If Left to Their Own Devices ... How DRM and Anti-circumvention Laws Can Be Used to Hack Privacy

• Author: Ian R. Kerr
• Pages: 167-210

Ian R.

Kerr*

In

the

decade since

that

cold

and wet

December

day —

when delegates

from

150

countries

met to finalize the

universal mold

for

digital copyright

reform1

—

billions

of

keystrokes have been spent, tapping

out

arguments about

whether

and to

what extent

we

need

new

laws

to

protect

the

technologies

that

protect copyright.

The

prevailing opinion

in

many countries with strong

The

author wishes

to

extend

his

gratitude

to the

Social Sciences

and

Humani-

ties Research Council,

the

Canada Research Chairs program, Bell Canada,

and

the

Ontario Research Network

in

Electronic Commerce

for all of

their generous

contributions

to the

funding

of the

research project

from

which

this

paper

de-

rives. Special

thanks

also

to

Todd Mandel, Shannon Ramdin, Catherine Thomp-

son,

and

Hilary Young

for all of

their

extraordinary

efforts,

their

brilliance,

and

for

the

high quality

of

research assistance

that

they

so

regularly

and

reliably

provide. Thanks also

to

Jane

Bailey,

Ann

Bartow,

Lee

Bygrave, Alex Cameron,

Julie Cohen, Michael Geist, Daphne Gilbert, Graham Greenleaf, Chris

Hoof-

nagle,

Philippa Lawson, David Matheson, Daniel Solove,

and

Valerie Steeves

for

the

excellent suggestions

for

improvement

that

they generously

offered.

Jessica Litman, "The Bargaining Table"

in

Digital

Copyright

(Amherst: P

ro-

metheus Books, 2001)

at

122; Pamela Samuelson, "The U.S. Digital Agenda

at

WIPO"

(1997)

37 Va. J.

Int'l

L.

369.

167

If

Left

to

Their

Own

Devices

...

six

A.

INTRODUCTION

i

how drm AND aNTI-CIRCUMVENTION lAWS cAN bE

uSED TO hACK pRIVACY

2

See for

example

The

Digital

Millennium

Copyright

Act

of

1998,

Pub.

L. No.

105-304,

112

Stat.

2860,

>

[DMCA];

European

Union's

Directive

of

the

European

Parliament

and the

Council

of

22

May

2001

on the

Harmonization

of

Certain

Aspects

of

Copyright

and

Related

Rights

in the

Informa-

tion

Society

(2001),

L

167/10,

/

eeurope/2O05/all_about/digital_rights_man/doc/directive_copyright_en.pdf>

[EUCD];

Australia's

Copyright

Amendment

(Digital

Agenda)

Act

2000 (Cth.)

[Digital

Agenda];

Japanese

Copyright

Law No. 48,

promulgated

on 7 May

1970

as

amended

by Law No. 77, of 15

June

1999

and the

Japanese

Anti-Unfair

C

om-

petition

Law

(JAUCL);

New

Zealand's

Copyright

Act

1994

No.

i43(N.Z.),

as

last

amended

by Law No. 33,

2005;

and

Copyright

Ordinance

(Cap.

528), entered

into

force

June

1997 (Hong Kong).

3 As the

RIAA

points

out on its

website,

"RIAA

believes

that

the

establishment

of

technological protection

and

management

of all

musical content, regardless

of

the

media

on

which

it

resides

or the

method

by

which

it is

transmitted,

is a

central component

for the

expansion

of

both

the

music opportunities

for the

consumer

and the

business opportunities

for the

consumer

and the

business

opportunities

for the

technology industry,"

w

media.asp>

at

"Protecting Rights

on

Networks";

CRIA

states

in its

submission

to the

Canadian Copyright

Reform

Process "Law

and

technology must

be

used

together

to

maintain adequate incentives

for

creativity. Failure

to

offer

ad-

equate legal protection

to

technological protection measures

(TPMs)

will inevi-

tably inhibit

the

development

of

electronic commerce

in

copyrighted products,"

.

4

I and

others

remain unconvinced

and

have argued elsewhere against

this

position:

Ian R.

Kerr,

Alana

Maurushat,

&

Christian

S.

Tacit, "Technological

Protection

Measures: Part

I —

Trends

in

Technical Protection Measures

and

Circumvention

Technologies" (2003) commissioned

by the

Department

of Ca-

nadian Heritage (Canada),

/

protection/tdm_e.cfm>;

Ian R.

Kerr,

Alana Maurushat,

&

Christian

S.

Tacit,

"Technological

Protection Measures: Part

II - The

Legal

Protection

of

TPMs"

(2003)

commissioned

by the

Department

of

Canadian Heritage (Canada),

<

www.pch.gc.ca/progs/ac-ca/progs/pda-cpb/pubs/protectionll/tdm_e.cfm>;

Ian R.

Kerr,

Alana Maurushat,

&

Christian

S.

Tacit, "Technical Protection Mea-

sures: Tilting

at

Copyright's Windmill" (2003) 34:7 Ottawa

L.

Rev.

82

[Kerr

et

al.,

"Tilting

at

Copyright's

Windmill"].

5

Bill C-6o,

An Act to

amend

the

Copyright

Act,

ist

Sess.,

38th

Parl.,

2005,

Preamble

[CopyrightAmendment],

/

bills/government/C-6o_i.PDF>.

copyright

industries

is

that

we

do.2

Their

most

powerful

voices3

tell

us

that

such

laws

are

necessary

to

protect

the

copyright industries

from

individuals

who

use

devices

to

circumvent

the

technologies meant

to

protect copyright.

They

say

that existing

laws

are not

adequate

to

prevent

the

massive

illegal

di

s

semination

of

digital

works

that takes

place

off

and

online

everyday.4

After

nearly

a

decade

of

indecision,

it

looks

like

Canada

is finally

about

to

board

the

Mothership.

In its

recently

released

Bill

C-6o,5

Canada

an-

168

IN THE

PUBLIC

INTEREST:

THE

FUTURE

OF

CANADIAN

COPYRIGHT

LAW

nounced

that

it

will implement

the

WIPO

Copyright

Treaty6

and th

e

W

IPO

Performances

and

Phonograms

Treaty

7

by

tabling

its own

anti-circumven-

tion

laws.

The

core provision will entitle

a

copyright owner

to

copyright

and

common

law

remedies against anyone who, without

the

consent

of the

copyright owner, "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

in it or the

moral rights

in

respect

of it or for the

purpose

of

making

a

copy referred

to in

subsection

80(i)."8

A

second provision will generate

a

similar result

for

anyone

who

"knowingly removes

or

alters

any

rights management

in-

formation

in

electronic

form

...."9

In

essence, these

paracopyright

provisions

are

meant

to add a new

legal

layer,

one

that

goes beyond existing copyright

and

contract laws

in

order

to

deter

and

provide legal remedies against individuals who,

for

"infring-

ing

purposes," hack past content-protecting

technologies10

that

automat-

ically

enforce

access

to or

uses

of

digital material.

A

central

aim of the

proposed

legislation11

is "to

provide rights holders with greater

confidence

to

exploit

the

Internet

as a

medium

for the

dissemination

of

their mate-

rial

and

provide consumers with

a

greater choice

of

legitimate

material."12

These

are

certainly laudable goals. However,

it

remains uncertain wheth-

er

Canada's proposed anti-circumvention provisions will

in

fact

do

less

6

WIPO

Copyright

Treaty,

20

December 1996,

36

I.L.M.

65

(entered

into

force

2

March

2002)

[WCT],

.

7

WIPO

Performances

and

Phonograms

Treaty,

20

December 1996,

36

I.L.M.

76

(entered

into

force

20 May

2002)

[WPPT],

/

trtdocs_woo34.html>.

8

Copyright

Amendment,

above

note

5, s.

34.02

(emphasis

added).

9

Ibid.,

s.

34.01.

10

Graham Greenleaf distinguishes

"content-protecting"

from

"copyright-protect-

ing" technologies because

the

former "protect

content

which copyright does

not

protect."

Graham Greenleaf, "IP, Phone Home: Privacy

as

Part

of

Copyright's

Digital Commons

in

Hong Kong

and

Australian Law"

in

Lawrence

Lessig,

ed.,

Hochelaga

Lectures 2002:

The

Innovation Commons (Hong Kong: Sweet

&

Maxwell

Asia,

2003) [Greenleaf, "IP, Phone

Home"]

at 14. In

order

to

remain

consistent

with

the

language used

in the

proposed legislation,

in

this

chapter

I

will refer

to

all

such technologies

as

TPMs.

11

Copyright

Amendment, above

note

5.

12

Statement

—

Government Statement

on

Proposals

for

Copyright

Reform,

March

2005, [Statement],

/

statement

e.cfmx

Chapter

Six

If Left to Their Own Devices ... 169