Maxime Rousseau

It’s no surprise that the entertainment industry has been going through massive pressure for the past 10-15 years. The internet boom has changed how we communicate and consume information and entertainment, and as with all forms of change, the new situation will require some to adapt… hrmmm hrmmm, looking at you, entertainment industry.

Canada for the past years has been considered as a copyright safe haven for file sharing sites and communities because of a combination of unwillingness of the authorities to go after the inoffensive consumers that the industry calls pirates, and the more lax copyright laws. While trackers in the US are constantly getting harassed with cease and desist notices that quickly degenerate into expensive trails and fines, we Canucks are the home to many communities like isoHunt that thrive in an environment where the long hands of the industry lobbies can’t reach. Because of our more permissive laws, consumers may enjoy their digital content as they wish without the fear of being nailed by big-shot lobbies. This is obviously not what the entertainment industry wants, and lobby pressure is rising on the Canadian legislative assembly to pass new laws that would tighten up the control of media in general. After Bill C-60 in 2005 and C-61 in 2008, the industry strikes again with a proposed Copyright Act update under the form of bill C-32.

I am in no way a partisan of the anti-copyright movement, and I believe in a certain control of intellectual property is necessary in any developed country, so don’t think this post is going to be all about bashing on C-32 and it’s proposed reforms and updates. C-32, for the most part, boils down to legitimate rewriting of the Copyright act to reflect the new reality that the internet has brought along; some of its major modifications though have more resemblance to whims of the entertainment industry than to amendments that would serve the average Canadian and protect the artist’s rights. In this blog post, I will expose the aspects of C-32 which I believe should be altered or removed: most of them have already be covered and interpreted by various groups and individuals, but if my post can bring just a handful of people to get involved in blocking this bill, then I’ll be the happy.

Putting a Choker on File Sharing

Paragraph 18 is the first sign of industry pressure on the legislators, and probably the part that is most hated by the IT / internet savvy folk of Canada and operators of websites or services like BitTorrent trackers hosted here. Paragraph (18) proposes the addition of paragraph (2) to the Copyright Act, which contains very controversial text at section (2.3):

(2.3) It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.

I am no legal expert, but according to my understanding section 2.3 would pretty much make facilitation of electronic piracy illegal. Because the proposed law is so unclear, the definition of what is a system “primarily designed to enable acts of copyright” would have to be decided on by a judge, but the sure thing is that this addition would open the door to a legal crusade against piracy a la RIAA/MPAA who are known to invent numbers about what actually goes on file sharing sites and BitTorrent trackers. From then on, the whole thing can just snowball into a legal free-for-all: once the industry has injected enough money in lawyers to have one case won, case-law is created, making it easier them to win in future trials. I will not go over the advantages of the many new cloud-hosting and file-sharing technologies as these are very well-known, I have to remind you that making illegal not only the act of sharing but also the systems the systems people use to infringe we are putting at risk a large part of the new web technologies that makes the web more democratic and user-powered.

Draconian Enforcement of DRM

Paragraph 22 of C-32 also proposes a rewrite that most would consider unreasonable, through the addition of section (29.22) concerning reproduction for private purposes. The amendment is mentioned as an addition, leading to believe that there is absolutely nothing about reproduction for private purposes in the current Canadian Copyright Act; most would think that defining personal copies as a right in the eyes of the law would be a good thing, but paragraph (1)a) within section (29.22) quickly reveals that this addition wasn’t written to benefit the average consumer. It reads as such:

29.22 (1) It is not an infringement of copyright for an individual to reproduce a work or other subject-matter or any substantial part of a work or other subject-matter if
[...]
(c) the individual, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented;
[...]

Put shortly, Circumventing DRM to make copies of anything would be made illegal and subject to substantial fines; yet another binding in today’s world where digital devices multiply. What if I want my old iTunes store purchases to be read on my 6th computer? That would be illegal. Copying or ripping DVDs for viewing on a device without an optical disc? Yup, illegal. And don’t even start thinking about archiving your growing collection of Blu-ray disks.

Everybody knows that the only thing DRM does is kill sales and annoy end users… guess why O’Reilly and Apple have dropped DRM on their respective distribution platforms? Right’s management technology isn’t going to get anybody anywhere. I’d like to think that this part is just a mis-judgement by our MPs… but sadly it’s most likely the result of the lobbying of an industry that just doesn’t want to take the leash off it’s products and content.

Making your ISP a Snitch for the Industry

For me, the most shocking of all amendments in C-32 has to be one of the last ones: Section (41.25), named “Provisions Respecting Providers of Network Services or Information Location Tools“. Unlike most of the other modifications proposed which will only affect consumers who consume digital media and want to manipulate it as they wish, 41.25 will most likely affect every Canadian with an internet connection. This hasn’t gotten much media coverage due to everybody focusing on the DRM control portion of the bill, but it should be taken seriously as it represents a very serious menace to Canadian net neutrality. The totality of proposed paragraph 41 is and addition to the current Copyright Act… none of it is currently in place, and that’s a pretty good thing if you ask me.

The section provides copyright holders ways to send to copyright thefts a notice of infringement and build up a case that could eventually presented in court. Where it all goes wrong is at subsection 41.26, where the ISP, upon receiving and forwarding the infringement notice to their user, must “retain records that will allow the identity of the person to whom the electronic location belongs to to be determined, and do so for six months beginning on the day on which the notice of claimed infringement is received”, or for one year if the clamant takes judicial proceedings in the six months following the delivery of the infringement notice (41.26(b)).

Initial reading immediately shows an obvious violation of the Canadian people’s online privacy and total disregard for net neutrality: allowing the industry to force your ISP to keep your personal information in a file for their own use is in itself outrageous. But the real damage comes when considering the logistical challenge that such a system of a registry represents for ISPs. Any provider with a dynamic IP system will be forced to manually maintain a registry that cross-references IP address, timeframe of IP occupation and customer information. If the situation is anything like it was in the US with the RIAA and MPAA sending infringement notices left right and center through hired law firms, those registries will undergo explosive growth, which will in turn create additional costs for the ISPs. As always, the customer will end up paying the bill, and Canadians who are already over-charged for their internet usage will most likely face higher rates; this is the modern equivalent of authorities exerting control over printing presses in the Renaissance. Have we forgotten that access to the internet is now well on its way to being considered a fundamental human right? I don’t want to pull out the traditional speech of left-wing activists who believe that rights to pretty much anything for the advance of society should be protected by the state, but access to information, as shows the Cablegate affair, is one of the last standing bastions of true freedom.

I wish to reiterate that I am not preaching for the status quo here, but rather a more intelligent reform that isn’t oriented towards please the media magnates. I must tip my hat to several valid additions to the Copyright Act that C-32 introduces, notably the additional exceptions to fair-use which are currently in a gray zone (proposed para. 29), the legal definition of non-commercial user-generated content (proposed para 29.21), and the legislation of broadcast recording systems (such as DVRs) for on-demand consumption of media. But sadly, all the good brought by those beneficial amendments are useless if the rest of the bill goes unchanged and the lobbies of the industry get their way.

On another note, I do not think that the main opposition to C-32, the artists, have a viable solution with their absurd iPod tax (french reading), which is just consumer oppression and control of new media expressed differently for the benefit of another group… but that’s subject to a whole other post.

Finally, I’d like to invite you to take action and let your opinion be known; the bill is in its second reading so now’s the time to do so. Tony Clement is the sponsor for the bill, so you might want to get your message through to him first; he has a Twitter account and seems pretty open to replying to messages from the population. Contacting your MP, regardless of the party, is also a great idea. Encourage your friends, family and coworkers who care about fair copyright and free access to information to get informed on the subject and to voice their opinions. The Pirate Party of Canada seems to be holding discussions and awareness campaigns in different localities, so you might want to shoot an email their way or post on their forums if you want to get involved in a more hands-on manner.

Remember, popular implication is what it takes to make democracy work… let your voice be heard! Canada needs to maintain its leadership in promoting free access to media and information.