Blogs & Comment

Digital locks are bad for consumers and innovation

In a nutshell, Bill C-11 could criminalize common practices that most people have been engaging in for years.

As expected, the federal government on Thursday introduced new copyright legislation. Bill C-11 is an exact duplicate of Bill C-32, which fell into limbo with the calling of the election earlier this year. C-32 was in the process of being discussed and dissected through parliamentary hearings and C-11 will pick up where its predecessor left off, with the final law likely to be passed by the end of the year.

As with the prior legislation, C-11 still contains a major flaw: the anti-circumvention clause. In plain English, should the bill become law as is, it will become illegal for Canadians to break a digital lock placed on any content or devices. This is bad in two ways.

It’s bad news for consumers because it opens the door to a number of scenarios. If a record label such as Sony, for example, decides it doesn’t want people copying its CDs onto their computers and iPods, it can lock such discs down so it can’t be done. Anyone cracking such a lock would be breaking the law. Similarly, if a television producer such as Disney or broadcaster such as CTV decided it didn’t want viewers using their PVRs to record Desperate Housewives or other programs, they could insert code into the broadcast that could do just that. If someone actually figured out how to crack the code, they’d be on the wrong side of the law.

The same goes for gadgets. If consumers were to modify their iPad or Xbox for whatever reason, they would not only void the warranty (as is currently the case), they’d also open themselves up for legal action from Apple or Microsoft, or whoever. As individuals such as Russell McOrmond have suggested, this situation—of non-owner locks being placed on property—is patently wrong. McOrmond has long argued that no individual would accept some company having the keys to a house that they bought and paid for, so why should it be any different for a gadget? It’s not exactly the same thing, but it’s hard to see the flaw with that logic.

In a nutshell, Bill C-11 could criminalize common practices that most people have been engaging in for years.

The argument against any of that happening—a clawing back of the digital rights consumers have naturally accumulated over the years—is that market forces will prevent it. If Apple, for example, were to start suing any Canadians who cracked their iPads, then its competitors—those that opted not to litigate against their customers—would steal its customers.

That position assumes a fully functioning market, but in Canada, where very few digital products and services are truly competitive for one reason or another, the opposite is more likely. With just about all these markets touching the closed telecommunications business, it’s more likely that market players will follow each others’ leads: if one sues customers, the rest will follow. Before you know it, copying CDs or recording TV shows are illegal in Canada.

The other way in which the anti-circumvention clause is bad is that it’s anti-innovation. Indeed, it goes against the very notion of how science works.

Sir Isaac Newton famously said, “If I have seen further it is only by standing on the shoulders of giants.” C-11, however, will require innovators to stand way down at the giants’ feet—literally. Inventors and innovators often need to take things apart to see how they work in order to improve on them and create their own new doohickeys. If the law is passed as is, that’ll be illegal.

The result here is easy to predict—as if the world doesn’t already have enough patent lawsuits, the new law is only going to fuel that fire. Besides the “you-stole-our-technology-no-we-didn’t-you-stole-ours” back-and forth currently going on between major tech players, Canada will add an extra layer of, “and-you-cracked-our-locks-too” to that ridiculous game.

That may not deter the mega-big companies who are currently locked in patent Armageddon, but it sure will put a chill on smaller inventors. Who’s going to want to try and build a better mouse trap with all of that looming large?

There is still the possibility the government will acquiesce to what just about everyone besides big entertainment and technologies want, which is to introduce an exception to the anti-circumvention clause that would make it okay to crack locks so long as it’s for personal and not commercial use. The government has also left itself the potential for a backdoor by reserving the right to create regulations that would then generate exceptions; it could rule that breaking a lock is okay for news reporting or parody purposes, for example.

It’s possible the government is trying to play both sides against the middle here—the strict anti-circumvention clause is meant to appease the entertainment and technology lobby, while the exceptions can be enacted later through regulation. If that’s the case, it could be seen as a prudent and pragmatic move.

It could, however, also be seen as foolish. As an old saying goes, it’s usually wiser to prevent a wound in the first place because that saves having to apply the bandage later on. Just ask Wind Mobile. Rather than lifting foreign ownership restrictions, which would have allowed the new wireless carrier clear sailing, the government instead patched a band-aid on that situation, a move it now finds itself fighting in the Supreme Court.

Is it wise to tick off the public and potentially spark similar court battles, all for the sake of making a few companies happy? It sure doesn’t seem logical, does it?