Comment by isaacfrond | Hacker News Reader

Comment by isaacfrond | Hacker News Reader

tl;dr

The case arises from years of litigation between Blacklock’s Reporter, a paywalled news service based in Ottawa, and the Canadian government.

Blacklock’s continued to press ahead with other cases with the latest decision involving 15 articles that were distributed to media personnel at Parks Canada. The department had an individual subscription to the service, but Blacklock’s argued that allowing anyone other than original subscriber to access articles constituted copyright infringement.

Blacklock’s position on this issue was straightforward: it argued that its content was protected by a password, that passwords constituted a form of technological protection measure, and that fair dealing does not apply in the context of circumvention. In other words, it argued that the act of circumvention (in this case of a password) was itself infringing and it could not be saved by fair dealing.

The Federal Court disagreed on all points. It cited with approval CIPPIC’s argument that “the TPM provisions do not apply to restrain fair dealing; using a validly obtained password to access content is not circumvention.” Further, court noted “how the password was obtained is significant as this may prevent a user from invoking the fair dealing provisions of the Act.” In other words, not all password sharing will qualify as fair dealing. This decision is not a licence to simply share passwords with no consequences, but rather affirmation that passwords are not a technological protection measure and that using validly obtained password does not limit fair dealing rights.

My reading (grain of salt, I'm not a lawyer) is that receiving a password from the person who owns that password is likely to always fall into "validly obtained" and be considered fair dealing

However the ruling leaves open the possibilty to find other forms of password sharing to be considered invalid. We'd have to see if something like a "My friend shared his friend's password with me without his friend knowing" would continue to be "valid"

Stolen passwords are almost certainly "invalid

If we think about it like house keys, entering someone's home with a stolen key is likely illegal. Entering a home with a key they lent you is fine. Entering a key that you obtained from someone who is allowed to have the key but not explicitly allowed to share the key is a grey area

I'm thinking that selling access to your password won't be "fair dealing", either, though.

the obvious case will be netflix account sharing, while IP-locking an account might be considered valid.

Interesting. You're probably right, and it makes me think of some similar but slightly different situations

For instance what about cafes having magazine subscriptions that they give you a password for when you buy from them, much like they might have a couple of newspapers lying around (or daily coffee news prints)

I wonder if that would count as fair dealing... Not "selling password access" but "giving password access to paying customers of our business"

I also wonder how it's really any different than bars doing big pay per view events where they charge a cover to get in so you can watch

Bars (in UK) pay enormous sums of money to present PPV broadcasts and such. They are charged, usually, according to floorspace; sometimes size of screens is factored in, sometimes there are maximum numbers of attendees.

It's similar to libraries having to buy a book along with a license that bypasses the usual imprint that says "not for lending"; they don't just buy a book from a bookstore.

A license for a live event stream makes sense, but libraries having to buy special licenses to loan out physical books seems completely nuts to me. Does the UK not have an equivalent to first sale doctrine for physical goods?

Maybe a better example would have been people hosting pay per view parties at their houses

They certainly don't pay for an event license for that, but some of those parties can get pretty big

> I also wonder how it's really any different than bars doing big pay per view events where they charge a cover to get in so you can watch

One person watching versus dozens of people watching. And the key phrase "public performance" for US law.

If you wanted to let exactly one person watch a PPV, or exactly one table with a handful of people, then you could potentially justify that.

Yeah. I'm thinking the shared password falls into the category of being able to share a copy of a magazine in your office, either directly, handing someone an article to read, or indirectly, by putting the magazine in a communal table or rack so anyone in the office can read an article they're interested in.

Just because the article is digital shouldn't mean it's now suddenly for your eyes only, and everyone needs to buy their own.

The question the article didn't cover is how far that password sharing can go. Obviously publicly sharing the link and password to anyone on the web goes well beyond traditional sharing. Even making it available to everyone you know goes well beyond normal. The trick will be determining exactly how far the sharing is allowed to spread.

I wonder if this would apply to Steam accounts, because that makes a chunk of their ToS somewhat ambiguous

This is a positive ruling, but it seems to be a little ridiculous to be applying anti-circumvention claims to something as trivial as a website password.

What I am more interested in is if a similar precedent would apply to fair-use of legitimately obtained content or hardware (e.g backing up a Blu-Ray disc, obtaining and installing a mod-chip in a video-game console to utilize third-party applications, etc.)

Reply on news.ycombinator.com