The conservatives said they were going to introduce new copyright legislation within six weeks. That was back on May 05, 2010 and true to their word, they introduced Bill C32—the Copyright Modernization Act on June 2nd. They’ve even created a special domain, http://www.balancedcopyright.gc.ca/, to sell the idea to average Canadians [domain no longer exists]. If you’re having trouble getting to sleep, you can read the text of the statute here.
As the new domain name suggests, the responsible Ministers (Tony Clement and James Moore) are touting the proposed legislation as an effort to balance competing interests. I haven’t looked in depth at it, but a cursory glance seems to confirm this. In a video called “Flawed But Fixable,” Michael Geist offers a good summary of the changes and why, for the most part, Bill C32 is a good piece of legislation.
The problem with the Bill is that, for all the benefits it offers, they are utterly undermined by the section dealing with “Technological Protection Measures and Rights Management Information” (aka DRM or digital locks). If I’m dealing with an open epub novel or music on a typical CD, the Bill will grant me expanded fair use provisions, it will let me to make back-up copies, it will let me sample music, parody the original work, all without fear of liability. But if, in order to engage in any of these lawful activities, I have to circumvent a “technological protection measure,” then I’m suddenly breaking the law despite my good intentions.
The prohibition is absolute: “No person shall circumvent a technological protection measure …” To my mind, it would have been more balanced if it had read: “No person shall circumvent etc. if, as a consequence of circumventing etc. the person engages in copyright infringement as set out in sections … ” One can only wish. Nevertheless it’s interesting to note a few finer points. First, circumvention is allowed where the sole purpose is to determine whether the device being circumvented is forwarding private user information to third parties. Second, circumvention is allowed in a few circumstances like making the device usable for people with perceptual handicaps. Third, the Bill seems to contemplate that the entitlement to a remedy rests solely with the copyright holder.
To my mind, this third point raises a question about jailbreaking devices like iPhones and iPads. Let’s do a little thought experiment here. Suppose I jailbreak an iPhone that has no music or videos and no apps on it. Can Apple still seek a remedy? Would it base its claim on the copyright it holds in the iPhone’s OS? If I jailbreak the iPhone (by tinkering with its OS) for private purposes, there is no violation of Apple’s copyright in the OS, and yet the fact of copyright ownership itself triggers my liability (for legitimately tinkering with Apple’s OS). Isn’t this a form of bootstrap reasoning?
Let’s take a step back. I know that many of my readers are non-technical people who may be wondering what this is all about.
What is jailbreaking anyways?
Many devices are “locked” which means that you can use those devices only with certain operating systems, apps, plug-ins, whatever. We’re used to an unlocked world. If you buy a PC, but you don’t like Microsoft products, you can install Linux instead. If you like Apple hardware but prefer the Vista OS, you can install Vista on your iMac. Why you would want to do such a thing, I don’t know, but you can. But if you have Apple’s iPhone, the only apps you can run on it are those apps pre-approved by Apple and which you purchase through iTunes. Learn more about jailbreaking.
So what’s an app?
An app is a third party application which expands the functionality of mobile devices e.g. you can get an app for your iPhone that can detect seismic activity, another that can turn your iPhone into a Paranormal State EMF meter, and an app that moos. But in order to ensure quality control, Apple has to approve them first. At least that’s the rationale. Apple then sells the approved apps on behalf of the third party developers and pockets 30% of the proceeds. The problem for Apple is that almost all apps end up “cracked” i.e. pirated versions end up proliferating on peer to peer sites and users then install them on jailbroken iPhones.
At the same time, there are good rationales for jailbreaking an iPhone. One is that you may not like Apple’s OS and would prefer to run Linux. You may want to treat an iPhone as a piece of hardware instead of an integrated hardware/OS unit. Or you may find yourself balking at Apple’s app monopoly. You may wish to run apps that haven’t passed Apple’s vetting process.
Obviously, Apple (and other manufacturers of mobile devices) has a strong incentive to ensure that users do not “unlock” its devices. Obviously, Apple (et al.) has a strong incentive to lobby governments to pass legislation which makes the practice illegal. There is the suggestion that the motivation for this provision comes from U.S. pressure or at least from Harper’s desire to kiss ass. Personally, I think there is less pressure from the U.S. government than from U.S. media giants and industry lobby groups like the MPAA and RIAA. It comes complete with a smear campaign alleging that Canada is a haven for pirates despite evidence to the contrary.
I find it puzzling that the Harper government has chosen to prefer the interests of a few large American corporations to the interests of average (voting) Canadians. Then again, this isn’t an unusual choice for Harper.
A final note: the inclusion of an anti-jailbreak provision creates a perverse incentive for media providers to implement “fake” DRM so that they can take advantage of the absolute prohibitions in Bill C32. By “fake” I mean that they can use the flimsiest tools at their disposal in order to appear to be digitally protecting content so as to obstruct otherwise legitimate uses of that content for commercial gain.