The Canadian Legal Information Institute has announced the first results from an important new project dubbed ScanLII.
It appears that ScanLII will attempt to the fill the very large gaps in
the freely available Supreme Court jurisprudence online. They've
scanned 200 decisions dating back to 1976 with more to come.TagsShareTuesday February 28, 2006
If you have been following the debate over Internet governance over the
past few years, you know that while ICANN supporters (U.S., Canadian,
Australian governments; business lobby) and critics (developing world
and occasionally Europe) argue over the optimal approach, particularly
with respect to government involvement in the domain name system, the
reality has been that possession is all. The U.S. government retains
ultimate control over the system and thus the debate is somewhat
academic. In assessing the outcome at the World Summit on the
Information Society last fall, I argued that:
"the U.S. simply had a very strong hand and played it well. Changes to
the governance structure ultimately requires U.S. agreement since
possession is even more than the proverbial 9/10th of the law. The
U.S. had loudly indicated that it was not prepared to make
concessions. During the negotiations at the PrepCom it adopted a very
hard line - even raising the prospect of pulling back on ccTLD
sovereignty or turning over the Internet Governance Forum to a private
sector group like ISOC. Without a credible threat (the threat being
the creation of alternate root), the U.S. was able to maintain its
position and ultimately force everyone else to deal."
The alternate root has always lurked in the background as a possibility
that would force everyone to rethink their positions since it would
enable a single country (or group of countries) to effectively pack up
their bags and start a new game. The U.S. control would accordingly
prove illusory since a new domain name system situated elsewhere would
be subject to its own rules. While the two could theoretically
co-exist by having ISPs simply recognize both roots, the system could
"break" if both roots contained identical extensions. In other words,
one root can have dot-com and other other can have dot-corp, but they
can't both have dot-com.
It is with that background in mind that people need to think about a press release
issued yesterday in China announcing a revamping of its Internet domain
name system. Starting tomorrow, China's Ministry of Information
Industry plans to begin offering four
country-code domains. In addition to the dot-cn country code domain,
three new Chinese character domains are on the way: dot-China, dot-net, and dot-com. As the People's Daily Online notes this "means Internet users don't have to surf the Web via the servers
under the management of the Internet Corporation for Assigned Names and
Numbers (ICANN) of the United States."Read More ...
TagsShareTuesday February 28, 2006
In other words, the Chinese Internet becomes a reality tomorrow. With
it, the rules of the game may change as 110 million Internet users will
suddenly have access to a competing dot-com (albeit in a different
character set) and will no longer rely exclusively on ICANN for the
resolution of Internet domain name queries. This change was probably
inevitable regardless of the status of ICANN, however, the U.S.
position can't possibly have helped matters. Indeed, some might note
that while Congress has been criticizing U.S. companies for harming Internet freedoms by cooperating
with Chinese law enforcement,
those same Congressional leaders may have done the same by refusing to
even consider surrendering some control over the Internet root to the
international community and thereby opening the door to an alternate
root that could prove even worse from a freedom perspective.
This week's announcement certainly doesn't mark the end of a global
interoperable Internet. It does move one step further toward that path
since in Internet governance terms, the credible threat is now real.
Update: The China story generated significant attention with media coverage from the Boston Globe
, Globe and Mail
, and the Computer Business Review Online
The stories and blog commentary raise several issues. First, these
Chinese IDNs have in place for sometime, though this marks the shift
from "experimental" to full-fledged domains. Second, this will not
immediately impact the rest of the world in the sense that Canadians
will still find that their web queries or email resolves properly.
That is likely the case for China as well (leaving aside censorship
limitations), however, this opens the door to a shift in the future
where the national Chinese root is sole root available in the country.
Third, some have argued that this isn't strictly a new root but rather
an appendage to the dot-cn. While it isn't clear from all the coverage
what is happening technically, there is no disagreement that the
Chinese government has managed to create a series of new TLDs that will
resolve within a country of 110 million Internet users and ICANN had no
role to play in the process. In my view, that is the credible threat.
While I didn't watch the full hearing, it seems to me that the
Rothstein hearing was much ado about nothing. I don't think that
Canadians now have a better sense of Justice Rothstein. To do that, they
need to read his judgments and speeches, which are far more revealing
than anything he said today (and, btw, how is that Justice Rothstein
can speak candidly about past cases such as the Harvard Mouse decision when he visits Oxford but refuses
to say anything before a parliamentary committee?).TagsShareMonday February 27, 2006
My weekly Law Bytes column (Toronto Star version, homepage version) examines new Canadian Supreme Court nominee Mr. Justice Marshall Rothstein, whose lengthy record on patent, copyright, and trademark matters suggests that he may very well challenge the status quo at Canada' s highest court. The column uncovers several speeches by Justice Rothstein that reveal a candid judge who is uncomfortable with incorporating policy into the legal decision making process, who is willing to examine intellectual property laws of other jurisdictions, and who recognizes the limits of intellectual property law.
Justice Rothstein, who appears before a House of Commons committee today, has emerged as a prominent jurist on intellectual property cases at the Federal Court of Appeal. His best-known decision is the Harvard Mouse case, which addressed the question of whether higher life forms, in this case the "oncomouse", could be patented. Justice Rothstein ruled that it could, concluding that there was nothing in the definition of "invention" under the Patent Act to preclude such patents.
Justice Rothstein has also presided over leading copyright and trademark cases. He wrote a concurring opinion in Law Society of Upper Canada v. CCH Canadian, a copyright case that focused on the photocopying of legal decisions. He sided with the majority in a high-profile trademark battle between Lego and Montreal-based Mega Blocks.Read More ...
TagsShareMonday February 27, 2006
Justice Rothstein has been particularly outspoken about the Harvard Mouse decision. In a July 2003 speech at Oxford University, he criticized the Supreme Court's majority decision, which he characterized as featuring a "hesitancy in writing style" which he attributed to the view that "they seem uncomfortable with the result of patenting the oncomouse and they are trying to find reasons to avoid that result." (In hand written notes added to the original text, Rothstein acknowledged that the critique might seem indiscrete but his "inclination to be indiscrete increases in direct proportion to the distance from Canada.")
In another speech a year earlier at the University of Victoria, Justice Rothstein assessed the arguments against his opinion favouring the patenting higher life forms, including fears that patenting encourages the development of genetically modified animals, that we should not commercialize life forms, and that it is not ethically responsible for a court to treat life forms in the same manner as inanimate objects.
In response, Justice Rothstein revealed a judicial philosophy that could impact future intellectual property law cases. While acknowledging the broad moral and social implications of the case, he argued that these are policy issues "for Parliament and not the Court."
Justice Rothstein used the same University of Victoria speech to reflect on the role of global intellectual property laws. He indicated that the patent laws of other jurisdictions (many others had already approved the patenting of the Harvard Mouse) did not factor in his decision, though he opined that "there is a rationale for. . . uniformity where there is no statutory reason against it." In other words, so long as the law does not preclude it, harmonizing Canadian law with the approaches of other countries may be desirable.
Justice Rothstein has also commented on the limits of intellectual property law. In a September 2003 speech to a patent law association in Oregon, he discussed the Lego trademark case in which the toy-maker sought to use trademark law to extend protection over its famous building blocks after its patent rights had expired.
Foreshadowing future reasoning from the Supreme Court of Canada, Justice Rothstein concluded that "I don't think that intellectual property rights are to be interpreted that way. Patents are granted for a limited time. It would defeat that limitation to be able to convert patent protection for a limited period to trademark protection in perpetuity."
The Copyright Board of Canada last week released its proposed tariff for 2007 for the private copying levy. The numbers remain unchanged: 21 cents per CD-R. As prices have dropped, however, the levy now frequently comprises a significant percentage of the retail price. Consider the purchase of 100 blank Maxell CDs. Future Shop retails the 100 CDs for $69.99. The breakdown of this sale is $48.99 for the CDs and $21.00 for the levy (even worse is a current Future Shop deal of 200 blank CD-Rs from HP, which retails for $59.99. The levy alone on this sale is $42.00 (200 CDs x 21 cents/CD) which leaves the consumers paying $17.99 for the CDs and $42.00 for the levy).
This results in a huge distortion in retail pricing when compared to the U.S. market which does not have a levy system. For example, the same Maxell CDs retail for US$34.99 at CompUSA. When you add in the exchange differential, the Canadian cost is just over $40.00. Obviously the price is slightly lower in the US even without the levy (35 cents per CD vs. 40 cents per CD). With the levy, the price increases by another 50 percent.
Given how little Canadians get for their money (the private copying right doesn't cover copying CDs to Apple iPods) is it any wonder that countries such as Australia are considering allowing for such private copying without a levy scheme? The solution in Canada is obvious: either ensure that the levy covers the full panoply of private copying as is the case in France or drop the levy altogether and institute a fair use user right.TagsShareMonday February 27, 2006
On the heels of last week's discussion over LSAT fingerprinting, Alberta Privacy Commissioner has released a lengthy report
on the privacy implications of data outsourcing by public bodies. The
report recommends ensuring that a public body has a template or check
list in place to ensure that an outsource provider has proper
contractual and administrative mechanisms in place for the protection
of information. It also recommends that public bodies should consider a
provider's physical location as a factor.TagsShareMonday February 27, 2006
The Globe and Mail is reporting
that the Telecom Policy Review panel may recommend creating a fourth
wireless carrier in order to stimulate competition. Not surprisingly,
the established players say it is completely unnecessary. Number
portability would be another way to stimulate competition as would
greater attention to the broadband market given the move toward a
two-tiered Internet.TagsShareMonday February 27, 2006
The TTC stands for the Toronto Transit Commission but Talk To Counsel might be more appropriate after it sent a cease and desist letter to a blogger who posted an anagram version of the transit map. As Rob Hyndman says "Incomprehensible. Just incomprehensible."TagsShareMonday February 27, 2006
With credit to Rob Hyndman's terrific blog
for the inspiration, I've redesigned MichaelGeist.ca to do a better job
with standards compliance and to allow for shorter takes and easier
navigation. Please bear with the inevitable bugs. Feedback welcome.TagsShareMonday February 27, 2006
In 2003, CRIA and others associated with the music industry launched a high profile "education" campaign on music and copyright. Titled Keep Music Coming, the campaign centered around a website at keepmusiccoming.com, supported by national advertising and inserts in CDs (archive.org version).
Today I received an email from someone who just purchased a CD which included an insert directing him to the campaign site. He was surprised to find that keepmusiccoming.com is no longer maintained by the industry as it has become a pay-per-click advertising site. The domain lapsed earlier this week with no indication whether this was a domain name registration error or if the campaign has been abandoned. Either way, music is still coming nearly three years after the campaign launch as a growing number of labels and artists want to respect their fans, not "educate" them.Read More ...
TagsShareSunday February 26, 2006