I’ve been thinking through how to write this post for a while. I hope I don’t regret it. But recently a commenter forced the issue, and I had to censor her (his?) comment, and since I don’t like doing that without explanation, I suppose that’s what I’ll do today. Today is a three-part story about the Harper regime’s excessive attempts to punish responsible and harmless actions by normally law-abiding Canadians.
On that note, the first part of our story are the new reforms to the copyright law, contained in Bill C-11, also known as the Copyright Modernization Act. (For those who don’t want to pore over dry legalese, Lawyers’ Weekly has an accessible summary.) Among other things, Bill C-11 outlaws any attempt to avoid, bypass, remove, deactivate, or circumvent a “technological protection measure” — itself defined as “any effective technology… [that] controls access to a work.” This means, for instance, that it is now illegal to make a copy of a DVD, even if it is a DVD you already own and you’re not planning on giving the copy to anyone else.
The bill is schizophrenic in its approach to copyright protection. On the one hand, it lays out a variety of new fair dealing rights, clarifying that Canadians usually can, for instance, make backup copies of copyrighted works that they already own. (But you can’t distribute them.) But the bill also sets out this new category of technological protection measures. If a work has a “technological protection measure” on it — if it’s encrypted, or has a digital lock, like an e-book, for instance — then you can be taken to court for copying it. Even, presumably, for personal purposes. For the record, all commercial DVDs are (very weakly) encrypted.
Which brings us to part 2 of my story: newspaper paywalls. Newspaper paywalls are becoming disturbingly commonplace, and will likely be universal among major papers a few years from now. We’ll take just a hypothetical example of how these newspaper paywalls work. We’ll call it by a hypothetical name: the Map and Parcel.
Now, when you visit the hypothetical Map and Parcel‘s website, as near as I can make out, the newspaper’s website uses a technology protection measure. It installs what is known as a cookie on your web browser. That cookie counts the number of times you go to the paper’s website and read an article. When you reach an arbitrary limit — let’s say, 25 articles per month — then the cookie flags you as having maxed out your free articles for the month. Then, every time you try to read an article, the paper’s website puts up a warning saying you’ve reached your limit for the month and, if you want to keep reading, you’ll need to buy a subscription.
This is, as near as I can make out, a technological protection measure. To use the language of the new law, it’s a piece of code which, “in the ordinary course of its operation, controls access to a work.” That’s the definition of a technological protection measure. So you certainly shouldn’t do anything to “avoid, bypass, remove, deactivate or impair” the Map & Parcel‘s cookie system. That would, as near as I can make out, be illegal under the new law.
Which brings us to part 3 of my story. Cookies are a security risk. They’re not executable code, so they won’t contain viruses; but they do allow websites you access to track your visits and what you do on those sites. That’s part of the benefit of cookies. Websites can track your personal preferences; they can recognize that you’ve visited before, and not require you to go though a full login, for instance. On the other hand, there are obvious privacy implications. So all major Web browsers allow you to block cookies — either across the board, or at specific sites that you choose not to accept cookies from.
Here we arrive at the crux of the matter. A common-sense security measure built in to all modern Web browsers — blocking cookies that could be used to invade your privacy or, in a few unlikely but plausible scenarios, compromise your computer’s security — also has the side effect of blocking a Map & Post-style technological protection measure, thus enabling you to surf the website to your black, law-breaking heart’s content without encountering an article-limit warning.
So the obvious question is, has the federal government potentially made blocking browser cookies illegal?
I don’t know the answer to that question, but I suspect the answer is yes, so I would be a little bit hesitant about taking some fellow bloggers’ advice and trying to break the paywall barriers of newspapers like the Map and Parcel.Tweet