mark-t's Journal: Speaking out on the subject of copy control circumvention

Not all that long ago, the governing party in my country (Canada) has reraised the subject of making copyright control circumvention on digital works illegal. Now while I do not for a moment abide copyright infringement, I find myself compelled to point out that this proposed law that would make virtually all copyright control circumvention illegal is an inherently bad thing, not only for consumers, but possibly even for the copyright holder. It even raises a question of the integrity of a governing body that would choose to bring such a law into existence.

A key problem with this sort of law is that if a blanket law is utilized making copy control circumvention on digital works illegal (even making certain exceptions, such as for security or law enforcement purposes), then one cannot legally obtain any tools to bypass such protection unless one is employed in industries that are associated with the exceptions, and from that it is almost inevitable that digital content producers will start putting digital rights management on all produced works from that point forward to lock down their works.

An advocate of the proposed law might wonder how this could be a bad thing, so I am compelled to point out that this sort of thing would mean that a user would not even be able to copy a song to his ipod, for example, unless the publisher of the work had specifically allowed it. Worse, the publisher might allow it to be copied to an ipod, for example, but not happen to allow it to some competing technological device. This is vendor lock-in at its finest and the only way it can be resolved is to not disallow any end-user the privilege of copying a work for their own private use at all. Making circumvention illegal would limit the availability of circumventing technologies, which would in turn deprive the consumer of the very ability to excercise what might have otherwise even been perfectly allowable by the copyright holder but the copyright holder did not have the ability or forsight to support.

Additionally, there is the issue of public domain. Although efforts in the U.S.A. have created a means of extending the duration of copyrights indefinitely, fortunately such mechanisms have not found their way into Canada. When a digitally encrypted work has its copyright expire after the requisite amount of time, if laws prohibiting circumvention were passed, then there would remain no legal means to access tools to decode the encrypted work at all, even though it no longer is protected by copyright! After all, if removing digital encryption on copyrighted works is to really be illegal, then any tools that one might use to defeat such encryption must also be illegal, even if the use of that tool would not in any way infringe on copyright in a particular circumstance.

Another problem with this sort of law is that it will, in the end, not be heeded by a lot of people. Just as certainly as people willfully and quite frequently speed in spite of laws against it, there will be a segment of people who will likewise disregard this law as well. Rather than controlling piracy, the people who are committing copyright infringement on a large scale will go on unhindered, while the private home consumer is metaphorically handcuffed, being legally prohibited from being able to copy any copyrighted works even for their own private use.

In a hypothetical scenario that can only be described as ironic, there is also the problem of a copyright holder who might have chosen to use encryption initially but then later changes his mind. The exact same laws which would keep the end user from copying such a work for themselves could potentially even prevent the copyright holder himself from removing the encryption! Not only do consumers face vendor lock-in, but copyright holders might as well, locking people into a decision that they have absolutely no legal means to back out of. Although admittedly, a copyright holder being locked out of being able to copy his or her own works as he chooses seems unlikely, it's still quite within the realm of possibility.

Of course, a supporter of such copyright control legistlation being in place might want to argue that if copying for private use is made exempt so that tools to bypass encryption are still legally available, then people will abuse that privilege to commit copyright infringement. I would put it to such a person that such infringement will occur regardless of laws put into place. While it may have the potential to create a perceived lull in the amount of piracy that appears to go on, in reality the people who would be committing the most copyright infringement would simply have to move their activities further below the radar to continue their practices. In the meantime, the average consumer is immensely affected, having absolutely no legal means whatsoever at his or her disposal to make a copy even for their own private use, which I might point out even has an explicit exemption to copyright infringement for music in the Copyright Act of Canada (as an aside, it is my own personal view that personal and private use should be an exemption to copyright infringement for all types of copyrighted works, not merely music).

Finally, and probably the biggest issue with this law is that it is largely unenforceable, except when a person may happen to have done something that makes their actions known to law enforcement. The law should, of course, apply equally to everybody, so it would seem strange for any governing body to want to pass a law that they not only know they cannot fairly and justly enforce, but actually cannot possibly even have the *intent* to do so, as the only way to fully enforce it would be to spy on people while even in their own homes. If there is no intention to go after the private consumer who is merely copying a work for their own private use, even if they are breaking copyright controls to do it, then why on earth should there be a proposed law that implies they would do exactly that? The only answer that I can think of that makes any sense is that the law is only some sort of hand-waving exercise to present the facade of the government trying to do something about what I do realize is a very serious problem in our political and social climate today. I would sincerely hope that our country would consider its integrity a higher priority than that.

I do not, as I said before, abide any form of copyright infringement. I fully maintain the position that people who commit copyright infringement of any work should face not only a civil suit by the copyright holder in cases where damages are applicable, but legal consequences as well (on the order of ever-increasing fines for repeat offenders). However, I cannot for any period of time abide our government wanting to enforce new laws whose ineffectiveness will only create far more problems than it attempts to solve.