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Bell's PVR Legal Woes the Tip of the C-61 Iceberg

By Michael Geist

My weekly technology law column (Toronto Star version, homepage version) picks up on last week's story involving the Bell commercial touting a new digital video recorder that features an external hard drive permitting users to "record forever." The archiving functionality may sounds enticing, yet last week several media reports noted that Industry Minister Jim Prentice's Bill C-61 forbids Canadians from recording television programs for archival purposes. Indeed, the new "time shifting" provision in the Prentice bill contains at least a dozen restrictions that could leave consumers facing significant liability for those that fail to comply.  Innovative businesses do not fare much better as they will also be forced to shelve potential new services if the bill becomes law.  For example, Bill C-61 explicitly prohibits a network-based PVR that Telus has considered introducing into the Canadian market.  

These restrictions leave Canadians trailing the United States, where consumers have enjoyed the legal right to time shift for more than two decades without the statutory restrictions that Prentice has proposed.  Moreover, earlier this month a U.S. court ruled that Cablevision, a leading cable provider, can legally offer its network-based PVR. While it is tempting to focus on the need to improve the bill's PVR provisions, the reality is that the spotlight on Bell's promotion highlights a pervasive problem within Bill C-61.  Surprisingly for a political party that typically promotes "market based solutions," the bill introduces a complex regulatory framework for everyday consumer activities and represents an unprecedented incursion into the property rights of millions of Canadians.  

Just how far beyond restrictive television recording does Bill C-61 go?

The bill prohibits transferring a copy of most commercial DVDs to a portable video player.  It blocks parents from creating backup copies of their toddler's DVDs.  It precludes audiophiles from making copies of their store-bought CDs into multiple digital formats.  It renders it an act of infringement to transfer music from a copy-protected CD to an iPod. It provides that students violate the law when they by-pass digital locks on electronic books in order to copy and paste a paragraph of text for a class assignment. It stops cellphone users from unlocking their phones in order to move to a different carrier.  It even places backup programs and devices under a cloud of illegality.

Consumer and civil liberties groups have expressed their concern about these effects.  The recent revelations about Bell's PVR raises the question about the corporate responsibility of companies that are effectively downloading legal risk onto their customers by marketing products that could raise the prospect of liability.

Many companies have begun to speak out against the proposed legislation; however, they may need to include more direct warnings with their products.  Bell is certainly free to market the record forever PVR, but surely it should also advise customers that archiving television programs may lead to legal liability if the bill becomes law.  Similarly, as Apple touts the benefits of its Time Machine backup hard-drive, it should also warn purchasers that multiple backup copies of songs and videos would violate Bill C-61.

While the Prentice plan is still at an early legislative stage, consumers invest hundreds of dollars in these products with the expectation that they can use them as promoted for years to come.  Given the prospect that the law could render everyday uses illegal, Canadian consumers should be entitled to know that they may be buying more than they bargained for with their purchases.

Full post as published by Michael Geist on August 18, 2008 (boomark / email).