Monday, February 25, 2008
Professor Lessig Won't Go To Washington
It's hard to stop a train, especially when the anointed rival actually has a real train named after her.
"Debunking the Song Tax"
Here's the bottom line, according to the paper:
-How is the money to be distributed? SAC hallucinates an ultra-powerful, bias-free "collective" that "would track internet and wireless file sharing activity on a census basis. Virtually all sharing on the internet and wireless devices would be tracked," they promise, and "Creators and rights-holders will be paid with a level of speed and accuracy never before possible." Will this happen before or after pigs fly? And are you comfortable letting Eddie Schwartz and Randy Bachman monitor all the filesharing activity on your PC, or would you immediately click on the encryption option that peer-to-peer sharing applications already offer as a matter of course?
We know what choice we would make.
Friday, February 22, 2008
Broadcasters' Rights Redux - The Return of the Undead?
Just in time for the forthcoming WIPO SCCR meeting coming up March 10-12, 2008 in Geneva.
Is this the Return of the Undead?
The Copyright of Politics
Potentially much more ironic and seriously serious is the accusation that the Conservative Party of Canada and Minister Prentice - the presumed sponsor of the presumed new copyright bill - have infringed Warner/Chappell's copyright in a recent slick political attack ad video:
As the Harper government prepares to introduce tougher new copyright rules, the Conservative party is being accused of using the theme song from the reality TV show The Apprentice without permission of the record company that owns it.See Ottawa Citizen, Feb. 22, 2008.
Canadian law also provides "moral rights" to the composer and lyricist, which result in their permission being required if their work is used "in association with a product, service, cause or institution."
Are the next US and Canadian elections going to be about political piracy?
That could be entertaining and good for copyright lawyers. Let us hope...
Let's hear it for Copyright Awareness.
Copyright Board and CAB - Once More with Feeling!
The Board's new decision, which comes almost four years after the hearing in May 2004, comes to the same conclusion but for different reasons. A quick read indicates that it mainly adopts the CAB's economic expert's methodology "with several modifications", with the resulting arithmetic working against the CAB - and with lots of detail.
For fans of administrative law and "standard of review", the FCA's October 19, 2006 decision, which took only a week to issue and which was written by Mr. Justice John Evans, who is not a only a judge of the Federal Court of Appeal but is the co-author of the leading Canadian treatise on administrative law stated as follow:
 The Board is entitled to the greatest deference in the exercise of its discretion to set a rate and, accordingly, the discretionary decisions lying at the heart of its expertise are reviewable only for patent unreasonableness. However. it must explain the basis of its decisions in a manner that enables the Court on Judicial review to determine on the basis of the reasons, read in context, whether the decision was rationally supportable. When an administrative tribunal's decision is reviewable on a standard of reasonableness, its reasons are the central focus of a judicial review: Law Society at New Brunswick v. Ryan,  1 S.C.R. 247, 2003 see 20, at paras. 48-9, 54-55.
 In my view it was not sufficient in the circumstances of this case for the Board to justify its quantification of the undervaluation by merely referring to the evidence taken as a whole. It is not enough to say in effect: "We are the experts. This is the figure: trust us." The Board's reasons on this issue served neither to facilitate a meaningful judicial review, nor to provide future guidance for regulatees.
Michael Geist's EFF Award
Michael has done a superb job of teaching, challenging and pushing the envelope on issues such as copyright law, privacy, net neutrality and, above all, the right of Canadians to determine what’s best for our own sovereign country on these and other important issues. And he has taken this to a world stage.
I hope that this award serves as an example to other academics in Canada to speak out on important issues. That is their responsibility and should be the quid pro quo for their tenure. Too many Canadian academics have been too silent for too long, perhaps because they have been too comfortable.
Michael has been threatened with litigation by the Hon. Sarmite Bulte:
"I am not going to sue him before the election but dammit, watch me after the election."An influential lobby group went after him for his Toronto Star column:
"It seemed clear that the only outcome that would satisfy [CRIA] was getting rid of Geist, which wasn't even remotely in the cards."And he has faced other confrontations and attacks from powerful forces on Bay Street and elsewhere.
Bravo, Michael. Canada needs you.
Wednesday, February 20, 2008
Reefer Madness 2008
This is a leaked official RIAA training video produced with the National District Attorneys Association telling U.S. prosecutors why they should bust music pirates: Because it'll lead them to "everything from handguns to large quantities of cocaine [and] marijuana," not to mention terrorists and murderers!Nobody condones commercial piracy - but linking illicit CDs to serious drug trafficking, gun crimes, murder and terrorism may be a trifle hyperbolic.
The whole video is over 60 minutes long—these are just two of the more outrageous minutes with Jim Dedman, from the NDAA, interviewing Deborah Robinson and Frank Walters from the RIAA about the benefits of going SWAT on music pirates. At one point, Walters says the piracy/drug connection can be so bad that you get asked "When you buy a CD, would you like it with or without—the with is enclosing a piece of crack or whatever the case may be."
Those of us of certain age may recall a not so great American film called Reefer Madness.
Professsor Lessig Goes to Washington?
Here's his site.
Take a few minutes to watch his video. Very interesting indeed.
And potentially very important.
Could this be a real life remake/sequel to the very great 1939 Frank Capra film starring Jimmy Stewart "Mr. Smith Goes to Washington"?
Here are some clips:
Tuesday, February 19, 2008
Minutes of the Heritiage Committee re Proposed Special Joint Committee
I think we have heard repeatedly on this committee that one of the greatest challenges to copyright is the advent of digital media, and that this in fact seems totally insurmountable and uncontrollable because people are downloading intellectual property of creators and artists on iPods and everything they can. That has left us with a huge copyright vacuum.
I think the way Industry Canada may look at this would be very different from the way Heritage Canada would look at this. I believe the things that concern us at Heritage Canada and this committee here are the issues of pure intellectual property. When someone uses their intellectual property to invent a new piece of technology or widget, patent laws and all of those other things can come into place, because you can see the thing, hold it, feel it, touch it—like the BlackBerry, for instance. When you write a play or a song and someone picks it up on an iPod or on whatever and there's piracy going on and all of those things, that is really harming the creator, the artist. Therefore, I think we need to be at that table. We need to inject this perspective into any discussion on any copyright legislation.
It's most important, especially since we know that the CRTC has given an indication that they don't intend to deal with anything to do with the Broadcasting Act or copyright for the next 10 years. We are already the only one of the industrialized nations that doesn't have a copyright act that deals with these issues.
Having now seen the above, the idea of a Special Joint Committee becomes rather problematic. If Minister Prentice is listening to the advice he is getting from those who believe in balanced copyright, especially the recently formed Business Coalition for Balanced Copyright ("BCBC") and his bill, if and when it comes, truly reflects these concerns, it should be passed quickly and could mark a major positive achievement for Canada. However, the proposed Special Joint Committee could slow this down or even stop such a good bill from going through, if Mme Fry's frankly reckless rhetoric represents the prevailing view of the Heritage Committee.
My earlier (November 20, 2006) potential sympathy for a Special Joint Committee was predicated on the likelihood that the Bill would wind up before the Heritage Committee alone, a troubling prospect at that time. As I said on November 20, 2006:
If there is a copyright bill, and if it gets as far as committee hearings, it is imperative that it be considered by a balanced committee that represents the mandate of both of the sponsoring departments. The Heritage Committee alone cannot be entrusted alone with this task. Even with Mme Bulte gone, the institutional structure militates against both actual and apparent balance in the hands of that Committee alone. Even before Bulte, that Committee often gave the appearance of imbalance and of being too prone to influence by the Department of Canadian Heritage and the usual lobbying suspects. Indeed, the appearance probably reflected the reality. Clifford Lincoln may have appeared more balanced than Mme Bulte, but the result too often left much to be desired.If Ms. Fry represents anything like the current consensus of the Heritage Committee, then a Special Joint Committee is not likely a good idea - at least for those who believe in a balanced copyright policy informed by facts and sound reasoning.
One also hopes that she is not speaking for the Liberal party - whose views on the bill could be crucial in terms of whether it stands a chance of being passed or not before the next election. Ms. Fry has been something of a controversial loose canon in the past with her comments in the House of Commons on cross burnings on the lawns of Prince George BC.
Monday, February 18, 2008
Politics More than Usual on the Hill
The Standing Committee on Canadian Heritage recommends that the Government Bill entitled “An Act to amend the Copyright Act” for which notice was given on December 7th 2007, once introduced and read a first time, be referred to a Special Joint Committee made up of members or associate members of the Standing Committee of Canadian Heritage and of the Standing Committee on Industry, Science and Technology before second reading.(emphasis added)
This means two important things:
- The Heritage Committee wants a piece of the action.
- The Heritage Committee wants to see the referral of the Bill before second reading, which is unusual, and would allow for major additions and alterations to the bill that would otherwise not be possible from a procedural standpoint.
I've written before about the potential wisdom of having a special joint committee (rather than the Heritage Committee alone), and as well the need for balanced expertise - i.e. two or preferably three outside counsel to advise the committee members. This will be all the more important if the bill becomes a "free for all" as a result of referral after first reading.
Friday, February 15, 2008
"More Than a Feelling" about Less Than Adequate Moral Rights in the USA
The chief songwriter and founder of the band Boston has more than a feeling that he's being ripped off by Mike Huckabee.
In a letter to the Republican presidential hopeful, Tom Scholz complains that Huckabee is using his 1970s smash hit song "More Than a Feeling" without his permission. A former member of the band, Barry Goudreau, has appeared with Huckabee at campaign events, and they have played the song with Huckabee's band, Capitol Offense.
Canadian law has real moral rights protection and prevents a work from being " used in association with a product, service, cause or institution" without permission. See s. 28.2 of the Canadian Copyright Act.
Maybe somebody should put the USA on a priority watch list. It's lack of adequate moral right protection puts it out of compliance with the Berne Convention, although it cleverly managed to make that a non-issue for dispute purposes in TRIPS.
And that's not the only reason. I'll get around to others.
Wednesday, February 13, 2008
IIPA, DMCA, 301, and Canadian Copyright Sovereignty
This is clearly a blatant bullying attempt to influence domestic Canadian copyright reform, and the allegations are very wrong - especially since Canada already provides much stronger copyright protection in many important respects than the USA.
But don't take my word for it....
Here's a brilliant take on the IIPA, DMCA and Canada, from Bill Patry. This is a MUST to read. Bill is the author of a new and very important seven volume treatise on American copyright law and has taken a great interest in Canadian issues...
As Bill reports:
So what are the IIPA’s beefs? The principal ones ostensibly concern Canada’s failure to implement the 1996 WIPO treaties. Examination of the IIPA’s 301 reports reveals, though, that what it has in mind is simply adoption of U.S. law, not amendments to Canada law that are consistent with the treaties obligations. The WIPO treaties modestly require only remedies for circumvention of Technological Protection Measures (TPMs) that involve the exercise of exclusive rights. Although the U.S. attempted to have the treaties include remedies for circumvention of access controls, other countries rejected the U.S.’s efforts. One would never know this from the IIPA’s reports, which mix the two together and lead readers to believe both are required; they are not.
The intense, negative reaction of Canadian citizens to IIPA’s efforts is well-taken. Why any government would want to adopt approaches that have been admitted to be a dismal failure in the U.S. by the law’s own ardent author, and that are not required by the WIPO treaties is a mystery.
Read all of Bill's blog. More to come on this for sure.....
Tuesday, February 12, 2008
Rule Britannia - Three Strikes and You're Out?
People who illegally download films and music will be cut off from the internet under new legislative proposals to be unveiled next week.
Internet service providers (ISPs) will be legally required to take action against users who access pirated material, The Times has learnt.
Here's the whole story, which is based upon a "leak" of a forthcoming green paper.
This would be a "three strikes" policy and one of the disturbing aspects of the story is that the ISPs have actually been negotiating with Hollywood’s biggest studio and distribution companies.
The IPKat rightly "wonders whether, once unlawful downloaders are cut off, there will be enough people left online to make the internet worthwhile."
I wonder whether the UK may have forgotten about the Magna Carta, which predates the RIAA and IFPI by almost 800 years.
Maybe the current UK government regards the Magna Carta and all that stuff about rule of law, due process, etc. as an outdated business model.
Which is exactly how many people who love music but not necessarily the music industry would describe the big four record companies today.
Q&A with Lawrence Lessig
Monday, February 11, 2008
Canada, WIPO, and "certain obligations"
If and when there is a new copyright bill introduced before a possibly imminent election, there will be much talk about the 1996 WIPO treaties.
It is obvious that
And, in the meantime, let’s be accurate about just what
I have often said and been quoted on the principle that that signing a treaty is to ratification about the same as dating is to marriage. The latter does not necessarily follow from the former, and the influences on the relationship during the dating (i.e. signature) phase are, just as in person to person relationships, often defined more by influences other than legal “obligations.” Let’s just leave it at that.
But, there’s no need to take my word for this.Here is a learned comment on the effect of treaty signature in respect of international treaties:
The effect of signature is not, of course, to bind the signatory State but simply represents an acknowledgment of its intention to enact a law based on the Convention and, in due course, to ratify the Convention. It is only the ratification of the Convention by an existing member State which has signed the Convention, or accession to the Convention by a new member State, which creates an international legal obligation.
Coming from WIPO, that is about as strong a statement as one can find from a credible institutional source, and is not inconsistent with my simple dating analogy.
Others see the effect of signature as even less. Prof. J. Craig Barker puts it as follows:
The effect of signature is not, as one might expect, to bind a state to the terms of a treaty. There is usually a further stage of ratification required before a state party can be said to be fully bound. Nevertheless, the signature of a state to a treaty is not without effect. A state that has signed, but not yet ratified, a treaty is bound not to do anything contrary to the objects and purposes of that treaty prior to ratification or withdrawal of signature. However, a state is not bound to follow the terms of a treaty in their entirety until ratification.
The point is very simple.
Let us be precise with our language here and not use language too loosely. There is too much at stake.
Saturday, February 09, 2008
How J.K. Rowling can "Choke Creativity"
RDR has the help of Lawrence Lessig's clinic at Stanford. This will be a very important test case on the parameters of fair use in American law.
“I feel as though my name and my works have been hijacked, against my wishes, for the personal gain and profit of others and diverted from the charities I intended to benefit,” she said in a declaration to the court.
And what perfidious act of “hijacking” has RDR Books committed? It planned to publish a book by Steven Vander Ark, who maintains a fansite called the Harry Potter Lexicon. The Lexicon publishes Harry Potter essays, finds Harry Potter mistakes, explains Harry Potter terminology, devises Harry Potter timelines and does a thousand other things aimed at people who can’t get enough Harry Potter. It’s a Harry Potter encyclopedia for obsessive fans.
It will be about the battle between those who believe in the evolution of culture through a large and liberal interpretation of the time honoured practice of fairly building upon what has come before and those, such as Ms Rowling and her agent, Mr. Neil Blair who says:
“There have been a huge number of companion books that have been published,” Mr. Blair said. “Ninety-nine percent have come to speak to us. In every case they have made changes to ensure compliance. They fall in line.” But, he added: “These guys refused to contact us. They refused to answer any questions. They refused to show us any details.”(emphasis added)
In other words, creativity v. control.
J.K. Rowling may be the most successful author in history in the financial sense. It's just too bad that she is using her money and power to control, stifle and "choke" the creativity of others.
PS - here's a great article by Tim Wu from January 10, 2008 Slate on why Rowling should lose her lawsuit.
Thursday, February 07, 2008
CPCC won't seek leave to appeal...
Jack Kapica has a blog on this today, as well as his prediction on the much awaited copyright legislation.
Monday, February 04, 2008
Facebook at 40,000
Here’s the link for those are already on Facebook.
For those who aren’t members and want to join, it’s painless. You don’t have to give a lot of information about yourself to sign up. You don’t even have to reveal your age (thank goodness), and the mandatory registration info required is quite minimal.
Let’s put that these numbers in perspective. At this same moment, Barrack Obama has 359,307 members on his Facebook site.
So, Michael has in less than two months accumulated more than 11% of the membership of Obama, whose campaign for President began some would say at least three years ago. Using the usual back of the envelope rule that everything in the USA is about 10 times greater than Canada, Michael’s site is actually relatively more popular than Obama’s.
Some have taken cheap shots at the fact that the average Facebook FCFC member does not have an LL.M. in copyright law, or sentiments to that effect. I actually find most of the comments quite prescient, positive, relevant and informative. The point is that they are from citizens who are wired and likely very well educated, impassioned and influential with their friends and families. If copyright law is not understandable and acceptable to ordinary Canadians, then who is it for?
The fact is that these 40K people are voters and they represent many times more voters who feel the same way. Anyone who is in denial about this may well have to reckon with reality.
Sunday, February 03, 2008
Murray and Trosow on Canadian Copyright - A "Must" for educators and librarians
Laura Murray, a professor of English Literature at Queen's and Sam Trosow, a law professor at Western, have jointly written a very fine little book of major importance that will appeal to and be indispensable to a broad spectrum of those who are concerned about Canadian copyright law and policy. Indeed, its subtitle is "A Citizen's Guide." Murray’s ability to communicate with a non-legal audience and Trosow’s knowledge of both Canadian and American copyright law (together with his professional qualifications as a librarian) are a potent combination and the result is very positive.
This book takes a stand on issues where taking a stand is necessary and inevitable, such as CMEC’s proposed special exception for educational use of the internet (pp. 124-125). But it also provides basically accurate and useful analysis and references. It is quite up to date - at least to the middle of last year. There is no reference to the Euro v. Kraft decision of the Supreme Court which was released on July 26, 2007 - but that’s not too serious given the main audience for this book, which will be the educational community in the largest sense but not necessarily the business community. Besides, I imagine that the book was probably well into production by July 26, 2007.
The book is eminently readable, which is unusual for any quality book about copyright law. It has a very useful index and bibliography. And I’m honoured to have been mentioned in this work including in the credits.
And it even has some good cartoons. It also has some box summaries of key cases, which are useful for non-experts.
This book is by far the most useful and reliable publication now available on basic legal and policy issues of importance aimed at the thousands of students, educators, librarians, teachers and academics across Canada who need to deal with copyright on a day to day basis. It is not excessively cautious in its approach. Unlike certain other previous publications aimed at such a general audience, it assumes a reasonable degree of intelligence and responsibility on the part of its readers, who will benefit from learning about how to use copyright law to their advantage. It provides a reasonable degree of detail about key recent legal cases, and even provides a quick guide on how to find Canadian and American case law.
It is a welcome antidote to and replacement for certain previous publications aimed at non-lawyers, which tended to be excessively cautious and risk averse to the point where teachers and librarians, for example, who rely on such publications too literally, might be unable to do their job as well as they could and should.
For example, a publication that is apparently oblivious to the empowering possibilities of the CCH v. LSUC decision does not help teachers and librarians to be more effective in their work.
By way of another example, I’ve previously written about how SFU has seriously misinformed its graduate students on copyright issues pertaining to their theses and pointed them in turn to a publication that contained serious errors of omission in terms of case law at the time when it was published, but which SFU describes as “"the indispensable guide for publishers, web professionals, writers, artists, filmmakers, teachers, librarians, archivists, curators, lawyers and business people."
Murray and Trosow have now gone beyond these problematic past approaches. Even experienced copyright lawyers will find this book to be interesting and useful in the policy context. While not as comprehensive or authoritative for legal research or litigation citation purposes as David Vaver’s 2000 publication, it is more up to date and has potentially a much broader audience. It will also be more useful than Vaver’s book in many respects in terms of dealing with the forthcoming wars over the new legislation.
One suggestion for the next edition - which I hope to see after the dust has settled someday on the expected new legislation - would be expanded treatment of collectives and the Copyright Board. Of course, one of the ironies of Canadian collectives and the Board is that there is little opportunity for "citizen" participation. The collectives are generally not very democratic or transparent. And meaningful participation in Copyright Board hearings is normally very expensive and time consuming.
Frankly, the major educational and library advocacy entities involved in copyright reform and policy should be distributing this book in quantities to their staff and bringing it to the attention of their many ultimate members, i.e. working professionals. These entities include ACCC, AUCC, CAUT, CLA, CARL, and last, but not least, CMEC.
The publisher is missing a great opportunity if it does not actively bring this book to the attention of the thousands of students, teachers (at all levels), school board officials, civil servants and librarians who could immediately benefit from it. But, thankfully, Amazon steps at least partially into the breach and the book is available here at discounted price of $15.72.
A bargain at several times the price.
Friday, February 01, 2008
CMEC & CARL
Can AUCC be far behind?
It will be interesting to see what position the public libraries take.