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Chains, my baby's got me locked up in chains.
And they ain't the kind that you can see.
Written by Gerry Goffin and Carole King
Performed by The Beatles
Recorded on Please Please Me (Parlophone, 1963)
There's been a lot written about the digital rights management (DRM), and for good reason. It is an extremely timely and controversial topic. New developments are happening all this time. Some pundits predict that DRM is going the way of the dodo, but I don't fully agree. We'll get your opinions during this lesson.
To me, you've got to be very specific when talking about DRM. There are in fact 3 pillars of a DRM strategy. First, there are technological protection measures (TPMs). Second, there is rights management information (RMI). And third, there are end user licence agreements (EULAs). Be sensitive to the distinctions between these terms, because there's a world of difference from a legal and policy perspective.
What people talk about as digital locks are more formally known as "technological protection measures", or just "technological measures" as they're called in the WIPO Internet Treaties (WCT, art. 11-12 and WPPT, art. 18-19). Those provisions are "must reads." The other must-read piece for the week is "Unintended Consequences: Seven Years Under the DMCA," -- update: the 10-year report just came out -- a paper prepared by the EFF.
It is going to be important to actually look at the wording of the infamous D.M.C.A. if you're going to understand and evaluate it, so surf through 17 U.S.C. ç 1201. There's nothing like this in Canada - YET! But you can bet that things will eventually change. How? Well, here's what Paul Martin's Liberal government proposed in ss. 1(2) and 27 of Bill C-60. Compare that to the Harper Conservative's much more American-like approach in Bill C-61.
Neither of those bills made it past first reading. Is that a good or bad thing, in your opinion? FWIW, here's what I had to say in the Post and the Globe. Make up your own mind about the anti-circumvention provisions by reading Ian Kerr, Alana Maurushat & Christian Tacit, "Technological Protection Measures: Tilting at the Copyright Windmill" (2003) 34 Ottawa L. R. 9-82. Compare that study with this paper authored by Barry Sookman, "TPMs: A Perfect Storm for Consumers: Replies to Professor Geist" (2005) 4:1 Can. J. L. & Tech.
Despite the unintended consequences described in the EFF report, the DMCA's anti-cirumvention provisions have been used by the entertainment industries (especially movie studios) to shut down companies whose products they don't like. The best example is the now-defunct 321 studios, which was sued for distributing DVD ripping software. In the Reimerdes case, the movie industry successfully stopped a website from even linking to software that could descrable the copy-protection system on DVDs. Of course, this litigation rampage hasn't been effective, as there are still plenty of products out there for ripping your DVD collection to your laptop or iPod. The latest case, which just sprang up this fall, concerns the MPAA's beef with RealNetworks' DVD-ripping software.
We might spend some time talking about what the Aussies are doing on this subject. If you're interested in this angle, have a look at the Copyright Act 1968 (Cth.), s. 116A [Australia]. You'll see how the High Court of Australia interpreted the Act in Stevens v. Sony, [2005] HCA 58 (and see the comments of Matt Rimmer and Kim Weatherall, as well as Michael Geist). The Australian example is especially interesting because of the new US-OZ FTA, implemented through the U.S. FTA Implementation Act 2004. This FTA reflects similar agreements that are being "negotiated" around the world, in Central American countries like Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras and Nicaragua, as well as other places like Bahrain, Chile, Jordan, Morocco, Oman, Singapore, Thailand and many more.
We're also going to talk about the European perspective, mostly for what they're doing about protections from TPMs. To get some idea of why such protections may be appropriate, you can read my explaination of "How Restrictive Terms and Technologies Backfired on Sony BMG Music", (2006) Internet & E-Commerce Law in Canada. The EFF has also suggested that "The Customer is Always Wrong: A User's Guide to DRM in Online Music". France has been making news lately with its attempts to legislate interoperability in Project de loi n 596 (30 June 2006), which was subjected to the French Constitutional Court's review (English language coverage at e.g. The Register, "Zut! France drops iTunes bombshell" (30 June 2006)). The Scandanavians have also been paying attention to these concerns, as is evident from reports like the International Herald Tribune, "iTunes legal attacks spread from France" (8 June 2006), and The Register, "ITunes guilty of breaking Norwegian law" (7 June 2006).
The European perspective is also interesting, because the EUCD contains some unique instructions about the relationship between TPMs and levies. For example, have a look at Arts 6-7 of the EUCD. For further analysis of the problem, skim through an article I've referred you to earlier in this course: Bernt Hugenholtz, Lucie Guibault and Sjoerd van Geffen, "The Future of Levies in a Digital Environment" (Amsterdam: Institute for Information Law, 2003) at ch. 2, 6 and 7.
I don't want you to dwell on things that I've written, so I'm putting this link last. But I think it is relevant and important. I've adopted the term "paracopyrights" to describe TPMs because the scope of protection they provide goes above and beyond copyright law. The interesting legal conclusion that flows from that, in my opinion, is a very serious question about the constitutional validity of a federally-enacted law dealing with what is in "pith and substance" a provincial matter. See what I mean by reading "Constitutional Jurisdiction Over Paracopyright Laws", in M. Geist (ed.), In the Public Interest: The Future of Canadian Copyright Law (Toronto: Irwin Law, 2005).
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