6 ms·

Win for copyright user rights in Canada: Digital locks do not trump fair dealing

248 points by peutetre 2y ago

isaacfrond 2y ago
tl;dr The case arises from years of litigation between Blacklock’s Reporter, a paywalled news service based in Ottawa, and the Canadian government. Blacklock’s continued to press ahead with other cases with the latest decision involving 15 articles that were distributed to media personnel at Parks Canada. The department had an individual subscription to the service, but Blacklock’s argued that allowing anyone other than original subscriber to access articles constituted copyright infringement. Blacklock’s position on this issue was straightforward: it argued that its content was protected by a password, that passwords constituted a form of technological protection measure, and that fair dealing does not apply in the context of circumvention. In other words, it argued that the act of circumvention (in this case of a password) was itself infringing and it could not be saved by fair dealing. The Federal Court disagreed on all points. It cited with approval CIPPIC’s argument that “the TPM provisions do not apply to restrain fair dealing; using a validly obtained password to access content is not circumvention.” Further, court noted “how the password was obtained is significant as this may prevent a user from invoking the fair dealing provisions of the Act.” In other words, not all password sharing will qualify as fair dealing. This decision is not a licence to simply share passwords with no consequences, but rather affirmation that passwords are not a technological protection measure and that using validly obtained password does not limit fair dealing rights.
- bluefirebrand 2y ago
  My reading (grain of salt, I'm not a lawyer) is that receiving a password from the person who owns that password is likely to always fall into "validly obtained" and be considered fair dealing However the ruling leaves open the possibilty to find other forms of password sharing to be considered invalid. We'd have to see if something like a "My friend shared his friend's password with me without his friend knowing" would continue to be "valid" Stolen passwords are almost certainly "invalid If we think about it like house keys, entering someone's home with a stolen key is likely illegal. Entering a home with a key they lent you is fine. Entering a key that you obtained from someone who is allowed to have the key but not explicitly allowed to share the key is a grey area
  - wccrawford 2y ago
    I'm thinking that selling access to your password won't be "fair dealing", either, though.
    - DowagerDave 2y ago
      the obvious case will be netflix account sharing, while IP-locking an account might be considered valid.
    - bluefirebrand 2y ago
      Interesting. You're probably right, and it makes me think of some similar but slightly different situations For instance what about cafes having magazine subscriptions that they give you a password for when you buy from them, much like they might have a couple of newspapers lying around (or daily coffee news prints) I wonder if that would count as fair dealing... Not "selling password access" but "giving password access to paying customers of our business" I also wonder how it's really any different than bars doing big pay per view events where they charge a cover to get in so you can watch
      - pbhjpbhj 2y ago
        Bars (in UK) pay enormous sums of money to present PPV broadcasts and such. They are charged, usually, according to floorspace; sometimes size of screens is factored in, sometimes there are maximum numbers of attendees. It's similar to libraries having to buy a book along with a license that bypasses the usual imprint that says "not for lending"; they don't just buy a book from a bookstore.
        sfRattan 2y ago
        A license for a live event stream makes sense, but libraries having to buy special licenses to loan out physical books seems completely nuts to me. Does the UK not have an equivalent to first sale doctrine for physical goods?
        bluefirebrand 2y ago
- simoncunningham 2y ago
  This is a positive ruling, but it seems to be a little ridiculous to be applying anti-circumvention claims to something as trivial as a website password. What I am more interested in is if a similar precedent would apply to fair-use of legitimately obtained content or hardware (e.g backing up a Blu-Ray disc, obtaining and installing a mod-chip in a video-game console to utilize third-party applications, etc.)
freeone3000 2y ago
Excellent. A user’s rights are determined by social consensus and the law, and cannot be circumvented simply by restricting access technologically. Big win for fair dealing (similar: american fair use)
mthoms 2y ago
For those who are unaware, "Fair Dealing" is the Canadian equivalent of "Fair Use". As a Canadian, I have so much gratitude to Michael Geist and the CIPPIC. Many of these issues don't seem to generate the same amount of public interest in Canada as they do in the States, but it's very important work. "The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) is Canada’s first and only public interest technology law clinic. Based at the University of Ottawa’s Faculty of Law, our team of legal experts and law students works together to advance the public interest on critical law and technology issues." https://www.cippic.ca/about-us https://www.cippic.ca/about-us
CobrastanJorji 2y ago
I've always been confused by how these decisions go. Everybody agrees that the user has the right to make a copy, so when the company puts a "digital lock" on it, the fight is whether the user has a right to break the lock. But if I have a right to go through my door, and somebody has put a padlock on the door to keep me out, the right question shouldn't be whether I'm allowed to pick the lock, it should be why the padlock is legal. If customers may legally make a copy of the e-book you sell to them, it should be on you the merchant to ensure customers are able to do so.
- giancarlostoro 2y ago
  This would probably fix Linux emulation for some games is my understanding, weirdly enough, all the games I hear have DRM / anticheat issues on Linux are the games I avoid, usually they are the more "popular" games that don't interest me.
- jfengel 2y ago
  The digital lock is a matter of conflicting rights. They have a right to prevent infringement of their copyright; you have a right to make limited copies. The lock on your door is not -- assuming that they don't in fact have some kind of claim on you, like a landlord to whom you have failed to pay rent. So the situations are not parallel, and it should be no surprise that the decisions would differ. The job of a court is to decide which right prevails when rights conflict. There's often reasonable disagreement over it, and the distinction is often based on a complex and esoteric set of precedents, and on the specific wording of a law.
  - L-four 2y ago
    So a literal electric door lock would have the right to lock your door if they think you might break the copy right on the door lock you purchased from them.
    - vkou 2y ago
      Sometimes analogies are a useful tool for understanding a situation. This one is not.
spoonjim 2y ago
We can’t fight the right to break the digital lock. They are getting increasingly unbreakable. We must void the right of the vendor to apply such a lock in the first place.
- kstrauser 2y ago
  I agree that the locks shouldn’t be allowed. At the minimum, it should be false advertising to describe exchanging money for a DRM-infected product as a “sale”. That said, I’ve watched an endless parade of unbreakable encryption being broken. I don’t expect that to change any time soon.
  - LoganDark 2y ago
    It was a sale. It just wasn't a purchase. They sure did sell something. But in the end, you own nothing.
- AnthonyMouse 2y ago
  The issue here is broader than that. For example, Google uses "Android Integrity" (remote attestation) to lock out competitors to Android and Google Play. If you want to create a competitor, you need it to be compatible with existing apps or you can't get off the ground. The customer who adopts your alternative system wants to install the app for their bank and if it doesn't work they regard your system as broken and stop using it. That's fine, Android is open source. You can implement compatibility with existing apps. Only now Google's servers tell the bank's app not to run on your competing system, because it isn't Google's. But the apps aren't going to specifically target your new system until you have users -- which you can't get without apps. This is a very different problem than DRM, because people variously find ways to break the DRM, and they only have to do it once to unlock everything. Even if the vendor patches it, it's too late, all the content is already on the pirate sites. Whereas with attestation, it often gets cracked, but then it's only cracked most of the time. Every once in a while, at random, your competing device breaks and you have to wait a few days for someone to crack the attestation again. Which normal users are not going to put up with, so an alternative competitor can't gain a foothold. That is a serious antitrust problem.
mikemitchelldev 2y ago
[flagged]
- Taek 2y ago
  Please don't use interesting articles as your chance to soapbox something entirely unrelated
  - mikemitchelldev 2y ago
    The manner in which a legal decision is interpreted by the masses is often more important than the decision itself because it influences decision making and how people communicate.

248 points by peutetre 2y ago

tl;dr The case arises from years of litigation between Blacklock’s Reporter, a paywalled news service based in Ottawa, and the Canadian government. Blacklock’s continued to press ahead with other cases with the latest decision involving 15 articles that were distributed to media personnel at Parks Canada. The department had an individual subscription to the service, but Blacklock’s argued that allowing anyone other than original subscriber to access articles constituted copyright infringement. Blacklock’s position on this issue was straightforward: it argued that its content was protected by a password, that passwords constituted a form of technological protection measure, and that fair dealing does not apply in the context of circumvention. In other words, it argued that the act of circumvention (in this case of a password) was itself infringing and it could not be saved by fair dealing. The Federal Court disagreed on all points. It cited with approval CIPPIC’s argument that “the TPM provisions do not apply to restrain fair dealing; using a validly obtained password to access content is not circumvention.” Further, court noted “how the password was obtained is significant as this may prevent a user from invoking the fair dealing provisions of the Act.” In other words, not all password sharing will qualify as fair dealing. This decision is not a licence to simply share passwords with no consequences, but rather affirmation that passwords are not a technological protection measure and that using validly obtained password does not limit fair dealing rights.

bluefirebrand 2y ago
My reading (grain of salt, I'm not a lawyer) is that receiving a password from the person who owns that password is likely to always fall into "validly obtained" and be considered fair dealing However the ruling leaves open the possibilty to find other forms of password sharing to be considered invalid. We'd have to see if something like a "My friend shared his friend's password with me without his friend knowing" would continue to be "valid" Stolen passwords are almost certainly "invalid If we think about it like house keys, entering someone's home with a stolen key is likely illegal. Entering a home with a key they lent you is fine. Entering a key that you obtained from someone who is allowed to have the key but not explicitly allowed to share the key is a grey area
- wccrawford 2y ago
  I'm thinking that selling access to your password won't be "fair dealing", either, though.
  - DowagerDave 2y ago
    the obvious case will be netflix account sharing, while IP-locking an account might be considered valid.
  - bluefirebrand 2y ago
    Interesting. You're probably right, and it makes me think of some similar but slightly different situations For instance what about cafes having magazine subscriptions that they give you a password for when you buy from them, much like they might have a couple of newspapers lying around (or daily coffee news prints) I wonder if that would count as fair dealing... Not "selling password access" but "giving password access to paying customers of our business" I also wonder how it's really any different than bars doing big pay per view events where they charge a cover to get in so you can watch
    - pbhjpbhj 2y ago
      Bars (in UK) pay enormous sums of money to present PPV broadcasts and such. They are charged, usually, according to floorspace; sometimes size of screens is factored in, sometimes there are maximum numbers of attendees. It's similar to libraries having to buy a book along with a license that bypasses the usual imprint that says "not for lending"; they don't just buy a book from a bookstore.
      - sfRattan 2y ago
        A license for a live event stream makes sense, but libraries having to buy special licenses to loan out physical books seems completely nuts to me. Does the UK not have an equivalent to first sale doctrine for physical goods?
      - bluefirebrand 2y ago
simoncunningham 2y ago
This is a positive ruling, but it seems to be a little ridiculous to be applying anti-circumvention claims to something as trivial as a website password. What I am more interested in is if a similar precedent would apply to fair-use of legitimately obtained content or hardware (e.g backing up a Blu-Ray disc, obtaining and installing a mod-chip in a video-game console to utilize third-party applications, etc.)

freeone3000 2y ago

Excellent. A user’s rights are determined by social consensus and the law, and cannot be circumvented simply by restricting access technologically. Big win for fair dealing (similar: american fair use)

mthoms 2y ago

For those who are unaware, "Fair Dealing" is the Canadian equivalent of "Fair Use". As a Canadian, I have so much gratitude to Michael Geist and the CIPPIC. Many of these issues don't seem to generate the same amount of public interest in Canada as they do in the States, but it's very important work. "The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) is Canada’s first and only public interest technology law clinic. Based at the University of Ottawa’s Faculty of Law, our team of legal experts and law students works together to advance the public interest on critical law and technology issues." https://www.cippic.ca/about-us https://www.cippic.ca/about-us

CobrastanJorji 2y ago

I've always been confused by how these decisions go. Everybody agrees that the user has the right to make a copy, so when the company puts a "digital lock" on it, the fight is whether the user has a right to break the lock. But if I have a right to go through my door, and somebody has put a padlock on the door to keep me out, the right question shouldn't be whether I'm allowed to pick the lock, it should be why the padlock is legal. If customers may legally make a copy of the e-book you sell to them, it should be on you the merchant to ensure customers are able to do so.

giancarlostoro 2y ago
This would probably fix Linux emulation for some games is my understanding, weirdly enough, all the games I hear have DRM / anticheat issues on Linux are the games I avoid, usually they are the more "popular" games that don't interest me.
jfengel 2y ago
The digital lock is a matter of conflicting rights. They have a right to prevent infringement of their copyright; you have a right to make limited copies. The lock on your door is not -- assuming that they don't in fact have some kind of claim on you, like a landlord to whom you have failed to pay rent. So the situations are not parallel, and it should be no surprise that the decisions would differ. The job of a court is to decide which right prevails when rights conflict. There's often reasonable disagreement over it, and the distinction is often based on a complex and esoteric set of precedents, and on the specific wording of a law.
- L-four 2y ago
  So a literal electric door lock would have the right to lock your door if they think you might break the copy right on the door lock you purchased from them.
  - vkou 2y ago
    Sometimes analogies are a useful tool for understanding a situation. This one is not.

spoonjim 2y ago

We can’t fight the right to break the digital lock. They are getting increasingly unbreakable. We must void the right of the vendor to apply such a lock in the first place.

kstrauser 2y ago
I agree that the locks shouldn’t be allowed. At the minimum, it should be false advertising to describe exchanging money for a DRM-infected product as a “sale”. That said, I’ve watched an endless parade of unbreakable encryption being broken. I don’t expect that to change any time soon.
- LoganDark 2y ago
  It was a sale. It just wasn't a purchase. They sure did sell something. But in the end, you own nothing.
AnthonyMouse 2y ago
The issue here is broader than that. For example, Google uses "Android Integrity" (remote attestation) to lock out competitors to Android and Google Play. If you want to create a competitor, you need it to be compatible with existing apps or you can't get off the ground. The customer who adopts your alternative system wants to install the app for their bank and if it doesn't work they regard your system as broken and stop using it. That's fine, Android is open source. You can implement compatibility with existing apps. Only now Google's servers tell the bank's app not to run on your competing system, because it isn't Google's. But the apps aren't going to specifically target your new system until you have users -- which you can't get without apps. This is a very different problem than DRM, because people variously find ways to break the DRM, and they only have to do it once to unlock everything. Even if the vendor patches it, it's too late, all the content is already on the pirate sites. Whereas with attestation, it often gets cracked, but then it's only cracked most of the time. Every once in a while, at random, your competing device breaks and you have to wait a few days for someone to crack the attestation again. Which normal users are not going to put up with, so an alternative competitor can't gain a foothold. That is a serious antitrust problem.

mikemitchelldev 2y ago

[flagged]

Taek 2y ago
Please don't use interesting articles as your chance to soapbox something entirely unrelated
- mikemitchelldev 2y ago
  The manner in which a legal decision is interpreted by the masses is often more important than the decision itself because it influences decision making and how people communicate.