Digital locks are sometimes used to stop cellphones from being used with a different wireless provider. (Canadian Press)Technological locks on technology such as DVDs, music files and software were once seen as key to stopping illegal file sharing. But sometimes they lock out legitimate users or lead to privacy issues. As the government ponders copyright reform, Canadians debate whether picking and breaking some digital locks should be legal.

Digital locks — also known as digital rights management (DRM) technologies or technological protection measures (TPM) — are employed by copyright owners to control how data, software or hardware can be used by others. For example, they may:

• Stop a cell phones from working with a different wireless provider.
• Make a DVD from a certain region (for example, North America) unplayable in other regions of the world such as Europe.
• Encrypt software to prevent copying.
• Prevent children from accessing adult content.

Because the technologies often put some groups representing the music, film and video game industry at odds with consumers, researchers, librarians and other industry groups, there have been heated discussions about the locks themselves and whether it should be legal to break them under some circumstances.

The topic has come up frequently during the federal government's copyright consultations, which started in July and are scheduled to continue until Sept. 13.

Arguments for using digital locks

Proponents of digital locks argue that they are necessary to prevent intellectual property from being stolen, just as physical locks are needed to prevent personal property from being stolen.

"It's like — you have a store, you want to be able to lock your door at night," says Danielle Parr, executive director of the Entertainment Software Association of Canada.

'It's like — you have a store, you want to be able to lock your door at night.'— Danielle Parr, Entertainment Software Association of Canada

Stephen Waddell, national executive director of ACTRA (the Alliance of Canadian Cinema, Television and Radio Artists), says the technologies are important for preventing piracy and illegitimate use of artists' work.

"As rights holders, our members, of course, want to be compensated for the use of their material and that can't happen if people are ripping off music," he told CBC News.

Michael Burke, the program manager on the Microsoft team that made Windows Vista — the operating system released in 2007 with lots of controversial DRM technology built in — argued at the time that without digital locking restrictions, content makers would have little incentive to make or let people play music, movies or other materials on their computers.

Parr said digital locks don't exist just for copy protection, but are also needed to create features that consumers want. For example, they can be used for parental controls to stop children from viewing racy or violent images, or for time-limited trials that let people sample products before buying them.

The locks can also be used to protect the privacy of corporate information and personal information such as health records.

Inconvenience, privacy issues

Digital locks can lead to inconvenience for users as they prevent perfectly legal uses of media that do not infringe copyright such as:

• Making backup copies of CDs or DVDs.
• Lending materials out through a library.
• Accessing works in the public domain.
• Using copyrighted materials for research or education under fair dealing.

Apple's iTunes once sold songs that could not be played on portable music players other than its own iPod. It began selling DRM-free tracks in 2007. (The Associated Press)For consumers, they may make it impossible to use a legally purchased cell phone with another wireless provider, a legally purchased DVD from being watchable on a computer running Linux instead of Windows without special software, and theymay even have stopped British Prime Minister Gordon Brown from watching the DVDs he received as present from U.S. President Barack Obama, since he lives in Europe and most DVDs from the U.S. would be coded to play only in North American DVD players. Often, the only way around this would be to buy a new cellphone, a new copy of the DVD, or new software.

"People are upset that they would have to pay again to use something that they've already paid for," said Ian Ward, who is on the board of the Ottawa Canada Linux Users Group.

Companies may not always make clear to customers the restrictions posed by their digital locking technology, which has led to a number of lawsuits.

A recent high-profile case was launched in July, after Amazon used its DRM technology to remotely delete copies of George Orwell's 1984 and Animal Farm novels from users' Kindle ebook readers without their knowledge or consent. The company said the third party who added the books to its collection did not have the rights to the book.

'People are upset that they would have to pay again to use something that they've already paid for.'— Ian Ward, Ottawa Canada Linux Users Group

The lawsuit launched by a Michigan teenager, whose homework was ruined when passages linked to his notes and annotations were deleted, alleged that customers weren't made aware that Amazon could access their collections that way.

That particular case also illustrates another issue that many DRM critics have raised — accessing technologies with locks often requires users to identify themselves and allow the behaviour to be tracked.

Ontario's privacy commissioner Ann Cavoukian issued a report in 2002 outlining her concerns about this.

"Currently, many DRM models focus on ensuring that the rights of the content providers and service distributors are protected, without sufficient regard for consumer privacy," she said.

The decline of DRM

To some extent, the proliferation of digital locking technologies has waned since then. While Apple's iTunes once dominated the digital music market with songs that could not be played on portable music players other than the iPod, the company started selling DRM-free tracks in 2007.

That was the same year competitor Amazon.com Inc. started selling DRM-free music.

Apple announced in January 2009 that all 10 million songs in its library would be available without DRM by the end of the quarter.

Mark Tauschek, lead analyst for Info-Tech Research Group in London, Ont., which specializes in technology market research, said in an interview that he thinks DRM is "on the verge of being a thing of the past."

University of Ottawa technology law professor Michael Geist told CBC News such technologies have "been largely a failure." They never found much consumer acceptance, Geist said, and concerns about their ability to trample privacy and consumer rights proved to be well-founded. As well, they never lived up to their original purpose — file-sharing remained rampant in the U.S. in spite of laws that made breaking digital locks illegal.

Even some people who might be expected to support digital locks have started speaking out against them, like the Canadian Music Creators Coalition. The group, which represents Canadian musicians, says in its position statement on copyright that artists "do not support using digital locks to increase the labels' control over the distribution, use and enjoyment of music or laws that prohibit circumvention of such technological measures."

"Consumers should be able to transfer the music they buy to other formats under a right of fair use, without having to pay twice."

Lock-breaking and the law

Critics argue that digital locks prevent legal uses of media, such as making backup copies of DVDs or software. (Emily Chung/CBC)In Canada, there is currently no law against circumventing digital locks. A 2008 Conservative copyright bill, C-61, did propose making the breaking of digital locks illegal except under a narrow range of exceptions. That bill died when an election was called in the fall, but the Entertainment Software Association of Canada's Parr would like to see a similar provision in the new legislation.

In addition, she wants it to be illegal to sell lock-breaking goods or services, such as mod chips that let video game consoles run pirated games.

"There really isn't a legitimate use for such circumvention," Parr said.

She added that insufficient protection for digital locks could take choices away from businesses and consumers.

"That sort of entrenches a certain business model. That's sort of saying that everything has to be free, because we're not offering the protection of law for people that want to be able to lock their door."

'We think it would have prevented legitimate and legal uses of copyrighted materials.'— David Robinson, Canadian Association of University Teachers

But some people argue anti-circumvention provisions in Bill C-61 were too narrow.

"We think it would have prevented legitimate and legal uses of copyrighted materials," said David Robinson, associate executive director of the Canadian Association of University Teachers. He added that such a law would make it "illegal, if not impossible to make legitimate copies" of software.

The law also required security and encryption companies to seek permission before breaking digital locks as part of their research, said Bernard Courtois, spokesman for the Information Technology Association of Canada — something that had the potential to stifle research and innovation.

A number of groups such as the Public Interest Advocacy Centre, which represents consumers, said they would prefer the law to look more like a Liberal bill introduced under Paul Martin's government, which allowed lock-breaking for non-copyright-infringing purposes.

That way, people who break a digital lock for educational purposes or news reporting wouldn't have to worry about having done something illegal, said the group's spokesman and counsel John Lawford.

Courtois argues that consumers should have the ability to get value out of the digital products they buy, which may mean being able to transfer them to other devices or tinkering with their access controls to make them compatible with other software or devices.

He said even the association's wireless members are all right with the idea of consumers being able to unlock their phones so they can be used with other carriers, as their relationship with their customer is already protected by contracts.

Lawford said World Intellectual Property Organization treaties signed by Canada do require some protection for digital locks. That is, they must be allowed. But the treaties don't make it necessary to ban all circumvention, and Canada does not need to do that either, he said.

"I don't think you need to have protection of the protection."