July 10, 2008

Canadian open source community upset over proposed copyright law

Author: Ian Palmer

The Government of Canada has angered those who believe that a proposed copyright law threatens the country's open source business model.

Russell McOrmond, a member of the Canadian Software Innovation Alliance (CSIA), says that Bill C-61, the proposed copyright legislation unveiled by the government last month, ignores just about every recommendation made by CSIA, a coalition of open source businesses and supporters, in a white paper.

That white paper, released in December 2007, recommends an approach to digital copyright that is fair to open source developers. However, McOrmond says that Bill C-61 attacks the freedom of access principle upon which the open source business model depends for its viability.

"Bill C-61 prohibits the circumvention of technological measures, also known as copyright protection systems and technical protection measures (TPM)," he says, "no matter who owns the technological measure or whether the circumvention is being done for what would otherwise be a lawful activity.

"There are two controversial abuses that impact software authors. Those include TPMs that apply to hardware where the keys are held by [someone] other than the owner of the hardware, and TPMs applied to digital content that can only be unlocked by specific brands of locked-down software and devices. Before any other rights of a software author can be protected, we need to know that our potential customers are allowed to make their own software choices. Both of these abuses of TPMs revoke the ability of our customers to make their own independent software choices."

For Sean Hurley, a systems administrator who does freelance work for Tillsonburg, Ontario-based Open Computing, Bill C-61's primary flaw is that it attacks innovation by criminalizing reverse engineering of media technologies.

While he acknowledges that Canada's copyright law needs changes, he argues that the proposed law actually imposes the values of a World Intellectual Property Organization (WIPO) international agreement that was not based on any feedback from Canadian artists or consumers.

"The open source model on the server is rather mature and probably will not be impacted in a great way," says Hurley. "But what it does do is it hurts adoption of open source on the desktop. The media conglomerates ... are all about money. They can't sign a licensing agreement for media playback or unlocking mechanisms or digital rights agreements with an entity that doesn't exist in a legal sense, such as the open source community. That will mean that it become cumbersome, and probably illegal, to have media decoders on Linux-based desktop computers.

"The law upsets the balance of rights. It gives the lion's share of rights to third parties who add little in value to what is produced and what is consumed. It removes copyright from the realm of civil law and places it into the realm of criminal law. If this law is passed, all of us who use Linux and playback DVDs in Canada are criminals."

Ken Clark, an intellectual property lawyer at Aird & Berlis LLP, a law firm in Toronto, Ontario, says that that there are pluses and minuses with Bill C-61. He says he has no personal opinion on the proposed law since it is still in the very early stages of the legislative process.

"The [proposed legislation] is trying to be balanced," he says. "I could see how DRM [digital rights management] might have an adverse impact on some reverse engineering of executable code. On the other hand, DRM might provide a way to prevent rampant copying.

"Implementing DRM protection is in some ways misguided to begin with and it's a ham-handed approach to solve the problem. [The government] should have expanded sections focusing on fair dealing and fair use a bit more. At the same time, there are lots of good things about the proposed legislation, such as protection of performers' rights."

Meanwhile, CSIA, which has authored a petition that has already been sighed by hundreds of Canadians, says it will continue to reach out to the software community, politicians, and other policy makers to explain why Bill C-61, as it currently stands, is so dangerous to the open source business model.

"The CSIA and grassroots organizations are trying to reach out to other people in the software industry and to communicate with politicians and other policy makers," McOrmond says. "We believe that if everyone understood the true nature of these specific abuses of TPMs that not only would the government not be providing them legal protection, but they might outlaw them."

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