Canadian Bill C-11 - Harmful to Free Software

Originally posted on Techrights on March 15, 2022.

Co-authored with Roy Schestowitz

Summary: A Free software-centric Bill C-11 analysis

At Techrights, we are heavily involved in the issue of software patents and the harm to Free (as in freedom) software that they can cause. In Canada, however, the issue of software patents has been largely non-existent.  Perhaps the only notable exception has been  the patent trolls operating in Canada and “marketing” elsewhere in the world, often relying strongly on the USPTO. MOSAID is one example that we have covered heavily, and continue to do so. The rejection of software patents in Canada could change with new developments surrounding the on-going Amazon “one-click” patent court case. Specifically, “one-click” may be eligible for patentability by the CIPO [1, 2, 3, 4, 5, 6, 7, 8, 9]. More information on the Amazon case can be found here, and the Financial Post covers the new developments in the case. While this news is troubling, there is a more immediate source of potential harm against Free Software in Canada. This is provided by law reform for that other Government-enforced monopoly, copyright.

Bill C-11, the so-called “Copyright Modernization Act”, has been debated in Canada for some years now. It is a development from two previous proposed copyright bills (C-60 and later C-61), and is virtually identical to C-32, a bill that died as a result of the 2011 Canadian election. The biggest flaw of Bill C-11, a flaw that has been documented in numerous blog posts, articles, and news stories, is (virtually) uncompromising anti-circumvention provisions [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12]. Putting it simply, C-11 makes circumvention of digital handcuffs, including digital restrictions management, unlawful (with a few vague exceptions). This illegality of breaking DRM even applies for the purpose of using “protected” copyrighted works, even in a way that would otherwise be acceptable under the new bill’s “fair dealing” (commonly known in the U.S. as “fair use”) provisions. C-11 has recently passed its clause-by-clause review, as reported by Michael Geist:

“In the days leading up to the clause-by-clause review, many focused on three key issues: no SOPA-style amendments such as website blocking or warrantless disclosure of information, maintaining the fair dealing balance found in the bill, and amending the digital lock provisions. By that standard, the changes could have been a lot worse.[...]

The only loss was the least surprising - digital locks. Despite widespread support for compromise legislation and sensible amendments from both the NDP and Liberals, the government rejected any changes. Given the government’s consistent support for digital locks, the ongoing pressure from the U.S., and Prime Minister Harper’s direct intervention on the issue in 2010, amending the digital lock rules presented a major challenge. Government MPs yesterday emphasized the possibility of future new exceptions via regulation but that will be cold comfort in the short term to those with perceptual disabilities, researchers, documentary film makers, consumers, and the many others adversely affected by the restrictive approach. In fact, one NDP MP raised the possibility of constitutional challenges to the bill.”

http://www.michaelgeist.ca/content/view/6375/125/

So while Canadians will not be receiving a repackaging of SOPA with this bill, the threat to Free software is still very much present. For example, legitimate software such as libdvdcss (and software linking to it such as VLC) would be illegal in Canada. Virtually any Free software that must bypass digital locks at any point would be illegal, regardless of the purpose(s), legal and/or illegal, of the application. Under C-11, ARM computers running Windows 8 “v[ista]Next” with so-called “Secure Boot” could be considered an application of DRM. Thus, users of such devices would be, by law, locked-in to that OS; there would be no legal method of making an “unauthorized” installation of a different operating system. C-11 essentially takes the digital handcuff problems present in the already-flawed DMCA and exemplifies them. With the DMCA, there are at least usable exceptions to the anti-circumvention rules. In C-11, there are virtually no similar circumvention exceptions, not even for copying for the purposes of backup. Any fair dealing protection provided with the new copyright legislation can be immediately and easily counteracted with a DRM implementation. Mind you, dear readers, André Rebentisch recently revealed that Microsoft’s lobbyists, such as Vassallo [[cref 53185 1], [cref 3648 2]], are still working hard to use so-called “IP” to marginalise software freedoms or tech rights. Coincidently (or perhaps not so), two proposed C-11 amendments by the Conservative Party for the clause-by-clause review suspiciously read like they were written by a Microsoft lobbyist:

• a new limitation on computer interoperability exception that restricts the use or disclosure of the information reproduced for the purposes of making the programs interoperable
• a new limitation on disclosure of security flaws that requires advance notice to the copyright owner unless it is in the public interest to have it disclosed without such notice

http://www.michaelgeist.ca/content/view/6374/125/

We know all too well Microsoft’s behaviour in relation to interoperability/standards and security. Fortunately, it appears that these amendments did not reach the final version of the bill.

In response to the criticism of the anti-circumvention provisions, one Conservative MP said last year that Canadians should not worry, that they should take a leap of faith and trust that breaking digital locks would not likely result in litigation:

Conservative MP Lee Richardson, a member of the Standing Committee on Industry, recently provided a constituent with another reason for why the public should not be concerned by the digital lock rules. According to Richardson:

If a digital lock is broken for personal use, it is not realistic that the creator would choose to file a law suit against the consumer, due to legal fees and time involved.

http://www.michaelgeist.ca/content/view/6089/125/

This is an incredible statement, even when putting aside the fact that an member of parliament, an elected official, encouraged Canadians to violate legislation (supposedly to be taken seriously), that his own party has dedicated much time and resources to develop. Essentially, Richardson tacitly admitted that these provisions are completely unenforceable by public means, while opening the door for wasteful lawsuits under the guise of breaking digital handcuff systems (regardless of effectiveness). Richardson severely downplayed the actions and monetary resources of copyright trolls, such as those described by TorrentFreak in this article:

The US Copyright Group – a front for the Dunlap, Grubb & Weaver (DGW) law firm – has made dozens of headlines in recent years after they introduced mass-BitTorrent lawsuits to the United States.

The lawyers in question track alleged BitTorrent pirates and threaten to take them to court. But, as is common with these schemes, all people have to do is pay up a settlement fee and the whole thing simply goes away.

Critics of these practices have described the people involved as ‘copyright trolls,’ and some of the defendants are fighting back. DGW, for example, is currently involved in a class action lawsuit where the law firm is accused of fraud, abuse and extortion.

Considering the above, it came as a surprise when we learned this morning that the DGW law firm is presenting an educational webinar under the umbrella of the American Bar Association. Titled “Finding Anonymous Copyright Infringers,” the course promises to teach fellow lawyers all the tricks they need to catch those pesky pirates.

http://torrentfreak.com/how-to-catch-bittorrent-pirates-a-trolling-course-120314/

Michael Geist has also discussed the danger with these types of mass-lawsuits, using the notorious suits in relation to the movie “The Hurt Locker” as an example.

The risk from this nonproductive behaviour being left to run wild in Canada is exemplified by Industry Minister Christopher Paradis, who presents no guidelines (and by definition, limits) on potential C-11-enabling lawsuits:

Q. Liberal MP Geoff Regan said during debate of Bill C-11 that “government members have apparently been saying that it would be okay to break the new law and to circumvent digital locks. The member for Calgary Centre wrote: ‘If a digital lock is broken for personal use, it is not realistic that the creator would choose to file a lawsuit against the consumer, due to legal fees and time involved.’ In other words, he is suggesting not to worry about this, that the law can be broken and nothing would happen, that really we are encouraging consumers to break the law. What does that say about the Conservatives’ position, that they are telling Canadians to break this law that they have not passed yet?” What’s your response?

A. [Paradis:] “Like any country, Canada has laws that all citizens must respect and obey. Bill C-11 sets out the exclusive rights of creators, including musicians, with respect to their artistic creations. Enforcing these rights in a given instance, however, is a private legal matter on which the government cannot speculate.”

http://www.michaelgeist.ca/content/view/6311/125/

Canada has an opportunity to provide forward-thinking copyright legislation and learn from the mistakes of the DMCA. It also has an chance to embrace and protect Free software on the world stage as a key economic asset. The expanding fair dealing and other positive aspects in Bill C-11 for citizens are nominally good developments. However, the Harper Government is still embracing one of the worst aspects of that controversial 1998 Act. They appear indifferent to the harmful effects that have occurred in the U.S. (and in many ways, the world) as a result. By extending the anti-circumvention provisions even  beyond  what the DMCA currently has, the government is providing incentive for Free software development and companies such as Red Hat to avoid Canada. What a waste should this bill pass in its current form. █

XFaCE has been an active member within the Pirate Party of Canada since October 2010 , and when he is not out fighting for copyright reform and digital sovereignty he is writing for Techrights.org.