Archive for the 'Intellectual property' Category

Three years browsing without Flash and why it doesn’t matter (anymore)

Three years browsing without Flash

It was three years ago today that I decided to stop using a Flash player. Since then, I have not installed (or have immediately uninstalled) Flash on all computers I use for more than one hour per year. I define it this way because I want to clarify that I make sure Flash is not on any computer I use regularly (including the computers I use at work owned by my employers), which is more than the computers I own. But I think it would be a bit much to force a friend to uninstall Flash if I’m only using my friend’s computer for a couple minutes to check email.

As a result, browsing for the past three years has been a very pleasant experience. My browser rarely crashes, it doesn’t consume all my computer’s resources for long periods at a time, and I don’t have to worry about whether I’m vulnerable to any of the 166 security flaws discovered in Flash over the past few years.

Why it doesn’t matter (anymore)

Back in 2008, one had to make a conscious decision not to use Flash. Most machines that shipped with Windows also shipped with a Flash player, as did most Apple computers (even System76 preloaded Adobe Flash Player on new Ubuntu machines). Mobile browsing was still in its infancy, as the iPhone had barely been out for a year and Android less than a month.
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“Canadian Copyright and the Digital Agenda” PDFs in 7z/tar/ZIP archives

From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda is a book written by Canadian copyright scholars, edited by Michael Geist, which discusses ways to improve Bill C-32. The book is available on the Irwin Law web site, but spread across 22 PDF files, each with a click-through agreement, making it quite inconvenient to download. I’ve compiled these 22 PDFs into an archive file so you can download the entire book at once. Here is the archive in several formats:

You can use 7-Zip on Windows to open the 7z file. Modern UNIX-like operating systems, such as Ubuntu, can open the tar.gz and tar.lzma files natively. Any popular OS should be able to open the ZIP file natively, though it’s quite large so I’d recommend using the other options first if possible.

If you’d like to download a particular PDF individually, I’ve made the contents of the archive available at http://ossguy.com/ccda/. All the PDFs are licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Canada license.

Will exemption rulemaking work for C-32?

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:
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What C-32 means for jailbreaking

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?.

What C-32 means for DVDs

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?
  2. 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.

  3. Do you know if libdvdcss would be illegal under C-32?
  4. 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.

DVDs and TPMs: how often is CSS used?

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?’

What WebM means for web video

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:
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My copyright consultation submission

I made a submission for Canada’s copyright consultation yesterday, which is reproduced below. If you haven’t made a submission yet, you still have time; the government has extended the deadline until tomorrow night. Their website includes full details on how to send in a submission. Without further ado, here is my submission:

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Seamless web video within reach

Images on the web have been a solved problem for many years. Web designers know they can insert a JPEG, PNG, or GIF file with <img> and it will work in virtually all browsers. Video, on the other hand, is much more difficult to provide. There are a range of formats and none are universally supported across browsers. Inserting video should be as easy as inserting an image: just make sure the video is in the right format and use <video> to place it. While we’re not there yet, such a reality could be closer than you think.
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DMCA hearing transcript in semantic HTML

The DMCA §1201 hearings for 2009 took place at the beginning of May. These hearings will guide the anti-circumvention exemption rulemaking that happens every three years. It is important that people in the US are aware of these because the exemptions influence whether you can legally watch DVDs with free software, whether you can make fair use of online videos, and whether you can unlock or jailbreak your cell phone (see also the TPMs section of my recent talk). It is important for people outside the US as well because of the major influence US policy has on the laws introduced in other countries, especially close trading partners like Canada.

The transcripts for the first two of these hearings are now available. Though having a text format is nice, I find it very difficult to read. That’s why I created this HTML version for the first transcript:

DMCA Section 1201 Hearing – May 1, 2009

Highlights include the §1201(11)(A) discussion on fair use of DVD content for remixing and the §1201(5)(A) discussion on iPhone jailbreaking.

This version uses <cite>, <blockquote>, and microformats to add meaning to the transcript. Along with a style sheet from Stephen Paul Weber, this version of the transcript is much easier to read. And in HTML form, it’s much easier to add a custom style sheet to fit your own viewing preferences. All changes to the transcript, including the style sheet, are licensed under the Creative Commons Attribution 3.0 Unported license and are Copyright © 2009 Stephen Paul Weber or Denver Gingerich.

I hope this version makes the hearing transcripts more accessible for people. It didn’t take too long to translate the first hearing transcript into HTML so if there is interest, I will translate the others as they become available. The conversion was done largely programmatically so there may be errors. I’ve made an effort to ensure that the quotes match up with the speakers, but it’s possible that some quotes don’t match. Please use the original transcript as the definitive source.