement" regime for contributory infringements, rather than the incorrect focus of the "enablement" policy that was added as part of C-11.
I am forced again to focus on TPMs this round of Copyright Act review. While it may be true that some copyright holders use TPMs, it has no more place in Copyright law than a National Energy Program has simply because some copyright holders use electricity.
I look forward to a future when the Copyright Act only has Copyright related provisions in it, and we can finally have a proper conversation about modernizing copyright law that isn't tainted by being dominated by non-copyright related discussion.
Saturday, December 12, 2015
Trans-Pacific Partnership would lock Canada into Harper's mistakes
The following is the text of a letter sent to our Prime Minister, my local MP, and a few key ministers.
The Right Honourable Justin P. J. Trudeau, Prime Minister of Canada
Copies to:
David McGuinty, M.P., Ottawa South (my riding)
The Honourable Chrystia Freeland, Minister of International Trade (asking for feedback on TPP)
The Honourable Navdeep Singh Bains, Minister of Innovation, Science and Economic Development (Non-owner locks on digital technology has great impact on this portfolio. Industry Minister listed as responsible for Copyright Act currently tainted with problematic policy)
The Honourable Kirsty Duncan, Minister of Science (Support for problematic policy largely comes from science fiction belief of how technology works. Policy needs scientific evidence based review)
Prime Minister Trudeau,
We met at your constituency office in July 2010, and you tweeted my summary of the meeting to your followers: https://twitter.com/JustinTrudeau/status/19273983682
We discussed the then Harper Government copyright bill, with my emphasis being on the technological measures aspect of the Bill. While I believe Harper made some serious mistakes in that part of the bill, I am writing you today to alert you to the fact that section article 18.68 of the Trans-Pacific Partnership would lock Canada into Harper's mistake.
When talking about technological measures, what people often call "digital locks", it is important to understand that there are two locks and not one.
A lock on copyrighted works, nearly always in the form of "encrypted media", cannot do much on its own. Contrary to the common science fiction belief, copyrighted works can not "come alive" and decide to do things (to be copied or not, to self destruct after rental period, etc). What encrypted media can do is try to tie the decryption and use of the media to devices that are "authorized" by the copyright holder. Rather than this being a copyright issue, this is a competition law issue (section 77 tied selling) which has all the economic and other harm that requires competition law.
The more critical issue is that, while there are legitimate business arrangements available, the only devices that ever get "authorized" are locked in a way that treats owners as an intruder. In no other aspect of our lives do we allow third parties to lock owners out of their property, and this should be explicitly prohibited with digital technology. Discussing copyright in this context is a distraction as the relevant issues include property rights, software transparency and software accountability. When discussing this policy I would often mention privacy and other human rights infringing telecommunications equipment, medical devices, online banking and retail, and technology used for voting. More recent issues to add to the list are driverless vehicles, drones, and the Volkswagen emissions scandal. There have been demonstrations of intruders remotely disabling a Jeep while it was on a highway.
Non-owner locks on devices also disallow owners installing software that would extend the useful life of hardware, allowing hardware vendors to force premature hardware upgrades, which has a great impact on the environment.
As more and more aspects of our lives, including basic issues such as transportation, communications, privacy and public safety, are intermediated by computers we must enact legislation that protects software transparency and accountability. Technologies such as encrypted media abused to tie the ability to access creative works to non-owner locked devices must be legally prohibited, not legally protected as under Harper's bill C-11. Non-owner locks on devices must be legally prohibited, as owners and others can't have unjustifiable barriers to doing independent software audits.
There is a shorter-term fix to Harper's mistake: The WIPO treaties never required Canada to enact legislation against "access control" technological measures, but instead required "use control" where the prohibition against circumvention had a direct tie to copyright infringing activities. This is as it was written in the Liberal Bill C-60, and must be the direction Canada moves. Unfortunately the TPP calls for "access control" technological measures, which must be rejected. Canada needs to be actively working with our trade partners to move away from any support for "access control" technological measures, aggressively rejecting claims from extremists who are opposed to (or deliberately oblivious to) technology ownership, software transparency and software accountability.
The technological measures section of the TPP is in addition to article 14.17 which opposes basic software transparency and accountability, and which Stewart Baker (first Assistant Secretary for Policy at the USA's Department of Homeland Security) also suggests is "a bad topic for a trade deal" https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/11/06/cybersecurity-and-the-tpp/
The Harper government's promotion of the TPP was simplistic: Free trade is good, this is free trade, so therefore it is good. The policies I oppose will reduce competition, increase barriers to trade, and reduce accountability for government procurement -- all policies which have no business being included in something alleging to be a "free trade" agreement.
I live in Ottawa South, and work on Wellington Street close to your parliamentary offices. I can be made available to any minister, member of your caucus, or their staff, to discuss this issue further.
Russell McOrmond
[address removed]
Please share with your colleagues as this policy also has serious implications for other portfolios including Public Safety and Emergency Preparedness, Public Services and Procurement, Health, Transport, and National Defence.
Note: I quote Stewart Baker in the introduction page for the Petition to protect Information Technology property rights
The Right Honourable Justin P. J. Trudeau, Prime Minister of Canada
Copies to:
David McGuinty, M.P., Ottawa South (my riding)
The Honourable Chrystia Freeland, Minister of International Trade (asking for feedback on TPP)
The Honourable Navdeep Singh Bains, Minister of Innovation, Science and Economic Development (Non-owner locks on digital technology has great impact on this portfolio. Industry Minister listed as responsible for Copyright Act currently tainted with problematic policy)
The Honourable Kirsty Duncan, Minister of Science (Support for problematic policy largely comes from science fiction belief of how technology works. Policy needs scientific evidence based review)
Prime Minister Trudeau,
We met at your constituency office in July 2010, and you tweeted my summary of the meeting to your followers: https://twitter.com/JustinTrudeau/status/19273983682
We discussed the then Harper Government copyright bill, with my emphasis being on the technological measures aspect of the Bill. While I believe Harper made some serious mistakes in that part of the bill, I am writing you today to alert you to the fact that section article 18.68 of the Trans-Pacific Partnership would lock Canada into Harper's mistake.
When talking about technological measures, what people often call "digital locks", it is important to understand that there are two locks and not one.
A lock on copyrighted works, nearly always in the form of "encrypted media", cannot do much on its own. Contrary to the common science fiction belief, copyrighted works can not "come alive" and decide to do things (to be copied or not, to self destruct after rental period, etc). What encrypted media can do is try to tie the decryption and use of the media to devices that are "authorized" by the copyright holder. Rather than this being a copyright issue, this is a competition law issue (section 77 tied selling) which has all the economic and other harm that requires competition law.
The more critical issue is that, while there are legitimate business arrangements available, the only devices that ever get "authorized" are locked in a way that treats owners as an intruder. In no other aspect of our lives do we allow third parties to lock owners out of their property, and this should be explicitly prohibited with digital technology. Discussing copyright in this context is a distraction as the relevant issues include property rights, software transparency and software accountability. When discussing this policy I would often mention privacy and other human rights infringing telecommunications equipment, medical devices, online banking and retail, and technology used for voting. More recent issues to add to the list are driverless vehicles, drones, and the Volkswagen emissions scandal. There have been demonstrations of intruders remotely disabling a Jeep while it was on a highway.
Non-owner locks on devices also disallow owners installing software that would extend the useful life of hardware, allowing hardware vendors to force premature hardware upgrades, which has a great impact on the environment.
As more and more aspects of our lives, including basic issues such as transportation, communications, privacy and public safety, are intermediated by computers we must enact legislation that protects software transparency and accountability. Technologies such as encrypted media abused to tie the ability to access creative works to non-owner locked devices must be legally prohibited, not legally protected as under Harper's bill C-11. Non-owner locks on devices must be legally prohibited, as owners and others can't have unjustifiable barriers to doing independent software audits.
There is a shorter-term fix to Harper's mistake: The WIPO treaties never required Canada to enact legislation against "access control" technological measures, but instead required "use control" where the prohibition against circumvention had a direct tie to copyright infringing activities. This is as it was written in the Liberal Bill C-60, and must be the direction Canada moves. Unfortunately the TPP calls for "access control" technological measures, which must be rejected. Canada needs to be actively working with our trade partners to move away from any support for "access control" technological measures, aggressively rejecting claims from extremists who are opposed to (or deliberately oblivious to) technology ownership, software transparency and software accountability.
The technological measures section of the TPP is in addition to article 14.17 which opposes basic software transparency and accountability, and which Stewart Baker (first Assistant Secretary for Policy at the USA's Department of Homeland Security) also suggests is "a bad topic for a trade deal" https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/11/06/cybersecurity-and-the-tpp/
The Harper government's promotion of the TPP was simplistic: Free trade is good, this is free trade, so therefore it is good. The policies I oppose will reduce competition, increase barriers to trade, and reduce accountability for government procurement -- all policies which have no business being included in something alleging to be a "free trade" agreement.
I live in Ottawa South, and work on Wellington Street close to your parliamentary offices. I can be made available to any minister, member of your caucus, or their staff, to discuss this issue further.
Russell McOrmond
[address removed]
Please share with your colleagues as this policy also has serious implications for other portfolios including Public Safety and Emergency Preparedness, Public Services and Procurement, Health, Transport, and National Defence.
Note: I quote Stewart Baker in the introduction page for the Petition to protect Information Technology property rights
Saturday, November 19, 2011
Protecting IT property rights not a short-term calling
I've been asked over the last decade how my activism will change once Canadian legislation that includes Paracopyright passes. Will my activism be finished, and will I admit "defeat" if a bill abrogates the government's responsibility to protect IT property rights?
At one level this could be a question about whether I will honour the law, which isn't really a fair question. Conservative MP Lee Richardson (Calgary Centre) suggests my honouring the law is optional, saying "If a digital lock is broken for personal use, it is not realistic that the creator would choose to file a law suit against the consumer, due to legal fees and time involved." I suspect the fact one of my early submissions to the government in 2001 involved documenting my circumvention of a TPM for an otherwise lawful purpose suggests that I will continue to do the same.
The more important answer is to state that our activism can not discontinue, and any passage of legislation is only one stage in an ongoing process. The United States provides examples where possible legislative wins can turn around in the courts, which suggests we will need to remain active to seek to turn any legislative losses into wins in the courts or later legislative wins.
A twitter/Google+ exchange with Jason J Kee, Director of Policy and Legal Affairs at the Entertainment Software Alliance of Canada, provides an example of this issue. Mr Kee's association includes game console manufacturers as members, with some game console manufacturers and mobile computer manufacturers being the least respective of IT property rights. Given some of his members want to legalise and legally protect activities which infringe upon the rights of technology owners, our biases in how to look at these policies will be quite different.
He challenged a suggestion I made in a Google+ posting that the USA's technological measures provisions have a tie to infringing purposes. I pointed to my reading of the DMCA which includes the following after defining access control technical measures in Title 17, § 1201, includes the following:
This is a pretty plain language suggestion that the legislators intended limits and exceptions to copyright to not be trumped by technological measures.
Mr. Kee suggested that I'm "ignoring 10+ years of jurisprudence under the DMCA which does not support your assertion #C11", "Most recent MDY v Blizzard, where 9th Cir confirmed no nexus b/t circumvention & infringement 1.usa.gov/dN3wbX #C11"
What he pointed to was "MDY INDUSTRIES v. BLIZZARD ENTERTAINMENT" appeal decision from the United States Court of Appeals for the Ninth Circuit.
In this case the court ruled that "for a licensee's violation of a contract to constitute copyright infringement, there must be a nexus between the condition and the licensor's exclusive rights of copyright." They then ignored the section of the DMCA I quoted above, and suggested that there should be no nexus between an access control and any rights or limitations in copyright. They went out of their way to ignore or reinterpret other court decisions and statements made by legislators to come to a specific decision.
We could discuss how courts are political entities, and how this Democrat dominated court is interpreting protectionist policies originating in the Clinton/Gore National Information Infrastructure Working Group on Intellectual Property Rights.
The take-away for Canadians should be that after Bill C-11 is passed, the law will continue to change. We should not resign ourselves into believing Canada will follow the USA in increasing the enabling of IT property rights infringement. It is just as likely that things will go the other way.
The MDY INDUSTRIES v. BLIZZARD ENTERTAINMENT case is in my mind a clear example of a TPM being abused to enforce contractual obligations, where one party to the contract is given excessive control over the other. In Canada there have been a number of law professors who have called attention to this issue, going as far as to suggest that this "poorly veiled attempt by the Government to strengthen the contractual rights available to copyright owners, in the guise of copyright reform" may be unconstitutional. Contract law is provincial jurisdiction, and any Paracopyright provisions that extend beyond activities that are the subject matter of copyright may be struck down by Canadian courts.
In my mind, any abuse of a technology that disables law abiding computer owners to control their computers for lawful purposes is an infringement of IT property rights. It is possible that provincial governments and courts will be called upon to clarify this aspect of tangible property rights, and weigh in favour of technology owners. They may not only strike down any legal protection of these abuses of technology in federal Copyright law, but may create legislation to legally prohibit it. This may allow owners to be able to go after infringers, providing the level of protection to technology owners that Bill C-11 alleges to provide for copyright owners.
Ensuring that these infringers won't get away with their dishonest activities when it comes to our governments, our courts, and our computers will require that we remain active in fighting to protect our rights. Setbacks at one time do not mean we should give up, and laws and interpretation of those laws change all the time.
At one level this could be a question about whether I will honour the law, which isn't really a fair question. Conservative MP Lee Richardson (Calgary Centre) suggests my honouring the law is optional, saying "If a digital lock is broken for personal use, it is not realistic that the creator would choose to file a law suit against the consumer, due to legal fees and time involved." I suspect the fact one of my early submissions to the government in 2001 involved documenting my circumvention of a TPM for an otherwise lawful purpose suggests that I will continue to do the same.
The more important answer is to state that our activism can not discontinue, and any passage of legislation is only one stage in an ongoing process. The United States provides examples where possible legislative wins can turn around in the courts, which suggests we will need to remain active to seek to turn any legislative losses into wins in the courts or later legislative wins.
A twitter/Google+ exchange with Jason J Kee, Director of Policy and Legal Affairs at the Entertainment Software Alliance of Canada, provides an example of this issue. Mr Kee's association includes game console manufacturers as members, with some game console manufacturers and mobile computer manufacturers being the least respective of IT property rights. Given some of his members want to legalise and legally protect activities which infringe upon the rights of technology owners, our biases in how to look at these policies will be quite different.
He challenged a suggestion I made in a Google+ posting that the USA's technological measures provisions have a tie to infringing purposes. I pointed to my reading of the DMCA which includes the following after defining access control technical measures in Title 17, § 1201, includes the following:
(c) Other Rights, Etc., Not Affected. — (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
(2) Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof.
(3) Nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).
(4) Nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products.
This is a pretty plain language suggestion that the legislators intended limits and exceptions to copyright to not be trumped by technological measures.
Mr. Kee suggested that I'm "ignoring 10+ years of jurisprudence under the DMCA which does not support your assertion #C11", "Most recent MDY v Blizzard, where 9th Cir confirmed no nexus b/t circumvention & infringement 1.usa.gov/dN3wbX #C11"
What he pointed to was "MDY INDUSTRIES v. BLIZZARD ENTERTAINMENT" appeal decision from the United States Court of Appeals for the Ninth Circuit.
In this case the court ruled that "for a licensee's violation of a contract to constitute copyright infringement, there must be a nexus between the condition and the licensor's exclusive rights of copyright." They then ignored the section of the DMCA I quoted above, and suggested that there should be no nexus between an access control and any rights or limitations in copyright. They went out of their way to ignore or reinterpret other court decisions and statements made by legislators to come to a specific decision.
We could discuss how courts are political entities, and how this Democrat dominated court is interpreting protectionist policies originating in the Clinton/Gore National Information Infrastructure Working Group on Intellectual Property Rights.
The take-away for Canadians should be that after Bill C-11 is passed, the law will continue to change. We should not resign ourselves into believing Canada will follow the USA in increasing the enabling of IT property rights infringement. It is just as likely that things will go the other way.
The MDY INDUSTRIES v. BLIZZARD ENTERTAINMENT case is in my mind a clear example of a TPM being abused to enforce contractual obligations, where one party to the contract is given excessive control over the other. In Canada there have been a number of law professors who have called attention to this issue, going as far as to suggest that this "poorly veiled attempt by the Government to strengthen the contractual rights available to copyright owners, in the guise of copyright reform" may be unconstitutional. Contract law is provincial jurisdiction, and any Paracopyright provisions that extend beyond activities that are the subject matter of copyright may be struck down by Canadian courts.
In my mind, any abuse of a technology that disables law abiding computer owners to control their computers for lawful purposes is an infringement of IT property rights. It is possible that provincial governments and courts will be called upon to clarify this aspect of tangible property rights, and weigh in favour of technology owners. They may not only strike down any legal protection of these abuses of technology in federal Copyright law, but may create legislation to legally prohibit it. This may allow owners to be able to go after infringers, providing the level of protection to technology owners that Bill C-11 alleges to provide for copyright owners.
Ensuring that these infringers won't get away with their dishonest activities when it comes to our governments, our courts, and our computers will require that we remain active in fighting to protect our rights. Setbacks at one time do not mean we should give up, and laws and interpretation of those laws change all the time.
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