Tuesday, October 30, 2007

Hong Kong Leads the Way - Again

Once again, Hong Kong shows that it leads the way, in certain respects at least. It has opened an official government intellectual property rights museum.
The 235-square-metre museum in Kowloon Bay displays more than 300 pieces of significant copyright-infringed items and counterfeit goods seized by Customs. Simulated scenes of copyright-infringement activities in the museum will also serve as a useful training ground for frontline investigators.
This follows Hong Kong's conscription of the Boy Scout movement last year. The Boy Scout conscription quickly spread to L.A.

I can only wonder at what an American version of an intellectual property rights museum might look like. The entrance hall might feature a larger than life statue of Jack Valenti doing epic battle with marauding VCRs. Or a likewise impressive statue of Sonny Bono standing on Gutenberg's tomb with an endless loop of a heavenly chorus singing a rapturous oratorio entitled "Forever" with lyrics by John Ashcroft.


Saturday, October 27, 2007

William Patry on Fair Dealing in Canada

Bill Patry has important words about Canada and fair dealing. Probably nobody knows more and has published more about the American law of fair use law than Bill - as shown in his past monograph and wonderful new seven volume treatise. He is authoritative on this very complex subject. He has collaborated on it in important scholarly work with the one and only Judge Richard Posner. American law is about to loom large in Canada, where we have “fair dealing” - the doctrine that had been until recently thought to be more restrictive than the American “fair use” framework. Bill’s work is bound to be an indispensable reference in the debates, research and jurisprudence to come.

The Tariff 22 decision from the Copyright Board is a good step forward. It is a breath of fresh air in a forum where users’ rights have too often in the past seemed somewhat subordinate to the agenda of the collectives.

The next acid test will be the Board’s ruling on the Access Copyright (counterpart to the American CCC) attempt to zap the Canadian educational system for $8 bucks or so per student per year - for all of the supposedly infringing activity that Access Copyright thinks is going on in the K-12 classrooms. That hearing is almost over - and a decision will likely be at least six months away. Fair dealing has been dealt with - and all eyes will be on the result.

The issue of fair dealing could also arise in the future at the Copyright Board in the context of such files as media monitoring and private copying, for starters.

I suspect that the Copyright Board 's recent decision on Tariff 22 will be taken to judicial review (“JR”) (i.e. “appealed”). It puts a lot of water in several of the ley parties’ wine. The result will either be a standoff with no JR, or a full blown consolidated JR hearing where several issues will be raised. The fair dealing ruling is likely going to be seen as a real threat by many collectives and corporate copyright owners. JR would have the result of prolonging SOCAN’s efforts for its proposed Tariff 22 internet tariff effort, which is now 12 years old, for at least another year and possibly more if the Supreme Court of Canada takes a second bite at it, which is entirely possible. Not to mention that six of the seven parts of the tariff still haven’t been completely dealt with at the Copyright Board. One or more of these rulings could also generate judicial review as well, when they come out presumably in the next few weeks or months. The proceedings in SOCAN’s proposed Tariff 22 are nowhere near over - even after 12 years. I’ve set out the main issues in the recent decision, which I call the "Single Malt Tariff" because of its age, elsewhere on this blog.

If Bill Patry thinks that Canada is on the right track, as exemplified in CCH v. LSUC and the recent Copyright Board decision in Tariff 22, that’s very, very important. The CCH decision from Canada’s Supreme Court is really remarkable - because it allows for the flexibility of the Amreican fair use analysis + the certainty of Canadian fair dealing. We could have the best of both possible worlds up here - if we don’t screw things up.

I hope that the CCH decision remains intact and is built upon, as the Copyright Board is trying to do. But I’m sure that there are efforts underway to undermine CCH in the forthcoming legislative revision exercise. In fact, whatever the intention may be, the efforts by the Council of Ministers of Education Canada (CMEC) for a special internet educational exception could have precisely this effect, due to the a contrario implications for everyone outside the educational tent if CMEC gets its wish. In this context and others, such as its widely used publication Copyright Matters!, CMEC seems to be in denial, or at least far too cautious, with respect to its interpretation of the benefits to its constituency of the landmark victory at the Supreme Court in CCH.

Anyway, Bill Patry is a towering figure in world copyright law. If he thinks we are doing something right in Canada, we probably are and we should pay attention and be grateful for his attention.


Thursday, October 25, 2007

IMSLM has a life line - sort of....

Michael has posted good but, alas, not great news on IMSLM. Project Gutenberg will come to rescue - but only as far as it can go under US law.

If the Project Gutenberg archive has to abide by USA law to host the IMSLM Project, then it won’t be able to post, for example, some of Arnold Schoenberg’s (September 13, 1874 – July 13, 1951) scores because the USA has irrationally committed itself to a life + 70 years term. However, note that scores published pre 1923 are OK even in the USA..

Schoenberg, along with Stravinsky ((June 17, 1882 – April 6, 1971), was one of the handful of most influential composers of the last 100 years. When the dust finally settles on 20th century music, it will likely be one or the other of them that are considered as “the” most influential in terms of “serious” music.

Stravinsky’s copyright story is a book unto itself, yet to be written, because many of his greatest works were first published in Russia at such an early date that they are in the public domain (because of Russia’s non adherence in those days to any relevant IP treaties) - though there have been several revisions since of some of his early works which try to reconsecrate virginal copyright status in the Berne and Universal Copyright Convention worlds. Stravinsky is not published by Universal Edition.

Schoenberg was the architect of “twelve tone” or “serial” music, which is the basis of much of the twentieth century’s music heritage. This twelve tone technique has even found its way into countless works ranging from great works by Elliot Carter to much horrible music by lesser composers, and particularly in countless Hollywood B-Movie and lesser film scores.

It is important that great and not so great composers’ music be made available to the public ASAP in the in countries that have not engaged in the self inflicted wound of life + 70 years of protection. This is how culture evolves. All great composers build on their predecessors. Stravinsky is said to have said that “A good composer does not imitate; he steals.”

Schoenberg’s music is not only extraordinarily important - it’s very beautiful as well, though it’s an admittedly acquired taste still not shared by too many.

The scores of music of this type are dreadfully expensive and very hard to find at all, outside of places like London and New York. What is the point of having the internet and having a life + 50 term if those in Canada and other life + 50 countries cannot enjoy their “users’ rights”?

The early part of the 20th century was an extraordinarily fertile period in Western culture. Its absurd that we have to wait longer and longer to get access to it because of the Mickey Mouse term extension movement.

Maybe it’s time that Project Gutenberg and Archive.org thought about coming to Canada.

Meanwhile, the IMSLM project should be hosted in Canada by a Canadian university. It would be a terrific teaching and research tool. Canadian law would be very sympathetic.


Wednesday, October 24, 2007

Vaver Live today on Euro Excellence v. Kraft

Tune in for a webcast at 1:00 PM today, Wednesday October 24, 2007 for Prof. David Vaver, formerly from Osgoode Hall Law School and now at Oxford, who will lecture on the SCC’s Kraft’s decision:

Osgoode advises that:
Professor Vaver’s lecture will assess how the Supreme Court is interpreting Canada’s intellectual property laws and how its decisions may affect legislative policy. Among the cases considered will be the Euro-Excellence v. Kraft Canada (2007), where an attempt to use the copyright law to block parallel imports of chocolate bars into Canada was narrowly repelled. The decision, involving four widely divergent opinions, recalls Milton’s lines from Paradise Lost: “Chaos Umpire sits, And by decision more imbroiles the fray By which he Reigns: next him high Arbiter Chance governs all.”
Dr Giuseppina D'Agostino advises that:
By popular demand Osgoode's James Lewtas lecture featuring University of Oxford Professor David Vaver will be webcast live starting at 1:00PM Eastern Time on Oct 24 in Windows Media format.

I am advised that the link to the webcast should be available on the Osgoode Hall Law School homepage and that the event should also be archived online on the Osgoode Conferences and Seminars page.

I must confess that I have a particular interest here. On behalf of my client, the Retail Council of Canada, I presented the arguments at the Supreme Court of Canada that prevailed in this case. Here’s my early summary of the outcome.

With David's well deserved reputation as a renowned scholar, author and teacher of copyright law, his take on this will doubtless be both very interesting and very important.

I truly have no idea of what he will say, but I’m really looking forward to hearing it. And I'm so pleased that I and doubtless others persuaded Osgoode (my alma mater) to do this "live." Thanks, Pina!


Tuesday, October 23, 2007

"ACTA" - a New Plurilateral Policy Platform

A potentially important announcement from Washington, Brussels (EU), and Ottawa (and doubtless elsewhere) today re a proposed Anti-Counterfeiting Trade Agreement - “ACTA.”

According to US Ambassador Schwab:
The ACTA would complement the Administration’s work to encourage other countries to meet the enforcement standards of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organization, and to comply with other international IPR agreements. It will not involve any changes to the TRIPS Agreement. Rather, the goal is to set a new, higher benchmark for enforcement that countries can join on a voluntary basis. The negotiations represent a cooperative effort by the governments involved, and will not be conducted as part of any international organization.

The list of currently interested countries read a bit like preaching to the choir:
[US] Trading partners engaged in discussions so far include Canada, the European Union (with its 27 Member States), Japan, Korea, Mexico, New Zealand, and Switzerland.
Most of these countries have adequate and effective levels of substantive law and enforcement mechanisms.

So - these questions arise:

• What’s this really about?
• Will the US “insist” on ratcheting up substantive law - for example by defining downloading, “making available” and DRM/TPM circumvention as “piracy”?
• Will the US and EU insist that all countries have a common copyright term - for the sake of better and more symmetrical “enforcement”?
• Will legitimate parallel imports get caught, like dolphins in a drift net?
• Where are WIPO and WTO in this?
• Is this an exercise in plurilateral policy laundering?

There is clearly potential for positive developments here. Indeed, counterfeiting involving trade-marks is morally, economically and even criminally wrong - especially in the thankfully rare cases when health and safety are involved. Commercial scale copyright piracy is also quite wrong - although certain elements in the record industry apply the word “piracy” rather promiscuously to include all manner of private copying that they cannot control - thereby labelling hundreds of millions of ordinary internet users as “pirates.”

But some rights owner lobbyists and sympathetic officials have a tendency to conflate “effective action” on enforcement issues with substantive law augmentation. We saw an example of this in the Grokster case in the US Supreme Court, and I was asked to write an “amicus” brief on it.

What we don’t want to see are excessive barriers to the flow of legitimate goods, including parallel imports - which are legitimate by definition. There is a danger that customs officers and even lawyers won’t be sure of the difference in some cases. If that happens, millions of dollars of legitimate goods may get tied up or cost more to clear at a border. And we don’t want to see a backdoor mechanism to increase substantive laws in ways that threaten Canadian cultural and economic sovereignty.

And we don’t want to see a good cause become the pretext for bad laws. Think 9/11. The Bush administration has tried to brand many critics of its excessive post 9/11 incursions on civil liberties as soft on terrorism. And we have seen the results ranging from common inconvenience at the boarder to tragedy. Will critics of potentially excessive ACTA measures be labelled as proponents of counterfeiting and piracy, and enemies of artists and creators?

There are also the dangers of a plurilateral policy platform dominated by the US and to a lesser extent the EU - especially since the often too low but at least established minimal institutional transparency of WTO and WIPO won’t be there. We may get a fait accompli that Parliament will be asked - or told - to implement. Or some would say “rubber stamp.” That’s how policy laundering happens - things that couldn’t get of the ground domestically are agreed upon far away by a few senior bureaucrats and politicians - and are brought home effectively as domestic law. All democratic countries should be worried about this.

BTW, here's a rather balanced British view from one of my favourite felines, the IPKat.

And here's a take from IP-Watch on the formidable forces pushing this initiative including Mary Bono - who famously told Congress that:
Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. … As you know, there is also [Motion Picture Association of America president] Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.
This may provide a clue as to where these talks may be headed...

Update: Here's Minister David Emerson jumping on the bandwagon.


Monday, October 22, 2007

Universal Edition AG Lawyer Responds

I have received a courteous e-mail from Mr. Ken Clark, the lawyer at Aird & Berlis who acts for Universal Edition AG. He has asked me to correct certain “ factual inaccuracies” in my blog of earlier today. However, since I respectfully don’t agree with most of his assertions about these alleged "inaccuracies", I will simply post his letter below “as is”, with my brief comments to his three points, which are these:

1. It is true that he did not demand the whole site be taken down. However, the webmaster chose to do this because there appeared to be no other realistic alternative. As “Feldmahler” states, “I also understand very well that the cease and desist letter does not call for a take down of the entire site, but, as I said above, I very unfortunately simply do not have the energy or money necessary to implement the terms in the cease and desist in any other way.” This total take down was clearly foreseeable, given the conditions sought to be imposed by Universal Editions AG.

2. Having written about and looked into the iCrave TV affair in some detail a few years ago, I believe that is still not necessarily straightforward to “implement filtering of individuals' locations based on the IP address of visitors to the IMSLP.” Mr. Clark says “Please see www.pandora.com for an example of this filtering.” In any event, this misses the point. If the Canadian site is not targeted specifically at and lacks a real and substantial connection with particular countries where there is still valid copyright, and if it goes to reasonable lengths to point out that copyright may still subsist in certain countries and that users in those countries should not violate such copyright, then the site would almost certainly comply with Canadian law in this case. Nothing is being knowingly sold, sent or shipped to such countries. In any event, Mr. Clark also demanded the implementation of a filter to prevent uploading any of Universal’s scores until the copyright has expired in Europe (where life + 70 applies). Anybody who has technology that can do that with scanned PDFs would be a multi-billionaire.

3. Mr. Clark’s third point opens up the perennially vexing question of copyright in “Urtext” (e.g. authentic scholarly editions). Some publishers add often trivially minor editorial changes over the course of time to make the edition supposedly more “authentic”, which also has the result of prolonging copyright claims for those who are not astute enough or content to rely upon earlier editions. The Supreme Court of Canada has discounted down to zero the value of minor editorial work in asserting claims to copyright in, for example, judicial decisions. See CCH v. LSUC, para. 35 etc. There is European law that might suggest otherwise in the case of scholarly editions of music, but I don’t believe that it would be followed in Canada, in light of CCH v. LSUC. Canada has a higher "threshold of originality" than the UK, for example. In any event, it’s not clear which editions were used of the music that’s clearly PD in Canada. And Mr. Clark's C&D letter did not make any such subtle point. It required the takedown of all of Mahler’s works - and Mahler died 96 years ago.

BTW, here’s a link to Project Gutenberg’s approach to similar C&D letters. Note, for example, the one dealing with Gone With The Wind, and Australia. And the one dealing with Herman Hesse’s Siddhartha, which is apparently PD in the USA, having been published in 1922 - but would not be PD in Canada because Hesse lived until 1962. These things can get complicated - and are respectfully not nearly as simple as Mr. Clark suggests.

Another example of where Canada will provide much longer protection than the USA is that of the early works of Irving Berlin, who outlived his own copyright in the USA by a long shot for works published before 1923.

Mr. Clark is right about Joseph Marx, assuming he is referring to the Joseph Marx who lived from 1882-1964. His music would not yet be in the PD in Canada.

Anyway, I thank Mr. Clark for his polite comments - even though I largely disagree with them for reasons such as those noted above. Here’s his e-mail of earlier today to me:

Dear Mr. Knopf,

I am the lawyer who sent the cease and desist letter on behalf of Universal Edition AG that you reference in your blog of today's date.

I would like to point out some factual inaccuracies in your blog:

(1) Our client did not request the shut down of the entire site. Our client merely requested the removal of the legitimately protected works, or the ability to prevent infringement in Europe while allowing copying to be performed by those in public-domain jurisdictions through filtering. Please see http://imslpforums.org/viewtopic.php?t=664 for a message from our client directly to the imslp.org community reiterating that fact.

(2) It is very possible to implement filtering of individuals' locations based on the IP address of visitors to the IMSLP. Please see www.pandora.com for an example of this filtering. You will note that the site detects that your are from Canada merely from your IP address. It clearly is technically possible to implement filtering without any personal information being divulged by the users.

(3) Many of the works that were requested to be removed are not public domain in Canada. Some may include independent editorial notation and information that grant those publications copyright extending past the 50/70 year mark. (see e.g. the discussion on the IMSLP.org forums regarding specific works by Mahler at http://imslpforums.org/viewtopic.php?t=468&highlight=mahler and http://imslpforums.org/viewtopic.php?t=344&start=0&postdays=0&postorder=asc&highlight= with respect to their copyright status). You will note that the IMSLP organizers themselves acknowledged the copyright in Canada of at least one of these works by authors whose death date is more than 70 years in the past prior to the date of our client's demand letter. The other was debated as to the extent of the original editorial work. Other non-public domain works in Canada that were on the imslp.org site are by authors who have died less than 50 years ago (e.g. Joseph Marx).

I would appreciate it if you would correct these inaccuracies.

Yours truly,

Ken Clark

Über-Reaching C&D letter from Universal Edition’s CDN Lawyer

Michael Geist has exposed a shocking - though not surprising given the kind of overreaching letters that some lawyers can write - example of a C&D letter that threatens legitimate use of the public domain in Canada. It strikes this blogger close to the heart because it involves classical music and some of my favourite composers. Unfortunately, the content on the International Music Score Library Project (IMSLP) site has already been taken down already - so we don’t know what it looked like.

A lawyer named Ken Clark at the Toronto firm of Aird and Berlis has demanded on behalf of Universal Edition AG (an über-important and highly respected classical music publisher) that this apparently research based totally non-commercial site that was run by a student site that apparently posted public domain music scores block out internet users from life + 70 countries, and do certain other impossible things. This might be possible if it were selling the scores, because credit card info and other geo-location tools could be deployed. But I understand that this was a low tech labour of love research based site - so apparently Universal’s demand is not technically possible. The letter also implausibly and impossibly demands that a filtering system be installed to prevent uploading any of Universal’s scores until the copyright has expired in Europe (where life + 70 applies).

More to the point, these demands are not justifiable. For starters:

1. What the student was doing was arguably entirely 100% legal. Canada has a life + 50 year term and many of us will fight very hard to keep it that way. This episode is a very good illustration of why it should remain that way.

2. If C&D letters like this catch on, Canada will have to accede to the highest (sic - lowest?) common denominator of mindless copyright extensions - which currently is that of Mexico. The latter has irrationally extended its copyright term to life + 100 years. Talk about being nice to the USA!

3. Canada has no “making available” provisions in its law - so the fact that someone out “there” in the jurisdictional sense in a life + 70 country can see this site doesn’t make it illegal in Canada.

4. If there is any illegal reproduction going on, it’s out “there” in Germany or some other life + 70 place and not “here” in Canada.

5. Absent any “real and substantial connection”, i.e. targeted activity directed to life + 70 countries, there is no basis in Canadian law for these claims. Justice Binnie has told us so in SOCAN v. CAIP.

6. Above all, the Aird and Berlis letter is absurdly overreaching. It lists several composers, some major and some minor, who are included in the publisher client Universal’s catalogue. These major ones include:

B. Bartok - died 1945

A. Berg - died 1935

L. Janacek - died 1928

G. Mahler - died 1911

A. Schoenberg - died 1951

7. Note Mahler - who died in 1911, Berg who died in 1935 and Janacek who died in 1928. That’s more than life + 70.

8. The others mentioned above are all PD in Canada.

9. Judge Richard Posner - whose influence cannot be overstated - has a suggestion for those that engage in "overclaiming" copyright rights that they don’t have - or misuse their rights too much - which is that of forfeiture.

10. That’s not a bad idea in a case like this. It might stop such overreaching C&D letters that are but the tip of the iceberg Canada could collide with if Canada follows the wishes of CRIA and Ambassador Wilkins on copyright revision.

11. Michael is right about the applicability of the CCH v LSUC case - the student is entitled to presume that the resource will be used legally, and in most countries in the world life + 50 is still the law.

12. This is all about cultural sovereignty.

This is a big issue for the student who started all of this and it’s understandable that he has retreated. He can’t fight this alone.

If this C&D letter is answered and the issue is fought - and it should be - I hope that various organizations such as CAUT will support the cause. Otherwise, Canadian professors won’t be able to post anything about James Joyce - or countless other creators who are still are in copyright somewhere and have litigious representatives.

And projects like Project Gutenberg could be threatened as well.

Come to think about it, if Access Copyright really believes in the importance of the public domain, as it claims, here’s a chance for it to demonstrate that commitment. BTW, where is that project announced a year and a half ago - or is it vapour ware?

Somebody should host this site, so the student behind it isn’t exposed. It’s sounds like it would be a good resource for young and old musicologists alike.


Update - a comment received notes that Janacek died in 1928, not 1948 as originally posted. I've updated the material above. That puts him, as well, beyond the life + 70 term.

Saturday, October 20, 2007

More Media Coverage of "DMCA North" and Throne Speech

There's a well balanced article by David George-Cosh on the reference to copyright in the Throne Speech in the Financial Post/National Post today, October 20, 2007.

Several of the usual suspects were quoted or referred to, including Michael Geist, Graham Henderson, and yours truly.

The focus of the article is on what might be called "DMCA North", or the attempt of CRIA and the USA Government to import American style copyright law to Canada.

This is nothing if not ironic because, as Michael Geist has documented, the architect of the DMCA, Bruce Lehman has "acknowledged that "our Clinton administration policies didn't work out very well" and "our attempts at copyright control have not been successful."

Also, see Shane Schick for another piece that makes some good points on the Throne Speech in IT World Canada, here.


Friday, October 19, 2007

"Tough Love" from Cary Sherman

Here's a rather defensive and fulsome op-ed in CNET from Cary Sherman on "tough love" and why he believes that suing customers and music fans is a good thing.

He's the President of the RIAA.

He has brought "tough love" to about 26,000 ordinary Americans, ranging from a 12 year girl living in subsidized housing to a dead grandmother. And his tough love has just resulted in a jury verdict against Jammie Thomas, a 30 year old single mother of two, of $222,000 plus her legal fees and likely those of the RIAA.

Be sure to read the comments, including this one.

Is Canada ready for this "tough love"? I don't think so.


Thursday, October 18, 2007

The "Single Malt Tariff" - aged 12 years

Twelve (12) years is a good length of time for a single malt Scotch (or Canadian Whisky) to mature. But, it is an extraordinarily long amount of time for the imposition of a retroactive tariff. This, however, is what the Copyright Board has just done in respect of music downloads from the internet in the first scene of the latest act in the ongoing melodrama of SOCAN’s proposed Tariff 22, which was first filed in 1995. The tariff as certified will reach back to January 1, 1996 - in other words, almost a dozen years. Mercifully, the Board refrains from imposing compound interest or penalties, because, after all, the amount could not have been estimated by users. The Board states that the CAB “concedes that the Board has the power to certify a tariff that takes effect in 1996.”

There are good legal arguments that can be made against such extreme retroactivity. However, they will clearly have to made in the Courts. And/or, the Government may need to step in with regulations or even legislation.

The other key findings will also raise eyebrows.

The Board held that there is a “communication to the public by telecommunication.” This very point is now before the Federal Court of Appeal, and will be the centerpiece of the judicial review hearing that will take place in Toronto on October 22, 2007 - next Monday. The fact that there is so much uncertainty now on this issue results in part from the length of time (14 months) it took for the Board to render its ring tones decision - and the fact that the objector in that case inexplicably conceded at first instance that there was a “communication”, but has now changed its mind.

On the issue of whether there can be liability when servers are located outside of Canada, the Board apparently is once again punting that issue to another day, notwithstanding the clear finding of the Supreme Court of Canada (per Binnie, J.) that there could be such liability where there is a real and substantial connection. The Board finds that there is a “problem with this proposition” and that “The proposition also creates the possibility of a “layering of royalty obligations” which might need to be addressed in future proceedings.” (Footnote omitted - but the Board cites to LeBel, J. of the SCC who dissented). Once again, the Board seems to avoiding what the reviewing Courts - in this case the Supreme Court of Canada - have ruled. This is particularly curious, given that the Board itself said in its first ruling on this file in 1999 that “the issue of whether an entity that provides content outside Canada with the intention to communicate it specifically to recipients in Canada is communicating it in Canada remains open.”

Also, the Board (following CCH v. LSUC ) indicated that previews of music can be fair dealing, if the providers are able to show “that their own practices and policies were research-based and fair”. It will be interesting to see if the Board follows through on this user friendly aspect of the ruling in the Access Copyright file, and other instances where fair dealing could loom large.

As indicated yesterday, this covers only one of SOCAN’s shopping list of seven items, and doesn’t begin to touch such important issues of webcasting.

The amount of the tariff is significant - and bound to impact the online music business in Canada:
Permanent Downloads
3.4% of the amount paid by the consumer
Minimum fee:
1.7¢ per file in a bundle
2.3¢ per file in all other cases

Limited Downloads
6.3% of the amounts paid by subscribers
Minimum fee:
60.9¢ per month, per subscriber, if
portable limited downloads are allowed;
39.9¢ if not

On-demand Stream
7.6% of the amounts paid by subscribers
Minimum fee:
48.1¢ per month, per subscriber
My prediction is that there will be judicial review applications launched by several major parties here - quite possibly including SOCAN itself.

So, I’m calling this the “Single Malt” tariff - because of its 12 year maturation. And the fact that it deals with only a single one of SOCAN's seven proposed tariff ingredients. But the bottle, rich in flavour and generous in quantity that it may be, should not be opened yet. The Courts will likely be looking at this again, and as that great jurist Yogi Berra said, "It ain't over till it's over."


Wednesday, October 17, 2007

Teaser from the Copyright Board - SOCAN's Proposed Tariff 22

The Copyright Board is teasing us today. Here’s an e-mail sent out earlier to the long list of counsel involved with SOCAN’s proposed Tariff 22 - which dates from 1995 and purports to cover music a wide and still vague range of uses of music on the internet:
The decision of the Board on SOCAN Tariff 22.A (Internet – Online Music Services) for the years 1996-2006 will be released tomorrow. It will state:

"For the following reasons, we have decided to deal at this time only with those uses that are targeted in CSI – Online Music. First, this item will, in all likelihood, generate the bulk of Tariff 22 royalties. Second, dealing with the other uses targeted in Tariff 22 raises administrative and wording issues that will require extensive consultations with the parties. The tariff for these uses will be certified at a later date. That being said, for the sake of convenience and coherence, the descriptive and analytical parts of these reasons are written as if we were dealing with all of proposed Tariff 22."

You will be notified as soon as the decision is posted on the Board's Web site.

It looks like the decision will deal fully ONLY with the first item of SOCAN’s tariff - i.e. insofar as it concerns online music sites from which music can accessed through permanent downloads, limited downloads and on-demand streams. In other words, this is only one of SOCAN’s shopping list of seven fields. It looks like webcasting, game sites, and other uses are not yet ready for prime time - after 12 years of effort and one trip already to the Supreme Court of Canada.

Look tomorrow in particular for what the Board has to say about:

1. Whether there is a performance or communication to the public at all (as contrasted to reproduction, wherein SOCAN has no rights);
2. Recent American case law that held that ASCAP cannot collect for downloads;
3. If a tariff is awarded to SOCAN for some or all of this activity in its item #1, as today’s communication suggests, how much more will Canadians have to pay than Americans for the same product(s) and how much of the money raised will actually remain in Canada for the benefit of Canadian artists;
4. Multiple payments to the same parties for the same transaction; and,
5. Last, and by no means least, the question of retroactive application of this 12 year old proposed tariff that will apparently cover the period of 1996-2006.

In any event, Judge Vancise seems to be making good on his goal of getting decisions out in six months - even if it’s only going to be a partial decision in this instance. This hearing took place last April/May.


Tuesday, October 16, 2007

Copyright and Throne Speech

Here's the speech.

Copyright revision was mentioned briefly.

That's good news.

Even if a bill is not passed before the next election, it would be good to see it.

If it gets as far as committee, it is essential that it be dealt with wisely, effectively and properly through a joint committee with the appointment of two or three expert counsel who can work together to provide balanced advice. I have suggested all of this before.

Mercifully, the Speech omitted any specific reference to "counterfeiting" as such. Hopefully, this will mean that the efforts of various IP lobbyists that can have the effect of erroneously confusing and conflating counterfeiting (which I abhor) with legitimate parallel imports (which I support and have successfully defended in the Supreme Court of Canada) will be put off to another day.

We already have very strong measures, including criminal offenses, on the books against both commercial "counterfeiting" (which term is generally used in the trade-marks context) and "piracy" (which generally applies in the copyright context). Some activity involves both. It's far from clear that we need to gratuitously guild the lily. Hopefully, the Government agrees and will take care not to enact excessively strong or unnecessary remedies that would catch dolphins in a drift net or impede legitimate (i.e. parallel import) trade.

Of course, the absence of a reference in the speech to counterfeiting doesn't mean that we won't see legislation at some point. Anti-piracy measures (hopefully not excessive) will probably be in the copyright bill.


The Penny Perturbation Now In the NY Times

The great Canadian penny perturbation on the part of the Royal Canadian Mint in its efforts to shake down the Municipality of Toronto has made it to the New York Times, complete with a picture:

According to the Times story, the Mint now admits that it has no trade-mark rights in the words "one cent." That's a promising sign of enlightenment and intergovernmental compromise. Or that the mint has regained a minimum modicum of common cents.

But the Mint is still absurdly asserting copyright. Now here's a picture of a 1937 penny copied from eBay for research purposes:

Notice how the two pennies appear to be virtually identical, except for the date. Is the Mint claiming property rights in the date of 2007? (That could only happen in Canada for the year 2010 - but that's another story).

The copyright claim doesn't work. Any copyright expired in 1987, according to s. 12 of the Copyright Act, as I explained in my first posting on this subject.

According to the Mint's spokesman, as quoted in the Times:
“We have to protect our property from abuse,” he said. “We have to be consistent.”
Now how about protecting the Canadian taxpayer from abuse of non-existent IP rights, needless legal expenditures, and the wasting of a lot of peoples' time?


Monday, October 15, 2007

Architectural Plans Redux

I am tardy in pointing out that the Copyright Board has updated its website since my September 6, 2007 posting about architectural plans. I was at least partially right in my prediction of what the Board would do. It seems that Justice Vancise, the Board’s Chairman, is really determined to solve a problem here.

The new policy (dated August 22, 2007) is now available is on the “What’s New” page of the Board’s website, along with Chairman Vancise’s speech of August 15, 2007 which I linked to in my previous posting, but which was not then on the Board’s “What’s New” page.

The Board has concluded that it now normally won’t be issuing licenses for architectural plans where the building owner needs copies from city hall in order to renovate or reconstruct and the architect is unlocatable. This is because the Board has concluded that such licenses are not necessary.

The Board provides two rationales for its newly stated policy.

The first rationale is this:
First, in most cases, the contemplated uses either constitute fair dealing for the purpose of research or would be covered by an implied licence.
Naturally, I am a big fan of the “large and liberal interpretation” of Canada’s fair dealing provisions as set forth in the Chief Justice’s wonderful Supreme Court of Canada judgment in CCH v. LSUC dealing with fair dealing involving on “research. ” I am pleased that the Board too appears now to taking a “large and liberal” view on fair dealing, and hopefully that will translate into tangible results in other files, such as the Access Copyright reprography hearings now underway, private copying, and potentially other matters.

And I am pleased to see that the Board agrees that the implied license doctrine would be applicable in these circumstances. This was discussed in my previous blog and is set forth in the Supreme Court of Canada’s decision in Netupsky et al. v. Dominion Bridge Co. Ltd. (1971) 3 C.P.R. (2d) 1 SCC Varying 58 C.P.R. 7 Reversing 56 C.P.R. 134.

The Board suggests that either fair dealing or an implied license would cover “most cases.” I would think that the implied license doctrine would cover virtually all cases involving architectural plans where the owner of copyright, if any, can’t be found.

The second basis given by the Board is this:
Second, subsection 32.1(1) of the Copyright Act provides that a municipality that supplies copies of plans pursuant to an access to information request does not violate copyright. Most Canadian municipalities are subject to access to information legislation.
The Board has issued licences until now so as to afford applicants access to plans to which they are legally entitled until the Board had finalized its policy on this issue. The policy has now been defined in respect to plans that can be accessed through an access to information request. Where this can be done, no licence will be issued. Potential applicants will be advised to file an access to information request with the municipality.
Thus, the Board has punted the issue to the municipal authorities. The Board has properly concluded that it should not be issuing licenses where licenses are unnecessary. Certain municipal authorities have been slower than others to see that, at the end of the day, there really are no copyright issues to be worried about in these circumstances. I understand that the City of Calgary has recently come to understand that copyright law should not stand in the way of requests for copies of building plans. I understand that only the City of Ottawa remains unconvinced on this issue. Hopefully, the City of Ottawa will re-examine its position

The Board is suggesting that those needing copies of plans invoke freedom of information (a.k.a. “access to information”) laws to get these plans from municipalities. In Ontario, this would bring into play the Municipal Freedom of Information and Protection of Privacy Act R.S.O. 1990, CHAPTER M.56, which contains in s. 10 a provision that should not but may well add an additional road block to those who need copies of plans, namely a requirement to obtain the consent of the third party where the information is of a technical or commercial nature and was “supplied in confidence implicitly or explicitly...” Personally, I can’t see how it could be said that architectural or building plans or drawings would be “supplied in confidence implicitly or explicitly...”.

It remains to see how the City of Ottawa will respond. I understand that it is looking at the new situation and considering whether it will still require third party consent, now that the Copyright Board will no longer issue licenses. Hopefully, the City of Ottawa will conclude that reliance on the Copyright Board’s policy is safe - so that it can go about serving the needs of those who require copies of plans.

But meanwhile, as of today, the City’s website still says that:
To obtain copies of drawings, detailed plans and/or specifications, the applicant must provide the City with the written consent of the copyright holder. The plans submitted in support of a building permit application are the property of the designer and are not transferred to the property owner upon purchase.
If the City of Ottawa doesn’t come around, the Board may need to issue an even more explicit policy with more detailed reasons or a reasoned decision in a particular case, as it has done before. While this would not be binding in a Court, it might be influential in the minds of any remaining doubtful city solicitors. Hopefully, it will not be necessary for a taxpayer to fund litigation in order to get a judgment from a Court telling the City of Ottawa what it should do. Meanwhile, the public is now at the mercies of the Municipal Freedom of Information and Protection of Privacy Act R.S.O. 1990.

The Board is to be complimented for trying to solve a problem here - and for facing it head on by deciding not to continue to issue unnecessary licenses and thereby ignore the problem. The problem now lies at the municipal level and hopefully the Board will succeed in convincing the municipalities that there is indeed no problem at all. But municipalities are slow to change and don’t have a lot of expertise in copyright law.

The municipalities undoubtedly had good intentions and wanted to show respect for copyright. But respect for copyright is not served - and is indeed severely weakened - by unnecessary denials of access to the public to documents to which the public is entitled. We have seen too much of this lately from public institutions such libraries, archives, museums, schools, and indeed municipalities - public institutions that are too often failing to properly serve their public because they do not adequately understand copyright law and hide behind it under the rubric of “respect for copyright.” They often seem to find it easier to say “no” than to actually fulfill their mandate.


Sunday, October 14, 2007

Craig Parks on Canada’s Copious Collection of Copyright Collectives

Canada’s Copious Collection of Copyright Collectives is the subject - though not the title - of Craig Parks’ study on collectives commissioned by Canadian Heritage, which was released in August, 2007 after an apparent 10 month delay for translation and perhaps other bureaucratic reasons. I was going to comment on it back in August, 2007 when it was belatedly released, and I drafted my posting but forgot to post it. So here’s my belated comment.

Although the report appears rather lengthy, most of it consists of known tombstone data, descriptions, and facts about Canada’s approximately three dozen collectives. There are some additional details, such as the names of mid level staff members of various collectives - but this is not particularly useful information. Most of the important factual data can be already found at the Copyright Board’s website, for example - here, which provides links to the collectives that do have websites. The Board’s website is actually very useful for many purposes, including access to Canada’s copious collection of copyright collectives.

The report does state the obvious overall question at page 8:
At first glance, there are many collectives operating in Canada. But are any redundant?
At page 45, the report concludes:
On the issue of the multiplicity of collectives, the complaints seem to be grounded in “optics” rather than reality. Thirty-five collectives merely appear to be too many.
The report has no comparative component. It does not look at the USA, which has for all intents and purposes only about half a dozen collectives (that is to say about one sixth of the number as compared to Canada). Or the UK, which has far fewer than Canada. Or Europe, where the collective movement was born and where the EU is determined to impose some efficiency.

True, there is some duplication between English and French language collectives. But this does not explain the numbers. We are still left wondering why Canada has more collectives than any other developed country. Daniel Gervais, who knows a lot about collectives (he worked for them for many years) and who has recently published an excellent book which the Parks study doesn’t even refer to, has told me that we are in fact outdone only by Brazil. Now we do know that Brazil does well indeed in soccer and regional jets. But I’m not so sure we should emulate them in respect of copyright collectives.

Other problems with the study are these:
• No discussion of the history of collectives in Canada, and in particular of the important legislative changes in 1988 and other major historical events, such as the merger that resulted in SOCAN in 1990 (much to the consternation of most “serious” composers in Canada ever since).
• No discussion of the considerable role of Government - at the both the Federal and Provincial level - of encouraging and propping up collectives with various forms of direct and indirect subsidies at the taxpayers expense.
• Inadequate discussion (about 6 lines) and no specifics about the “cultural fund” option, which is widely used in Europe and which enables, for example, SACEM in France, to set aside 25% of its private copying levies for cultural purposes. Such funds could be used to keep a substantial portion of money in Canada to benefit truly deserving and/or needy Canadian creators. Contrary to what the report says at p. 13, most collectives in Canada oppose the cultural fund concept. I do not consider “seminars, workshops and other initiatives to assist members in their understanding of their business and craft” to be an example of a “cultural fund” expenditure. The only Canadian semblance of such a fund of which I am aware is the SOCAN Foundation, not mentioned in the report, which operates on the basis of a modest capital endowment set up at the time of the merger between CAPAC and PRO Canada and a very modest contribution of just over 0.5% of SOCAN revenues or 2.8% of SOCAN expenses, as most recently reported. (I am not criticizing SOCAN here - something is better than nothing).
• No discussion of the internal economics of collectives and how they can greatly benefit a handful of consultants, lawyers and senior employees but often do comparatively little or nothing for actual working creators who are not already rich and successful to begin with. It would be very interesting to know the average and median distributions to individual members of the major Canadian collectives. To its credit, SOCAN, which is by far the most transparent of Canadian collectives, now publishes “average distribution” per writer/composer. The median figures would perhaps be even more interesting.
• No discussion of the potentially very useful role envisaged by Parliament for the Commissioner of Competition in Copyright Board matters and her apparent total failure and that of her predecessors to exercise it.
• Cursory discussion at page 19 of the problems with Copyright Board proceedings. Some - though by no means all - of the issues are mentioned, but there is little by way of analysis or example.
• An unsubstantiated and non-specific opinion that some of the areas in which the Board might be more active, such as oversight of the actual inner workings of collectives, would require amendments that “might in turn give rise to constitutional challenges.” Examples, please? We need to know how far the Board can go - and in my opinion, it can go quite far even without amendments. It has ventured down this road already, and been upheld by the Court - which the report does not mention. And I fail to see why legislation giving even more oversight power over collectives would not be constitutional. To suggest otherwise without further explanation is not helpful to the many rank and file members of collectives who would like to know that someone has the power to do something about their interests.
• An overly simplistic analysis of why Board proceedings are so expensive, with a good measure of “blame the victim”, i.e. the objectors, in the brief discussion.
• Almost no reference to judicial review or to the role it plays vis a vis the Copyright Board.
• Little or no reference to specific areas where the enactment of regulations - either by the Board itself or the Governor in Council - could help.
• No bibliography, literature, and almost no case citations.
• Last but not least, virtually no discussion of the public interest and the manifest failure of the system to allow public interest advocacy to be effective. For example, should the Board should be given the explicit mandate and responsibility to take on a real inquisitorial role on behalf of the public interest? There is a two line mention that “cost recovery” was considered in 1999 and dismissed. A cost recovery regime - cf. CRTC - has considerable potential to help serve the public interest. But it seems to be of no interest to the Board. Or to the author of the report. We still don’t know why not.

Some of the point form discussion about specific collectives is either too perfunctory to be useful, wrong or both. For example, concerning the CPCC, the report says that the benefits from the user’s perspective include:
- regime permits home copying without threat of copyright infringement actions
- tariffs certified by the Copyright Board reassure users of their fairness
- simple reporting system requiring manufacturers and importers to report sales in Canada on a bi-monthly basis
On the first point, what about BMG v. Doe, and the so far failed (partly due to yours truly) efforts and ongoing assertions of CRIA (a major stakeholder in and lobbyist for the levy scheme) that downloading is illegal?

On the second point, how fair is it to impose a $0.21 “tax” - as virtually all Canadians regard it - on hundreds of millions of CDs that will be used only for data back up in businesses, copying of photos and countless other uses that have nothing remotely to do with the private copying of music?

On the third point, it would seem that the author of the report has not interviewed any of the many unhappy targets of a CPCC audit. The audit powers of the CPCC - even before they were recently beefed up by the Board - would make CCRA and the RCMP envious in many respects.

(Disclosure - I regularly act against the CPCC).

We have about three dozen collectives in Canada collecting something approaching half a billion dollars a year. It would have been very useful for the report to include the amounts collected by each of them in some organized chart format, at least from the few collectives that are sufficiently transparent and willing to provide this information. Those that are not should have been named.

My main concern with this study is that is a lost opportunity to address some really important issues. This may not be the fault of report’s author, who may well have given the Department what it asked for, i.e. to “identify the advantages, issues and problems....”

However, identifying these things is the easy part. Anyone even passingly familiar with the copyright world in Canada already has long ago identified the “ the advantages, issues and problems” with collectives, and the issues involving the Copyright Board as dealt with in this report and many that aren’t even mentioned, perhaps because they are too politically sensitive.

What we need is a specific diagnosis of the problems, their causes, and concrete achievable recommendations on how to fix them. Unfortunately, really serious and recurring issues are dismissed with little or no analysis. For example, regarding the level of fees, the report simply concludes:
In my view, these complaints must be taken with a “grain of salt”, as it is as much a natural inclination to complain about fees as it is to complain about taxes. In the case of most copyright fees, however, the fee is either set by the Board after due deliberation (including taking into account the economic impact of a tariff on users) or negotiated in good faith by the parties. In the latter case, if the parties reach an impasse, the user may always refuse to pay the asking price and let the courts settle the matter by way of damages.
If the user submits that a particular activity qualifies as “fair dealing” or is exempt under the Copyright Act, and the administrative or judicial body rules otherwise, legislators can be lobbied for legislative change.
If the report was meant to set the stage for further analysis, then it has added little if anything to what was already known, and has only delayed and not further defined the real hard work. Because it has no normative component and essentially describes and rationalizes the current lay of the land, it may be seen by some policy makers and collective interests as a vindication of the status quo, which would be regrettable.

This report only confirms my belief, often stated, that we need a judicial commission to enquire into the Canadian copyright system, with an adequate budget, staff and terms of reference to get the job done and to issue a fully reasoned and documented report in the tradition of Justices Parker, Ilsley, and the Economic Council. Such a commission should take a particular interest in the area of collectives and the Copyright Board, though there are lots of other difficult areas that have nothing to do with collectives or the Board. Perhaps such a Commission could in turn “commission” a balanced set of studies of the quality of those that emanated from Consumer and Corporate Affairs (predecessor to Industry Canada) in the late 70's and early 80's, or the late Gordon Henderson’s report on the litigation system published in 1991, with which I was closely involved. These were substantial and influential contributions.

The apparently ad hoc current program of studies commissioned by the two departments has on the whole produced disappointing results compared to previous departmental studies. This is regrettable because many of these studies have become lost opportunities. They may “occupy the field” rather than pave the way for further departmental research, and may result in delay or unsatisfactory results in the ultimate quest for satisfactory copyright law reform in Canada.

It seems that Mr. Parks has been commissioned by Canadian Heritage to do more work, to wit:
Study Title: Music Copyright Management (update of 2002 project)
Prepared By: Craig Parks
Expected Completion Date: November 2007
Summary: This study will analyze the relationship between various parties involved in the production and distribution of sound recordings in Canada

Wednesday, October 10, 2007

How NOT to write a C & D Letter

Here is a letter to a lawyer who wrote a C & D letter that is allegedly protected by copyright and that purports to preclude publication of the letter itself. The result was precisely the opposite, since it was published and commented on at length by an advocacy group, namely Public Citizen.

There's even an oblique Canadian angle here.... read the above letter.....

Here is the website of the firm from whence the letter originated.

And here's the original C & D letter in which copyright is claimed....

Hat tip to Michael Carrier.


Monday, October 08, 2007

Excessive Non Cents about "One Cent"

The Royal Canadian Mint and the City of Toronto are apparently engaged in heavy negotiations about the City’s “use” of the words “one cent” and an image of the Canadian penny in the City’s One Cent Now campaign. Now, as every IP lawyer should know, “use” is a word that must be used with great care.

According to the National Post:

...a spokesman for the city-led campaign, said the mint wants $10,000 for the use of the words “one cent” in the campaign Web site address (www.onecentnow.ca) and the campaign e-mail address (onecentnow@toronto.ca), and an additional $10,000 for using the words in the campaign phone number (416-ONE-CENT). The remaining $27,680 has been assessed against the city for the use of the image of the penny in printed materials, he said.
I wonder what feat of legal genius came up with the precise number of $27,680?

Now, far be it from me to meddle in others’ legal affairs, when I am sure that there must be numerous highly paid IP lawyers hard at work here, but I do visit Toronto now and then and I am a citizen of Canada, from whence the Mint derives its power to literally coin and print money - my money - paid from my taxes. I want to see it spent wisely. A penny saved is a penny earned.

Let’s take a look at the facts and the law here.

According to Wikipedia, which sometimes presents facts accurately, the Maple Leaf image on the coin in question dates from 1937, when it was created by one George Kruger Gray who died in 1943. In any event, s. 12 of the Copyright Act would put the image into the public domain no later than 50 years from creation, namely in 1987, assuming that the Mint, in 1937, was an emanation of the Crown under the direction and control of His Majesty, as Her Majesty then was. And even if that isn’t right for whatever reason, any possible copyright that Mr. Gray could have had would have expired and gone into the public domain no later than 1993, fifty years after he expired.

Game over on the copyright claim.

Even if there is copyright involved, which seems implausible, the lawyers involved should look at the wonderful Allen v. Toronto Star appellate decision from the Ontario Divisional Court case from 1997 - about how incorporating one work into another is not necessarily actionable reproduction of the first and may be fair dealing as well. That was about including the picture of Sheila Copps on a motorcycle included in the front cover of Saturday Night magazine as part of a news article in the Toronto Star.

It’s true that this image of the back of the penny was “advertised” (i.e. effectively “registered” for non TM lawyers) as an official mark as of June 2, 2004.

Now official marks are not quite the same as trade-marks. They have both more and less punch, depending on a number of factors. However, in light of the recent Supreme Court of Canada jurisprudence about attempting to use trade-marks law to extend the monopoly rights from an expired patent, i..e, the Lego case, I doubt that the Mint would get far with their "official mark" here.

Frankly, I can’t see how this official mark is going to get the mint anywhere in this instance, especially since the City of Toronto arguably hasn’t “adopted” the mark as a mark...it’s just showing a picture of a penny.

As for the claim to the use of the term “one cent”, gimme a break. It’s not covered by whatever mileage the Mint could get out of the official mark advertisement, because the case law and blatant common sense says so.

I hope that the lawyers working on this are having fun. A penny for whatever legal thoughts may be operative or inoperative in respect of asserting or not being able to get rid of these claims and whether taxpayers are being well served paying for all this fun would be greatly appreciated.

A little common sense should prevail. And if this case goes to Court, it may well bring some further sense to the sometimes twisted distortions of the “official marks” provisions of the Trade-marks Act, that the Canadian Olympic Association above all has used to go further, faster and higher (or doubtless lower in the eyes of many of the defendants it has sued) to squeeze every last cent possible for the COA from large and small businesses alike.

Unless I’m missing something, the only reason that I can think of for the Mint to be taking its present aggressive position over one penny is that it is trying to recover the loss of the all of those 129 pennies paid in reimbursement for a package of gum to the Hon. David Dingwall, former President of the Mint, who coined the immortal phrase that worked such wonders for the Liberal Party - “I am entitled to my entitlements.”

His entitlements indeed included $417,780 in severance - but I don’t know whether the gum was included or not in the final calculation. Or whether that figure has been rounded off to the nearest dollar.

Maybe this is the Mint’s real revenge and inCENTive.

Sorry... :-(

Anyway, that's my two cents' worth.


Thursday, October 04, 2007

Excessive Damages: Less than 2 CDs = More than One House

Ars Technica and countless others are reporting that a jury in Minnesota has just awarded damages of $222,000 against a young native American single mother of two kids for downloading and "making available" 24 songs.

Duluth, Minnesota — After just four hours of deliberation and two days of testimony, a jury found that Jammie Thomas was liable for infringing the record labels' copyrights on all 24 the 24 recordings at issue in the case of Capitol Records v. Jammie Thomas. The jury awarded $9,250 in statutory damages per song, after finding that the infringement was "willful," out of a possible total of $150,000 per song. The grand total? $222,000 in damages.

That's $9,250 per song. That's more than 12 times the amount of the already absurd $750 "minimum" statutory damages award under US law. (In Canada, it's $500).

That's 9,343 times the so-called "normal" retail price of $0.99 each for the 24 songs, only a portion of which would be actual damages to the record companies.

That's cost of lots of peoples' houses.

RIAA arithmetic is this:

Less than 2 CDs worth of music = As much or more than many people's houses.

This a dark, draconian and disgusting day for the copyright system.

The statutory damages provisions of the US Copyright Act were put in place long before multiple downloads from a celestial jukebox were ever envisaged and were never intended to be used against ordinary people for ordinary activity.

Let us hope that Congress does something about this and that Canada ensures that such an outrage can never happen here.

When civil copyright infringement where no real damages can be proven becomes more punitive than medical malpractice, defamation, injuries inflicted by drunk drivers and other truly serious civil causes of action, there is something very wrong and very unsustainable in the legal world.

This is not about deterrence. It's about perverse and outrageous enforcement of a bad law for bad reasons with bad results that will be bad for everyone, no matter what their interest may be.

While the RIAA lawyers may be drinking very expensive champagne tonight, paid for by musicians, single mothers, and many other unwilling contributors, there will likely be side effects and hangovers galore starting tomorrow. They should be careful what they wish for.

To begin with, early reports and comments from a leading US downloaders' defense lawyer, Ray Beckerman, indicate that the judge's charge to the jury may have been quite erroneous, based upon RIAA submissions that the judge accepted concerning the law on "making available", etc. Hopefully, the appeal process will work.

So - add a 30 single mother of two who works at at Indian reservation to cap off the list of 26,000 or so dead grandmothers, 12 year old girls in subsidized housing, university students, and other common folk who may or may not have even been correctly identified, and even if so, are likely guilty of nothing more than loving music.

Welcome to shock and awe, testosterone, and the RIAA way of thinking.

Coming soon to Canada, eh?

CRIA, the so-called "Canadian" Recording Industry Association. has tried to do this in Canada and so far has lost badly, due in some measure to yours truly.

CRIA will doubtless try to catch up with its American masters by convincing Canadian policy makers that "shock and awe" is cool in Canada too.

Let us hope that Canadian policy makers see the truly repulsive results that can happen when copyright lawyers and lobbyists have their way with the system.

Today, I'm saddened, embarrassed but mostly furious that copyright law can be used for such a revolting result.

Enjoy your champagne, RIAA, while it lasts. It hopefully won't last long.