Does DRM and anti-circumvention legislation increase unauthorized P2P?

(First published on IT World Canada blog)

here is an all too common belief that putting a legal layer around “Digital Rights Management” (DRM) to encourage its usage will decrease copyright infringement. The USA, being the primary source of that thinking from their National Information Infrastructure Task Force work in the early 1990’s, was of course the first country to implement this thinking in their Digital Millennium Copyright Act (DMCA).

The USA DMCA was signed into law on Oct. 28, 1998, and nearly a decade later every report I see suggests that unauthorized P2P sharing of copyrighted files is on the rise in the United States. While this will come as a shock to people who thought the DMCA would (or think the Canadian Bill C-61 will) decrease copyright infringement, the increase seems very logical to me.

Citizens of both Canada and the USA want to access the content they have legally acquired over the years on all the devices that they currently own. As 8-tracks went out of style they made cassette tapes, and eventually as time goes on their media ends up as digital files in their computers and other digital media devices. They quite reasonably believe that once they have paid for the content that they shouldn’t have to pay for it over and over again with every new format or device.

In the past the technology to do this conversion was readily available and reasonably easy to use, so people were doing this conversion in the privacy of their own homes or at a friends house. When you introduce technical measures you introduce a level of complexity to this conversion which requires additional technical knowledge. When you add a legal layer on top, you push the tools necessary to do this conversion into an underground where the general public is not able to go to a store and purchase the tools required to do the conversion.

It will always be technologically possible to someone to circumvent these technical measures. Internationally renowned security technologist and author Bruce Schneier has said a few times that, “trying to make digital files uncopyable is like trying to make water not wet”. Most people are not computer security experts, so this doesn’t apply to most citizens.

Along side this perfectly legitimate conversion is a publicly available pool of already converted files on P2P networks. All it takes is one technically sophisticated person to circumvent any technical measure and share the results with others. P2P tools are easy to use, even easier to use than many of the tools used to time and format shift content.

People who previously did the time/format shifting themselves will be driven to P2P networks by DRM. They are told that time/format shifting of the DRM infected media is already illegal when they head to these sites to do something that replaces what was previously perfectly legal and which remains perfectly legitimate. If acquiring time/format shifted files of content they own is already illegal, they may feel that acquiring other content that they never had before isn’t any worse.

While I don’t personally use P2P to infringe copyright, I have to agree that it is perfectly logical that other people will be doing so. It also seems perfectly logical to me that the USA’s DMCA and (if passed) Canada’s Bill C-61 will only make the problem worse.

For greater certainty: I am not apologizing for the increasing number of people who infringe copyright, just helping to explain that it is a logical and understandable behaviour. Policy makers should be trying to understand this behaviour in order to reduce it, rather than increasing the behaviour by making more perfectly legitimate activities illegal.

Counter-proposals

If I were the government wanting to reduce copyright infringement, I would take a very different approach.

1) I would clearly carve time and device shifting out of copyright, as well as other perfectly legitimate private activities. This would be done in part by Canada adopting a US-style living Fair Use regime to allow what is considered legitimate private activities to more dynamically change to match the times.

Neither government nor copyright holders have any business in the bedrooms (or other private rooms) of our nation!

2) I would disallow the abuse of technical measures to attempt to make this shifting harder, including disallowing the locking of content to only be interoperable with specific brands of devices

3) I would ensure that no law (copyright or otherwise) disallowed the owner of a device from removing any foreign locks on their devices. I would use the law to discourage this harmful activity by device manufacturers and software authors, and clearly enable hardware owners to make their own software choices.

(These are all re-wordings of proposals that are part of the CLUE Policy Summary)

If activities which the majority of citizens consider perfectly reasonable were legal, and activities which the majority of us thought were inappropriate were illegal, then there would be far more respect for the law. The direction we are currently heading will only increase disrespect for the law and thus increase copyright infringement.

The stronger that inappropriate laws are enforced, the more we might see an increasing disrespect for other laws which could have a devastating effect on society.

Legality of time/device shifting

In the United States, time and device shifting was considered perfectly legal under their living Fair Use regime. This was a key part of their Sony Betamax Case in 1984 which said that Sony was not liable for contributing to copyright infringement because the VCR had substantial non-infringing uses. The uses that were considered non-infringing included time and device shifting.

In Canada people have been told that Canadian Copyright law is somehow “weaker” than US law. Canadians legitimately believe that if Americans are legally allowed to time and device shift without permission, then we must be able to as well. While Canadian copyright law is tilted more in favour of copyright holders than US law in a number of ways, copyright holders have not wanted to sue Canadians for this type of infringement as it would be a public relations nightmare. It is the same reason that music labels have not been suing for unauthorized P2P filesharing in Canada, even though this is clearly illegal under current Canadian law, open to massive statutory damages (maximum $20K per infringing file shared), and they only lost their case in 2004/2005 due to lack of evidence.

The Conservative media spin around Bill C-61 claims that time and device shifting will be legal in Canada. Unlike the USA where this type of activity is taken out of requiring permission, it remains part of the permission culture with Bill C-61. All the Conservatives did was change the default for a few special cases from being denied unless granted to being granted unless denied. In the vast majority of situations these activities will continue to be denied in Canada under technical measures, contracts, or both.

In other words, those wishing to time and device shift in Canada will be less able to do so under Bill C-61 than the status-quo, given the Conservatives have turned the situation from one where lawsuits would be unlikely to where lawsuits will be considered reasonable.

Where the Conservatives are trying to spin C-61 as balancing the rights of users with those of copyright holders, I feel that even the provisions they have claimed will help copyright users will only cause harm.