Win for copyright user rights in Canada: Digital locks do not trump fair dealing

https://www.michaelgeist.ca/2024/06/huge-win-for-copyright-user-rights-in-canada-federal-court-rules-digital-lock-rules-do-not-trump-fair-dealing/

by peutetre • 2 years ago

248 52 2 years ago

michaelgeist.ca

isaacfrond• 2 years ago

tl;dr

The case arises from years of litigation between Blacklock’s Reporter, a paywalled news service based in Ottawa, and the Canadian government.

Blacklock’s continued to press ahead with other cases with the latest decision involving 15 articles that were distributed to media personnel at Parks Canada. The department had an individual subscription to the service, but Blacklock’s argued that allowing anyone other than original subscriber to access articles constituted copyright infringement.

Blacklock’s position on this issue was straightforward: it argued that its content was protected by a password, that passwords constituted a form of technological protection measure, and that fair dealing does not apply in the context of circumvention. In other words, it argued that the act of circumvention (in this case of a password) was itself infringing and it could not be saved by fair dealing.

The Federal Court disagreed on all points. It cited with approval CIPPIC’s argument that “the TPM provisions do not apply to restrain fair dealing; using a validly obtained password to access content is not circumvention.” Further, court noted “how the password was obtained is significant as this may prevent a user from invoking the fair dealing provisions of the Act.” In other words, not all password sharing will qualify as fair dealing. This decision is not a licence to simply share passwords with no consequences, but rather affirmation that passwords are not a technological protection measure and that using validly obtained password does not limit fair dealing rights.

bluefirebrand3• 2 years ago

My reading (grain of salt, I'm not a lawyer) is that receiving a password from the person who owns that password is likely to always fall into "validly obtained" and be considered fair dealing

However the ruling leaves open the possibilty to find other forms of password sharing to be considered invalid. We'd have to see if something like a "My friend shared his friend's password with me without his friend knowing" would continue to be "valid"

Stolen passwords are almost certainly "invalid

If we think about it like house keys, entering someone's home with a stolen key is likely illegal. Entering a home with a key they lent you is fine. Entering a key that you obtained from someone who is allowed to have the key but not explicitly allowed to share the key is a grey area

wccrawford• 2 years ago

I'm thinking that selling access to your password won't be "fair dealing", either, though.

1000100_1000101• 2 years ago

Yeah. I'm thinking the shared password falls into the category of being able to share a copy of a magazine in your office, either directly, handing someone an article to read, or indirectly, by putting the magazine in a communal table or rack so anyone in the office can read an article they're interested in.

Just because the article is digital shouldn't mean it's now suddenly for your eyes only, and everyone needs to buy their own.

The question the article didn't cover is how far that password sharing can go. Obviously publicly sharing the link and password to anyone on the web goes well beyond traditional sharing. Even making it available to everyone you know goes well beyond normal. The trick will be determining exactly how far the sharing is allowed to spread.

Fire-Dragon-DoL• 2 years ago

I wonder if this would apply to Steam accounts, because that makes a chunk of their ToS somewhat ambiguous

simoncunningham• 2 years ago

This is a positive ruling, but it seems to be a little ridiculous to be applying anti-circumvention claims to something as trivial as a website password.

What I am more interested in is if a similar precedent would apply to fair-use of legitimately obtained content or hardware (e.g backing up a Blu-Ray disc, obtaining and installing a mod-chip in a video-game console to utilize third-party applications, etc.)

freeone3000• 2 years ago

Excellent. A user’s rights are determined by social consensus and the law, and cannot be circumvented simply by restricting access technologically. Big win for fair dealing (similar: american fair use)

mthoms• 2 years ago

For those who are unaware, "Fair Dealing" is the Canadian equivalent of "Fair Use".

As a Canadian, I have so much gratitude to Michael Geist and the CIPPIC. Many of these issues don't seem to generate the same amount of public interest in Canada as they do in the States, but it's very important work.

"The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) is Canada’s first and only public interest technology law clinic. Based at the University of Ottawa’s Faculty of Law, our team of legal experts and law students works together to advance the public interest on critical law and technology issues."

https://www.cippic.ca/about-us

CobrastanJorji3• 2 years ago

I've always been confused by how these decisions go. Everybody agrees that the user has the right to make a copy, so when the company puts a "digital lock" on it, the fight is whether the user has a right to break the lock. But if I have a right to go through my door, and somebody has put a padlock on the door to keep me out, the right question shouldn't be whether I'm allowed to pick the lock, it should be why the padlock is legal.

If customers may legally make a copy of the e-book you sell to them, it should be on you the merchant to ensure customers are able to do so.

giancarlostoro• 2 years ago

This would probably fix Linux emulation for some games is my understanding, weirdly enough, all the games I hear have DRM / anticheat issues on Linux are the games I avoid, usually they are the more "popular" games that don't interest me.

jfengel2• 2 years ago

The digital lock is a matter of conflicting rights. They have a right to prevent infringement of their copyright; you have a right to make limited copies.

The lock on your door is not -- assuming that they don't in fact have some kind of claim on you, like a landlord to whom you have failed to pay rent. So the situations are not parallel, and it should be no surprise that the decisions would differ.

The job of a court is to decide which right prevails when rights conflict. There's often reasonable disagreement over it, and the distinction is often based on a complex and esoteric set of precedents, and on the specific wording of a law.

L-four• 2 years ago

So a literal electric door lock would have the right to lock your door if they think you might break the copy right on the door lock you purchased from them.

CobrastanJorji3• 2 years ago

They do not have a right to prevent infringement. They have a right to make copies, and I have a right to make copies, and nobody else has a right to make copies, but that does not equate to a right to prevent others from making copies, especially me, a person who has a right to make a copy. That's not to say that copyright protection is illegal, it's just not a right.

AnthonyMouse4• 2 years ago

The digital lock is a matter of conflicting rights. They have a right to prevent infringement of their copyright; you have a right to make limited copies.

So in this analogy you have a house with two rooms in it, you have a right to one room and they have a right to the other, but now they've put a lock on the door to the whole house. That puts them in the wrong, does it not?

immibis2• 2 years ago

There is a special law - the DMCA - saying you can't break digital locks that were placed in the name of copyright, ever. Even telling someone how to break a lock is illegal. Even learning how to break a lock is illegal. Even probing at a lock in ways that might reveal how to break it is illegal.

There's a reason that people say corporations own us, or corporations own the law. In some cases, acts that might result in lowered profits are punished worse than murder.

wizzwizz4• 2 years ago

Even telling someone how to break a lock is illegal. Even learning how to break a lock is illegal.

Source? I wouldn't have thought a US law saying these things would be allowed.

II2II• 2 years ago

The DMCA does not apply in Canada, so I'm not sure if telling someone how to break the lock is illegal.

Being a Canadian, I really should look this up. That being said, I try to avoid situations where I would want to break a digital lock. There are plenty of alternatives encumbered media, provided that you don't have your heart set on a particular product. For example, many publishers offer unencumbered ebooks. Library books do have DRM, but it is pretty much a given that some sort of access control is needed since the books are on loan.

jMyles• 2 years ago

Although I agree that your question is important and sensible, I also think that the metaphors involving locks, keys, and doors have added complications rather than subtracting them to every discussion where they've been applied since the beginning of the internet.

* Transit through a door, in meatspace, amounts to tresspass insofar as it creates a physical vulnerability - to violence, vandalism, or larceny. This is true whether my door is locked or unlocked. * Locks prevent operation of a door (or, in some cases, detachment of objects, such as with a bike lock). To open a lock is to facilitate transit through a door, or independent movement of the detached objects - these are state changes. Compare with copying bytes, where the original bytes are left unchanged. * (Not central to the current discussion, but still demonstrative and worth consideration) Keys - don't get me started on keys. This metaphor has made it so much more difficult to teach cryptography to students who tend to learn well from other metaphors.... especially for assymetric crypto - keys do not map cleanly whatsoever, and they break the "signature" metaphor, which is otherwise pretty good. You don't sign things with a key; you sign them with a pen.

tl;dr: although perhaps companies adding bugs that prevent copying is a violation of your rights, it's not the same violation as adding a lock to a door.

robertlagrant• 2 years ago

If customers may legally make a copy of the e-book you sell to them, it should be on you the merchant to ensure customers are able to do so.

Is this 100% true? You may have the copyright to the text, but are you allowed to reproduce the design of the book, or any trademarks?

CobrastanJorji3• 2 years ago

Well....maybe.

In the US, 17 U.S. Code § 117 (a) gives me the right to make a backup of a computer program. An eBook is...probably not a computer program.

But ALSO, it is legal to make backup copies of non-program media so long as you don't circumvent any non-exempted encryption technologies to do so, and so long as you destroy those copies when you no longer have access to the original, and so long as you use the backup for no purpose other than backup, and so long as you don't access anything besides what's necessary to make a copy. The big problem is the "non-exempted encryption" because nothing's exempt by default, and exemptions given out by the Library of Congress only last for a few years.

Not sure what the rule is in Canada.

spoonjim• 2 years ago

We can’t fight the right to break the digital lock. They are getting increasingly unbreakable. We must void the right of the vendor to apply such a lock in the first place.

kstrauser• 2 years ago

I agree that the locks shouldn’t be allowed. At the minimum, it should be false advertising to describe exchanging money for a DRM-infected product as a “sale”.

That said, I’ve watched an endless parade of unbreakable encryption being broken. I don’t expect that to change any time soon.

LoganDark• 2 years ago

It was a sale. It just wasn't a purchase. They sure did sell something. But in the end, you own nothing.

AnthonyMouse4• 2 years ago

The issue here is broader than that.

For example, Google uses "Android Integrity" (remote attestation) to lock out competitors to Android and Google Play. If you want to create a competitor, you need it to be compatible with existing apps or you can't get off the ground. The customer who adopts your alternative system wants to install the app for their bank and if it doesn't work they regard your system as broken and stop using it. That's fine, Android is open source. You can implement compatibility with existing apps.

Only now Google's servers tell the bank's app not to run on your competing system, because it isn't Google's. But the apps aren't going to specifically target your new system until you have users -- which you can't get without apps.

This is a very different problem than DRM, because people variously find ways to break the DRM, and they only have to do it once to unlock everything. Even if the vendor patches it, it's too late, all the content is already on the pirate sites.

Whereas with attestation, it often gets cracked, but then it's only cracked most of the time. Every once in a while, at random, your competing device breaks and you have to wait a few days for someone to crack the attestation again. Which normal users are not going to put up with, so an alternative competitor can't gain a foothold. That is a serious antitrust problem.

Win for copyright user rights in Canada: Digital locks do not trump fair dealing

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