The Canadian DMCA – The Actual Text – Music – Sony Rootkit Legalized

There are numerous headlines right now and protest is only going to get bigger, but what does the Canadian DMCA actually say in it’s current version? We here at Zeropaid are currently studying the new legislation so we can show just what is going on.

We reported earlier today that the Canadian DMCA was tabled. Reading legislation is a time consuming process. While we aren’t lawyers or are able to offer legal advice, we can offer how an ordinary citizen might interpret what is being said in the legislation.

We begin this series with one of the flash points held within the bill – the anti-circumvention provisions. This is namely the circumvention of music (which is called “Reproduction of music” in the act). This provision is found in section 29.22 of the act. The provision starts out seemingly reasonable enough with the following:

(1) It is not an infringement of copyright for an individual to reproduce onto a medium or device a musical work embodied in a sound recording, a performer’s performance of a musical work embodied in a sound recording, or a sound recording in which a musical work or a performer’s performance of a musical work is embodied, or any substantial part of such a work or other subject-matter, if the following conditions are met:

(a) the sound recording is not an infringing copy;

(b) the individual legally obtained the sound recording, otherwise than by borrowing it or renting it, and owns the medium or device on which it is reproduced;

Is this a DMCA or a fair Use provision? It almost sounds quite reasonable and that this would allow for numerous new rights for the consumer such as format shifting. Unfortunately, and as Michael Geist has put it, “check the fine print”. The provision continues with this devil in the details:

(c) the individual, in order to make the reproduction, did not circumvent a technolog- ical measure or cause one to be circumvented, within the meanings of the definitions “circumvent” and “technological measure” in section 41;

Ouch, ouch and ouch again. First of all, Apple’s iTunes use DRM. So if you burn the music onto a CD (which would require circumvention, you’d be liable for copyright infringement. There’s also the issue of music that has some form of copy protection. One of the most notorious iterations of copy-protection was the Sony Rootkit DRM which opened up people’s computers to malicious attacks using cloaking technology that even virus scanners won’t pick up. So if you were to protect yourself from the Rootkit DRM and manage to put the music onto your hard drive, that would be an infringement. The same seems to be said if one were to get the music through disabling auto-run – a way to prevent the malicious rootkit software from being installed onto the computer. In essence, the Sony Rootkit through this provision alone has been more legalized then ever.

The provision mentions section 41 which states the following:

41.1 (1) No person shall

(a) circumvent a technological measure within the meaning of paragraph (a) of the definition “technological measure” in section 41;

(b) offer services to the public or provide services if

(i) the services are offered or provided primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological measure, or

(iii) the person markets those services as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market those services as being for those purposes; or

(c) manufacture, import, provide — including by selling or renting — offer for sale or rental or distribute any technology, device or component if

(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a techno- logical measure, or

(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

So basically, no one is allowed to break DRM in any way shape or form which appears to include the Sony Rootkit DRM according to 41.1 (1) A.

Making anything that is primarily used to circumvent DRM is illegal according to 41.1 (b). One may wonder how one can interpret the law. The main question is, who can make the opinion that a certain “device” has the primary function of DRM circumvention? Viacom suggests that YouTube is primarily used for watching TV, but this isn’t really true given that there are thousands of people posting videos of their own such as home movies, opinion pieces, vlogging, animation demos, music video demos (something even major record labels are offering), making parodies of videos, etc. etc. The question is, is YouTube only used for copyright infringement? Arguably, according to the major copyright industry, this would be accurate, but to the digital activist, this is not at all true. The same could be said for something that could be used to circumvent DRM in music. This legal gray area the act creates would no doubt open the floodgates for litigation.

Section C also makes it illegal to distribute devices that are ‘primarily used for circumvention’ This clearly takes away rights from software writers given that even if they give permission for their works to be distributed (ala GNU/GPL/etc.) then the people redistributing the software (i.e. file-sharing) would still be violating the copyright act.

Some suggest that the act will close a legal loophole for software writers. Arguably, this section alone goes beyond this and makes it possible to punish people who use file-sharing to obtain free/open sourced content of this nature as well.

Going back to the music provision, it goes on to say the following:

(d) the individual reproduces the sound recording no more than once for each device that the individual owns, whether the reproduction is made directly onto the device or is made onto a medium that is to be used with the device;

So, in other words, if one were to manage to obtain a DRM-free CD, manage to avoid DRM through the process of copying, you can only put this work onto a device only once. If, say, the song is accidentally erased, it would be an infringement to copy it over to that said device (i.e. iRiver) It’s even worse to think about what would happen if there’s a system failure of some sort on your computer because copying the music onto the computer would be illegal. Put it in another way through example:

1. Person buys an MC Lars album.
2. That person rips a copy of that album onto their computer.
3. That computer undergoes a system wipe due to viruses getting on there through the Rootkit installed via the Switchfoot album earlier.
4. Said person re-installs everything and rips the MC Lars album.
5. Said person buys and iPod
6. Said person copies Lars album onto iPod

This “said person” is now a copyright criminal because of step 4 which made step 6 possible. So much for format shifting.

Moving on to the next section which states the following:

(e) the individual does not give the reproduction away;

This seems reasonable enough until one factors in the simple fact that Canadians pay a levy on blank media. Basically, whenever a person buys a blank CD, money goes to a copyright collective known as the CPCC. In some respect, this makes it even more illegal to give away music via CDs, thus criminalizing free promotion through mix CDs, mixtapes, etc.

Moving on to a reasonable bit:

(f) the reproduction is used only for private purposes.

Obviously, physical pirates, which many in the file-sharing community never really liked that much to begin with, would be in trouble legally speaking because of this alone.

This is how a non-legal expert might interpret this section of the bill. Obviously, a lot of controversial parts in this one section alone, but since this is a large bill, this is pretty much only the beginning.