Monday, June 25, 2007

Statutory Damages Suit Pants Suit Dismissed

In a relief to everyone everywhere except the plaintiff, Judge Roy J. Pearson, the $67 million lawsuit over the lost pair of suit pants was today dismissed by a Washington judge. Until the verdict comes in on Conrad Black and Paris Hilton gets out of jail, this could generate a brief window of interesting legal coverage in the USA. Hopefully, the immigrant victims of this monstrous abuse of the litigation system will get some redress by way of costs or otherwise.

Here's the judgment.

Here's an interview with the Defendant's lawyer.

Too bad there isn't sufficient main stream media coverage of the 20,000 plus other outrageous statutory damage law suits in the USA filed by the RIAA over allegedly illegal downloading and file sharing - where the harm done, if any, astronomically exceeds any provable actual damage to the record companies.

PS - reliable sources suggest that the RIAA may now have launched more than 30,000 suits...


Friday, June 22, 2007

WIPO Broadcasting Treaty - "ends not with a bang but a wimper"

Apologies to T.S. Eliot.

It looks as if the WIPO Broadcasting Treaty will go to the more remote wards of WIPO for a while and maybe forever, potentially along with the once proposed data base treaty and other DNR projects in the WIPO annals. Reports indicate that the Chairman, Mr. Liedes, used heroic efforts to resuscitate this project and to reschedule a diplomatic conference for sometime in 2008 - but did not succeed.

The main objections - which were sufficient to block it - came from the Asian and African groups as well as Brazil and India. The EU and Japan expressed some support but did not fight hard to keep the dipcon alive and the USA and Canada apparently were silent - perhaps because there was no need to be explicit.

So maybe WIPO will move on to something more responsive to actual needs in the copyright world.

The next SCCR meeting in November or December of this year (which will be a regular meeting and not a special one devoted to this topic only) may deal with this issue - but other issues could be on the agenda as well. Issues such as limitations and exceptions or collective administration - both of which are very important at both the domestic and international level, and both of which lend themselves to possible treatment as a treaty.

If there is a need to stop signal theft in certain countries - and there very well may be - then perhaps the passage of time and a new approach could result in addressing that need specifically - but without conflating that particular problem with an open ended set of new exclusive rights that add additional layers, costs, TPMs and DRMs while detracting from fair use rights, access to knowledge and the public domain.

The document tabled today by the Chair actually tried to put webcasting BACK into the treaty on the agenda and for a dipcon next year. Whatever the strategy, it didn't work. This was too much even for the USA. There was no evident support for dealing with webcasting.

Apparently, numerous delegations restated that whatever is discussed in the future should be "signal based" - unlike the non-paper that went nowhere this week.

Details of the demise of the dipcon have started to emerge from the redoubtable Jamie Love of KEI (now available here) and will surely follow from the other NGO reps from EFF, IP-Justice, Public Knowledge, etc. who played a major role in this drama, in part by making it at least somewhat visible and transparent.

And, of course, the ever excellent IP-Watch was quick with a detailed posting by William New that includes comments from the Chair - likening this week's set back to a mere "cramp in the leg" in the course of a "marathon" and from Michael Keplinger, a Deputy Director General of WIPO and until recently a US official, who said “I think we have made tremendous progress..” As reported by Mr. New:
Keplinger, who came on board about six months ago, said there have only been six months of actual negotiations and that members are still learning about the subject. The previous 8 years were “discussions,” during which members were learning about the topic, he said.
I have a feeling that there will be some long term lessons to be learned from all of this by all concerned...


I'll keep updating this as details are confirmed and links are available - for example from the resourceful Petra at IP-Justice and Gwen at EFF.


Thursday, June 21, 2007

No WIPO Broadcating Treaty Dipcon "This Year"

After two days of essentially in camera meetings going late into the night in Geneva, the news is out that there will be no diplomatic conference on the proposed WIPO broadcasting treaty “this year.”

There were too many diverging opinions. The US, Canada, Switzerland, Brazil and India all opposed a dipcon this year. Of the major industrialized countries, apparently only Japan was clearly bullish on a dipcon at this time.

Is the treaty “dead”? Maybe not. There will be a meeting tomorrow morning at 10:00 AM Geneva time to discuss what to recommend to the General Assembly.

It’s hard to say at this point whether this will be an exercise in face saving or whether this is going to simply go on and on for a lot longer. It has already been going on for almost 10 years.

There is a feeling that something should be done about signal theft, which is a problem in some countries - but the big question is what and how. It appears that there is no consensus on even the most basic of questions after all this time. It would appear to be very questionable as to what progress could result from more meetings. Anyway, we'll know more by tomorrow at this time.


Apparently, the Chair - Mr. Liedes - will prepare another non-paper with consolidated comments.


Wednesday, June 20, 2007

WIPO Broadcasting Treaty - June 20, 2007

Not much specific news yet about today's session on the WIPO Broadcasting Treaty ...things went very late over there.

Mr. Liedes has returned from Finland and was back in the chair.

He decided to switch to an open ended informal session with governments and the European Commission - which was accepted despite protestation from India.

This effectively locked the NGOs out of the room. And means that government positions are not recorded.

This is not a very transparent way of doing things.

Reminds one of the old adage about not wanting to know too much about how laws, treaties or sausages are made.


Tuesday, June 19, 2007

WIPO Broadcasting Treaty - June 19, 2007

It’s been a hectic and inconclusive time at WIPO on the Broadcasting Treaty over the last couple of days.

Brazil etc. wants to enshrine A2K and cultural diversity in the body of the treaty and not relegate them to the preamble.

The US opposes this and is also very cool towards the exclusive right approach.

Canada has taken a decisive position that recognizes that there will be costs and consequences of the proposed treaty and allows for an opt-out from exclusive retransmission rights. Canada has stated:
Canada recommends that Contracting Parties which did not give broadcasters a right to authorize simultaneous retransmission immediately prior to joining the treaty be allowed to opt out of simultaneous retransmission right with respect to unencrypted broadcasts (i.e. unencrypted wireless transmissions) provided that the retransmission is:
• not to another country (i.e. is not to a third country or back to the country of origin).
• not over a computer network accessible in another country
• not by unencrypted satellite signal

This would allow for the continued retransmission of free over the air “local” signals within Canada, including those from US border stations - which have always been retransmitted “for free” in Canada as long as they are within the definition of “local.”

This has gotten some good attention and coverage at the influential IP-Watch site. Personally, I think Canada is to be commended for taking a clear and constructive position that is consistent with the rest of CDN policy, e.g. CRTC and was arrived at after extensive consultation.

Apparently there was much talk about what “deferred” means in the context of a deferred retransmission right.

The Chair - Jukka Liedes - who has much personal investment in this effort (10 years of chairing these meetings and holding the drafting pen) - somewhat mysteriously returned to Finland on day 2, although he is presumably expected back in Geneva on day 3. He has been under much criticism from many quarters for not listening to the clear signal to stay away from an “exclusive rights” approach and to focus on a minimal "signal protection" conception.

The meeting has basically only dealt so far with the preamble. It is supposed to get through the whole substance by Thursday.

The US is sending strong signals that it isn’t out to get a treaty “at any cost.”

This is supposedly a “do or die” meeting. Not only Mr. Liedes but WIPO itself has a great investment in this process. WIPO has become much less influential in recent years in terms of norm setting and has failed to achieve any meaningful treaty results since the 1996 WCT and WPPT treaties, which still suffer from minimal actual ratification by major developed countries. The last thing WIPO needs now is a failed diplomatic conference, or another treaty that doesn’t enter into force due to lack of support or doesn’t have any importance. Just think integrated circuits and audio-visual - not to mention data bases and patent law harmonization.

Even the content owner friendly Hollywood Reporter seems to radiate pessimism about treaty prospects - and has some good coverage of the heavy corporate opposition in the USA, which is clearly why the USA has become lukewarm if not outright cool or cold to the whole effort.


Friday, June 15, 2007

CDN Government Submission for WIPO Broadcasting Treaty

This is the official text of a written submission that has been submitted by the Canadian Government to WIPO. If features an opt-out provision proposal for the proposed exclusive retransmission right. Further comment may follow...but it's important to get this out right away...

Here's a link to bookmark to the official WIPO site for the meeting, where the CDN submission should soon appear.


Submission by Canada on the Proposed WIPO Treaty on the Protection of Broadcasting Organizations

Canada is pleased to make this submission on the proposed WIPO Treaty on the Protection of Broadcasting Organization. The submission largely addresses the April 20, 2007, non-paper provided to member states by the WIPO Secretariat.

I. General Comment:

Paragraph 9 of the "Notes on the non-paper" states: "The Treaty would in no instance affect public interest, access to information, consumer interests or technology innovation." This, in Canada's view, is highly debatable. Indeed, Canada is quite concerned that should the treaty contain an exclusive right of retransmission, there could well be additional costs to retransmitting over-the-air television that might at least in part be passed on to consumers. In addition, in the event that there are such increased consumer costs, consumer spending may be diverted from optional cablecasts and specialty satellite services.

II. Comments on the text of the April 20 non-paper:

Article 2, Definitions

For the purposes of the Basic Proposal, Canada recommends that there be a separate definition of "cablecasting organization" and that it be used in addition to "broadcasting organization" in all of the relevant parts of the text. It may be that the final treaty will give different rights to broadcasting and cablecasting organizations and using separate definitions in the Basic Proposal will make this option more obvious.

Article 5, Beneficiaries of Protection

Canada recommends that both the origin of the transmission and the headquarters of the broadcasting or cablecasting organization be in another Contracting Party (but no requirement that they be in the same Contracting Party).

Article 6, National Treatment

Canada supports alternative J

If the Basic Proposal includes a term of protection, Canada recommends that this article include a rule of the shorter term.

In light of our recommendation allowing Contracting Parties a limited opt-out with respect to the simultaneous retransmission of unencrypted broadcasts, there should be a restriction on national treatment so that other Contracting Parties would be allowed to retransmit broadcasts from Contracting Parties which had exercised the opt-out.

Article 7, Protection of Broadcasts

Canada recommends that Contracting Parties which did not give broadcasters a right to authorize simultaneous retransmission immediately prior to joining the treaty be allowed to opt out of simultaneous retransmission right with respect to unencrypted broadcasts (i.e. unencrypted wireless transmissions) provided that the retransmission is:
• not to another country (i.e. is not to a third country or back to the country of origin).
• not over a computer network accessible in another country
• not by unencrypted satellite signal

And provided that all content in the broadcast, including live events which are not protected by copyright, other than works which have fallen into the public domain or performances or sound recordings (where domestic performances or sound recordings are not entitled to compensation for retransmission in the country of reception), be entitled to compensation for such retransmission. Contracting Parties may require that live events must be fixed at the time of broadcast to be entitled to such compensation. It shall be a matter of the law of the state in which protection is claimed to determine whether the recipient of such compensation is the originating broadcaster or the organizer or producer of the event.

With respect to satellite retransmission, if the retransmission is encrypted and the retransmitter does not provide the means of decryption or consent to decryption in the other country, it is deemed not to be a retransmission to that country.

Article 9, Protection of Encryption and Rights Management Information

Protection of Encryption

If wording of this type is included in the Basic Proposal, the text "capable of decrypting" in paragraph (I) may be too broad. Canada would recommend focusing on devices or systems whose primary purpose or effect is decrypting.

Rights Management Information

Canada recommends that this be limited to factual and identifying information relevant to the protection of broadcasting organizations.

Article 10, Limitations and Exceptions

The appropriate wording of this article may depend upon what substantive rights and protections are included in the treaty. In general Canada favours retaining the specific limitations and exceptions allowed under the Rome Convention but applying the three-step-test to other limitations and exceptions.

In light of this Canada recommends adding a new paragraph after the current paragraph 1.

1A "Contracting Parties may in relation to the rights and protection conferred under this treaty provide for limitations of or exceptions to the protection of broadcasts and cablecasts to the extent that such limitations and exceptions would be permitted for broadcasts by the WTO TRIPS Agreement"

Paragraph 2 should be amended to read:

“Other than for limitations or exceptions provided for in paragraph (1A), Contracting Parties shall confine any limitations of or exceptions to the rights and protection provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the broadcast and do not unreasonably prejudice the legitimate interests of the broadcasting [or cablecasting] organization.”

Article 12, Reservations

Given our proposal that there be a limited opt-out for simultaneous retransmission of broadcasts, this article should be amended to allow that reservation.

UK Report on its Copyright Tribunal

The UK Intellectual Property Office has a report on its Copyright Tribunal, calling for several specific reforms, including such things as reduced reliance on expert witnesses and use of a joint expert witness.

The Brits consulted with Canada' Copyright Board and expressed "immense gratitude to The Honourable Justice William J Vancise, Stephen J Callary and all the staff of the CBC for their help and kindness during our visit."

Interestingly, there is a reference to the long awaited Canadian report from Craig Parks:

6.14 Similar criticisms about cost and delay have been voiced against the CBC [Copyright Board of Canada] and Copyright Tribunal of Australia; see - A Report on the Copyright Collectives Operating in Canada by C Craig Parks ...
This suggests to me that the British authors may have seen something that we Canadians have not yet seen - and Mr. Park's study was apparently due for completion in October of 2006, according to Canadian Heritage. That's about nine months ago.

I wonder when the folks at Canadian Heritage will release this study to Canadians...


Thursday, June 14, 2007

WIPO Broadcasting Treaty - June 18-22, 2007 in Geneva

The WIPO Broadcasting Treaty discussions resume next week (June 18-22, 2007) in Geneva.

The latest WIPO “non-paper” draft treaty is here.

Despite concern of a number of very influential countries that the previous versions of the draft treaty created unnecessary exclusive rights and that the exercise should be reigned in so as to be addressed only at signal theft, this draft would still create an exclusive retransmission right and “deferred” transmission right, whatever that may mean (i.e. how long is “deferred?) . (Article 7)

It would also create tough DRM/TPM provisions that could effectively lock up the underlying content, even if the content is in the public domain. (Article 9)

The draft does allow for limitations and exceptions consistent with the three step test approach. However, it seems unclear or even unlikely to me that such limitations and exceptions could avail against the DRM/TPM regime that would be expected.

We all look forward to seeing what position Canada will publicly take. In the past, Canada has questioned an exclusive retransmission right - and if Canada maintains this position, there’s not a lot left in this draft that Canada could support. An exclusive retransmission right would mean that many border stations that are now retransmitted “free” on cable could collect royalties worth potentially a very large amount of money. The CRTC has recently rejected the demands of domestic broadcasters for payments (“fee for carriage”) for retransmission of their basic over the air channels.

Canadian retransmitters oppose the exclusive retransmission right and Canadian broadcasters are said to be currently somewhat divided in their support.

At the Copyright Right Society of the USA meeting earlier this week, US Register of Copyrights, the Hon. Marybeth Peters, indicated that she didn’t think that much progress had been made in narrowing this effort down to a purely signal theft based treaty. While I don’t recall her exact words, I got the impression she didn’t think that enough progress had been made to hold a diplomatic conference later this year. If her view is in harmony with the US negotiators in Geneva, this would suggest that the US Government may oppose a diplomatic conference for later this year - unless there is a major breakthrough next week.

The best critical discussions of which I am aware and collection of documents are found at Jamie Love’s CPTECH site and that of the EFF and IP Justice. CPTECH also has a blog on this, which may heat up next week.


Wednesday, June 13, 2007

Statutory Damages - Pants Suit Goes to Trial

Judge Roy L. Pearson has apparently reduced his demands for damages from $65 million to $54 million as the gripping trial unfolds.

His opening statement included the following:

“Never before in recorded history have a group of defendants engaged in such misleading and unfair business practices...”
He called an 89 year old witness who compared the cleaners to Nazi.

When describing how his pants allegedly went missing, Judge Pearson reportedly had to leave the courtroom to compose himself:

Pearson also called himself as a witness, saying his problems began in May 2005 when he brought in several suits for alterations. A pair of pants from a blue and maroon suit was missing when he requested it two days later. He said Soo Chung tried to give him a pair of charcoal gray pants.

As Pearson explained that those weren't the pants for the suit, he choked up and left the courtroom crying after asking [Judge] Bartnoff for a break.

This litigation is based upon civil statutory damages, a concept imported from the USA into Canadian copyright law in 1997 mainly at the behest of the music industry.