Reflections from Fordham - 2008

The annual Fordham International Intellectual Property Law and Policy Conference has just taken place, as always The First Thursday and Friday After Easter.™ The following is a very limited and personal take on a very complex and comprehensive conference.

The Canadian Panel:

Once again, through a lot of hard work, we’ve been able to convince Prof. Hugh Hansen (the conference director) to put on a provocative and balanced panel on Canadian copyright law. This is despite the fact that Canada has been crying “wolf” on new legislation for several years now.

This year, the panel consisted of:

1. Prof. Daniel Gervais, who talked mainly about the 2007 Kraft decision from the Supreme Court of Canada (a favourite case of mine because I made the prevailing argument).


2. Justice William Vancise, the Chairman of the Copyright Board, who chose to speak and write about “What are "adequate reasons" in a Decision of the Canadian Copyright Board? To what Degree Should Appellate Courts Defer to the Expertise of Specialized Tribunals? And Do They?”

3. Steve Metalitz, the lawyer/lobbyist for the Washington based International Intellectual Property Alliance (“IIPA”) which has recommended Canada for the “section 301 priority watch list” for 2008, who spoke about why he believes that this is justified. He focussed, inter alia, on Canada’s lack of implementation and ratification of the 1996 WIPO Treaties and the alleged inadequacies of Canadian enforcement, particularly regarding border measures. Since the IIPA is effectively the privatized research arm of the USTR for “301" purposes, it was good to have Steve on this panel.

4. Myself, who spoke and wrote (see my paper) about why the IIPA’s and similar positions from CRIA and the American government are not justified, and why the USA should look in the mirror and find a way to put itself at or near the top of its own “priority watch list” in terms of weaknesses in its own copyright law and violation of existing treaty obligations. I have now identified 15 areas in which Canadian law is already stronger and better than American law, and which result in many cases in very large outflows of payments to American corporate interests. None of these was refuted. I also pointed out that while Israel bravely rebuts the USA’s “301" reports, Canada simply does not take them seriously and the WTO has ruled that the USA cannot take any unilateral action beyond rhetoric with respect to its “301" mechanism. Moreover, the USA is arguably in violation of the Berne Convention with respect to moral rights and other important matters, and has been adjudicated to be and clearly intends to remain in violation in respect of its notorious exemption of small business establishments from the need to pay performing rights royalties.

5. Richard Pfohl from CRIA, who reiterated CRIA’s usual positions. Since CRIA, which essentially represents the big four foreign record companies, is apparently by far the most vociferous so-called “Canadian” copyright lobbyist organization, it was useful for Richard to be on the panel.

Apart from the very frank and, frankly, very unusual remarks and paper by Justice Vancise criticizing the Federal Court of Appeal, which reviews his Copyright Board, there were no real surprises from the speakers.

There were some very worthy comments from the audience, as often happens at Fordham where the audience members are often at least as expert and engaged as the speakers and panelists.

Mario Bouchard, the General Counsel of Canada’s Copyright Board, pointed out that the fact that it has been 12 years since the WIPO treaties came about in Geneva and that Canada has still not implemented and ratified them showed that there can hardly be said to be a Canadian consensus on these issues. He also pointed out that it took the USA 102 years to join the Berne Convention, so the USA ought not be too critical about a 12 year delay on Canada’s part in respect of the 1996 WIPO treaties.

Justice Roger Hughes of the Canadian Federal Court commented from the audience in response to Steve Metalitz’s suggestion that Canada lacks adequate and effective border measures and should provide “ex officio” seizures (i.e. seizures that bypass the Courts and let customs officials seize allegedly pirated or counterfeit goods). According to Mr. Metalitz, the current system doesn’t work. Justice Hughes pointed out that this was simply wrong and that judicial orders for seizures were readily available when appropriate – and that those seeking such a change should “stop whining” and just “roll up their sleeves” in order to use the current system. He indicated that he had signed three such orders at the request of Microsoft just in the last week.

Other Notable Aspects from Fordham

Once again, Justice Rogers Hughes from Canada’s Federal Court, who was a highly renowned and experienced litigator and author in all areas of IP prior to his appointment to the Bench in 2005, joined the Fordham Faculty on patent law sessions. One hopes that he will become a “regular” at Fordham in the tradition of Lord Jacob, Sir Hugh Laddie, Lord Hoffman, Pauline Newman, Randall Rader, and other distinguished expert judges.

Speaking of which, there was a remembrance of the Rt. Hon. Lord Justice Pumfrey a popular and very expert judge from the UK, who passed away suddenly on Christmas eve last, shortly after his elevation to the Court of Appeal.

There was a remarkable panel of General Counsel organized by Brad Smith of Microsoft, an old friend and frequent presenter at Fordham long before he became GC and Senior VP of Microsoft. The panel included the GCs/VPs from Time Warner, NBC Universal, Viacom and New Corps. Such an array of distinguished GC’s on one public panel is rare, if not unique. But it’s too bad that Google and Verizon weren’t there. The panel could have been much more balanced, especially because virtually all these GCs were extolling the development of “cooperation” with ISPs in curtailing piracy and saying much the same thing as each other otherwise. The panel fuelled fears that traffic shaping and other interference with net neutrality could be much more about IP enforcement than network management.

I managed to get them rather defensive when I mentioned that traffic shaping and “cooperation” has “throttled” CBC’s innovative attempt a few days earlier to use BitTorrent for a perfectly legitimate purpose - which their own companies might want to consider at some point. Tom Rubin, another senior Microsoft lawyer, later provided a rather thoughtful comment on this in another panel indicating that ways should be found to make sure that legitimate uses of innovative technology should not be hindered.

Ironically, virtually at the same time the GC panel was going on, Comcast in the USA announced that it was backing off from its plans to throttle the internet.

(Meanwhile, Canada - which has virtually no real competition in broadband internet service - and no evident willingness on the part of part of the Government or regulators to deal with this issue - is plunging further into the abyss of throttled and inferior internet service at very high prices.)

Another high point was the appearance of Ray Beckerman, the fearless New York trial lawyer from a small firm who is fighting the RIAA litigation campaign against children, dead grandmothers and 20,000 or so other ordinary victims on many fronts and who has a fabulous blog and data base of info on the RIAA’s litigation. Hugh Hansen gave Ray more than the usual ordeal by fire, which often greets anyone at Fordham who dares to question the establishment point of view. I get it every year. But Hugh does in fact invite strong and outspoken anti-establishment points of view- unlike certain Canadian conference organizers - and I trust that Hugh’s apparent righteous indignation (with more than a little twinkle in his eye) was his way of showing his seal of approval. He only gets this excited when things become electrified and polarized - which he likes to see. Ray stood up very well and then some - and I hope he’ll be back. Here’s Ray’s take on the P2P and related issue sessions. His RIAA opponent, Kenneth Doroshow, took the perfectly absurd position that Jammie Thomas had caused untold millions of dollars of damages, even though there wasn’t a shred of evidence that anyone other than the RIAA investigator had downloaded anything from her - and that $9,250 damages per song was therefore not such a high figure. No wonder people ridicule the RIAA and that the RIAA is giving copyright as we know it a very bad name. Pam Samuelson outlined how the whole statutory damages regime could crumble on a constitutional basis, something I’ve been saying for years. I’m glad I’m in such good company.

Additional high points were the participation of Alex Macgillvary, an associate general counsel of Google who is a Canadian and a Harvard grad and a very eloquent spokesperson for balanced copyright.

An new and important voice was also added from Israel - Mr. Tamir Afori. He is the official most responsible for the new Israeli Copyright Act, which has a brilliant solution to the problem of statutory damages (no minimum - USD $28,000 max) and fair use provisions very similar to those of the USA, which the IIPA has soundly criticized since that is not a feature of US law that they wish to see emulated. Israel has also stood its ground on TPMs and WIPO ratification. Canada would do well to look more closely at the new Israeli law and to invite Mr. Afori to come to Canada and tell us more. It is refreshing to see that the Israeli government listens to its professional civil servants, more so than certain other governments.

There was much talk about fair use, and a major new study on limitations and exceptions by Bernt Hugenholtz and Ruth Okediji.

And there was the usual rich three ring or more circus of simultaneous sessions on patents, trade-marks, copyright, competition law, etc. And much, much more - too much to talk about. I’m still recovering. Fordham was, as always, an exhausting but immensely rewarding experience. You cannot learn more about IP anywhere in two days than you can at Fordham - where you will be up to date with key developments from around the world - including Canada - and you will meet many of the most influential judges, officials, lawyers and academics who actually made these developments happen.

Update - the list of faculty and some of the papers (requires a password) are now at the Fordham conference website.

HK