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:

Watching DVDs with free software

In 2000, during the first rulemaking process, several proposals were made to exempt Linux DVD playing software such as DeCSS from the TPM provisions in the DMCA, such as Tim Lee’s proposal. Linux is an example of free software, which many people, including myself, choose to use because it provides us with more freedom than competing products.

The Librarian of Congress responded, denying free software users the right to play DVDs, claiming that “there is no unqualified right to access works on any particular machine or device of the user’s choosing” (despite free software being available to access DVDs). The ruling also states that “The reasonable availability of alternate operating systems (dual bootable) or dedicated players for televisions suggests that the problem is one of preference and inconvenience, and leads to the conclusion that an exemption is not warranted.”. In effect, the ruling informs free software users that they must purchase Windows or a stand-alone DVD player (in some cases necessitating a TV purchase as well), even though their computer is perfectly capable of playing DVDs.

In DVDs and TPMs: how often is CSS used? I showed that about 98% of DVDs use CSS, which US courts have shown to be a technological measure under US law. And in What C-32 means for DVDs, I showed that libdvdcss (similar to DeCSS) is very likely to be illegal under Bill C-32. So we would have to rely on the exemption procedure to make free software DVD playing legal. And since the US refuses to grant free software users the right to play DVDs, it is likely that the Canadian exemption process would be similarly uncooperative.

Watching foreign or public domain DVDs; skipping DVD ads

In 2003, during the second rulemaking process, the Electronic Frontier Foundation submitted four exemption proposals, which would allow people to:

1. Play copy-protected audio CDs that malfunction to prevent playback
2. View foreign region-coded DVD movies on U.S. players
3. Fast-forward through unskippable commercials prior to movies on DVDs
4. Play and make full use of public domain movies on DVDs

In its 2006 rulemaking decision, the Librarian of Congress rejected all four of the above proposals for various reasons, similar to those listed in the previous section. Twenty other proposals were also rejected, including the Linux DVD playing exemption that was proposed as in the 2000 rulemaking process. Only four proposals were approved.

Having used a Blu-ray Disc containing over 10 minutes of unskippable pre-roll ads, I can see why an exemption for skipping ads is required. Denying such a simple and frustration-relieving exemption does not inspire confidence in the rulemaking process.

“Failing Consumers Completely”

In 2005, because of the many legitimate exemption proposals that the Librarian of Congress rejected, the Electronic Frontier Foundation (EFF) declined to submit proposals in the 2006 rulemaking process and instead published a paper entitled DMCA Triennial Rulemaking: Failing the Digital Consumer. In it, the EFF describes various problems with the rulemaking process, such as these:

Any digital consumer interested in participating meaningfully in the DMCA rulemaking process must first decipher a bewildering array of legal arcana and independently gather considerable evidence. Rather than receiving public comments and engaging in independent fact-finding, as many administrative agencies do, the Copyright Office has instead laid a heavy burden on the shoulders of those seeking DMCA exemptions

The Copyright Office has also established a number of presumptions that discount the legitimate concerns of digital consumers. First, the Copyright Office has said that exemptions will not be granted so long as a work remains available in an unprotected format, even if that unprotected format imposes additional costs and inconvenience on consumers. Second, the Copyright Office has been stubbornly indifferent when DRM restrictions impose increased costs on lawful activities. Third, the Copyright Office has effectively established a general presumption against all lawful consumer activities that do not strike the Office as being sufficiently “important,” repeatedly dismissing consumer concerns as “mere inconveniences.” Finally, the Copyright Office routinely presumes (on the basis of no independent evidence and contrary to the logic of the free market) that, but for the continued legal inviolability of the DRM technologies that protect them, many forms of digital media would simply be withheld from the market by copyright owners.

The Copyright Office has turned these settled fair use principles on their head in the DMCA rulemaking process. Rather than treating fair use as a forward-looking, evolving regime, the Copyright Office has made it backward-looking, effectively barring courts from addressing the fair use implications of new digital consumer technologies in the 21st century.

The 2006 rulemaking process went on without the EFF’s comments and yet again the Librarian of Congress rejected many legitimate proposals, including (you guessed it) playing DVDs on Linux.

July 2010: Still no 2009 rulemaking decision

The Librarian of Congress usually publishes a rulemaking decision in October or November of the rulemaking year. In 2009, the Librarian of Congress instead chose to postpone the rulemaking indefinitely: “the existing regulation…[shall] be amended on an interim basis to strike the reference to the October 27, 2009, termination date for the list of classes of works identified in the regulation.”. According to the document, the Register of Copyrights “is in the final stages of making her recommendation to the Librarian of Congress” for the 2009 rulemaking process. As of today (July 5, 2010), there is still no decision (see the rulemaking web site), effectively denying the US public of using any potential new exemptions for over 7 months with no end in sight.

Conclusion and recommendations

The US exemption rulemaking process is plagued with problems that make it virtually useless for its intended purpose. The Canadian government should not rely on a procedure like this to fix problems introduced by Bill C-32 after it has passed. Instead, the government should fix C-32 while it is still under consideration.

Fixing C-32 is not difficult. As I have recommended (along with many others during the consultation process), “it is imperative that any TM anti-circumvention provisions added to Canadian copyright law are directly linked to copyright infringement and that the creation, use, distribution, and import of circumvention tools are not restricted in any way”. This means that a given circumvention action would only be illegal if it was done for the purpose of infringing copyright and that the tools required to legitimately circumvent digital locks would be available for those who need to use them, such as free software users. Modifying C-32 to follow these guidelines would avoid the vast majority of unintended consequences that the bill would otherwise have.

I hope that my recommendations will be implemented when Bill C-32 goes to committee. I would be happy to discuss my thoughts with government representatives. I have a meeting pending with my MP, but I would also be pleased to talk to anyone close to the matter. Feel free to use my contact page to start a conversation or arrange a phone call.