James Gannon points out that “Critics of the TPM provisions in Bill C-11 often claim to have a “balanced” solution for TPM protection: to create an exception that allows hacking for legal purposes.” That’s certainly correct, however, he proceeds to misconstrue what that suggestion actually means.
The theory is that if I can legally copy a protected work, then I should also be able to legally hack any TPM protecting that work… The net effect of this proposed “balanced” approach for TPM protection would be that, under Canadian law, it is illegal to hack a TPM unless it’s done by anyone, and unless it’s done at any time. It would be like adding a exception to traffic laws saying it’s fine to break the speed limit if you say you’re in a hurry.
This is, of course, utter drivel. Fair dealing rights are not infinite, and thus neither would the exception to legal protections proposed for TPMs. They are, however, rights. On the suggested changes to C-11, the exception to legal protection for TPMs would be exactly the same size and shape as the exceptions in fair dealing for the copying itself. The theory is that if I can legally copy a protected work, then I should also be able to legally hack any TPM protecting that work for a legal purpose.
If someone claims an exception under fair dealing, then there is a factual question as to whether the copy made was for the purposes of exercising those fair dealing rights. The facts of the case matter, so if someone circumvents a TPM for some use that isn’t legal, then there is no defense for either the actual copying or the circumvention.
I don’t want a free-for-all, I simply want fair dealing rights to be preserved. Pretending C-11 critics are arguing otherwise is just dishonest.
Posted: Dec 6, 2011