Obama and NAFTA?

This story is coming back.

It seems that there is an effort in the US Congress to restrict all "stimulus" spending on iron, steel and perhaps other goods to "made in the USA" sources. That's illegal under NAFTA, perhaps under WTO, and would be a very bad way in any event to begin a new era in Canada/USA relations. NAFTA is still in full force, last I heard.

Industry Minister Tony Clement is already speaking out. Prime Minister Harper has expressed "grave concern." The issue clearly could and should arise during President Obama's visit to Canada on February 19, 2009 - if it has not been fully defused by then.

It will be really interesting to see what President Obama does about this, given his past pronouncements about NAFTA and the conventional wisdom about the Democratic Party's relative predilection for protectionism. Let's see whether there will be "change" afoot on this front.

If such a blatantly protectionist move as this is enacted into law, it will be even more interesting to see if the current Canadian government is once again in an unseemly hurry to enact the American wish list for a DMCA North "Made Worse in Canada" version of American copyright law.

There are things that need to be done to improve Canadian copyright law. But we don't need to import the worst features of American law, particularly if the Americans are going to become even greater scofflaws of international law. And we don't need to shovel money at the Americans for copyright rights that they don't provide to Canadians.

This is an old story that goes back well into the 19th century. It probably won't end soon. It is now beginning to be documented and analyzed by by scholars such as Sara Bannerman.

Let's hope that Canada learns not to get pushed around on copyright policy by the USA, as it once was by the UK. It's time for Canada to finally stand on its own feet on copyright and other fronts, and move on from being part of declining empires.

HK

iTunes Movie Rollout in Canada - sans DMCA

Apple is making available lots of movies for Canadians.

iTunes users in Canada and the United Kingdom will now be able to download and rent movies from Apple's online store.

Canadians will be able to choose from over 1,200 films such as "Juno," "I Am Legend," and "Cloverfield" from movie studios including 20th Century Fox, Paramount and Sony Pictures. More than 200 of the available titles for rent come in high definition.

Those in the UK will have a library of over 700 films, Apple said. The British rental catalog also features over 100 titles available in high definition.

This is the first big Apple online movie rollout after the USA, shared with the UK - hardly a pirate haven and, indeed, a leader in the EU.

This clearly suggests that Apple has little if any concern about any alleged inadequacies of current Canadian copyright law, which is apparently quite adequate to protect its interests and that of the studios.

And Apple just loves DRM and TPM, when it suits it.

One more reason why we don't need a Canadian DMCA ("CDMCA").

HK

Patry on RIAA - "Canada Insulted Again"

Here is an essential-reading posting from Bill Patry, great American copyright treatise author. It concerns the US Congressional International Anti-Piracy Caucus (IPAC) and the RIAA.

Here's an extract. "Chapter 12" refers to the US Copyright Act, and Chapter 12 is the guts of the dreaded DMCA, which Bruce Lehman, its architect, also now admits "didn't work out very well."

...Once chapter 12 is implemented into domestic law, it is U.S. corporate copyright interests that will shape what consumer goods can be used in your country and how citizens of your country will be able to access and use lawfully acquired copies of works. No legislature that is amending its copyright law should do so without understanding the momentous delegation of power they are handing to U.S. corporate interests.

This is not a piracy issue, it is nothing remotely resembling piracy. It is Orwellian to claim otherwise. The designation of Canada as a scofflaw because it hasn't implemented chapter 12 of title 17 is not only an abuse of language, but also a direct attack on the sovereignty of another country to determine what is in the public interest of its own citizens. Canada has more than adequate laws against real piracy, and as Howard Knopf had pointed out, its laws are more generous toward authors than is U.S. law. No legislature in the world should abdicate its responsibility to protect the public interest by vesting the private sector with the powers granted in chapter 12 of title 17. But Canadian abdication is exactly what is being proposed by U.S. interests, the false justification being that Canada is a pirate haven because it hasn't implemented the U.S. DMCA.

Canadian policy makers would be unwise not to listen to Bill Patry and Bruce Lehman - both of whom know the DMCA for what is.

Let's hope our Canadian "IP Caucus" is paying close attention.

HK

Making Available Right Found Not to Exist By District Court in Arizona

REVISED

A District Court Judge in Arizona has found in a clearly reasoned and well briefed decision in Atlantic v. Howell in (Bravo EFF!) that merely making a work available by leaving it in a shared folder does not infringe copyright under US law.

In my original haste to post on this, I got a bit mixed up between what the EFF argued and what Judge Wake actually ruled on the issue of whether downloading by Media Sentry - the investigator - could actually constitute infringement.

Bill Patry believes Judge Wake got this part of the decision wrong - and Bill is far more expert on American copyright law than I will ever be, so readers may as well read his take on this:

In Howell, Judge Wake held, in denying plaintiffs' motion for summary judgment, that plaintiffs could rely on downloading by plaintiffs' outside investigative firm, MediaSentry, to establish infringement. This is the only part of the opinion I disagree with. Judge Wake wrote: "[T]he recording companies obviously did not intend to license MediaSentry to authorize distribution or to reproduce copies of their works." The phrasing of this sentence misstates what occurs and how that relates to plaintiffs' theories. The labels absolutely authorized MediaSentry to download files from Howell's shared folder, and then used that downloading as evidence that there had been an actual distribution. As the court itself wrote: "The recording companies' investigator, MediaSentry, did download 12 of the copyrighted sound recordings from Howell's computer. The recording companies assert that they have proven actual distribution for at least those 12 recordings." The court thus permitted the labels to use their investigator to engage in conduct that the labels then pointed to in proving their allegations. But authorized conduct cannot be unauthorized conduct, and since the only evidence of actual distribution (if that is what the downloading is) was authorized, there could be no infringement, as EFF pointed out.

The court attempted to get out of this fatal flaw in plaintiff's case by describing MediaSentry's efforts as "part of an [effort] to stop infringement. " So what? That still doesn't make authorized conduct unauthorized. I am aware that the Eighth Circuit thinks otherwise as did the Leadbetter court in the Western District of Washington last year, but both opinions are clearly erroneous. Copyright owners are certainly entitled to use investigators to discover infringement (assuming the investigators use lawful techniques), but having authorized the investigators' conduct they cannot then rely on that authorized conduct to prove a cause of action whose principle requirement is that the conduct be unauthorized. This is the only respect in which the Howell opinion is disappointing, but that disappointment is real and may cause real problems in future cases.

I thank the those who submitted comments on this point and given me an opportunity to make this post more useful and accurate.

Bill's position and the EFF position are consistent with what I argued successfully in the Supreme Court of Canada in the Kraft case. See para. 49.

In any case, this is a sharp and large nail in the coffin of the existence of a making available right under US law, which is of course something that Canada is expected to provide.

HK

IIPA, DMCA, 301, and Canadian Copyright Sovereignty

Canada is now on the IIPA "priority watch list."

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.....

HK

Canada, Israel, DMCA and Sovereignty

Michael Geist points to a very perceptive post by Ariel Katz who is at U of T about Israel's recent new copyright law.

According to Ariel:

Israel's new act has revealed its copyright priorities. Overall, Israel decided to increase the flexibility of its copyright law and make it more open and friendlier to users, educators and innovators. It decided to reduce the ways in which copyright law can work to restrict competition. For the time being, it decided not to enact anticircumvention rules that have the potential to work in the other direction. This choice is compatible with Israel's innovative and creative record. This choice is essential for a small economy whose citizens' brain is the only natural resource. Canada should seriously consider doing the same.

(emphasis added)

At the risk of being politically incorrect, let me point out something obvious here. If any country would seem to need to be beholden to the USA, it would probably be Israel. Yet Israel fiercely asserts its independence from the USA in many ways, and wariness of the DMCA approach is apparently one of them. Mazel Tov to Israel! Doubtless, this overall spirit of independence is one of the reasons why successive American administrations seriously respect Israel.

Canada is not nearly so dependent on the USA as Israel. Canada's very survival is not at stake. (Actually, it is in the long run as a result of the kind of pro-American pandering that we may soon see on this file, but not in the immediate day to day sense that Israel faces). However, Canada has forgotten that we won the war of 1812, which I was proudly taught way back when was the only war America has ever lost. That, of course, was well before Vietnam.

So - if Israel can call time out on the DMCA and assert copyright sovereignty, what is the matter with Canada?

HK

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.

HK