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The Telecom Policy Review website now features dozens of submissions. My relatively short submission (relative to the 1000 page, 24 MB zipped submission from Bell Canada) is online. So too are submissions from CIPPIC (working with several groups) and all the other usual suspects. Comments on the submissions are due by September 15th. Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday August 16, 2005 |
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My weekly Law Bytes column (freely available hyperlinked version, Toronto Star version) summarizes the key points in my submission to Canada's Telecommunications Policy Review. The submission should be posted online within the next day or two [update: the submission is now online]. I argue that three principles should govern the country's Internet telecommunications policy: universal broadband access, legislated network neutrality, and statutory Internet privacy protection.
On the issue of broadband access, I lament a broadband marketplace that features a telco-cable duopoly for those with broadband access and no broadband whatsoever for communities without cable competition. In my view, the solution to this significant problem is clear -- where cable and telephone providers have proven unable or unwilling to offer commercial broadband services, federal, provincial and local governments should fill the void to ensure that all Canadians enjoy access to e-commerce, distance education opportunities, tele-health, and e-government services. In fact, even in communities with both cable and telco broadband choices, local municipalities should consider offering a third, publicly supported broadband alternative using a utility model.
With regard to network neutrality, I argue that in an era where limited broadband competition and growing convergence leaves providers with economic incentives to favour their own (or affiliated content) over competing services or offerings, content neutrality in the provision of network services is an absolutely essential principle that should be firmly established under Canadian law backed by regulatory oversight and significant penalties for compliance failures. The power of the Internet to foster public participation, provide greater cultural choices, and exposure to educational opportunities rests on a principle of unrestricted access to such content. The Telus incident demonstrated that Canadian law does not provide sufficient support for such a principle.
Moreover, telephone and cable broadband providers should be legally prohibited from configuring their networks to favour or preference their own VoIP offerings over the competition. The treatment of "bits" should be equal and devoid of any preferencing such that emerging competitors can realistically compete with established providers.
With courts recognizing the importance of Internet-based privacy, it is critical that the Canadian legal framework reflect the importance of protecting individual privacy. This can be best achieved by statutorily permitting the disclosure of subscriber personal information only under court order where the privacy interests of the individual can be fully considered and protected. Canadians should also be informed when their personal information has been compromised due to a security breach at an ISP. The Act should therefore include a positive obligation on ISPs to report breaches in the security of personal information in their possession.
I conclude the column by noting that Canada has long prided itself in being a telecommunications leader. That leadership position is being challenged, however, as other countries, recognizing the importance of the Internet, introduce supportive new policies. The Canadian telecommunications policy review may have gone unnoticed, but its recommendations will have a major impact on Canadians access to knowledge, education, and communication for years to come.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday August 15, 2005 |
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Readers of this blog may recall my June response to Graham Henderson of CRIA, who wrote a letter to the editor in which he suggested that I have a "vendetta against the recording industry" and exhibit an attack dog mentality. The Ryerson Review of Journalism has just published an article titled Under Pressure, which examines interest group pressures on the media. The article devotes several paragraphs to CRIA, the Toronto Star, and my column. I think the article speaks for itself. Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday August 10, 2005 |
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Apple Computer today announced that it plans to offer Canadians who purchased iPods subject to the private copying levy a refund of the levy portion of the purchase price (typically $25 per iPod). No word yet on how they plan to do this, but reports suggest that $4 million in levy revenues was generated from iPod sales.
Apple was a big supporter of the legal challenge to the levy, which made for a curious position given that they now celebrate a Canadian law that may render it unlawful for consumers to copy their CDs onto their iPod (then again, purchasers of songs on iTunes can lawfully copy to their iPod so perhaps the position isn't quite so curious).
One remaining question is what is to become of the undistributed money. With $4 million to return, it seems likely that there will be a sizable chunk of change left. I think an ideal plan would be to use the unclaimed money to do what Apple should be doing: using it fund a public interest group to fight for a fair use provision under Canadian copyright law so that all iPod users can use their devices without fear of legal liability.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday August 08, 2005 |
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Following on CRIA's pledge not to sue consumers who copy their CDs onto iPods or computer hard drives, my regular Law Bytes column (freely available hyperlinked version, Toronto Star version) reflects on the recent decision by the Canadian Supreme Court to let stand a ruling that upheld the legality of the Canadian private copying system but rejected an attempt to apply it to digital audio recorders such as the Apple iPod. The column argues that while in theory the private copying system provides consumers with the right to copy and artists with appropriate compensation for that copying, it is time to acknowledge that the system has failed and must be dramatically reformed or scrapped entirely.
In addition to the Supreme Court decision, I note that the Canadian government plans to further constrict the rights enjoyed by consumers under the private copying levy. Bill C-60, Canada's copyright reform bill, includes a provision that allows the music industry to prohibit private copying on CDs that contain anti-copying technologies such as those used on the latest CD from the popular group Coldplay. This provision seemingly contradicts CRIA's pledge in yesterday's Star that it will take no legal action against consumers who legally acquire music and copy it to their hard drives or portable devices.
Should this provision become law, Canadians would pay tens of millions of dollars in levy fees, yet they would be precluded from copying their CDs onto their iPods or, in the case of "copy-controlled" CDs, making any private copies at all.
If that were not bad enough, the millions of dollars collected through the levy does not appear to be making its way to Canadian artists. Although the levy has generated more than $120 million over the past five years, Canadian Private Copying Collective (the administrator of the levy) has only distributed about 25 percent of those funds.
Industry Minister David Emerson and Canadian Heritage Minister Liza Frulla have indicated that the government plans later this year to consult on the future of private copying. With few remaining supporters, even one-time private copying champion CRIA welcomed the Supreme Court decision, change is urgently required.
One approach would be to expand the levy so that it better reflects current copying practices. Using the model of several European countries, the levy would grow in size, but so too would the rights of consumers to copy both audio and video for personal purposes. In fact, such an approach would provide the music industry with multiple revenue streams since it would collect the levy for peer-to-peer music file sharing, while also enjoying the benefits of a thriving commercial download market.
However, given the opposition to the levy system, the better alternative might be to simply drop it completely. In its place, Canada could adopt a "fair use" provision that would allow consumers to copy their own CD collection onto another device along with the elimination of statutory damages provisions for such copying cases. The fair use approach would match the U.S. model, where the recording industry has acknowledged that consumers have the right to copy their own CDs without reference to a private copying levy (and which CRIA seemed to acknowledge in its pledge yesterday).
There is no question that the introduction of the private copying system was intended to provide artists with compensation and consumers with legal certainty. It has done neither. The time has come to replace it with a fair use system that would be more equitable to all Canadians.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday August 08, 2005 |
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Today's Sunday Star contains an important letter to the editor from Graham Henderson, President of the Canadian Recording Industry Association. Responding to concern that the exculsion of the iPod from the private copying system would lead to liability for Canadians who copy their own CDs to their iPods, Henderson pledges on behalf of CRIA and its major member labels to refrain from taking action against such consumers, who he characterizes as the "good guys". The full letter reads:
Recording Industry Won't Target True Fans
Michael Geist has correctly drawn attention to the unintended consquence of last week's Supreme Court of Canada ruling. It places people who legally acquire music and then copy it to their hard drives or portable devices in a legal grey zone. However, on behalf of the Canadian Recording Industry Association and its major label members, I can state that no action will be taken by CRIA against the "good guys." People who legally acquire music are the artists' best friends, and we do not intend to punish them.
This statement is certainly welcome news but raises several issues. First, we should be clear that the SCC decision addresses portable devices, not computer hard drives. The issue of copying to computer hard drives remains an open issue.
Second, while it is great that CRIA and its members have made this commitment, consumers are still not in the clear. Other rights holders in the same songs have not made a similar pledge and there accordingly remains the potential for liability.
Third, CRIA's pledge calls into question its 15 years of lobbying for a private copying regime. If CRIA considers people who buy music and then make personal copies the "good guys", why do we need the private copying system at all (more on this in my column tomorrow)?
Fourth, and most importantly, this pledge has important implications for Bill C-60. The government's copyright reform package makes it an offence to circumvent a technological protection measure for the purposes of copyright infringement. There is one notable exception to this principle: private copying. In other words, someone who circumvents their store-bought CD for the purposes of private copying still commits an infringement under Bill C-60.
CRIA now characterizes this person as one of the "good guys" and has committed to not sue those that legally acquire music and make personal copies to their hard drives or iPods. It stands to reason that this principle should similarly apply to those that circumvent a TPM in order to make such a copy (for example, to copy the new Coldplay CD which contains anti-copying technology). CRIA and consumers appear to be on the same page on this issue, namely that consumers that purchase CDs should have the right to make personal copies to their other devices without fear of legal liability (nor further compensation). I would hope that we will see CRIA call on the government to drop this unnecessary exception to its circumvention package.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareSunday August 07, 2005 |
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A U.S. Appellate court today agreed to a Canadian government request for a re-hearing of the jurisdictional issues that arise from the RIM - NTP patent fight. The Canadian government submitted a rare brief on behalf of RIM in January, arguing that the U.S. court had applied U.S. patent laws in an extra-territorial manner. Such requests are usually dealt with in a matter of weeks. In this instance, the court took roughly eight months to grant a rehearing on the jurisdictional issues. It also issued a revised opinion on the patent fight, concluding that certain claims fell outside U.S. jursidiction, though also upholding the validity of the most of the prior infringement claims.
As I argued last January, it was good to see the Canadian government standing up for the national interest in this dispute since the earlier decision threatened to impact all Canadian companies with ties to the United States. Perhaps the success in this case will encourage the government to take a similarly pro-Canadian position on other IP issues such as copyright policy.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday August 03, 2005 |
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The University of Toronto's important Open Net Initiative has just released a must-read report on the Telus blockage. While the focus of commentary last week was naturally on the lack of accessibility for the Voices for Change website, the report discovered that there were additional 766 websites that shared the same IP address and thus were also caught by the Telus action. The report notes that "these sites included an engineering company; a breast cancer fundraising site; an alternative medicine site based in Australia; and a Colorado based electronic recycling company." As I argued earlier this week, the ramifications from the Telus action will be felt for a long time to come.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday August 02, 2005 |
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The Telus website blockage story may have come to a close last week with the removal of the block, but its ramifications are likely to felt for a long time to come. The NY Times covers the story today and my weekly column (freely available hyperlinked version, Toronto Star version) also assesses the longer term implications.
I argue that Telus violated the basic ISP rule that providers transport bits of data without discrimination, preference, or regard for content. The company argued that its subscriber contract granted it the right to block content, in this case the website supportive of its main union. Telus claimed that the site contained content that placed its employees at risk. While it may have been able to rely on contract to block access for its roughly one million retail subscribers, the blockage occurred at the Internet backbone level, thereby blocking access for other ISPs (and their customers) that use Telus as their provider. For example, Prince Rupert, a small city on the northwest coast of British Columbia, has established a community ISP to provide its citizens with municipally supported Internet access. Since their connectivity is provided by Telus, last week the entire community found itself unable to access the website in question.
Further, while the legal issues associated with the incident are somewhat murky (see related posting), the website blockage was stunningly bad policy that may ultimately come back to haunt the entire Canadian ISP industry. Earlier this year the federal government launched its Telecommunications Policy Review, a comprehensive review of all aspects of the Canadian telecommunications regulatory framework, including the provision and availability of Internet services.
The Telus blockage, combined with ever growing concerns about ISPs that engage in packet preferencing or discrimination against competitive Internet telephony services, as well as doubts about the effectiveness of ISP action against spam, and fears about ISP protection of customer private data in light of potential new law enforcement surveillance requirements, may lead to increasing calls for a new national ISP accountability framework.
I conclude by noting that Canadian ISPs have been supported for many years by a self-regulatory environment premised on network neutrality and non-discrimination of the traffic on their systems. In light of last week's events, they may soon find the federal government stepping in to back this principle with the force of law.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday August 01, 2005 |
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Telus has obtained a court order establishing a number of prohibitions against the Voices for Change website, the site it started blocking nearly a week ago. The order prohibits "the Telecommunications Workers Union(TWU) and its members and anyone else having knowledge of the order from posting for public viewing on any website any photographs or identifying features with the intent of intimidating or threatening TELUS employees, contractors, customers, suppliers and others."
Telus has apparently stopped blocking the site. The big question, of course, is why didn't the company do this in the first place?
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareFriday July 29, 2005 |
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