Friday, June 20, 2008

Prof. D'Agostino on Bill C-61

Prof. Giuseppina D'Agostino has an interesting op-ed in yesterday’s Toronto Star on Bill C-61.

I won't comment on it detail but a few of her key points are very problematic:

She says:
The government wants to curb infringement but is not serious in allowing owners to go after teenagers when it caps civil lawsuits at $500. If it wanted to put kids in jail, it would have created harsher penalties. Widespread commercial infringement seems like the more pressing concern.

I'm not sure what she meant by "not serious" but I hope she didn't mean that there should be no cap on statutory damages against individuals for "private purposes." While the Government may not intend to put teenagers in jail, a key point of the legislation, which was driven by CRIA, is to facilitate weapons of mass litigation in Canada to stop what CRIA considers to be "illegal" file sharing.

In any event, the real point is that the so-called "cap" of $500 is either poorly drafted or disingenuous - because it won't work as a "cap" as drafted. Even more importantly, the record industry in particular will likely sue for "uploading" - or "making available". This is not subject to the $500 cap. She doesn’t mention this. It’s subject to cap of $20,000 for each element of each "made available" song, and each song typically includes three copyrighted elements - the music, the performers’ performance and the sound recording itself. Do the arithmetic. It’s simple but gruesome. Potential liability for up to $60,000 for each song in a shared folder, and the music industry will argue that it need not prove that there was ever any actual distribution.

She also says:
... there are no statutory damages for bypassing locks for private use: so, in reality, you should be fine in bypassing the lock of that European DVD or cellphone. But this uncertainty could have been avoided. Canadian-made regulations will be essential.

That's wrong. There is an exception for statutory damages for an individual for bypassing a TPM for “private purposes” - but that’s only for the act of circumvention itself. (new s. 41(3)). That exception is effectively vitiated in the case of “infringements that were made possible because the defendant circumvented or caused to be circumvented..."(new s. 38.1.4)

This could very well mean that circumventing a regional code to view a European DVD results in statutory damages up to $20,000 - because at the very least, it must be "reproduced" in RAM in order to be viewed. Or, more to the point, copying the TPM protected DVD to an iPod or laptop would create exposure to statutory damages up to $20,000. Likewise, for ripping a protected CD onto an iPod. Or, for getting someone to unlock your cell phone (so you can buy a more advantageous SIM card and not get gouged for several dollars a minute by Canada's oligopolistic wireless services once you leave Canada) could lead to the same result because you “caused to be circumvented...”

As for regulations, one could wait an eternity. The faint hope of a future regulation does not solve a present policy error.

And I totally disagree with her when she suggests that the Bill “promotes distance learning, licensing of digital course packs and uses of online materials all within complicated limits that will be tested by evolving practices.” She right about the “complicated” part, but the Bill is a huge setback to the educational community, certain sectors of which unaccountably can’t figure this out. Fortunately, other sectors have seen through this. As has Prof. Laura Murray. More on this to follow. Rest assured.

She does make some good points in her analysis, but misses one of the real dangers of this bill, if passed. If it's passed, we can expect lots of litigation for enormous amounts of money in the same mode as the RIAA in the USA.

If weapons of mass litigation are to be handed over to the content industries - particularly the music industry - one must assume that they will not only be used but that they will be misused and abused. There are tens of thousands of families in the USA who know this only too well.

She also doesn't begin to deal critically with why the Government should defer to content owner demands to let TPM and contract vitiate fair dealing, the public domain and users' implied rights with respect to their content and devices that they have bought and paid for.


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