December 2007

"It's very important to remember that it's your intellectual property -- it's not your computer. And in the pursuit of protection of intellectual property, it's important not to defeat or undermine the security measures that people need to adopt in these days."

Stuart Baker, US Department of Homeland Security

New copyright legislation is on its way from the Canadian government, and may have been tabled by the time you are reading this. While we won't know exactly what is in the bill until it is tabled in the House of Commons for first reading, the Government has made many statements indicating that it intends to ratify the highly controversial 1996 WIPO treaties. I believe it is important for open source developers and users to be aware of how some of the proposed changes may affect open source in Canada.

A recent ComputerWorld Canada article by Rafael Ruffolo quoted Barry Sookman, a lawyer specializing in intellectual property litigation with legal firm McCarthy Tétrault, as suggesting that the legal protection of technical protection measures proposed in the 1996 WIPO treaties would have no effect on open source.

However, before any type of exclusive rights can benefit a software author, the right of owners of hardware must be protected such that it is possible that these people will choose our software. This puts software choice above all other concerns.

The Two Locks of DRM

When I am explaining Digital Rights Management (DRM) to politicians, I feel like Ralph Nader back in 1965. He explained that with an automobile accident there are two collisions: the car hits something, and the passenger hits the car. While automobile safety up to that point concentrated only on the first collision, it was quickly understood that safety features should concentrate on the second collision. This gave us dashboards that weren't made out of metal, seatbelts, air bags, and other such second-collision safety features. We have the same problem with DRM where policy makers think there is only one "digital lock" being discussed, when in fact there are two and it is the lock of which they are less aware that is the source of most of the controversy.

While the phrase DRM is used to refer to many unrelated things, the controversial form involves the use of a technical measure (most often cryptography) applied to two things: a digital lock on content, such as music, where that content can only be accessed with authorized tools containing the right decryption keys, and digital locks applied to access tools to disallow their owners/operators from controlling the tool. A tool can be software or a hardware/software bundle.

Both of these locks are harmful to software developers. The first lock is anti-competitive in that it forces people who wish to access encoded digital content to use specific brands of technology. If someone wants to access music downloaded from Apple's iTunes music store, they will be running Apple software. If someone wants to access encoded music downloaded from the new Industry-run Napster, they will need to be running Microsoft software. While Sun has claimed that they have an open source DRM system with Open DReaM, this is only a distraction. It is not the file format or license of the software that determines what brand is required, but the encryption/decryption keys. The underlying software can be entirely open source, but your compiled version will not work because only those brands with the right decryption keys can access the content.

The second lock is far more controversial. The intention is to lock down the operations of the device such that the owner can not control it. The most obvious feature of such a system will disallow the owner from making their own software choices, thus disallowing them from choosing software with features more favourable to the user. In fact, software that allows user modification, one of the requirements for being open source, will never be allowed.

The more effective this technical measure, the less software choices hardware owners will be able to make, with the most effective technical measure disallowing the owner of the hardware from making any software choices. We see this today with hardware such as the TiVo where the BIOS is configured to only allow binaries which have been digitally signed by the manufacturer to run, meaning that the manufacturer makes all the software choices.

Private Ownership of Technology

Allowing private citizens to own and control their own information technology is critical. From a purely technological point of view, creativity and copyright infringement are identical technological acts. We record, edit and distribute content. Any technology that attempts to reduce copyright infringement will only be able to do so by reducing the ability of private citizens to record, edit or distribute content. While the incumbent entertainment industry may like to reduce the competitive threat from newer creators, it should be obvious that it is bad for the economy overall to require that all creativity be authorized by the established content industry.

The dictionary defines capitalism as an economic system where the means of production is privately or corporatively owned. A basic part of ownership is the right to control what we own for lawful purposes. This policy attempts to ensure that the primary means of production and distribution of the primary outputs of the new economy cannot be privately owned and controlled. This should make us wonder exactly what type of economic system is being proposed by these policies?

Policy Concept Origins

In the early 1990's, governments were trying to understand the phenomena that was emerging from new communications technology _and networks. In Canada we had the Information Highway Advisory Council (IHAC), and in the United States there was the National Information Infrastructure (NII) task force.

One of the sub-groups in the NII process was the Working Group on Intellectual Property Rights (WIPO). This working group brought together many of the established software and entertainment industry companies who saw this new technology as a threat to their existing businesses. The basic thinking was: If new communications technology could be abused to infringe copyright, then private citizens should not be allowed to own and control this technology.

The NII Copyright Protection Act of 1995 proposed to severely regulate what private owners of technology were able to do with their technology. When this bill didn't pass in the United States, this thinking was brought to WIPO which created two treaties in 1996: The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). In 1998, the Digital Millennium Copyright Act (DMCA) was passed, and this law came into force in 2000.

It is important to know where the DMCA came from, and the type of pressure that is being exerted by the same US-based special interests on Canada to pass similar laws here. We also need to realize that the DMCA-style legislation suggested in the 1996 WIPO treaties is only one step, and that things can get much worse.

The Danger of One Lock

The target of old economy thinking was the private control of technology, and not content.

One such proposal is the Broadcast Flag which would allow broadcasters to communicate without encrypting their content in any way, but would set a flag in the signal indicating whether or not people were allowed to record that broadcast. Technology manufacturers would be mandated to honour that signal, meaning that any technology capable of receiving broadcast signals could not be controlled by its owner. If the owner removed the foreign locks from their property, they would also be breaking the law. As our desktop computer, home theater, and portable media increasingly merge, it becomes more difficult to separate general purpose computers from technology capable of receiving broadcasts. This would effectively mean that a broadcast flag type regulation would regulate the entire of the electronics and software industry, effectively banning anything that has owner modifiable/controllable parts inside.

There are also various proposals to close what is called the Analog Hole. One such proposal is to put watermark detection into any device capable of recording.

Here is a scenario that shows the weakness of the proposal: You are a parent and your child is taking their first steps. Unfortunately the radio is on, you are playing a music CD, or your child steps in front of the television and your camcorder refuses to record. The reality is that it is impossible for technology to be programmed to tell the difference between a pirate and a parent.

Petitioning Parliament

I created a petition to Parliament, called the "Petition to protect Information Technology Property Rights", to try to alert parliamentarians to this issue. This is a paper petition that follows all the rules of parliament so that it can be tabled in the House of Commons and demand a government reply. This petition has already been signed by hundreds of Canadians, and any additional signatures are always appreciated.

The title puts the focus on the technical measures applied to our information technology. It also clarifies that this technical measure is applied to information technology which neither the copyright holder nor the device manufacturer own.

The full text of the petition, and instructions on how to sign it and get it to the right people, can be found here. Early signatures have already been tabled in Parliament, but we need to continue to receive new signatures. This allows us to point politicians to a larger number of people who have signed, but also allows us to bring bundles of signatures to a larger number of politicians to table in the House of Commons. The more politicians that become aware of this issue, the more likely they are to protect our rights.

Talking with Fellow Creators

While it is critically important to talk to Canadian politicians and bureaucrats in the key government departments, we also need to open conversations with other creators.

Every creator whose form of creativity can be recorded, edited or distributed with the help of modern communications technology needs to understand the harm from governments revoking their personal control of this technology. Many creators are noticing changes in the marketplace for their creativity, and it is human nature to be frightened of the unknown. The initial reaction is always to try to stop change, even if that change turns out to be beneficial.

We need to ensure that creators understand the potential benefits to new communications technology, as well as the methods which reduce risks without harming the rights of all creators. Everyone needs to be made aware that DRM is not something that is applied to content, and thus should be seen as a choice made by copyright holders, but is primarily applied to devices which the owners should be legally protected to control.

Talking with Fellow Technicians

John Gilmore once said that, "the Net interprets censorship as damage and routes around it." This has unfortunately been interpreted by some technical people as suggesting that bad laws which regulate technology can be routed around as well.

While it is true that highly technical people may always be able to circumvent any locks applied by third parties. We need to be thinking in terms of what is commercially available to the average citizen. We can't write a subroutine to route around bad law, and it is critical for us to become politically engaged to ensure that our Parliament passes good laws when they regulate technology.


I believe that politicians have the best intentions when introducing and debating legislation. While our community may be highly technical, politicians are necessarily generalists and don't always understand the implications or unintended consequences of every bill before them. This makes it our responsibility as technologically informed Canadians to share our knowledge.

The Digital Copyright Canada forum was created to be a citizens forum to share ideas. We are not a formal organization or lobby group, but a place where we can help each other make sense of the changes that are underway and coordinate responses.

The Canadian Software Innovation Alliance has been formed to help give a voice to open source businesses in this area of policy. Given that the Minister of Industry has claimed that all the CEOs that have contacted him are in support of anti-circumvention legislation, parliamentarians need to hear from us.

My hope is that we can make use of information sharing forums to ensure that the direction Canada takes on copyright faces forward into a future that fully recognizes the benefits to creativity and innovation of citizens control over communications technology and participation in new media.

Recommended Resource

The Canadian DMCA: What You Can Do

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