On commercial significance

As expected, Michael Geist's first response to the Cons' new DMCA is worth a read (and some followup action). And Geist is right to draw primarily a distinction between a needlessly complex series of exemptions, and a single, strict rule about digital locks which trumps any consumer-based considerations. But let's note another aspect of the bill - and in fact the digital lock provision - which truly gives away the Cons' priorities:

41.1 (1) No person shall
...
(b) offer services to the public or provide services if
...
(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological protection measure...

A similar standard applies to the provision of any "technology, device or component" under the proposed section 41.1(c)(ii).

So what makes that wording important? In order to escape prosecution for making available any product or service which has any potential to circumvent a "technological protection measure", an individual has to demonstrate that the product or service has some "commercially significant" uses or purposes. And that means in effect that any defence based on the fact that a product or service has valid, legal purposes other than infringement is available only to business interests - as a product or service which is made available freely rather than for profit wouldn't seem to fit the definition of "commercially significant".

In other words, the Cons' bill turns the development of freeware or open-source software into a source of potential legal liability, even if it's developed and distributed for a generally valid purpose which only has incidental potential for infringement. But the development and distribution of the exact same software for profit is considered to be above reproach.

So C-32 reflects a stark division between commercial interests which are given top priority, and all other interests which are seen as insufficient to justify any relaxation of the media industry's demand for total control over content. And the fact that the same theme is pervasive throughout the bill should offer reason for this latest attack on consumer interests to be met with just as much outcry as the previous ones that have been stopped in their tracks.