A better world

In What C-32 means for jailbreaking, I posted Erik Waddell's response to my question about whether jailbreaking would be illegal under Bill C-32. Mr. Waddell's reply stated that ultimately the courts will decide and that the government can make further exemptions to the TPM provisions in C-32 if it finds actions like jailbreaking should be specifically permitted.

I'm highly doubtful that the courts would rule that jailbreaking is legal given the wording in Bill C-32, especially considering the situation in the US. Although there are no US court cases I'm aware of that decide whether or not jailbreaking is illegal under the DMCA (the United States' implementation of the WIPO Copyright Treaty that Bill C-32 seeks to implement), at least one large company believes that jailbreaking is currently illegal, arguing in the exemption rulemaking proceeding that "The Copyright Office should reject in its entirety the proposed exemption that would permit jailbreaking.". If history is any indication, Apple has the lawyers to make that belief a reality should the question of the legality of jailbreaking ever go to court.

So if Bill C-32 passes in its current form, we are left to rely on its review process, which says that the Copyright Act will be reviewed every 5 years and that the government can make additional exemptions to the TPM provisions. This is similar to the US exemption rulemaking procedure, which occurs every 3 years and adds exemptions to the DMCA in an effort to mitigate its many unintended consequences.

Summary of exemption rulemakings so far

In my opinion, the US exemption rulemaking procedure does not have a stellar track record. To show this, I'll go through some examples:
Continue reading 'Will exemption rulemaking work for C-32?'

Last week I received a response from the Minister of Industry's office to another one of my questions about Bill C-32 (previous response: What C-32 means for DVDs). Here is my question:

Is it legal to jailbreak an iPhone, iPad, or iPod Touch under Bill C-32? By jailbreaking, I mean what is described at http://en.wikipedia.org/wiki/Jailbreaking_for_iOS , not merely SIM unlocking. If jailbreaking is legal, which exception to the anti-circumvention laws makes it legal?

Denver

And the response:

Under the Copyright Act, there is no prohibition against "jailbreaking" an iPad or similar device.

Whether a particular technology, such as one used to prevent the running of non-approved applications on an iPad or similar device, would be captured by the TPM provisions would depend on whether it meets the definition of TPM in the Bill. This would be up to Canadian courts to interpret.

Bill C-32 also includes regulatory powers that enable the government to set out exceptions to the TPM provisions, for instance if it considers that the provisions would unduly restrict competition in an aftermarket sector. In the United States, which has a similar mechanism for introducing exceptions to its TPM prohibitions, an exemption has been proposed in relation to jailbreaking smart phones, like the iPhone.

Erik Waddell
Director of Communications
Office of the Honourable Tony Clement

Background on response's points

By "regulatory powers that enable the government to set out exceptions to the TPM provisions", I believe that Mr. Waddell is referring to the proposed Section 41.21 in Bill C-32, which begins "The Governor in Council may make regulations excluding from the application of section 41.1 any technological protection measure...if the Governor in Council considers that the application of that section to the technological protection measure...would unduly restrict competition in the aftermarket sector in which the technological protection measure is used.".

The United States' "similar mechanism for introducing exceptions to its TPM prohibitions" likely means the process spelled out in 17 U.S.C. 1201(a)(1)(C), which says "during each succeeding 3-year period, the Librarian of Congress...shall make the determination in a rulemaking proceeding...of whether persons who are users of a copyrighted work are...adversely affected by the prohibition under subparagraph (A) ['No person shall circumvent a technological measure'] in their ability to make noninfringing uses...of a particular class of copyrighted works". Bill C-32 also describes a periodic review process in Section 58 of the bill, which will replace Section 92 of the Copyright Act: "at the end of each...period of five years, a committee...is to be designated or established for the purpose of reviewing this Act.".

The exemption that "has been proposed in relation to jailbreaking smart phones" in the United States probably refers to the first of Electronic Frontier Foundation's three proposals in the 2009 rulemaking proceeding to exempt "Computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset.".

Additional notes

To be clear, my question was meant to broadly refer to all situations where a hardware and/or software vendor artificially restricts what software can be run on top of its products. I used the iPhone/iPad/iPod Touch as a specific example because it's currently the most visible example of such a situation.

I will be posting another article discussing the US exemption rulemaking procedure shortly. It will further expand on the material in this article to examine how effective such a procedure would be in Canada. Update: I've posted the article: Will exemption rulemaking work for C-32?.

I recently watched the first episode of Pioneer One, an excellent Creative Commons BY-NC-SA-licensed series. It's from VODO, an indie film distributor that really gets it (the whole "free distribution is good for you, not evil" thing). After suggesting that a WebM or Theora version should exist, the VODO people challenged me to make it. So I did. And here are the links:

• Pioneer One Episode 1 in Ogg (Theora/Vorbis) - 720p (437 MiB)
• Pioneer One Episode 1 in WebM (VP8/Vorbis) - 720p (265 MiB)

The Theora/Vorbis version will work in Google Chrome/Chromium or Firefox while the WebM version works primarily with pre-release browsers. You may need to use this wrapper page to view the WebM version in-browser.

Transcoding steps

Since not many people are familiar with the process of transcoding (converting from one set of codecs to another), I thought it would be helpful to share the methods I used for converting Pioneer One into Theora/Vorbis and WebM. It's really not as hard as it sounds and it's gotten a lot easier recently with pretty graphical tools.
Continue reading 'Encoding Pioneer One in WebM and Theora'

After posting DVDs and TPMs: how often is CSS used?, I asked Tony Clement if he could clarify how Bill C-32 affects DVDs (for a background on DVDs and CSS, see DVDs and TPMs...). His office replied with the following:

1. Do you know if CSS would be a TPM?

Bill C-32 implements the international standards set out in the 1996 World Intellectual Property Organization (WIPO) Internet treaties, which require protection of "effective technological measures" used by copyright owners to prevent unauthorized use of their work.

Accordingly, whether CSS, or any technology, would be captured by the TPM provisions would depend on whether it meets the definition of TPM in the bill, specifically whether it effectively protects a work. It is worth noting that courts in other countries have already examined this question (including the US, which found that CSS was an effective TPM). It would be up to Canadian courts to interpret whether CSS is a protected TPM in Canada.

2. Do you know if libdvdcss would be illegal under C-32?

Under C-32 it would be illegal to sell or distribute devices that are designed primarily to circumvent a TPM. To determine if libdvdcss falls under this provision, a court would need to determine (i) that CSS is an effective TPM (as discussed in question 1) and (ii) whether libdvdcss is designed primarily to circumvent the CSS TPM.

Erik Waddell
Director of Communications
Office of the Honourable Tony Clement

While the response doesn't clear up the issue definitively, I think it's safe to say that Canadian courts would interpret the TPM provisions as the US courts have. This means that backing up or engaging in fair dealing would be prohibited for 98% of DVDs (see DVDs and TPMs... for how I arrived at this number) under Bill C-32.

I hope that the government will fix Bill C-32 before it is passed by tying the anti-circumvention laws directly to infringement (instead of having a blanket ban with a handful of exceptions like it does now) and removing the distribution restrictions on all circumvention devices as I recommended in my copyright consultation submission. With these changes, Bill C-32 would retain the fair dealing rights Canadians have today for engaging with digital content on DVDs and similarly-encumbered formats, yet it would still provide "adequate legal protection and effective legal remedies against the circumvention of effective technological measures" as required by the WIPO Copyright Treaty that the government wishes to ratify with the bill.

On June 2, the Canadian government tabled Bill C-32, its third attempt to implement anti-circumvention laws and other changes to the Copyright Act of Canada. The proposed changes would significantly impact the way Canadians are allowed to interact with copyrighted works stored in digital form, such as movies stored on DVDs. Not much information is available on the DVD situation in particular so there is significant uncertainty as to whether C-32 prohibits DVD backups (as an example):

• xentac: "with BillC32 can I buy DVDs and rip them...?"; Tony Clement: "So long as no TPM"
• Drew Wilson: "If you have a home movie recorded on a DVD and you back that movie up..., you’ve broken the anti-circumvention law."; anonymous commenter: "This isn’t correct. Home movies you burn onto a DVD-R/RW are not CSS encrypted, only commercial DVDs are."

By "CSS", the anonymous commenter means Content Scramble System, an optional method of obfuscating the data on DVDs (what some would call DRM). CSS seems to be a "technological protection measure" (TPM) according to C-32 ("any effective technology, device or component that, in the ordinary course of its operation, controls access to a work...") so I will proceed under this assumption. Hopefully someone closer to the bill can comment on the validity of this assumption.

To provide some clarity to the issue of which DVDs are encumbered by CSS (and thus could not be legally backed up or used for fair dealing under C-32), I analyzed 66 DVDs in my household's DVD collection to determine if they used CSS. Here are the results:
Continue reading 'DVDs and TPMs: how often is CSS used?'

Today Google launched WebM (project page), a royalty-free video format consisting of the WebM container (a "subset of the Matroska multimedia container format"), the VP8 video codec (acquired by Google when it purchased On2 Technologies), and Xiph.Org Foundation's Vorbis audio codec. Thanks to Google's many WebM-related partnerships with hardware and software companies, we may finally have a codec that breaks through the codec logjam. Here's why:
Continue reading 'What WebM means for web video'

Earlier this week, the New York Post reported that the DoJ and FTC are deciding who will investigate Apple for its developer agreement changes, which mandate that "Applications must be originally written in Objective-C, C, C++, or JavaScript". Despite my previous interest in App Store approvals, this particular piece of news did not interest me at all. I'll tell you why: While this antitrust investigation may seem like a great way to increase competition in the mobile app space, it does nothing to solve the root of the problem -- that anti-circumvention laws effectively allow Apple to control which applications are legally allowed to run on the iPhone, iPod, and iPad, blocking applications it believes will compete with Apple's or its partner's products.

Never before has such a highly-visible platform denied software developers the right to provide their software to the platform's users. Windows and Mac OS do not prevent users from running the software of their choice, though they may warn the user that the software is not trusted. Ultimately, the choice remains in the user's hands, unlike it is with the App Store, where the choice remains mostly in Apple's hands. With the iPhone, iPod, and iPad, users are not even permitted to obtain software from sources outside the App Store. Running applications of the user's choice is called jailbreaking and is effectively illegal in countries with anti-circumvention laws (like the US DMCA's Section 103) because running such applications requires the user to disable Apple's (weak) restriction mechanisms.

The best way for governments to legislate against the anti-competitive practices of Apple and other monopolistic gatekeepers is to remove the defective legislation that allowed it in the first place. Only when circumvention is permitted, allowing users to install the applications on their choice and not just the ones Apple says they can, will true competition be possible. I've encouraged Canada to do so and I hope other governments will follow suit.

Today Apple CEO Steve Jobs posted Thoughts on Flash, explaining why Apple will not allow Adobe Flash Player on iPhones, iPods and iPads. In the post, Jobs makes the following assertion:

Adobe claims that we are a closed system, and that Flash is open, but in fact the opposite is true.

So according to Jobs, Apple is open and Flash is closed. But according to a WSJ interview with Adobe CEO Shantanu Narayen, Flash is the open one:

I find it amusing, honestly. Flash is an open specification.

So who is really open?
Continue reading 'Apple, Adobe, and “open”'

In North America, getting a decent Internet connection usually means comparing the two options (for 78% of Americans - see main article), which tend to be DSL from the local telco or cable Internet from the cable company. Providing an Internet connection over telephone lines or cable is a hack, as both were built to transmit specific types of information in analog form: point-to-point voice and broadcast video, respectively. The physical layout of the wires also reflects the use case: a star topology in the case of telephone, for communicating directly with the telco, and a ring topology in the case of cable, used to reduce the amount of wire, since all nodes were receiving the same information. Neither of these is ideal for an Internet connection, as the speed of DSL drops the further you are from the telco building and the bandwidth available to cable subscribers is necessarily shared with your neighbors. Other options exist, but are similarly limited. Broadband over power lines is not widely deployed and satellite broadband has high latency and degrades in adverse weather conditions.

Fiber-to-the-home is gradually replacing these other methods of providing consumer Internet connections. However, not all fiber services are created equal. Here are the main areas where fiber deployments differ (from each other and from cable/DSL), some that you would expect and some you might not:
Continue reading 'Realizing the potential of fiber-to-the-home'

This post will document my new computer, which I assembled last weekend, as well as my experiences with Ubuntu 10.04 Alpha 3 on it so far. I hope that this will be useful for others that want to build a system like mine and for those that want to learn a bit about the latest version of Ubuntu.
Continue reading 'My new Core i5 and Ubuntu 10.04 Alpha'