Voltage, TekSavvy and The Cost of Taking a Position to Take “No Position” - "Nice Work If You Can Get It"?

The long awaited decision by Prothonotary Roza Aronovitch of the Federal Court regarding TekSavvy’s claim to entitlement to $346,480.68  “on a full indemnity basis to make it whole for the costs it says it incurred as a result of Voltage’s motion” has now been released. Spoiler alert – TekSavvy got only $21,557.50 – about 6% of what it asked for overall. And of that, only $4,500 was for legal costs, which were sought in the amount of $178,820.98.  That’s 2.5% of what was asked for in legal costs. Further spoiler alert: both Voltage and TekSavvy are appealing Prothonotary Aronovitch's ruling. Here’s the docket and here’s the notice of motion for the TekSavvy appeal dated March 27, 2015. I’ve been waiting on this posting partly because I didn’t want to say anything prior to the appeal deadline. And since it is now being appealed by both sides and the appeal has not yet been heard, I will say less about this case at this time than I might otherwise. In any event, I’ve had lots to say about this case in the past.  However, I should at least bring readers up to date.

It will be recalled that TekSavvy took the position that it “took no position” on the Voltage disclosure motion. This appears to have been a key factor in the Federal Court’s refusal to reward TekSavvy and its counsel with almost $180,000 in legal fees.

Ironically, if TekSavvy had actually opposed Voltage’s motion, it may well have been in a much better position to successfully seek costs.  Prothonotary Aronovitch cites Justice von Finckenstein’s ruling on costs in a similar case where two the ISPs actively opposed the disclosure motion:

[44] Justice von Finckenstein goes on as follows at para 35:

[35] Clearly the process that is sought to be imposed on the ISPs

would be costly and would divert their resources from other tasks.

Given that the ISPs are in no way involved in any alleged

infringement, they would need to be reimbursed for their

reasonable costs for furnishing the names of account holders, as

well as the legal costs of responding to this motion.

[Emphasis added]

[45] In that case, the Court ultimately denied the motion but awarded the costs of the motionto the third party ISPs who had opposed it.

(emphasis added)
 

I must respectfully and explicitly disagree, which I rarely do, with Prof. Michael Geist; however, I must do so about this case. He has been very supportive of TekSavvy throughout. He had a blog the other day entitled “Defending Privacy Doesn’t Pay”.  In my view, it would be more accurate to say that defending privacy can and does pay if done vigorously and out of principle – both in terms of legal costs and subscriber good will. Moreover, full indemnity legal costs are very rarely recovered in Canadian litigation. Responsible ISPs should expect to incur some non-recoverable legal costs for defending their customers’ privacy as part of their “cost of doing business”. Indeed, speaking generally and not necessarily about this case, it’s arguable that ISPs have a positive duty to actually oppose ill-founded motions for disclosure and that failing to do so could expose them to liability - but that’s another topic for another day.
 
There is also the explicit suggestion in Prothonotary Aronovitch ruling that TekSavvy should have put its cards on the table regarding TekSavvy’s costs much earlier:

[73] Whatever the reason, the parties’ failure to address the costs of the motion is an oversight that cannot now be remedied by subsuming them within the legal costs of abiding by the Order. This applies equally to the legal costs claimed on account of TekSavvy’s attendances at the motion to intervene and the various motions to adjourn. In that connection, counsel for TekSavvy conceded at the hearing of this motion that the costs of appearing before Justice Mandamin for a further adjournment could not be claimed as Justice Mandamin explicitly determined that no costs should be awarded in respect of the adjournment.

Prothonotary Aronovitch was rather obviously displeased with both sides, as her conclusion on costs of the costs motion reveals:

[129] …It may be said that success is divided and that costs should therefore not be awarded. Rather, no costs of the assessment will be awarded because neither party should be rewarded for its conduct: TekSavvy, without justification, has greatly exaggerated its claim, while Voltage has unreasonably sought to trivialize it based on unreliable and largely irrelevant evidence.

TekSavvy’s position of taking “no position” effectively meant that it did virtually nothing to protect its subscribers’ privacy other than to play for time to send out an arguably unnecessary notice to its potentially affected customers and attend for adjournments in order to let a law school clinic, CIPPIC, seek leave to and eventually intervene in the case. TekSavvy may not be Bell or Rogers but it is a very successful commercial entity with about $5- $10 million a month in estimated cash flow.  As to the notices, Prothonotary Aronovitch commented:

[64] While the Court has the discretion to order a party to give notice, the Rules do not require TekSavvy to have provided notice of the motion to its affected clients. TekSavvy acted voluntarily and on its own initiative. Whether it acted out of altruism or self-interest is irrelevant.

I have been insistent, persistent and consistent in the past in challenging TekSavvy’s “no position” position.  Indeed, it may have been arguable that the evidence in this case was no better and perhaps even worse than the evidence in the BMG case  (in which I was counsel for CIPPIC) over a decade ago, where Shaw, Telus and CIPPIC were successful in stopping the plaintiff American record companies in in their tracks because their evidence was essentially all hearsay and unreliable. The plaintiffs then were unable or unwilling to provide reliable non-hearsay evidence sufficient to justify piercing the privacy rights of the ISPs subscribers. The roadmap in the current case was perfectly clear based on the BMG case. Indeed, the landmark ruling of Justice Von Finckenstein was upheld in all essential respects by the Federal Court of Appeal. Here’s a balanced discussion of the rulings.

In the end, TekSavvy did nothing in the current case to challenge the adequacy of Voltage’s arguably inadequate evidence and to stop the disclosure motion from proceeding. It did not cross-examine on Voltage’s affidavit material in connection with the actual disclosure motion. Instead, TekSavvy chose to vigorously cross-examine to recover its alleged costs of $346,480.68 – for legal and other technical costs resulting from having taken no position and complying with the order.

Defending privacy is not remotely equivalent to supporting piracy. It is an ISP’s job under PIPEDA to ensure that disclosure in situations such as this happens only pursuant to a court order. As I said earlier, if that order is not warranted, for example because the evidence may be clearly inadequate, it is arguably the ISPs job to oppose the motion. Anyway, it can’t be “CIPPIC to the rescue” every time there’s a mass litigation attempt and it’s absurd to expect one or more individual subscribers to shoulder this responsibility of fighting for the privacy of themselves and thousands of others. They pay good money to their ISPs to do that, and ISPs generally do very well indeed finically in Canada.

CIPPIC ended up doing a good job on the policy side about the negative aspects of trolling and speculative invoicing. However, although it did mention the “hearsay” issue in its Memorandum, it is unclear to what extent if any “hearsay” was raised by CIPPIC during the oral hearing before Prothonotary Aalto. It is not even mentioned by CIPPIC, at least according to the “unofficial” transcript of the oral argument on CIPPIC’s website. However, I have no way of knowing how complete or accurate that transcript may be and there are several references in it to the microphone being off for various periods of time. Ironically, hearsay was briefly mentioned by Voltage’s lawyer according to this unofficial transcript.

In any event, Prothonotary Aalto’s learned and lengthy decision following CIPPIC’s intervention and TekSavvy’s “no position” appearance does not mention the word “hearsay”. The rule against hearsay evidence (i.e. where the witness has personal knowledge and relies on statements from others) might have been Voltage’s potential “Achilles Heel”, but nobody seemed interested in going for that kind of victory. Arguably, if a victory is just, it should be taken where it can be found.

TekSavvy clearly went to great lengths, including extensive cross-examination, to pursue its alleged entitlement to “reasonable costs” in the amount of $346,480.68. Arguably, for much less expense, it might have instead stopped the arguably deficient and hearsay-based Voltage application from going forward at all. And as the Court pointed out, as noted above, TekSavvy would have been in a better position to recover costs.

It’s very difficult to predict what will happen now. Voltage may have already invested a lot of money on this case, unless there is a contingency arrangement with its consultants and/or its counsel – which would hardly be surprising. The small 6% fractional recovery by TekSavvy of its claim for costs is no doubt a victory for Voltage, but the costs of proceeding any further may still be very high. This case is still under Court supervision – and the Court has strongly indicated in the original decision from Prothonotary Aalto that it won’t allow the names and addresses of TekSavvy’s customers to be used simply as a database for uncontrolled speculative invoicing. Indeed, the Court must approve any proposed demand letter to be sent by Voltage to subscribers and is clearly contemplating that any actions commenced must be “separate” actions to be case managed by the Court. But will TekSavvy and/or CIPPIC step up to the plate to follow through on the possibly complicated and time-consuming future steps? If not, are TekSavvy’s customers going to be on their own and out there all alone?

According to an article published on April 2, 2015, it seems that Voltage’s lawyer now has a theory that he can sue for actual damages that will be greater than the statutory damages limit of $5,000 in cases of non-commercial infringement. The article is not entirely clear on what this theory is based but this is what it says:

Zibarras explained that plaintiffs in piracy cases can opt for statutory damages or actual damages. The former are awarded automatically once it’s been proven in court the defendant actually did download the movie. The latter, actual damages, take into account how much money the production company may have lost due to the downloading and subsequent distribution.

However, assuming that Mr. Zibarras’ theory is being stated accurately, that is just not the way things work. Statutory damages for non-commercial infringement (if proven) could be as much as $5,000 but also as little as $100. It’s up to the Judge. True, a plaintiff need not elect statutory damages and can go for “actual damages”. However, it’s a real stretch and “extremely far-fetched”, as I was quoted in the article, to suggest that a typical “ non-commercial” Bittorent user could be liable for any losses supposedly resulting from subsequent distribution via a Bittorent "swarm" of hosts “that upload to/download from each other simultaneously”, if that is indeed Voltage’s current theory.

To use such theory to ratchet up “actual damages” for downloading one movie (which might have cost $10 or so from iTunes or Amazon and from which Voltage would receive even less) to actual damages of more than $5,000 is “extremely far-fetched” indeed from every factual and legal standpoint, and that’s an understatement. Clearly, there would be immense if not insurmountable difficulty in proving how many,  if any, actual “lost sales” were the results of a particular customer’s individual infringement (if proven) by downloading and what damages, if any can be proven. Clearly too, a typical downloader has no “profits” for which to account.

If I understand this theory correctly, it is rather reminiscent of and perhaps even more “far-fetched” than Catherine Leuthold’s extremely longshot and so far very unsuccessful attempt to parlay a $19,200 claim into a $22,000,000 claim by trying to hold the CBC liable for separate acts of infringements for transmissions from each of the CBC’s 800 or so participating affiliated stations and Broadcasting Distribution Undertakings [BDUs].  An application for leave to appal her case is pending in the  Supreme Court of Canada and the result is expected shortly. It would be surprising if leave to appeal were to be granted.

It will also be very interesting indeed to see what happens with respect to Voltage’s presumptive obligation as a non-resident of Canada to post “security for costs” pursuant to the Federal Court Rules, and who – if anyone – will raise that issue and when. If Voltage gets around to actually suing anyone and doing so in separate lawsuits,  which is the Court’s clear expectation, that may be the first thing that knowledgeable counsel would address. And in this case, the security for costs motion may prove to be anything but routine.

If Voltage’s strategy is to avoid actual litigation, it may find itself in some trouble with the Court – because Prothonotary Aalto at para. 40 of his reasons  and the Federal Court of Appeal before him have made it very clear that the essential “bona fide” threshold requirement for disclosure means “that they really do intend to bring an action for infringement of copyright based upon the information they obtain”.

In one sense at least, the fact that the hearsay issue was not even mentioned in the proceedings to date is good news. This means that, in the future, another ISP may well challenge a disclosure motion the way that Shaw and Telus did in BMG, if the evidence is based upon hearsay or is otherwise inadequate. Indeed, another Canadian indie ISP, Distributel recently stood up to a plaintiff successfully, as I have pointed out, and stopped the disclosure motion even before it went forward.

So, we still have an uncertain future with respect to trolling and speculative invoicing in Canada. But one thing is certain – which is that door is now appears to be a little bit more open than it was before TekSavvy took the position that it would take “no position”.

And we also now have a potentially “perfect storm” about to hit Canada in the form of Bill S-4, which if enacted, could effectively take away the need for court approval of a disclosure motion. I wrote about this at length almost a year ago, and the timing and other coincidences with the Voltage case, TekSavvy’s “no position” response to it, and the coming into force, without regulations, of the problematic notice and notice regime. It’s a perfect storm of immense magnitude for those who care about privacy. All of this may also be a perfectly appealing opportunity for those entities who wish to engage in speculative invoicing and trolling, and lawyers who may wish to engage in pursuing this type of activity. And it may not even be too cynical a stretch to think that some ISPs in this new regime could be tempted to monetize the private information they have concerning their customers’ potentially infringing activities, along with their names and contact information – all without the bother of worrying about a court order.

But in the meantime and unless there’s a successful appeal by TekSavvy’s concerning its alleged entitlement to full indemnity costs, including legal fees, for a total of $346,480.68 for "for the costs it says it incurred as a result of Voltage’s motion" and for taking “no position” on the motion, TekSavvy’s “no position” position  would have been  “Nice work if you can get it”.  However, up until now TekSavvy didn’t get it and about 2,000 or so of its subscribers could soon be getting into a lot of trouble by being thrown into an uncertain but almost certainly unsettling settlement demand process.

HPK 

ACTA - Time to Walk Away?

canada.com

David Gonczol, Ottawa Citizen

Here's Jamie Love in the Huffington Post on the ACTA leaks story broken by Michael Geist.

Here's The Atlantic.

Here's the New Zealand Herald.

This is going into the main stream.

If all or indeed any substantial portion of the rumours about ACTA (three strikes +, DMCA +, WIPO+, border searches of iPods, cell phone etc, for MP3s, etc.) are true, and if Canada goes along with this "agreement", then Canada will forfeit its sovereignly to determine its own IP policy. For starters, this summer's mammoth copyright consulation will have been for nothing.

So if there is substantial truth to these rumours, then Canada needs to seriously consider walking away from this secret treaty/agreement process. Maybe sooner rather than later.

We know that there is unprecedented secrecy over this process. Neither the WTO nor WIPO ever worked this way. There is no reason or justification for this. Absolutely none other than industry induced secrecy. You can be sure that the RIAA and MPAA know exactly what is going on here.

We know that Canada has very limited ability to influence the Americans. As Trudeau said, when a mouse gets in bed with an elephant, it is the mouse that needs to worry about being rolled over.

Canada has long since lost much if not most of its honest broker status in international IP and other diplomatic circles. We likely don't have the clout any more to stand up to the Americans in a negotiating room or to broker some more moderate IP arrangement. If we really think we can do that, maybe we should remain at the ACTA table for a while. But if we can't, maybe we should just walk away. And maybe sooner rather than later.

Walking away could preserve Canadian sovereignty to do what is best for Canada, which is what we really ought to care about. It might help Canada to regain international credibility and bargaining strength.

From what we have seen in the leaks to date, there is really nothing in the proposed ACTA that would benefit Canada. We do not have a serious piracy or counterfeiting problem here unless one believes the recycled and circular back-of-the-envelope “evidence” from the usual lobbyists. One has to look very hard to find fake Rolexes or pirate CDs or DVDs in Canada. I have frankly never seen this stuff in Canada. Compare mid-town Manhattan where these things are “in your face.” Claims about counterfeit medicines and health and safety issues, etc. are a smokescreen for the real agenda here, which is an ultra strong copyright and trade-marks regime, with huge “ex officio” powers given to border guards, who will be informed and educated by industry “experts.” Such ex officio action has recently resulted, for example,. in scandalous delays of perfectly legal generic AIDS drugs en route through The Netherlands to developing countries. In any case, one does not need ACTA to deal with any issues involving fake medicines or counterfeit Christmas tree decorations.

People don’t like surprise attacks on their civil liberties - and ACTA could be a very big surprise indeed, resulting in cut-offs of internet service and warrantless searches of electronic devices at the border for copyright infringement - i.e. downloaded songs and movies.

Anyone who doesn't believe that the US is serious about this should look at a recent bulletin dated August 20, 2009 from U.S. CUSTOMS AND BORDER PROTECTION CBP DIRECTIVE NO. 3340-049 which begins as follows:

PURPOSE. To provide guidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players, and any other electronic or digital devices, encountered by U.S. Customs and Border Protection (CBP) at the border, both inbound and outbound, to ensure compliance with customs, immigration, and other laws that CBP is authorized to enforce.

These searches are part of CBP's long-standing practice and are essential to enforcing the law at the U.S. border. Searches of electronic devices help detect evidence relating to terrorism and other national security matters, human and bulk cash smuggling, contraband, and child pornography. They can also reveal information about financial and commercial crimes, such as those relating to copyright, trademark and export control violations. Finally, searches at the border are often integral to a determination of admissibility under the immigration laws

(emphasis added)

And this is BEFORE ACTA. This US will expect this and more from other ACTA partners.

That's right. Copyright “violations” (whatever that may mean) are right up there with terrorism and child pornography. Take no comfort in promises of a “de minimis” exception policy. First of all, I'm sure that RIAA and MPAA and their Canadian branches, CRIA and CMPDA, will lobby hard to make sure that “de minimis” means some truly low number such as five or ten MP3 files or one or two movies for which the traveller can't prove “ownership” on the spot. And do we really want border guards detaining us for hours and our devices for up to days, weeks or months while they determine whether we are “de minimis” or not? And what about songs that we have legally ripped to our iPods, according to the RIAA and CRIA. from CDs that we have bought and paid for? What if the customs agent doesn't believe that we own the CDs? And don't bring any children with you on your travels. (Unless you want to leave them in the care of border officials!)

They are notorious “pirates.”

If Canada remains in this negotiation in order to try to moderate the extremists, the minimum price for so doing should be complete transparency and immediate publication of all draft texts, as has been the normal practice at the GATT, WTO, WIPO and elsewhere for decades. That is the only way that moderation can hope to be achieved. And we should still be prepared to walk away.

HK

PS - November 6, 2009: This is front page news in today's Ottawa Citizen.

If the answer is yes, then you gotta confess!

This is in contrast to my earlier posting today about a constructive encyclical from the Pope about excessive IP in general but and health care in particular.

The Knights of Columbus, a pillar of the Catholic Church, now regards piracy as a breach of the “shall not steal” seventh of the Ten Commandments.

According to this interpretation, you must now confess if you have “pirated materials: videos, music and software.”

After all, stealing is a sin. And piracy is stealing, at least according to the Knights of Columbus. Not to mention certain copyright lobbyist organizations. No thresholds here. No private copying exception. No fair use test.Simply answer the question - "Have I pirated: videos, music, software?"

So - according to the Knights of Columbus, if the answer is "yes", then you gotta confess!

The Knights of Columbus is a serious and reputable organization. Indeed, it is is the world's largest Catholic fraternal service organization. Why is it now concerned with "piracy"? Has it been "lobbied"?

Is this a new direction in which content owner sare going and an extended form of copyright policy laundering?

HK

Pope Benedict VI on IP

(Wikimedia)

Thanks to the tireless devotion of Jamie Love's KEI Online, we are now aware of Pope Benedict VI's Encyclical of July 7, 209 on IP. According to KEI:

Pope Benedict XVI today issued a statement saying that “On the part of rich countries, there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care.” The criticism came in a section of his most recent encyclical letter dealing with social issues, and specifically focusing on international human development and systemic failures of bodies large and small to solve development problems.

Further, according to KEI,

While Papal Encyclicals do not determine official doctrine for the Church, they do offer a chance to annunciate the personal thoughts of the Pope and encourage specific priorities that the Pope wishes to set for the Church. Encyclicals such as the Caritas in Veritate are traditionally addressed to church heads, and not to the laiety at large (though the current one seems to be an exception, and all are made available publicly). They are the second most important statement that can be issued by the Pope (after an Apostolic Constitution, which proclaims dogma and/or issues of canon law).

Here's the gist of the Encyclical:

22. Today the picture of development has many overlapping layers. The actors and the causes in both underdevelopment and development are manifold, the faults and the merits are differentiated. This fact should prompt us to liberate ourselves from ideologies, which often oversimplify reality in artificial ways, and it should lead us to examine objectively the full human dimension of the problems. As John Paul II has already observed, the demarcation line between rich and poor countries is no longer as clear as it was at the time of Populorum Progressio[55]. The world’s wealth is growing in absolute terms, but inequalities are on the increase. In rich countries, new sectors of society are succumbing to poverty and new forms of poverty are emerging. In poorer areas some groups enjoy a sort of “superdevelopment” of a wasteful and consumerist kind which forms an unacceptable contrast with the ongoing situations of dehumanizing deprivation. “The scandal of glaring inequalities”[56] continues. Corruption and illegality are unfortunately evident in the conduct of the economic and political class in rich countries, both old and new, as well as in poor ones. Among those who sometimes fail to respect the human rights of workers are large multinational companies as well as local producers. International aid has often been diverted from its proper ends, through irresponsible actions both within the chain of donors and within that of the beneficiaries. Similarly, in the context of immaterial or cultural causes of development and underdevelopment, we find these same patterns of responsibility reproduced. On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care. At the same time, in some poor countries, cultural models and social norms of behaviour persist which hinder the process of development.

Here's the original document CARITAS IN VERITATE from the Vatican. Note that it is "© Copyright 2009 - Libreria Editrice Vaticana"

HK

PS - Contrast the above with the Knights of Columbus position on "piracy" as a violation of the seventh commandment.

Canada Finally Guilty As Charged?

As we await in intense suspense the "Special 301" report from Washington, it is perhaps time for Canada to confess to its past piracy peccadilloes.

The NY Times has a dramatic exposé of Canadian piracy, counterfeiting, intermediary liability and cross border illicit commerce and piracy that has devastated the American music publishing industry by 50%. The American music publishers were sufficiently concerned that they held a three day conference about this "last week."

The thing is that "last week" was the first week or so of June, 1897. The technology involved was newspapers, the post office, classified ads and sheet music.

Here's the link to the NY Times story. See also below.

So, if the USTR can't come up with any current hard evidence for the "Special 301" blast we are expecting momentarily, or as a basis to check iPods and laptops and invade ISPs under ACTA, they can at say that Canada's piracy goes back at least to the 19th century.

Then, there are those who say that:

"The first American "pirate" was probably Benjamin Franklin (1706-90), who was, among other things, a Philadelphia printer who re-published the works of British authors in the eighteenth century without seeking their permission or offering remuneration."

The moral of the story may be that sometimes, maybe, you can step in the same river twice.

Or, that this is a new take on a "blast from the past."

HT to Cory and MG.

HK

Reefer Madness 2008

Here's about two minutes of a leaked RIAA training video. It's too over the top to have been spoofied. According to its host, www.gizmodo.com :

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!

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."

Nobody condones commercial piracy - but linking illicit CDs to serious drug trafficking, gun crimes, murder and terrorism may be a trifle hyperbolic.

Those of us of certain age may recall a not so great American film called Reefer Madness.

HK

"ACTA" - a New Plurilateral Policy Platform

A potentially important announcement from Washington, Brussels (EU), and Ottawa (and doubtless elsewhere) today re a proposed Anti-Counterfeiting Trade Agreement - “ACTA.”

According to US Ambassador Schwab:

The ACTA would complement the Administration’s work to encourage other countries to meet the enforcement standards of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organization, and to comply with other international IPR agreements. It will not involve any changes to the TRIPS Agreement. Rather, the goal is to set a new, higher benchmark for enforcement that countries can join on a voluntary basis. The negotiations represent a cooperative effort by the governments involved, and will not be conducted as part of any international organization.

The list of currently interested countries read a bit like preaching to the choir:

[US] Trading partners engaged in discussions so far include Canada, the European Union (with its 27 Member States), Japan, Korea, Mexico, New Zealand, and Switzerland.

Most of these countries have adequate and effective levels of substantive law and enforcement mechanisms.

So - these questions arise:

• What’s this really about?
• Will the US “insist” on ratcheting up substantive law - for example by defining downloading, “making available” and DRM/TPM circumvention as “piracy”?
• Will the US and EU insist that all countries have a common copyright term - for the sake of better and more symmetrical “enforcement”?
• Will legitimate parallel imports get caught, like dolphins in a drift net?
• Where are WIPO and WTO in this?
• Is this an exercise in plurilateral policy laundering?

There is clearly potential for positive developments here. Indeed, counterfeiting involving trade-marks is morally, economically and even criminally wrong - especially in the thankfully rare cases when health and safety are involved. Commercial scale copyright piracy is also quite wrong - although certain elements in the record industry apply the word “piracy” rather promiscuously to include all manner of private copying that they cannot control - thereby labelling hundreds of millions of ordinary internet users as “pirates.”

But some rights owner lobbyists and sympathetic officials have a tendency to conflate “effective action” on enforcement issues with substantive law augmentation. We saw an example of this in the Grokster case in the US Supreme Court, and I was asked to write an “amicus” brief on it.

What we don’t want to see are excessive barriers to the flow of legitimate goods, including parallel imports - which are legitimate by definition. There is a danger that customs officers and even lawyers won’t be sure of the difference in some cases. If that happens, millions of dollars of legitimate goods may get tied up or cost more to clear at a border. And we don’t want to see a backdoor mechanism to increase substantive laws in ways that threaten Canadian cultural and economic sovereignty.

And we don’t want to see a good cause become the pretext for bad laws. Think 9/11. The Bush administration has tried to brand many critics of its excessive post 9/11 incursions on civil liberties as soft on terrorism. And we have seen the results ranging from common inconvenience at the boarder to tragedy. Will critics of potentially excessive ACTA measures be labelled as proponents of counterfeiting and piracy, and enemies of artists and creators?

There are also the dangers of a plurilateral policy platform dominated by the US and to a lesser extent the EU - especially since the often too low but at least established minimal institutional transparency of WTO and WIPO won’t be there. We may get a fait accompli that Parliament will be asked - or told - to implement. Or some would say “rubber stamp.” That’s how policy laundering happens - things that couldn’t get of the ground domestically are agreed upon far away by a few senior bureaucrats and politicians - and are brought home effectively as domestic law. All democratic countries should be worried about this.

BTW, here's a rather balanced British view from one of my favourite felines, the IPKat.

And here's a take from IP-Watch on the formidable forces pushing this initiative including Mary Bono - who famously told Congress that:

Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. … As you know, there is also [Motion Picture Association of America president] Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.

This may provide a clue as to where these talks may be headed...

Update: Here's Minister David Emerson jumping on the bandwagon.

HK