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A look at the new federal copyright legislation

It sometimes falls to Koumbit's legal committee to review new laws that could affect our activities. Although we have no legal training, we do our best to decode these documents so that we can understand their potential impact on our work. Among other reasons, it's more cost-effective for us to pay our employees to do this work, rather than hiring a legal professional. With that in mind, what follows cannot be considered as official legal advice.

Our latest research concerns bill C-11, which was heard in Parliament on September 29, 2011. The bill follows several attempts to reform Canada's copyright legislation (C-32 in 2010 and C-61 in 2008, both sponsored by the Conservative Party; C-60 in 2005 sponsored by the Liberals) and efforts to reform Internet policy (e.g. the infamous C-30 of Vic Toews). These bills echo changes to international copyright law in member countries of the WIPO and the WTO. They also follow in the wake of the American DMCA, adopted at the turn of the century, as well as ACTA. The Canadian bills and treaties were all rejected or abandoned due to public outrage (or dissolution of parliament).

In contrast, Bill C-11 was adopted on June 29, 2012 with a royal decree in July of 2014. It specified that certain clauses, notably articles 41.25 and 41.26 concerning service providers, would only enter into effect on January 2, 2015. This led to some more-or-less useful media coverage and this ambiguity has led to concern among the general public. As a result, Koumbit's staff spent the winter holiday fielding questions. These primarily concerned whether or not one could continue to download one's movies and favorite television programs in peace in 2015. Following its adoption, the bill was criticized as much by internet rights groups as by big business lobbyists; the bill is too harsh for the former and not strict enough for the latter. A demonstration was held against the bill in Montreal in february 2012.

Our understanding of the bill can be summed up in five points, described in more detail below:

  • You'll receive more strange messages from your Internet service provider
  • Koumbit has no obligation to preserve its activity logs
  • Koumbit has no legal responsibility for content hosted with us, provided we forward any complaints to the content's publisher
  • Serious restrictions on the use of secured media (e.g. protected DVDs) are now applicable in Canada
  • The laws as written are cryptic and could be made more accessible; updates to the laws could be more transparent

More strange messages from your Internet service provider

The first and probably only thing that will change for the majority of internet users is that they'll receive more complaints, forwarded to them by their internet service provider. These complaints are not duly signed legal notices, nor do they indicate guilt. Above all, they're warnings. Internet service providers are required by law to forward them to you, but they are not obliged to reveal your identity to the plaintiff, nor take any other action.

It is possible that these complaints will include threats of legal action or fines. Note that only a court of law can determine the fines, which are limited to $5,000. With that in mind, the situation for users is more or less unchanged: they can be pursued in court if they share content illegally, but only if the plaintiffs take real legal action to bring them to court.

No obligation to preserve activity logs

Beyond helping the public understand the legal changes that affect them (which the media generally seem incapable of doing), our primary concern is whether we will be obliged to record the activities of our users or preserve their logs. At first glance, it seems that we have no additional obligation to do so as a result of this law. In other words, Koumbit will continue to keep logs for only 5 days (for security reasons). These logs allow us to better protect ourselves against attacks to our network, but could also be used to profile the user whose activity generated the log. The preservation of these logs is thereby an important challenge to internet users' privacy. Your web browser, browser history, as well as when and where you viewed a page are continuously archived by the servers that supply the internet content you access.

By extension, our policy affects users who aren't direct clients of Koumbit when they access content hosted on Koumbit's servers. We feel that to keep logs for longer would be equivalent to conducting surveillance of our users, a common practice for such service providers as Google and Facebook and one that we fiercely oppose. Koumbit's services are not free: we believe in charging a fair price, and and exchange our users' personal information and privacy are respected.

No legal responsibility for content hosted with us

The new law does protect us from legal action if we follow a certain procedure each time we receive a complaint; this protection is called a "safe harbour provision" (L.C. [2012] ch. 20 art. 35, L.R. [1985] ch. 42 art. 31.1)

This protection is also present in the American DMCA, but the DMCA follows a model of "takedown and notice" while Bill C-11 is based on a model of "notice and notice" (L.C. [2012] ch. 20 art. 47, L.R. [1985] ch. C-42 art. 41.27). This means that our obligation is limited to informing the user and plaintiff, a marked improvement on the DMCA's clauses which don't presume innocence when dealing with hosting providers and their clients.

The new legal obligation is that we must forward copyright complaints to the user in question "as soon as possible," and inform the plaintiff of the action taken (L.C. [2012] ch. 20 art. 47 L.R. [1985] ch. C-42 art. 41.26). The legal committee had often forwarded this type of complaint to their clients in the past, but had also occasionally rejected complains that seemed unreasonable. In certain cases, plaintiffs will go so far as to threaten legal action and imply fines well beyond those prescribed by law (the law limits fines for this type of offense at $5,000 (L.C. [2012] ch. 20 art. 38.1 (1)). This new legal obligation is therefore problematical in the sense that we need to forward the complaint - even if it is baseless - and not just warn the user that a complaint was made.

Given these instances of abuse, Koumbit reserves the right to refuse complaints that are filed without all the information required by law, or complaints which contain false threats (L.C. [2012] ch. 20 art. 47, L.R. [1985] ch. C-42 art. 41.25). We will also attempt to clarify the rights of our users when we forward such notices. This practice has been adopted by other organizations, to varying degrees.

Restrictions on secured media

The law is most severe on the general populace in a way that does not (at the moment) directly affect Koumbit. It includes a number of changes to rights linked to the circumvention of (DRM, for example locks that prevent duplication of DVDs), which have an important impact on a number of activities, including research by reverse engineering. The copyright law now includes protections for DRM and a list of exceptions for when it is acceptable to circumvent these protections (L.R. [1985] ch. C-42 art. 41, L.C. [2012] ch. 20 art. 47).

For example, you can break DRM protections to test the security of your network, or to check if your personal information is shared by a computer system. But many of the exceptions listed are complex and therefore difficult to put into practice.

This does not directly concern Koumbit since we consider that, until proven otherwise, our anonymity service Tor isn't intended for the circumvention of copyright protection measures (L.C. [2012] ch. 20 art. 27 paragraph 2.3.

However, it's important to understand that the law severely restrains the personal use of certain objects. If you have a protected DVD and you want to make a copy for a friend, you are prohibited from doing so. If the film was in another format, the copyright itself wouldn't necessarily prohibit you sharing it with your friend - but since the film is protected by DRM, copying it is illegal. This might seem like a trivial example, but what would the implications be if DRM were installed someplace more important, such as in medical devices (hearing aids, heart monitors) or on your own computer?

We haven't made a detailed study of the subject, so all we can do is express a deep concern at the adoption of this law. It has the potential to lead us to a dystopian future in which we are surrounded by objects which no longer truly belong to us, and which we have permission to use but not to modify or share. For a good summary of problems with the "internet of things" as combined with the challenges of intellectual property, I suggest you read this article by the EFF.

Ignorance of the law is no excuse

In closing, a brief word on the work it took to create this article. It can be hard for the uninitiated to understand legal texts. In particular, I spent at least an hour reading and re-reading article 41.27 (3) (L.C. [2012] ch. 20 art. 47, L.R. [1985] ch. C-42 art. 41.27 (3)) of the bill, which is vague (to say the least). We understood that it only deals with search engines, which they have (strangely) chosen to call "information location tools."

Further, it seems that the government is behind in their administrative responsibilities. Although articles 41.25 and 41.26 were supposed to enter into effect on January 2, 2015, they're still marked as "not in force" in the text of the law available online.

We'd be happy to accept that "[ignorance of the law is no excuse]http://www.educaloi.qc.ca/en/youth/capsules/ignorance-law-no-excuse)" (less paternalistic version), but shouldn't the law be accessible (meaning that the text of the law is actually available) and understandable (meaning that you don't need a law degree to be able to read it)? In the present situation, we could question the relevance of a law so cryptic that even a conservative MP suggests we ignore it if it limits our personal use.

We thereby encourage the powers that be to familiarize themselves with new technologies like Wikis and version control systems (like "git") which allow collaborative, transparent document creation. Who knows, one day we might allow ordinary citizens to submit patches to laws that seem to need them... For more on this subject, you might like Clay Shirky's TED talk.

Since its founding, Koumbit has subscribed to the principle of transparency, a cornerstone of the free software community. We publish our meeting minutes, regulations and decisions in a wiki where we can easily review modifications to these important documents. See the 2011 annual general assembly as well as the 2011 revised general regulations as great examples of this process. We encourage other cooperatives, organizations, activists and community groups to familiarize themselves with this approach, which is essential for true democracy in our modern age.

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