Thursday, July 27, 2006

Excess in Anton Piller Orders

A dynamite decision from Justice Binnie and the Supremes today in the case of Canadian Bearings v. Celanese Canada.

A major Toronto law firm - Cassels, Brock - has been kicked off a case involving industrial espionage because the firm unintentionally but avoidably accessed privileged electronic documents in the course of review of evidence after execution of an Anton Piller order.

Their problem stems from carelessness and an excessively adversarial approach in circumstances that called for careful restraint in recognition of the exceptional position of responsibility imposed by the unilateral and intrusive nature of an Anton Piller order. The protection of solicitor-client confidences is a matter of high importance. (para. 54)
The Supremes ruled importantly that the onus is on the searching party to show that there will be no prejudice to the party that was searched. (Para. 55)

The decision is very important for its thorough review of the extraordinary Anton Piller procedure - which Justice Binnie says at the outset “bears an uncomfortable resemblance to a private search warrant”.

Interestingly, there is no indication that there was a Charter challenge to the very concept of an Anton Piller order - a possibility that was raised by an Ontario judge in the the recent Ridgewood v. Robbie case mentioned by Justice Binnie, in which the plaintiffs attempted to execute the search upon a terrified ten year old kid whose parents weren’t home. I’ve written about that case in the EIPR last year.

Indeed, Justice Binnie goes to some length to indicate that such orders are necessary in today’s world.

Para. 32 Experience has shown that despite their draconian nature, there is a proper role for Anton Piller orders to ensure that unscrupulous defendants are not able to circumvent the court’s processes by, on being forewarned, making relevant evidence disappear. Their usefulness is especially important in the modern era of heavy dependence on computer technology, where documents are easily deleted, moved or destroyed. The utility of this equitable tool in the correct circumstances should not be diminished. However, such orders should only be granted in the clear recognition of their exceptional and highly intrusive character and, where granted, the terms should be carefully spelled out and limited to what the circumstances show to be necessary. Those responsible for their implementation should conform to a very high standard of professional diligence. Otherwise, the moving party, not its target, may have to shoulder the consequences of a botched search.
This may suggest that a Charter challenge to an Anton Piller order would not likely succeed. But with all of the caveats and dangers that lurk for lawyers who obtain and execute such orders, and all the requirements that the Supremes have spelled out in some detail, and the repeated references to their exceptional and extraordinary nature, I’m willing to predict that we will see far fewer attempts to obtain them and far more reluctance on the part of Courts to issue them.

And that would be a good thing...

HK

Tuesday, July 25, 2006

ET Come Home...Hopefully Not To Close to CDN Copyright Law

Some professors at Dalhousie have published a provocative and readable paper on the very complex and very important subject of extraterritoriality (“ET”) entitled GLOBAL REACH, LOCAL GRASP: CONSTRUCTING EXTRATERRITORIAL JURISDICTION IN THE AGE OF GLOBALIZATION.

Not surprisingly, it draws attention to the Supreme Court of Canada’s complex and not very well understood 2004 decision in SOCAN v CAIP. In that decision, the SCC said that the Copyright Board was wrong to limit SOCAN’s reach only to situations where the server is located in Canada. In principle, the SCC held, a content provider in another county could be liable to SOCAN in Canada if there is a “real and substantial connection” to Canada. Justice Binnie indicated that:

(para. 60): A real and substantial connection to Canada is sufficient to support the application of our Copyright Act to international Internet transmissions in a way that will accord with international comity and be consistent with the objectives of order and fairness.

In terms of the Internet, relevant connecting factors would include the situs of the content provider, the host server, the intermediaries and the end user. The weight to be given to any particular factor will vary with the circumstances and the nature of the dispute.
With respect to Justice Binnie and the Supremes, this could mean a lot of trouble for Canada if the decision is misinterpreted and applied too broadly. In a certain sense, the whole ET discussion was largely obiter dicta because there was no particular scenario before the Court - and the Court recognized the highly fact dependent nature of the necessary enquiry to determine whether there can be liability in Canada . Indeed, apparently mindful of the potential reach of their decision, the Court issued a caution - which has drawn less attention than their otherwise somewhat bold assertion of ET reach:

This conclusion does not, of course, imply imposition of automatic copyright liability on foreign content providers whose music is telecommunicated to a Canadian end user. Whether or not a real and substantial connection exists will turn on the facts of a particular transmission (Braintech, supra). It is unnecessary to say more on this point because the Canadian copyright liability of foreign content providers is not an issue that arises for determination in this appeal, although, as stated, the Board itself intimated that where a foreign transmission is aimed at Canada, copyright liability might attach. (para. 77)
(emphasis added)

On a practical level, it will be very difficult for SOCAN to enforce its theoretical win. I cannot see MSN or YAHOO or countless other foreign sites that may in some way somehow involve music lining up to get licensed with SOCAN in Canada. Nor can I see them responding - other than by way of “make my day - we’ll see you in court” - to any demands from SOCAN.

The application of these ET factors is completely uncertain to the types of situations that readily come to mind. Never mind the enormous difficulties of what constitutes a communication to the public by telecommunication or a performance in public. On the latter points, we may hopefully get some insights in the presumably imminent Board decision on Ringtones, which has been pending for over a year.

I don’t think that the SCC meant its decision to be a carte blanche to SOCAN to go fishing for revenue in the USA or elsewhere. They seem to have explicitly recognized the possibility and danger of multiple payments (which I think is what they mean when they refer to as “layering” of rights) and that the WIPO treaty approach is to affix liability at the point of transmission. This may all get clarified if and when Canada ratifies the WIPO treaties. And it should get clarified in our enabling legislation because it is absolutely not in Canada’s overall interest to get to pushy on extraterritoriality, as I will explain and as the Dalhousie profs agree.

Some of this may also get clarified in the current version of the “100 Years War”, a.k.a. SOCAN’s Tariff 22 which is flaring up again at the Copyright Board. The latest version of the proposed tariff shows little indication that SOCAN has formulated any more precise or viable legal theory than it had in mind in 1995, and which led to the first trip to the SCC. The problem is that many objectors have already been worn down by the expense of opposing SOCAN and SOCAN’s interrogatory tactics (e.g. Archambault and Canoe) and the Board’s unwillingness to permit parties to participate adequately but on a limited basis in order to address legal and jurisdictional issues without being subjected to intensive and invasive interrogatories that will inevitably serve no other function than driving away worthy opponents.

Just because some end users may be Canadians certainly should not be sufficient to find liability against a foreign website owner. Hopefully, the Supremes meant that only to be one factor - and an inconclusive one per se. Were it to be otherwise, the Internet would come to a crashing halt - since any website can attract users from any country in the world. That’s why it's called the “world wide web”. The last thing that we need is each country assuming jurisdiction and applying their law over websites abroad because some users may reside in that country. If that were to become the norm, every Canadian website would have to clear its content under the laws of other jurisdictions ranging from the USA to the Uzbekistan.

That’s simply because what goes around comes around in this area - and we don’t want ET coming home to roost too actively in Canada. The authors from Dalhousie recognize this and conclude their report with an explicit reference to the SOCAN case and Canada’s interest:

That said, this is an option which should be used sparingly and cautiously. Canada, though not the smallest boat on the lake, most frequently sails with larger ones: the odds of it being caught in someone else’s wake are far greater than of Canada changing the course of others. Canada’s domestic privacy legislation, as we have noted, largely results from the economic influence of the European Union, which left Canada little practical alternative but to comply: the United States, though, being a larger market still, did not create the same kind of legislation Canada did, but has not lost access to European markets. Similarly, Canada could try unilaterally to impose its views on copyright law on the international community, taking the robust approach to “real and substantial connection” that the SOCAN case suggests. This carries a certain risk, however, if Canada “legitimizes” one state unilaterally imposing its standards on others by doing so itself, this helps to free up the dominant players to act likewise, and in a way that might not accord with Canadian interests. With specific regard to copyright, the dominance of U.S. intellectual property interests internationally dictates that unilateral use of extraterritorial jurisdiction by that country could end up imposing American copyright law on Canada as well as others.

Even allowing that exceptional circumstances might exist where Canada could and should act unilaterally in the absence of international consensus, it must choose the occasions sparingly. While the edifice of territoriality is being slowly dismantled by globalization, this should compel Canada to be defensive and proactive in equal measures as it seeks both to protect and to promote its own interests in the new global order.
(Emphasis added)

For example, if the USA were to get as proactive as Canada is in danger of becoming on ET, it could become illegal in the USA for a Canadian Joyce scholar - for hypothetical example - to post stuff on her Canadian website that is PD here but not there - because of our rightfully and thankfully shorter term. If an American copyright owner were to sue in an American court merely because the site was accessible to Americans, the owner of that website would have to defend - otherwise he or she might get arrested at the American border if a negative default judgment were to be obtained - even if the judgment were not enforceable in Canada. That’s the post 9/11 reality.

In this case, the SCC has opened the copyright ET door in a way that may tempt lower courts or the Copyright Board at the behest of copyright owners to push farther than the SCC may have intended - even with the caution in place. Justice LeBel recognized this in his careful dissent. Parliament may need to put a stopper in place so that we don’t end up falling into a trap set by SOCAN’s potentially overreaching position in Tariff 22 and the SCC’s at least partial agreement with SOCAN’s view of the world.

The Dalhousie study finds the majority reasoning in the SOCAN case to be “confusing in that it refers to the extraterritorial application of the Copyright Act, suggesting that Canada has taken prescriptive jurisdiction over matters outside its borders.” The study seems to suggest at page 40 that the SCC perhaps went to far in applying the Mother of all ET decisions in Canada to the world of the internet and copyright. This is Libman decision of the SCC in 1985 - in which there was clearly a “real and substantial” connection to Canada. A bunch of fraudsters operated a fraudulent stock market boiler room in Toronto - but argued that they couldn’t be prosecuted in Canada because their victims were in the USA and their money was hidden away in Central American, from when the promotional material was mailed. The accused argued implausibly that the offences hadn’t occurred in Canada. Clearly, there were crimes and they had to prosecuted somewhere. In the SOCAN situation, there are no “offences” and if - I repeat IF - a foreign website somehow attracts a Canadian audience, the liability should be determined in the foreign country and the fact that there happens to be a Canadian audience should not per se be sufficient to ground liability in Canada.

I would allow that the situation could be different in the event that a foreign website is actually specifically targeting Canadians - i.e. “Canadians come here - we welcome Canadian Dollars at par with USD - get your illegal movies cheaper here!” And especially if there was clearly at least some element or inseparable element of some infringing activity taking place inside Canada. Some of this may become clearer if and when the British courts deal with BPI’s lawsuit in England against www.allofmp3.com which is the supposedly legal-in-Russia and very cheap but not quite free download site.

Anyway, I highly commend the Dalhousie study by Professors Coughlan, Currrie, Kindred and Scassa. It is important and timely. It was prepared for the estimable Law Commission of Canada, which has done other good work in IP - in which I was privileged to have been closely involved on another complicated issue - security interests in IP.

HK

Monday, July 24, 2006

DOHA Dead?

The DOHA round of WTO trade talks appears to be dead. Not even D.O.A. Dead before getting that far.

The developing countries had hoped to recoup some of the ground they lost in the Uruguay Round that lead to the TRIPS agreement in 1994. They wanted to push for such things as disclosure of the origin of genetic resources in patent applications and the the relationship between the Convention on Biological Diversity (CBD) and the WTO TRIPS Agreement. Here's a good take on the IP situation.

This may lead to renewed US attempts to push bilateral and regional "free" trade deals - such as the Free Trade Agreement of the Americas (FTAA). This could be more difficult now in South America, since several countries have swung to the left since the last major attempt to push the FTAA in 2003.

NAFTA could also be reopened - and the USA may pressure Canada to "harmonize" upwards to Mexico's more than absurd copyright term of life + 100 years.

Hopefully, Canada will resist the inevitable pressures that will come to trade off sovereignty and sound Canadian IP policy for increased "access" to US markets - which means very little anyway. Just ask anyone in the lumber or beef business.

HK

Wednesday, July 19, 2006

Classical Music Composers and Performing Rights Societies

Here's a very interesting article by an American law student with some musical background - whose name happens to be Amanda Scales. It suggests that copyright laws are actually hurting the cause of serious or "classical" composers - mainly through the excessive term of protection and an American problem having to do with the "Fairness in Music Licensing Act".

While the article is focused on American law, there are some aspects that ring true here - namely her discussion of the "follow the dollar" approach that North American societies have used since the early 1990's - which eliminates any "subsidies" or "tribute" as she calls it to classical or serious composers - who by definition don't get much air play or performances in bars, etc. She doesn't use that term - "follow the dollar" - which was used in the SOCAN milieu - but see page 285 of her article.

She suggests on the last page of her article that classical composers should form their own performing rights collective - something I have talked about for years. Naturally, there are big economic barriers to such an endeavor - but a good case could be made for government funding to get one at least up and running in Canada and to provide some ongoing support. The Department of Canadian Heritage has subsidized a number of its clients and collectives lately that don't need any subsidy.

Here's the link again... it's an excellent article from a law student and highly worthwhile by any standard...

HK

ADDENDUM:

There's a very good critque of Ms. Scales' paper by one M. Gladu by way of two "comments" - click below. It merits a full response, which follows:

Dear Mr/Ms Gladu:

You are quite right - the paper is far from perfect and somewhat lacking in evidence and rigour. However, it is an excellent paper by undergraduate law student standards and your very articulate and expert critique confirms that it does a great job raising issues and topics. I’ve seen many writings about collectives that are ultimately much less accurate and informative by people who are very experienced.

A few points in response to your comments:

1. You ask “Are concert/live music licenses fairly valued?” Well, that was certainly a very major issue in the 1994 Canadian Copyright Board decision in which SPACQ (a Quebec based association representing the interests of composers, etc.) argued forcefully that SOCAN was greatly undervaluing the concert tariff in the rate it sought from the Copyright Board. The Board agreed in principle - and although it couldn’t change the rate for the period in question, it clearly concluded that

The rate will therefore be set at 2.2 per cent for the whole period. The Board hopes, however, that SOCAN will give due consideration to filing its proposed concert tariff for 1995 at a rate higher than that in the SOCAN/CAMP agreement. The Board is of the view that unless this course is followed, the interests of SOCAN's members will not be properly served.
(emphasis added)

This spat between SPACQ and SOCAN is still a sore point for SOCAN and likely to remain so for a long time.

2. You say that “...some sources appearing in her bibliography are just not well-versed and specialized on reporting/critiquing the activities and inner workings of the administration and collection of performance royalties. Miss Scales should have gone direct to the source...” Well, I’ve enjoyed a long and at times quite warm rapport with the major PROs in North America. They are always very courteous but rarely very transparent - although I have to say that SOCAN is probably more transparent overall and accessible on the whole than any other major collective in Canada - but that’s not saying much.

3. Even members have a hard time understanding how the distribution rules work in PROs. The chronic and persistent complaint by serious music composers is that their royalties have been going down since the merger of the two Canadian societies in 1990 and the “follow the dollar” movement of the early 90's even if their performances are doing well. The concert and broadcast rates in Europe and Japan are said to be MUCH higher abroad in many cases than Canada - so they often get bigger income from foreign than domestic sources - even though they are performed more here in Canada. SOCAN won’t hear any discussion of a “cultural fund” - which helps serious composers in Europe. The SOCAN Foundation is better than nothing - but barely so in terms of the overall problem.

4. At least in the USA, there is a choice of three PROs. In Canada, there is now only one. Many now regret the 1990 merger - though they are afraid to say so in public. The dirty little secret is that some Canadians have joined with one of the American collectives. They somehow have found this to be advantageous.

5. I agree that her analysis of the effect of term extension may be somewhat unconvincing, but the fact remains that the increase to life + 70 cannot possibly help serious composers. It may help their publishers and sometimes lazy and occastionally difficult grandchildren and great grandchildren in some rare cases. An example of "difficult" might welll be Stephen Joyce. The 1998 CTEA (“Sonny Bono”) term extension legalisation put a 20 year moratorium on works entering the PD in the USA. There is every basis to fear that this trend to extension and moratorium will continue - especially given Mexico’s recent inexplicable move to life + 100 and the effect that may have on NAFTA. So, it may be a very long time before anybody can do an arrangement of or themes and variations on early 20th century masterpieces - such as those by Straus (d. 1949) or Stravinsky (d. 1971). Ironically, Stravinsky is often quoted as saying “ Lesser artists borrow, great artists steal” - and that is clearly true of his own work, as he was quick to admit. But when he “stole”, he also infinitely enhanced. Ms. Scales has a point here - even if she doesn’t quite hit the bull’s eye in terms of methodology or evidence. If term extension gets in the way of the work of the next Stravinsky, Ives, Dvorak or others who blatantly borrow, that will be very said. If serious music publishers actually seriously “invested” in younger unestablished composers and actively promoted their work, there might be some faint argument for term extension. But this isn’t the case any more, if it ever was the case in recent times.

Anyway, thanks for your comments. You seem very knowledgeable indeed. Call me anytime and we’ll chat.

HK



Tuesday, July 18, 2006

Exploiting Kids as Copyright Cops

There's a scary story in today's NY Times about how the Hong Kong government is somehow getting Boy Scouts and other kids in uniforms to spy on and report copyright infringers.

It's bad enough when Access Copyright and other private interests try to warp the minds of children with inaccurate propoganda. But when the State turns little kids wearing Boy Scout and Girl Guide uniforms into spys and snitches, it's really regrettable. According to the story:

Starting this summer the Hong Kong government plans to have 200,000 youths search Internet discussion sites for illegal copies of copyrighted songs and movies, and report them to the authorities. The campaign has delighted the entertainment industry, but prompted misgivings among some civil liberties advocates.

The so-called Youth Ambassadors campaign will start on Wednesday with 1,600 youths pledging their participation at a stadium in front of leading Hong Kong film and singing stars and several Hong Kong government ministers.

The Youth Ambassadors represent a new reliance on minors to keep order on the Internet. All members of the Boy Scouts, Girl Guides and nine other uniformed youth groups here, ranging in age from 9 to 25, will be expected to participate, government officials said.

It's too bad the the Boy Scouts leadership can't follow it's own motto and "be prepared" to speak truth to power in this instance.

HK

G8 Lobbying

The G8 has issued a declaration entitled Combating IPR Piracy and Counterfeiting.

This declaration was the result of a well-orchestrated effort by American and British lobbyists who were very influential in St. Petersburg.

A collection of the usual lobbying suspects in Canada (including CRIA, CMPDA, CMPA, and CAAST) has issued a press release congratulating the Canadian governmnet on signing on and indicating - in their all too frequently misleading fashion - that:
Furthermore, we look forward to the Canadian government fulfilling these commitments as soon as possible in order to better protect intellectual property in the digital age. The introduction and passage of new federal copyright legislation will be a key step to fulfilling the commitments.
(emphasis added)

These Canadian lobby groups are largely branch plants of their American masters.

There is, of course, nothing in the G8 statement that requires Canada to enact any legislation.

Speaking of international obligations, only two of the G8 countries - the USA and Japan - have yet ratified the 1996 WIPO Treaties. Canada continues to meet and exceed its international IP obligations - unlike the USA which has been found to be in serious contravention at the WTO of its copyright obligations and is clearly unable or unwilling to do anything about it. People who live in glass houses...

Speaking of piracy, these organizations behind the Canadian press release - particularly the music and computer software industries - have a very expansive, elastic and invasive notion of what they mean by “piracy”. It would catch just about every home and business in Canada.

The injection of IP into the G8 agenda reflects the enormous efforts being devoted to preserving fat margins and failing business models though massive government intervention in the form of ever increasing levels of IP protection. This will actually impede the progress of technology, international development and access to knowledge. Hopefully, Canada’s new Government will see through this and do what’s best for Canada.

IP is a big issue between the US and Russia, and a problem for Russia in terms of entry into the WTO. But one would have thought that there are much more urgent matters affecting the public interest of the planet for the G8 as a whole to worry about.

I keep reminding certain lobbyists to be careful about what they wish for. Elevating IP to this level may seem like a short term victory - but flying too high with politics and IP can be dangerous.

HK


Monday, July 10, 2006

More Margaret Atwood on Copyright

A certain vigilant Easterner has brought Ms. Atwood's latest pronoucements to my attention. Canada’s "Queen of CanLit" and copyright proclamations is at it again. She says in a recent interview in the Halifax Chronicle Herald that:
And don’t forget that copyright is a fairly recent thing, it was brought in the 19th century because people in the States were pirating books written by English writers, and selling them at no profit to the writer or the original publisher, often in a mangled version so writers were losing control of their text, of any income that they might have otherwise had, and publishers were losing out. And once the States also had writers that were being pirated, they got together and made copyright law to protect their markets.
Well – let’s not get too technical. But Ms. Atwood is off by about two centuries and one whole continent. The British Statute of Anne goes back to 1709 – and it’s viewed as the first “modern” copyright law to which today’s copyright statutes trace their legal DNA. The American's didn't get serious about copyright law until 1909 - and even then, they underprotected their own nationals and everyone else until 1976.

This is almost a rich as her comment about copyright exceptions at the 1996 Committee hearings:
If copyrights were cars, this would be car theft.

Can’t wait to see what she’ll come up with next. Between her, Graham Henderson and Captain Copyright, who needs to read ever-so-boring books, cases and legislation?

But in all seriousness, the Committee took her very seriously last time and eviscerated the concept of "exceptions" to a shocking extent. So, her colourful comments have to be taken seriously because the next Committee and the Canadian Heritage bureaucrats may well take them seriously - again.

Which is another reason why it's so important for the next Commmittee to be adequately informed - in either official language - rather than be uninformed because they will only look at written material in both official languages.

HK

Tuesday, July 04, 2006

Captain Copyright's Contender

Captain Copyright now has a contender when it comes to pernicious propaganda. And it’s none other than the Law Society of Upper Canada (“LSUC”). The LSUC (and several of its other provincial counterparts) have taken it upon themselves to inform their members that software piracy is not only illegal but also unethical. For convenience, I'll refer to the LSUC - of which I am a member.

One might be tempted to ignore this as a bit of presumptuous paternalism. Howver, the LSUC should never be ignored. There’s a mandatory aspect to all of this and the LSUC does have the power to govern the legal profession. But, wait till you see what they define as “illegal”.

The LSUC has a publication innocuously called GUIDELINES ON ETHICS AND THE NEW TECHNOLOGY. This was apparently prepared by or for the Law Society of Alberta and disseminated by the Federation of Law Societies of Canada in 1999. It has been adopted by other provincial law societies as well. Here’s the orginal document, with some references that are missing in the LSUC version. Note the several references to the Copy Right [sic] Act.

It deals with such innocuous topics as advertising on the Internet, not practicing in jurisdictions where one is not licensed, etc. Then, for some inexplicable reason it has as its centrepiece a section entitled SOFTWARE PIRACY with a whole appendix on the subject. The sources of information are the Software Publishers Association – now the Software and Information Industry Association (“SIIA”) and Microsoft. The SIIA is a very powerful Washington lobby and anti-piracy trade association.

According to the LSUC (on the advice of its ever so dispassionate sources of information):

Software piracy is illegal and unethical. Lawyers shall ensure that support staff and students-at-law uphold the ethical standards of the lawyer’s practice. The management and organization of and compliance with license agreements for
all software used by a firm shall not be left entirely to an office manager or
support staff.

A lawyer can guard against accidental software piracy by carefully reviewing the provisions of the software licensing agreements for software used in the office. Where strict compliance with the licensing agreement may cause a hardship, exemption must be sought from the licensor.

(emphasis added)


Nowhere does this publication tell one that the Canadian Copyright Act has explicit provisions (s. 30.6) that permit, inter alia, the making of a backup copy of a program or the making of a copy for the purpose of making a program compatible with the user’s hardware. Whether doing so could entail a breach of contract is another and by no means clear matter – but it is emphatically not copyright infringement.

The appendix gets worse. It states “Pirating can occur whenever copying occurs.” And what is copying? Well, why don’t we ask Microsoft? According, to Microsoft, as adopted by the LSUC:

What is software piracy?
Software piracy is the unauthorized copying, reproduction, use or manufacture of
software products. Microsoft defines “copying” as:
(1) downloading software reproducing it) on a computer’s temporary memory by running the programs from a floppy disk, hard disk, CD ROM,
(2) downloading software onto another media such as a hard disk (e.g. a diskette) or a computer’s hard disk (the computer’s main information storage area); or
(3) using software that has been placed on an office’s network server.
(emphasis added)


Those categorical statements ignore the fact that this is how programs are meant to be used, and that s. 30.6 of the Copyright Act exists.

The appendix contains the blatantly incorrect categorical statement that “Copying software is illegal, regardless of whether the copied software is thereafter offered for sale, is given away free, or is retained for the copier’s own use.” Once again, LSUC – please read s. 30.6 of the Copyright Act. And have a look at http://www.download.com/ - which legally gives away - and offers up for “copying” - oodles of useful software. Copying software is simply not categorically illegal - it all depends on the circumstances.

What is wrong about all of this?

  • This is another example of the cacophonous conflation of copying and piracy. And now, add ethics to the mix. Not all copying is illegal, much less piratical. Piracy is a word that should be saved for those engaged in serious commercial activity, not hard working lawyers who want to make back up copies of their essential and crash prone software. To do so in not an indictable offense, as this document seems to suggest.
  • The LSUC has become the likely unwitting shill of a very powerful lobby and anti-piracy group and Microsoft itself. Let’s give the LSUC the benefit of the doubt here and assume for the moment that they don’t know better and that this was inadvertent (although that’s a scary thought for lots of other reasons relating to their immense power and resources). After all, the document didn’t originate from the LSUC. But it does bear the LSUC logo. The Federation of Law Societies of Canada might wish to explain how this document evolved.
  • This is typical of the modern trend to copyright correctness that is trying to make all of us agents and copyright owners and collectives. This is why CMEC’s Copyright Matters! booklet troubles me – with its incomplete, oversimplified and even simplistic pronouncements and excessively cautious advice to teachers. This why I and others are so concerned with Captain Copyright’s obvious efforts to turn little school children into the equivalent of youth group copyright cops.
  • “Ethics” is without doubt the most important aspect of being a lawyer. Our consciences and our credibility as lawyers depend on upholding the highest standards of ethics. The LSUC should be very careful about treading into ethical territory when there is no need and their research is so incomplete. This is the ultimate issue. Please, get it right or leave it alone.

From my point of view, there are indeed profound ethical issues involved on the part of those who wrongfully and deliberately mislead and misstate about copyright law, for example in a way that would deny copyright users’ their lawful rights, or assert sham claims, or misinform law makers in order to influence policy. Indeed, there are a lot of ethical issues involved with copyright law and many of them will be explored at what promises to be an excellent conference next month hosted by the University of Calgary at Banff. I will be there and presenting a paper. Stay tuned.

Lawyers are not school children. But most lawyers are also not copyright experts and the LSUC and other law societies wield immense power – obviously much more than Access Copyright and school teachers. I think that it’s wrong for law societies to disseminate incomplete and incorrect copyright information and to lay down ethical dicates based upon it. In this case, the intentions may have been honourable but the result is very unsatisfactory.

HK