This document discusses technological protection measures (TPMs), also known as digital rights management (DRM). TPMs are technical tools that restrict copying or accessing digital works. Examples provided include CD keys for video games and Content Scrambling System for DVDs. The benefits of TPMs include allowing new business models for digital distribution and encouraging rights holders to make content available online. However, TPMs are also controversial, as seen in cases like Sony's rootkit software and Amazon remotely deleting e-books. Anti-circumvention laws aim to prevent bypassing of TPMs to deter piracy.

1. Copyright and Digital Rights:
Technological Protection Measures (TPMs)
James Gannon
McCarthy Tétrault LLP
jgannon@mccarthy.ca
416-601-7961 Wednesday, March 3, 2011
10147134 1

2. Technological Protection Measures (TPMs)
¬ What are TPMs?
¬ Benefits and drawbacks of TPMs
¬ TPM circumvention
¬ Anti-circumvention provisions in Bill C-32
2
2

3. What are TPMs?
3

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”.
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4

5. TPM Example: CD-Key
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6. TPM Example: Video game protection
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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.
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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 (pogo.com) updates)
•ROM-Mark (PS3), other similar TPMs on consoles
Mobile Apps •FairPlay (iTunes) •Blackberry App World
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9. Benefits and drawbacks of TPMs
9

10. 10

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
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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).
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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. 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. TPM controversies: Amazon Kindle (2009)
15

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. TPM Circumvention
17

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. 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. TPM Circumvention: Crackz and Keygens
20

21. How should the law protect TPMs?
Examining the anti-circumvention
provisions in Bill C-32
21

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. 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. 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. Bill C-32 – TPM definitions
Industry Canada Fact Sheet: “The bill recognizes that certain protections, such as restricted
content on news websites or locked video games, are important tools for copyright owners to
protect their digital works and are often an important part of online and digital business
models. While the music industry has moved away from digital locks on CDs, they continue to be used in
many online music services. Software producers, the video game industry and movie distributors also
continue to use digital locks to protect their investments. Canadian jobs depend on their ability to
make a return on their investment. Businesses that choose to use digital locks as part of their
business 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. 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. The C-32 TPM provisions are consistent with the WIPO Treaties
and 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. Bill C-32 flexibility to implement additional TPM
exceptions
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))
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29. Can the WIPO Treaties be implemented by
limiting protection to circumvention for the
purposes of infringement?
29

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”
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31. The WIPO Treaties do not permit the type of
framework 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. The WIPO Treaties cannot be implemented by limiting
protection 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,
http://www.iposgoode.ca/Ficsor-TPMs-and-Flexibility.pdf
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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, http://www.iposgoode.ca/2010/10/protecting-protection-is-nothing-new/
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