(Digital) Locks are multipurpose tools, and can be used or abused

(First published on IT World Canada blog)

In an interview by Jesse Brown of CBC’s Search Engine, Jim Prentice suggested that “even for private personal use … one should not be breaking a digital lock”. This statement, along with many others made in the interview, suggest that Minister Prentice does not understand the controversy around the uses and abuses of digital locks. His suggestion that the recording industry has been moving away from digital locks also reminds us that he is unaware that most of the controversy is not around locks applied to content, but locks applied to devices (Even in the “DRM” debate, Content is not King).

Minister Prentice is not alone in not understanding the issues. In conversations with Canadian creators who are thus far proponents of anti-circumvention laws, they believe these locks are like the locks on their own houses — locks being used to keep intruders out. With this belief they suggest further that it should simply be illegal to break digital locks.

Locks are a generic technology that is neither good nor bad. A lock can be used to help reduce unlawful activity, but it can also be abused to hide an unlawful activity or be abused as part of committing an unlawful activity. There should not be a law against breaking locks, digital or otherwise, since the law must be focused on the underlying activity (and whether it is lawful or not) and not the generic technology.

For physical locks on our homes we recognize that breaking a lock as part of a break-and-enter is entirely different from the home owner breaking a lock (or hiring a locksmith) to allow them to enter their own home if they lost all their keys.

In a previous article titled “Access and use “technological measures” - a legal distinction without a technological difference?” I discussed the legal distinction being made in C-61 between “access controls” and “use controls”.

In an article titled “Technical Protection Measures (TPMs) and Educational Use of the Internet” I made a different set of distinctions between Technical Control Measures (TCM), Technical Access Measures (TAM), and Technical Information Measure (TIM).

With these two articles as background, I would like to go through a few quick examples and discuss the controversies.

eMusic

I am a subscriber to the eMusic service for both music and audio books. In a previous article I went into details of the technology behind the service. The summary is this: It is an electronic commerce site where subscribers securely log in and are able to download unencrypted audio files encoded in the standard MP3 format.

Does this service use any digital locks? Yes: The web server is itself locked down and makes use of a Technical Access Measure (TAM) in order to ensure only paid members can access the site, and they only download the number of songs/books they have paid for.

Is this use of digital locks controversial? No: The lock is being applied by the owner of the computer (eMusic’s web servers), and they are not being used to hide any unlawful activities.

Is the protection of this type of lock in the Copyright act controversial? Yes: While this specific electronic commerce site happens to be selling access to copyrighted works, this is simply an electronic commerce site.

In his paper Constitutional Jurisdiction Over Paracopyright Laws, University of Ottawa law professor Jeremy F. Debeer said it this way:

“Although paracopyright provisions are in a way connected to copyrights, they simultaneously implicate issues typically reserved for provincial legislators, such as contractual obligations, consumer protection, e-commerce, and the regulation of classic property.”

The controversy could be avoided by simply having all the aspects of this type of electronic commerce service adequately protected under provincial law, including any digital locks used to restrict access to the electronic commerce service to paying customers. This would be far more beneficial anyway given it would protect the interests of all electronic commerce services, not just that extremely narrow subset of services that happen to be selling access to copyrighted works.

What has been surprising in the Canadian debate is that the two parties who would otherwise be protecting of provincial jurisdiction (the Conservatives and the Bloc) are the two parties who appear to be most supportive of anti-circumvention laws being added to federal copyright law. I am left wondering if they don’t understand the issues, or whether they really have any respect for provincial jurisdiction.

Apple’s iTunes

Does this service use digital locks: Yes, and many of them.

Apple’s iTunes service is an locked end-to-end delivery system where Apple controls everything from their online store (e-commerce services), to the locked-down desktop software that must be used to access the store, locks applied to the legally purchased content, and locks on the subset of devices which must be used to access the purchased content.

The controversies for each of the locked down component are different.

The locks on the electronic commerce site are no different than the eMusic service, where the only controversy is the misplacement of the protection in the federal Copyright act rather than the appropriate provincial laws.

The locks on the content are controversial as the legal protection of these locks represent an extension of copyright to include a new “digital access” right. Copyright holders will now be granted the exclusive right to decide what specific brands of access technology, or possibly even individual devices, that are allowed to access the content. None of the activities which copyright previously regulated (section 3, 15 or 18 and any act for which remuneration is payable under section 19) restricted access to a work, but restricted activities which someone could do once they already had access to the work.

This new “digital access” right can be harmful in many ways, often causing the harm which is discussed under section 77 of the competition act under “refusal to deal” or “tied selling”. Copyright is already a government granted monopoly over doing specific activities with a work, and it should be obvious that we need to be very careful extending the law in ways that will be harmful to the overall economy and to other non-copyright related markets (such as the market for access tools).

The locks on the desktop software, and the locks on devices are controversial for what should be obvious property rights reasons. These locks are being used to protect the rules expressed within the software from the owner of the device. In the case of the device the analogy would be to someone other than the owner of a home placing a lock on the home, and then regulating the activities of or making other demands of the owner. When we recognize that these are foreign locks, and not locks applied by the owner, it should follow that we should not be legally protecting but legally prohibiting this type of harmful activity.

So, should we be breaking digital locks? The answer, like many things in law, is: it depends. What it should be dependant on are things such as who owns what is locked, and whether the lock is being used to stop an unlawful activity or to perpetrate or hide an unlawful activity. Recognizing this, it should be obvious that we need the law to focus on the underlying activity, and not be confused by the fact that digital locks are involved.