Gannon -u_of_t_presentation_2011


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Gannon -u_of_t_presentation_2011

  1. 1. Copyright and Digital Rights: Technological Protection Measures (TPMs)James GannonMcCarthy Tétrault LLPjgannon@mccarthy.ca416-601-7961 Wednesday, March 3, 2011 10147134 1
  2. 2. Technological Protection Measures (TPMs) ¬ What are TPMs? ¬ Benefits and drawbacks of TPMs ¬ TPM circumvention ¬ Anti-circumvention provisions in Bill C-32 22
  3. 3. What are TPMs? 3
  4. 4. Technological Protection Measures (TPMs) ¬ A TPM is a technical tool that operates to restrict: ¬ copying of a protected digital work, or ¬ accessing a protected digital works. ¬ Also referred to as Digital Rights Management (DRM) or “digital locks”. 44
  5. 5. TPM Example: CD-Key 5
  6. 6. TPM Example: Video game protection 6
  7. 7. TPM Example: Content Scrambling System (CSS)¬ CSS key sets are licensed by the DVD Copy Control Association to manufacturers who incorporate them into products such as DVD movie releases, drives & players.¬ Most DVD players are equipped with a CSS Decryption module.¬ CSS prevents byte-for-byte copies of DVD from being playable since such copies will not include the keys that are hidden on the lead-in area of the restricted DVD disk.¬ Similar copy-protection TPMs exist for e-books, music and movie files. 7
  8. 8. Examples of Technological Protection Measures Industry Product Copy restriction Ad-wall Login/ passwords/ activation key Portable Music Players •Zune Marketplace WMA •PlayForSure (Napster to Go) Ringtones •Open Mobile Alliance N/A •Ringtone server authentication Music •Helix and Harmony (RealNetworks) •Spotify •Rhapsody (subscription) •Windows Media DRM •Internet-radio Digital Music Download •Wal-Mart Music Downloads •OpenMG(Sony) •Adobe Flash copy prevention (YouTube, Hulu, Netflix) •TV station websites (CTV, •Netflix Watch Instantly (subscription) TV Shows CBC) •Adobe Flash copy prevention (CinemaNow, Netflix) •Movie studio websites. •Blockbuster online (rental deletes after 30 days unless pay for full film) Film •FlimKey (Quicktime) •Websites that offer movies subject to viewing ads (Hulu, Movies •Content Scrambling (DVDs) etc.) •Advanced Access Content System (Blu-Ray) Books •AZW (TPM for Amazon Kindle) •Microsoft Reader •Ad-wall news websites and •Acrobat Security (file authenticates with Newspapers/ magazines Abode Content Server) Magazines •Subscription news websites (WSJ, Publishing Economist) •Abode PDF copy restrictions •Research journal websites (Springer, Cdn Med Ass Jrnl) Research Publications •Online research tools (Lexis Nexis, Westlaw) •SafeDisc (Macrovision) •Shareware/freeware download •Serial Keys websites •Subscription games (World of Warcraft, Business Software etc.) •Steam/Impulse digital download Software •SecureROM (Sony) •Online game websites •Microsoft Genuine Advantage (product Video Games ( updates) •ROM-Mark (PS3), other similar TPMs on consoles Mobile Apps •FairPlay (iTunes) •Blackberry App World 8
  9. 9. Benefits and drawbacks of TPMs 9
  10. 10. 10
  11. 11. Benefits of TPMs¬ “Legal protection for technological measures has helped foster new business models that make works available to the public at a variety of price points and enjoyment options, without engendering the ‘digital lockup’ and other copyright owner abuses that many had feared.” Jane C. Ginsburg, “Legal Protection of Technological Measures Protecting Works of Authorship: International Obligations and the US Experience”, Columbia Public Law & Legal Theory Working Papers, Paper 0593, 2005¬ Examples: Hulu, Blockbuster Online 11
  12. 12. Benefits of TPMs¬ “The more widespread TPMs and DRM systems become, the more rights-holders are likely to make content available legitimately”¬ Copyright Board of Canada, Private Copying III Decision, December 12, 2003¬ Every major media form’s “online breakthrough” only occurred once rights-holders were satisfied that their works would be protected through TPMs.¬ Examples: music (iTunes), video (Hulu, YouTube), books (Kindle), mobile apps (iPhone/Blackberry Apps). 12
  13. 13. Benefits of TPMs¬ Allowing the ongoing distribution of Circumvention Devices will reward – not deter – software piracy, ultimately harming the public. True innovators will be deterred from investing the effort and resources needed to create new products if counterfeit-enabling developers are allowed to siphon away the compensation that real creators such as SCEA otherwise would earn. On the other hand, no public benefit results from Defendants’ activities. No new works have been created; indeed, piracy deters creativity. Public policy certainly does not support violations of the DMCA to facilitate software piracy.¬ Plaintiff’s brief, Sony Computer Entertainment America v. Hotz. 13
  14. 14. TPM controversies: Sony “Rootkit” (2005)¬ Software code would inadvertently install on users’ computers when CD was inserted into CD-ROM drive.¬ Purpose of the software was to prevent the CD from being copied to the computer. However, the program also made the user’s computer vulnerable to worms and viruses.¬ Sony eventually made available a patch that would remove the program from computers.¬ Modern TPMs are embedded on the media files themselves and do not require any software to be installed.¬ Rootkit would likely be illegal under many privacy and anti-spyware laws. 14
  15. 15. TPM controversies: Amazon Kindle (2009) 15
  16. 16. TPM controversies: Assassin’s Creed II (2010) • PC edition of popular video game will require constant connection to distributor’s servers to validate authenticity of game, even though the game is not played online. • Trying to emulate most successful PC copy-protection method to date: requiring users to log in using unique account for online games like World of Warcraft. 16
  17. 17. TPM Circumvention 17
  18. 18. TPM Circumvention: DeCSS ¬ Software that would remove CSS TPM that prevented copying DVDs. ¬ Under American DMCA, “trafficking” a TPM circumvention tool is an infringement of copyright. ¬ File-sharing enthusiasts created a variety of “illegal” DeCSS articles: clothing, posters, songs, etc. 18
  19. 19. TPM Circumvention: Modchips ¬ Small electronic chip used to disable built-in restrictions and limitations on video game consoles and portable devices. ¬ “Is it enough if the technological measure is a discouragement or general commercial hindrance to copyright infringement or must it be a measure which physically prevents it? To our minds the position is clear – it is the latter” ¬ Higgs v. R. (2008) EWCA Crim 1324 (24 June 2008) 19
  20. 20. TPM Circumvention: Crackz and Keygens 20
  21. 21. How should the law protect TPMs?Examining the anti-circumvention provisions in Bill C-32 21
  22. 22. WIPO Internet Treaties¬ 1996 WIPO WCT and WPPT Treaties (“Internet Treaties”) are forward looking multi-lateral treaties that address problems of maintaining a balance of rights in the Internet age. WCT Article 11 Obligations concerning Technological Measures Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law. 22
  23. 23. U.S. Digital Millennium Copyright Act (DMCA, 1998)¬ § 1201(a)(1)(A): “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”¬ § 1201(a)(2)(A): “No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title”¬ § 1201(b)(1)(A): “No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof”¬ Exceptions for software interoperability, encryption research, computer security, privacy, law enforcement and national security and libraries. 23
  24. 24. EU Copyright Directive (EUCD, 2001)¬ Article 6(1): “Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.”¬ Article 6(2)” “Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which [are primarily designed to circumvent] any effective technological measures.”¬ Article 6(3): Technological measures shall be deemed "effective" where the use of a protected work is controlled through application of an access control or protection process or a copy control mechanism, which achieves the protection objective.¬ Exceptions for law enforcement, libraries, perceptual disabilities and other exceptions deemed necessary by Member States. 24
  25. 25. Bill C-32 – TPM definitionsIndustry Canada Fact Sheet: “The bill recognizes that certain protections, such as restrictedcontent on news websites or locked video games, are important tools for copyright owners toprotect their digital works and are often an important part of online and digital businessmodels. While the music industry has moved away from digital locks on CDs, they continue to be used inmany online music services. Software producers, the video game industry and movie distributors alsocontinue to use digital locks to protect their investments. Canadian jobs depend on their ability tomake a return on their investment. Businesses that choose to use digital locks as part of theirbusiness models will have the protection of the law.”¬ “technological protection measure” means any “circumvent” means, effective technology, device or component that, in the ordinary course of its operation, (a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure”,¬ (a) controls access to a work, to a perform- er’s to descramble a scrambled work or decrypt an performance fixed in a sound recording or to a encrypted work or to otherwise avoid, bypass, sound recording and whose use is authorized by remove, deactivate or impair the technological the copyright owner; or protection measure, unless it is done with the authority of the copyright owner; and¬ (b) restricts the doing — with respect to a work, to a performer’s performance fixed in a sound (b) in respect of a technological protection recording or to a sound recording — of any act measure within the meaning of paragraph (b) of referred to in section 3, 15 or 18 [infringement] the definition “technological protection measure”, and any act for which remuneration is payable to avoid, bypass, remove, deactivate or impair the under section 19 [royalties]. technological protection measure. 25
  26. 26. Technological Protection Measures (TPMs)¬ 41.1 (1) No person shall¬ (a) circumvent a technological protection measure within (ii) the uses or purposes of the technology, device or the meaning of paragraph (a) of the definition component are not commercially significant other than “technological protection measure” in section 41; when it is used for the purposes of circumventing a¬ technological protection measure, or (b) offer services to the public or provide services if (iii) the person markets the technology, device or (i) the services are offered or provided primarily for component as being for the purposes of circumventing the purposes of circumventing a technological a technological protection measure or acts in concert protection measure, with another person in order to market the technology, (ii) the uses or purposes of those services are not device or component as being for those purposes. commercially significant other than when they are Exceptions to infringement: offered or provided for the purposes of circumventing a technological protection measure, 4. Law enforcement and national security (s.41.11) or 5. Interoperability of computer programs (s.41.12) (iii) the person markets those services as being for 6. Encryption research (s.41.13) the purposes of circumventing a technological protection measure or acts in concert with another 7. Protection of personal information (s.41.14) person in order to market those services as being for those purposes; or 8. Computer and network security (s.41.15) (c) manufacture, import, distribute, offer for sale or rental 9. Perceptual disability (s.41.16) or provide — including by selling or renting — any 10.Broadcast undertakings (s.41.17) technology, device or component if 11.Radio apparatus (s.41.18) (i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological protection measure, 26
  27. 27. The C-32 TPM provisions are consistent with the WIPO Treatiesand permit copy control circumvention for fair dealing purposes Act of Act of Circumvention Circumvention Circumvention Circumvention- Tools- Tools- Access - Access Copyright Copyright Criminal Country Control Control Control Control Sanctions Technological Technological Technological Technological Measure Measure Measure Measure United Prohibited (§ Not prohibited Prohibited (§ Prohibited (§ §1204 States 1201 (a)(1)) (by DMCA) 1201(a)(2)) 1201(b)) Remedies must EU be “effective, Prohibited (Art. Prohibited (Art. Prohibited (Art. Prohibited (Art. Copyright proportionate 6(3); Art. 6(1)) 6(3); Art. 6(1)) 6(3); Art. 6(2)) 6(3), Art. 6(2)) Directive and dissuasive”. (Art.8) Not Prohibited –permits Criminal circumvention sanctions in Canada Prohibited for fair dealing, Prohibited Prohibited Commercial education and Cases other purposes. 27
  28. 28. Bill C-32 flexibility to implement additional TPMexceptions The government can, at any time through regulation: •Prescribe that a certain class of TPMs will not be protected under Bill C-32 (s.41.21(1)) •Prescribe a new exception to allow circumvention for a particular purpose (s.41.21(2)(a)) •Require a copyright owner who limits access to a work through TPMs to allow access (s.41.21(2)(b)) 28
  29. 29. Can the WIPO Treaties be implemented bylimiting protection to circumvention for thepurposes of infringement? 29
  30. 30. Bill C-60 (2005)¬ s.34.02(1): “An owner of copyright [is] entitled to all remedies […] for the infringement of a right against a person who, without the consent of the copyright owner or moral rights holder, circumvents, removes or in any way renders ineffective a technological measure protecting any material form of the work […] for the purpose of an act that is an infringement of the copyright”¬ s.34.02(2): “An owner of copyright […] has the same remedies against a person who offers or provides a service to circumvent, remove or render ineffective a technological measure protecting a material form of the work, the performer’s performance or the sound recording and knows or ought to know that providing the service will result in an infringement of the copyright” 30
  31. 31. The WIPO Treaties do not permit the type offramework provided for in previous Bill C-60 “A plain reading of Articles 11 and 18 of the WIPO Internet Treaties, the definition of “technological measure” and new section 34.02 [of Bill C-60] inevitably raise questions about the adequacy of the protection for technological measures to enable Canada to ratify the WIPO Treaties. In fact, in view of persuasive commentary including in particular the WIPO Guide and legislative developments among Canada’s trading partners, the inevitable conclusion is that Canada’s legislation could not adequately implement its obligations regarding technological measures under the WIPO Internet Treaties without significant amendment to the definition and new section 34.02.” Glen Bloom, Technological Measures and Rights Management Information, October 25, 2005 31
  32. 32. The WIPO Treaties cannot be implemented by limitingprotection to circumvention for the purposes of infringement ¬ “It seems that the vehemently debated issues in connection with the TPM provisions of Bill C-32 are the questions of (i) whether it is a treaty obligation to protect both access-control and copy-control TPMs; (ii) whether it is a treaty obligation to prohibit so-called “preparatory acts” (the manufacture and distribution of “protection-defeating devices,” etc.); and (iii) whether circumvention should only be prohibited when it is linked to infringement. Canada’s major trading partners have answered affirmatively the first two questions and negatively the third one. I submit, along with authoritative commentators, that – in view of the treaty provisions and their negotiation history – these are the correct answers.” ¬ Dr. Ficsor, “TPMs AND FLEXIBILITY (“THE ABILITY OF BENDING WITHOUT BREAKING”) – WHY SHOULD THE TPM PROVISIONS OF BILL C-32 PROTECT ACCESS CONTROLS AND PROHIBIT “PREPARATORY ACTS, 32
  33. 33. Protecting Protection is Nothing New¬ “The notion of legal protection for protection technologies finds a number of incarnations in Canadian law. The current drafting of Bill C-32 would extend this concept to protecting the devices that are increasingly relied-upon in the artistic, entertainment and software industries to safeguard their products against unauthorized access and copying. Canadian law currently defends the locks, firewalls and encryptions we use to protect our homes, computers and broadcast signals (as well as outlawing the devices used to circumvent these protections). There is no reason why we ought not to extend this logic to devices used to protect our valuable creative works as well.”¬ See, “Protecting Protection is Nothing New”, IPOsgoode, November 2010, 33
  34. 34. VANCOUVER MONTRÉALSuite 1300, 777 Dunsmuir Street Suite 2500P.O. Box 10424, Pacific Centre 1000 De La Gauchetière Street WestVancouver BC V7Y 1K2 Montréal QC H3B 0A2Tel: 604-643-7100 Tel: 514-397-4100Fax: 604-643-7900 Fax: 514-875-6246Toll-Free: 1-877-244-7711 Toll-Free: 1-877-244-7711CALGARY QUÉBECSuite 3300, 421 7th Avenue SW Le Complexe St-AmableCalgary AB T2P 4K9 1150, rue de Claire-Fontaine, 7e étageTel: 403-260-3500 Québec QC G1R 5G4Fax: 403-260-3501 Tel: 418-521-3000Toll-Free: 1-877-244-7711 Fax: 418-521-3099 Toll-Free: 1-877-244-7711TORONTOBox 48, Suite 5300 UNITED KINGDOM &Toronto Dominion Bank TowerToronto ON M5K 1E6 EUROPETel: 416-362-1812 125 Old Broad Street, 26th FloorFax: 416-868-0673 London EC2N 1ARToll-Free: 1-877-244-7711 UNITED KINGDOM Tel: +44 (0)20 7489 5700 Fax: +44 (0)20 7489 5777OTTAWASuite 200, 440 Laurier Avenue WestOttawa ON K1R 7X6Tel: 613-238-2000Fax: 613-563-9386Toll-Free: 1-877-244-7711 34