Global News Interviews Michael Geist and Me about #Bill C-11 and #SOPA

I was interviewed online today by Global News, My comments, along with those of Michael Geist, appear online here. Part of my responses appear to have been inadvertently omitted online but appears below.

GLOBAL:
There has been an information overload about both SOPA and Bill C‑11. Readers have understood that these proposals would protect musicians, filmmakers and writers from having their work stolen and distributed over the Internet, but what's been misconstrued is what potential changes would mean to Canadians using the Internet. How would Bill C‑11 affect Canadians' experience online? How would SOPA affect Canadians' experience online?   

HPK:

First of all, we have to distinguish between the Bill C-11 that we see now - and the one waiting in the wings, which will include SOPA-like amendments that will supposedly be "technical" but may be very far reaching if certain lobbyists such as Mr. Barry Sookman, who wrote today in the National Post, get their way. I can only address the Bill in front of us. While it will supposedly create more freedom for consumers to engage in format shifting, time shifting, private copying, fair dealing and other "users' rights", it will actually be a big step backwards because virtually all of those gains - which we should have had long ago and which American's already largely enjoy - will be rendered nugatory by the iron-clad technical protection measures. These "TPMs" can prevent Canadians from watching a perfectly legal DVD made in India, or cutting and pasting for an educational project or a documentary, from using locked material in the public domain, or from making a backup of expensive game, BlueRay, or computer program product. Canadians will end up with less rather than more access to knowledge and entertainment products and pay higher prices for what they are allowed to do. Users' rights will be determined by lawyers and executives in Hollywood and New York and imposed by TPMs, the circumvention of which will be illegal even if the use is not.

SOPA, if had been enacted, could have shut down all kinds of Canadian websites - including perfectly legitimate ones - based upon an  extremely aggressive extraterritorial approach with very little due process that would require Canadians and other foreign parties to defend themselves in American courts at enormous expense and with little chance of success. This is not just paranoid fear mongering. Those who fought for SOPA have been trying their best in the American courts to shut down YouTube for several years just because of cute cat and baby videos that supposedly infringe entertainment industry content. SOPA would have enabled this kind of overreach.

GLOBAL:

What are the differences and similarities between these two potential pieces of legislation? Do they have the same protections?


HPK:

Canada's Bill C-11 and the US SOPA bill are very different on the surface. Bill C-11 is far more balanced in many respects, if only because it is more of an omnibus revision. Prof. Michael Geist has pointed out its several positive points. However, both bills would achieve the same ultimate end, which is the protection of legacy business models and the unnecessary inhibition of digital innovation. Bill C-11 is a very general bill that has been in the works for many years in various iterations. SOPA is the latest and perhaps most blatant example of US entertainment overreach aimed at blocking or inhibiting new technology. First it was the player piano. Then radio. Then VCRs. Now, it's the internet. And there were many other attacks in between.

GLOBAL:

While sifting through stories and community blogs in my research, I've read that the Stop Online Piracy Act could even affect sites, such as YouTube among others B Megaupload.com, IsoHunt.com, surfthechannel.com. What websites would we see shut down in Canada once these bills become law? To clarify to concerned Canadians, what sites won't be affected?

HPK:

It's quite clear that the laws that are already in place in the USA and Canada can work against the truly bad actor "rogue" sites. However, the entertainment industry has squandered most of its goodwill by focussing in the USA on suing children, college students and dead grandmothers. Now they want the U.S. Government to take over at taxpayers expense and enforce their private rights with heavy handed blunt-force legislation. In Canada, we have good tough laws in place that are much stronger than U.S. laws in many crucial respects.    But the entertainment industry has been unwilling to use these laws to their full effect because they want even tougher and overreaching laws that would enable easy overkill. They haven't made their case that the current laws are inadequate because, for whatever reason, they have not fully utilized them. They would rather claim that they don't work or are inadequate, even if this claim is incorrect.  If they had used these laws, pushed forward and actually lost in a timely, properly and vigorously contested court case, then they might have a real case to ask for tougher legislation in Canada. But this has not happened.

GLOBAL:

Do you think that much of the discussion is escalating into fear mongering or should Canadians have some concern in these potential laws and how they'd affect their ability to share information online?

HPK:              

The most important thing I learned at law school is that any legislation or court decision should be viewed in the light of the worst possible and most absurd result it could produce - because this is what usually follows and sooner rather than later. So, in the USA, the music industry is still pursuing a judgment of almost $2 million against a single mother for downloading 22 songs. We have seen a home video of a baby dancing to Prince's barely recognizable music being taken down. We have countless well documented examples of the "chilling effects" on research, education, speech and expression through overreaching current laws.  According to many proposed definitions of "rogue site" or “enabler”, the biggest offender would be Google. You can find all the infringing material you could ever imagine of simply by doing a Google search.  Would anyone try to take Google down?  The answer is that there is already a longstanding mega battle underway to take down YouTube, which Google owns. So, even Google itself could be a target for litigation. Collateral damage? No problem for the entertainment industry, which sees this as the "war on piracy" and has actually gone so far as to link it to the war on terrorism not only in terms of moral panic rhetoric but with suggestions that funds from counterfeit DVDs fund real terrorists. 

GLOBAL:

SOPA led to a historic day of online blackouts on Wikipedia, Reddit, Mozilla and others who closed their sites in an appeal to users to get in touch with their Congressional representatives to argue against the passage of the two bills. What is your stance on these sites protesting these changes? Is Bill C‑11 flying under the radar compared to SOPA and if so, why do you think this is happening?

HPK:

First, this is Canada and we are generally less excitable about than Americans, unless hockey is involved. Second, we don't have big home grown industry players fighting back directly and with so much resources as is now the case in the USA with Google, etc. We do have highly respected communications companies and the Retail Council of Canada (a client of mine) making some important and principled points and taking a stand for their customers. In Canada, the lobbying is more subtle and the resources available are much less than in the USA.  For example, Google is much less visible on the policy front in Canada than in the USA.  The educational and library sector is much less assertive in Canada than in the USA. Moreover, many of the most important issues in Canadian copyright law are being dealt with by the Copyright Board, which has been given sweeping power by Parliament to devise and implement “tariffs”. This process results in almost half a billion dollars of copyright payments by Canadians per year that add to the cost of everything from blank CDs to K-12 education to retail prices on countless products. There are about 36 collectives working hard to increase these payments even more, There is simply no counterpart in the USA to some of the most important Canadian tariffs and collectives, and no organization comparable to the Copyright Board.  This process is largely “under the radar” to most Canadians.


HPK