Why Is Michael Geist In Favour Of Digital Rights Management/Technical Protection Measures?

I was disturbed to find that Michael Geist has come out in favour of Digital Rights Management/Technical Protection Measures in an article published today. In his own words:

1.   Anti-Circumvention Rules

The rules on digital locks are easily the most controversial aspect of the forthcoming bill.  Yet there is more agreement here than disagreement.  At this stage, the majority of stakeholders accept that Canada should implement the WIPO Internet treaties and with it introduce anti-circumvention rules into Canadian copyright law. The fact that we move forward on WIPO should please the U.S. and many copyright lobby groups.

I – along with many others – have argued that it should only be a violation of the law to circumvent a technological protection measure if the underlying purpose is to infringe copyright. Circumvention should be permitted to access a work for fair dealing, private copying, or any other legal purposes.  This approach – which is similar (though not identical) to the failed Bill C-60 – would allow Canada to implement the WIPO Internet treaties and avoid some of the negative “unintended consequences” that have arisen under the DMCA.  It is also the approach that was recently adopted in India and bears some similarity to both New Zealand and Japan.  While some would not love this – some would want more, others less – it is likely an acceptable compromise to most.

I’d like to remind Michael that there was more agreement than disagreement that blacks were an inferior species in North America late into the 1900s, and that there is still a strong belief that Native Canadians are inferior in parts of Canada even today. Just because there is some agreement on something doesn’t mean that it’s right.

Michael also ignores the specific language of the WIPO Copyright Treaty, which under Article 11, Obligations concerning Technical Measures says:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Note the highlighted word. AUTHORS. There is no allowance for corporations (which by definition cannot be authors) to implement DRM/TPM, and there is no protection for DRM/TPM implemented by a corporation, unless the AUTHOR is in agreement.

And a lot of authors aren’t in agreement. Film Maker Nina Paley turned down an offer from NetFlix to distribute her film Sita Sings the Blues because Netflix refused to distribute it without DRM.

Corey Doctorow has an article titled ‘Can You Survive A Benevolent Dictatorship‘ discussing issues with DRM/TPM on the Apple IPad, in which he says:

There’s an easy way to change this, of course. Just tell Apple it can’t license your copyrights–that is, your books–unless the company gives you the freedom to give your readers the freedom to take their products with them to any vendor’s system. You’d never put up with these lockdown shenanigans from a hardcopy retailer or distributor, and you shouldn’t take it from Apple, either, and that goes for Amazon and the Kindle, too.

What a lot of people don’t know is that Blue-Ray was supposed to include a managed copy system. Scenic Labs attempted to implement the managed copy system, and ran into severe problems. They didn’t even have the option of not using the Advanced Access Content System unless they burned the discs in their own facility, which according to the article wasn’t feasible.

The Apple IPad. The Amazon Kindle. The Microsoft XBox360. The Nintendo Wii. The Sony PS3. Blue Ray Players. All of these default to ‘DRM ON’ even if the author doesn’t want it. All of them push DRM at authors. None of them give the choice that the WIPO Treaty was supposed to provide. None of them are legal under the plain language of the treaty.

The Americans make a huge fuss about being WIPO compliant with the Digital Millennium Copyright Act of 1998, but the DMCA does not recognize the special status that was accorded to authors, instead it accords this status to publishers, which is in conflict with the WIPO Copyright Treaty.

There are other issues with DRM/TPM that I’m going to cover in another article, but for now I have one question:

Why do you support DRM/TPM Michael?


Wayne Borean

Tuesday April 27, 2010

4 thoughts on “Why Is Michael Geist In Favour Of Digital Rights Management/Technical Protection Measures?

  1. Wayne,

    My post on WIPO implementation is not new. I said the same thing during the copyright consultation. I do not believe it is pro-DRM. I am certainly not supportive of DRM. However, I think it is a business decision – experience suggests often a bad decision – whether to use DRM. The legal issue is the kind of legal protection (if any) that should be afforded to DRM. In my post and regular comments on WIPO implementation, I argue that compliance with the WIPO Internet treaties can be achieved by linking circumvention to actual cases of copyright infringement. That would ensure that Canadians would be permitted to circumvent DRM in cases where their intended use of the work is permitted by law. I don’t see this as pro-DRM, but rather as an effort to meet significant pressure to implement WIPO while working to preserve the copyright balance.

    As for the use of DRM against the wishes of creators, this is a significant issue. It is not a copyright reform issue, however. It is a contract issue between creators and distributors that deserves greater attention.


  2. Michael,

    I don’t recall saying it was new. I however was unaware of your viewpoint, and I totally disagree with it, as you have noticed.

    While you think it’s a business decision, the experiences of authors who I know, who didn’t want to use it, is that the manufacturer (i.e. the Sony Blue Ray Disk factories) will FORCE THE USE OF IT, AGAINST THE AUTHOR”S WISHES. If DRM is legal, opting out of DRM should be legally protected, which at present, it is not.

    The current push by the RIAA/MPAA/CRIA/BPI/IFPI against alternative distribution mechanisms is interesting when viewed in light of the above. The ‘content’ companies appear to want to make distributing content by any means except through them so difficult that no one will do it. This would lock in their profits, without them being required to do any work, in effect it would mean that every automobile manufactured would have a buggy whip. Occam’s Razor is a fabulous tool for evaluating situations like this, and while I know a lot of people disagree with my conclusions, none have been able to disprove them, or propose conclusions that appear more likely.


    PS: Note that I have not received any responses from James, Richard, or Barry. If any of my arguments had have been incorrect, I would have expected them to respond by now.

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