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Michael Geist's Blog

EU To Conduct Full Review of Copyright Directive

News from Europe this morning that the EU is planning a full review of its copyright directive.  The review was to have focused on implementation in member states but now will be a broader evaluation of the directive itself.  In further good news, Professor Bernt Hugenholtz will lead the review.  The doubts associated with the WIPO Internet Treaties continues.
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The Rise of the Clip Culture

My weekly Law Bytes column (homepage version, Toronto Star version, international BBC version) examines the rise of the "clip culture" which has driven the remarkable growth of video sharing sites such as Youtube.com. The column highlights the different types of clips and discusses the legal and business implications that video sharing is beginning to generate. 
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CRIA's Own Study Counters P2P Claims

While CRIA regularly trumpets commissioned studies as evidence for the problems posed by P2P, this week it released a major study without any fanfare whatsoever.  Conducted by Pollara last month, the study serves as part of CRIA's submission to the CRTC's Commercial Radio Review.  What makes this particular study interesting (aside from the fact that it finally includes full details on responses and the actual questions posed), is that much of the data challenges many familiar CRIA claims.

Particularly noteworthy findings in the 144 page study report (appendix one) include:

  • The survey asked for the sources of music on people's computers.  Among those who download music from P2P services, the top source of music was ripping copies of their own CDs (36.4%), followed by P2P downloads (32.6%), paid downloads (20.1%), shared music from friends (8.8%), downloads from artist sites (5.6%), and other sources (2.9%).  In other words, even among those who download music from P2P services, the music acquired on those services account for only one-third of the music on their computers as store-bought CDs remain the single largest source of music for downloaders (page 53).
  • For all the emphasis on the teenage downloaders, it is interesting that the 35 to 44 age group had the largest spread between CDs and P2P as the source of music.  Among that demographic, 31 percent of their music comes from P2P services and 27 percent from ripping their own CDs (page 69).
  • Consistent with many other studies, people who download music from P2P services frequently buy that same music.  The study found that only 25% of respondents said they never bought music after listening to it as a P2P downloaded track.  That obviously leaves nearly 75% as future purchasers, including 21% who have bought music ten times or more.  Note that demographically, the lowest percentage of non-buyers actually belonged to the 13 to 17 year old demographic (page 70).
  • The 13 to 17 year old demographic also happens to be the largest purchasing group of music, buying an average of 11.6 music CDs or DVDs in the past six months.  Close behind are the 18 to 24 age group at 10.9 music CDs or DVDs.  By comparison, the older demographics may not download much music but they don't buy much either.  The 55 - 64 age group bought 4.2 music CDs or DVDs, while the 65 and up age group bought 2.8 music CDs or DVDs (page 92).
  • As for music buying trends, the study also asked whether purchasing patterns had increased or decreased over the previous year.  The data was inconclusive with 28% buying more, 35% buying less, and 37% saying they didn't know (page 93).  
  • More interestingly, the survey also asked why people bought less.  Only 10% of respondents cited the availability of music downloads.  Instead, people cited a long list of alternatives that have nothing to do with downloading including price (16%), nothing of interest (14%), lack of time (13%), collection is big enough (9%), don't buy (7%), listen to radio (7%), change in tastes (6%), no CD player (3%), have an MP3 player (2%), lack of opportunity to buy (2%), watch more tv (2%), age (1%), only buy what I like (1%).  Simply put, P2P simply is not a major factor behind decisions to buy less music (page 95).
In summary, CRIA's own research now concludes that P2P downloading constitutes less than one-third of the music on downloaders' computers, that P2P users frequently try music on P2P services before they buy, that the largest P2P downloader demographic is also the largest music buying demographic, and that reduced purchasing has little to do with the availability of music on P2P services.  I've argued many of these same things, but now you don't have to take my word for it; you can take it from the record labels themselves.

Update:  Howard adds to the coverage of the Pollara report by noting the enormous difference in the response to the question about Canadian copyright law and international standards.  CRIA reported that 72 percent of Canadians favoured meeting international standards in December, while two months later that number declined to 46 percent.  As Howard notes, the difference highlights the lack of reliability of public surveys about complex legal treaties since most people have not taken the time to become fully informed about the issue.  Of course, asking about copyright law and international standards increasingly means more than just WIPO as it may also include the dozens of exceptions contemplated by the Australian parliamentary committee, the mandatory DRM compatibility being considered in France, fair use provisions in the U.S., and the provisions being floated as part of an Access to Knowledge Treaty.

Update II: Pollara has responded to this posting and I've replied with a few comments.

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CIRA's Public Letter to ICANN

Late this afternoon, the Canadian Internet Registration Authority, which manages the dot-ca domain, issued an important public letter to ICANN.  As a CIRA board member for the past five years, I'm particularly proud of this letter as the organization has publicly called on ICANN to follow accountable, transparent, and fair processes.  The public call comes after a number of incidents, the most prominent of which is the ICANN - Verisign agreement, which the ICANN board approved in late February.  The letter sets out the changes that CIRA thinks are needed for ICANN to succeed.  Until ICANN remedies the accountability concerns, CIRA's board has decided to suspend voluntary payments to ICANN as well as any consideration of the Accountability Framework that ICANN has promoted to country-code TLDs.  Moreover, CIRA will not host or be a major sponsor of any ICANN events.

It is an open secret that many in the Internet community are frustrated by the ICANN board's recent actions.  CIRA may be the first ccTLD to take this public action, but I'd be willing to wager that it won't be the last.
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Federal Ct Issues Nearly Million Dollar Fine For Failing to Pay Levy

A federal court judge has fined Vortek Systems, a Montreal-based electronics retailer, nearly one million dollars for failing to pay the private copying levy.  The company was ordered to turn over the unpaid levy amounts ($1.65 million plus interest) along with a penalty of just over $900,000.  Vortek denied that it was selling blank CDs. 

Make no mistake - along with its distortion on the market, the levy's "pennies" (as derided by CRIA) has become big money for the industry which it will fight hard to preserve.
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Commercial Radio Review Comments Roll In

Rob Hyndman has a great posting on the CRTC's Commercial Radio Review. With more than a hundred groups and individuals commenting so far (the overwhelming majority of which are not posted online, at least for now), I get the sense that the May hearings will be pure theatre with each group tripping over the other to claim how they are genuinely threatened by the Internet and new technologies.

Update: I spoke too soon as the CRTC has been busy posting the contributions online.

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Government and Tech, Cont'd

Earlier this week, I wrote an article on the role of government and Internet connectivity.  The NY Times runs a pair of stories today on the South Korean experience with active government involvement in technology.  With the country a world leader in cellphone technology and people able to watch reasonable quality television on their cellphones, they're doing some things right.
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UK Court Rules on ISP Liability

The UK Court, Queen's Bench division issued an important decision on the liability of Internet service providers late last week.  Unlike the U.S., which established statutory immunity for intermediaries where they simply provide the forum for publication, Commonwealth countries such as the UK, Canada, and Australia still rely on common law principles leaving some question about the standard of liability for intermediaries for allegedly defamatory content posted on their sites.

Bunt v. Tilley involved an attempt to hold AOL, Tiscali, and British Telecom liable for allegedly defamatory postings.  The claimant relied on the Godfrey v. Demon Internet case to argue that the court could hold the ISPs liable.  That case has generated concern among ISPs in Canada as it does hold out the prospect for liability.  The court was clearly uncomfortable with that decision, however, issuing a decision that was generally sympathetic to the ISPs.

In particular, the court concluded that "an ISP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law." That is the good news as it provides some comfort to ISPs who can rely on this case to argue that they are not liable for doing nothing more than hosting content.
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Does the Government Have a Role in Internet Connectivity?

My weekly Law Bytes column (Toronto Star version, homepage version) picks up on Toronto Hydro's announcement last week of its plans to blanket the City of Toronto with wireless Internet access. I note that the announcement has sparked an important debate about the appropriate role for governments and public institutions in providing Internet connectivity, which comes on the heels of the CRTC's recent decision to distribute $652 million to major telecommunications providers such as Bell and Telus to help defray the costs of implementing high-speed connectivity in rural Canadian communities.

These developments place the spotlight squarely on a critical question for new Conservative Industry Minister Maxime Bernier - what, if anything, should government do about Internet connectivity?

The starting position for a Conservative government might well be to argue that government has a very limited role to play here, concluding that this is strictly a marketplace issue and that the private sector has plenty of incentives to develop networks for consumer use.

Given the Web's importance, I argue that government cannot adopt a hands-off approach, though it must recognize that its role differs in the urban and rural markets.
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Alberta Introduces Bill to Block Patriot Act Disclosures

The Alberta government last week introduced Bill 20, which is designed to stop compelled disclosures of personal information under the USA Patriot Act.  The bill creates fines of up to $500,000 for violating provincial laws governing disclosure of records.  The fines arise for violation of the following provision:

"A person must not wilfully disclose personal information to which this Act applies pursuant to a subpoena, warrant or order issued or made by a court, person or body having no jurisdiction in Alberta to compel the production of information or pursuant to a rule of court that is not binding in Alberta."

With B.C. and Alberta leading the way on this issue, the pressure for action at the federal level should continue to grow.
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