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Magic seals are made to be broken

Let's start with a simple proposition: Laws that don't make sense don't catch on.

Take, for instance, a law prohibiting the opening of locked toasters. You might argue that the contents of toasters are far too valuable to trust citizens to not abuse. They might copy the plans, or refashion the parts into a spring-loaded slingshot that could put somebody's eye out. All kinds of mischief! Therefore, opening toasters must be made illegal. Never mind that you paid for it and the thing is sitting in your kitchen, belching smoke. It's special.

Were a law like this enacted, most people would not start treating their toasters with a newfound reverence. Instead, they would most likely say, 'This is a silly law, and I'm going to get the crumbs out of my toaster.'

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In Canada, it's silly law o'clock.

After years of false starts, the Tories have unveiled a new proposal to update Canada's copyright laws. I don't envy anyone whose job it is to modernize copyright: Somehow, it has to work for everyone from bohemian poets to blockbuster movie producers. It affects everyone who buys music, watches YouTube, shares clips, downloads the occasional single - more or less, anyone who turns their computer on in the morning.

It also has to keep pace with technology that won't stay put, and appease those who are panicked by it. The last time Canada updated its laws was in 1997, when a burning cultural issue was people making mixtapes on their clock radios.

In 2008, Stephen Harper's government took a stab at modernizing copyright and unveiled a stringent bill that threatened to criminalize many digital activities that Canadians take for granted. The bill died amid a flurry of protest when an election was called.

This month, the government trotted out a new proposal - and, in fairness, this one seems to make a genuine attempt to address its predecessor's flaws.

For instance, the new copyright bill would make it legal to do a bunch of reasonable things, like copying a CD you've bought, making a parody of a copyrighted work or making a non-commercial tribute video and posting it on YouTube. It also proposes expanded fair uses for copyrighted works (though this has worried writers and publishers, especially in the education sector). These are good steps.

But it might all be for naught. None of these happy rules would apply if the content's creators decided to apply a digital lock - basically, to scramble the information in any way, shape or form.

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Following the American lead, and the fervent wishes of several industry groups, the Tories want to make it illegal to break a digital lock for any reason beyond a narrow list of exceptions. If the company that made a DVD puts a lock on it, that lock becomes more than a technical impediment - it would be like a magic seal, protected by the law. No more ripping locked DVDs, even for the most legal and morally sound of purposes - even the purposes that this same bill lays out!

The definition of "digital lock" is vague. The law is so unspecific that the fact that a creator wants to lock its content is more important than the lock itself. It could be the digital equivalent of a dinky little luggage lock, but it's the idea of the lock that matters.

The problem here is twofold. Practically, it puts all the power in the hands of digital content creators. They can wave a wand and - more or less arbitrarily - declare their content locked and beyond the reach of the hoi polloi and their "fair use."

But more important, I think, is the fact that giving locks special legal status doesn't make intuitive sense. If you want people to follow a law in their day-to-day lives, and you don't want to create a police state to enforce it, you have to meet them halfway on the grounds of moral reasoning. And turning digital locks into unbreakable magic seals - as opposed to judging what the user does after they break a lock - is counterintuitive.

It would be like introducing a law stating that you must never, ever photograph a book, no matter what you did with the photo. True, someone did photograph the entire final Harry Potter book and posted it online before its release. That was egregious. But we haven't enacted a law that declared books to be special objects that must not be photographed. Ditto opening toasters. That would be goofy. (I believe that's the legal term.)

It's true that property law is not copyright law, and the two aren't really analogous. (Downloading a song, for instance, is not the same as stealing a chocolate bar.) But special legal status for abstract measures doesn't compute in the public imagination - not if the American experience is any example.

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It does make sense to outlaw bad behaviour: for instance, the flagrant ripping-off of other people's work. But it doesn't make moral or intuitive sense to pledge obeisance to someone's scrambling scheme just because scrambling schemes were a hot item when the law was drafted.

What we want is a country in which hard creative work is respected, and paying good money for media is easy and rewarding. If we want to encourage people to put down dollars for an album or a movie, it's important that they not hold the law in contempt.

People won't abide by laws that don't make sense. Unless they're cruelly enforced, citizens will just ignore them. That sets the stage for a broken system; our hopes for copyright that we can all rally behind, toast.

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About the Author
Technology Culture Columnist

Ivor Tossell has been writing columns about online culture for The Globe and Mail since 2005. A reformed web programmer, his writing on urban affairs, technology and culture has appeared in Canadian publications ranging from very glossy to downright inky. He lives in Toronto. More

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