Several Canwest papers run a story this morning (Montreal Gazette, Edmonton Journal)
on the move toward a two-tiered Internet in Canada. I'm quoted expressing
concern, but the most important part of the story comes from Telus,
which not only confirms the move toward tieried pricing ("The industry
has to move toward different charges for Internet customers with
diverse needs"), but for the first time acknowledges that the company
is considering matching the BellSouth approach of charging websites for
access to their network ("The company is also thinking about charging
large firms such as Google
or eBay for access to its network, something that Bell South and
AT&T are also proposing in the United States.")
Interestingly, the Toronto Star has a story
today featuring an interview with CRTC Commissioner Kevin French who
notes the concern with the two-tiered Internet but says "We're aware of
the problem and believe we have the legal equipment to
deal with it, but we don't have a case in front of us. Somebody has to
file a complaint."
There is no need to wait. With the Canadian telcos on record stating
that this is where they are headed, the time for the CRTC and Competition Bureau to act is now.TagsShareMonday January 30, 2006
My weekly Law Bytes column (Toronto Star version, freely available version, BBC version)
examines the U.S. Department of Justice's demand for search data from
the world's leading search engines. I argue that while much of the
focus has been on the privacy implications of the USDOJ request, the
story highlights a much bigger issue - the significant risks and
rewards that arise from retaining enormous amounts of data.
The authorities' initial data request was stunning for its sheer
breadth. The USDOJ requested all web addresses (URLs) contained in the
Google database as well as a record of "all queries that have been
entered into your company' s search engine between June 1, 2005 and July
31, 2005." In other words, it wanted a list chronicling every website
in Google database along with literally every search request over a
two-month period. When it faced resistance, the USDOJ agreed to a
narrower request that included a random sample of one million web
addresses as well as a list of every search string during a one-week
Although none of this data relates to a specific individual - it covers
hundreds of millions of Internet users - the request has still produced
a chilling effect as many begin to question whether search requests
thought to be anonymous could ultimately be tracked back to them.
In a broader context, the demand also highlights the growing challenge
associated with data retention. All companies, particularly those
operating online, recognize the value of retaining information about
their users. Some information is essential to providing customer
service, while other data can be used to provide users with a
customized experience by eliminating the need to re-enter passwords,
automatically posting relevant content, or sending permission-based
email marketing that accurately reflects the users' interests. The
value of information extends beyond personal data. Once aggregated,
retailers can spot trends among demographic groups, ISPs can gauge
usage patterns, and search engines can identify what is on the minds of
the world' s Internet users.
Given its value, it comes as little surprise to find that companies
retain such data for lengthy periods, using sophisticated data mining
technologies to analyze the information. While these previous examples
illustrate the rewards of data retention (which benefit both companies
and their customers), significant risks also exist.
The same data can be mined for purposes that extend far beyond the
reasons for which it was initially provided. The Google case provides
a classic illustration in this regard as mere search terms take on a
new significance in the hands of Department of Justice lawyers. Some
data is not consciously provided at all - it is simply gathered
automatically with little thought given to its potential uses. For
example, private parties may demand ISP server logs that are generated
automatically to assist with new defamation or copyright lawsuits. One
of the biggest risks associated with data retention comes not from
requests that proceed through the legal system, but from security
vulnerabilities that puts sensitive data into the hands of hackers.
Last year, more than 50 million people in North America received
notifications that their personal information had been placed at risk
due to a security breach.
While Canadian privacy law establishes general obligations on data
retention and destruction, there are few clear legal obligations to
either retain or destroy information. In light of recent events, it is
time to search for some solutions. TagsShareMonday January 30, 2006
Nettwerk Music Group, Canada's leading privately owned record label (and a label that refuses to use copy-controls), has taken the remarkable step of joining the fight against the RIAA's strategy of lawsuits against alleged file sharers. The company, which represents some of Canada's top artists including Sarah McLachlan, Avril Lavigne, and Barenaked Ladies, has intervened in a lawsuit against a Texas teenager. The RIAA claimed thousands in damages based on alleged downloads, including Avril Lavigne's "Sk8er Boi."
Nettwerk CEO Terry McBride says in response:
"Suing music fans is not the solution, it's the problem. Litigation is not 'artist development.' Litigation is a deterrent to creativity and passion and it is hurting the business I love. The current actions of the RIAA are not in my artists' best interests."
Nettwerk Music Group has agreed to pay the total expense of all legal fees as well as any fines should the family lose the case against the RIAA.
Update: So "wow" isn't particularly analytical and I think this calls for a bit more. Bob Lefsetz, of the Lefsetz Letter, comments this morning that this may be the beginning of the end of the RIAA suits. Perhaps, though the cracks in the recording industry strategy can be seen with IFPI's recent acknowledgment that file sharing usage is largely unchanged over the past two years despite more than 20,000 suits along with the growing number of Canadian artists, including Matthew Good, Steve Paige of the Barenaked Ladies, and Jane Siberry, who are speaking out against the suits or seeking alternative approaches.
While I think this is a good thing, better would be the prospect of shifting the dynamics of two important debates. At the moment, copyright reform is often treated as synonymous with addressing file sharing (ie. see the Toronto Star response to the Bulte piece last weekend). This has been one of the most unfortunate side effects of file sharing as a meaningful debate on the future of music in Canada as well as the best path for copyright reform is lost amid the cries of sharing, stealing, and private copying.
We need a real discussion of music in Canada that goes beyond file sharing to include private copying, fair use, the limits on the use of DRM, the transparency of collectives, canadian content requirements in the Internet era, and support for the artists. It is a debate that must include the independent labels who are responsible for 90 percent of new Canadian music, the artists from all perspectives, and user interests. It is a debate that is about much more than file sharing.
We also need a real discussion of about copyright reform that goes beyond file sharing to include using new technologies in our schools, encouraging new creativity, as well as protecting privacy and security. It is a debate that would look to the recent Google cache decision in the United States and question whether we would get the same result in Canada. It is a debate that would look at crown copyright, statutory damages, and fair use.
If we begin to get these debates, Nettwerk's move won't be the beginning of the end. It will be the beginning of something much bigger.
Update II: The mainstream media in Canada is starting to pick up on this story with articles in the Toronto Star, Canada.com, and the CBC.
TagsShareThursday January 26, 2006
My weekly Law Bytes column (Toronto Star version, freely available version, BBC International version) examines the recent 9th Circuit Court of Appeals Yahoo decision involving the long-running battle over Internet jurisdiction.
I argue that while the legal and jurisdictional implications are
important, the Internet considerations highlight the complexity
associated with the online world and geographic borders. For the
majority of the court, the combination of the expert panel evidence and
the decision by the French court to limit its restrictions to French
users yielded the view that offline geographic borders can be applied
to the Internet.
The dissenting judges presented a much different view of the Internet,
concluding that the impact of the order could not be confined solely to
France. Moreover, they were skeptical of the expert panel' s evidence,
deriding it as being "replete with hearsay, technological assumptions
Ironically, the real problem with the expert evidence is not its degree
of accuracy, but rather that it is now woefully out-of-date. There
have been significant advances in Internet geolocation technologies,
such that Internet sites can identify with increasing accuracy the
offline location of their online users.
The Yahoo! France case resulted in nearly six years of litigation,
numerous legal briefs, and much hand wringing from the Internet
community. Despite its notoriety, it would appear that the courts
remains as conflicted as ever as they seek to reconcile the challenges
of law, borders and the Internet.TagsShareWednesday January 25, 2006
The Bulte story is generating considerable media attention today (Canadian Press, Globeandmail.com, IT Business) as the "bloggers influence the election" angle is an attractive one. This obviously continues the theme from last week when Macleans, Toronto Star, National Post, and Globe and Mail all discussed the same issue (as did Rob Hyndman in an excellent post). While the blogger issue should be highlighted, we should not lose sight of the substance behind the Bulte story.
Examining the role of blogs is unquestionably interesting and important. It is difficult to quantify, but I'm fairly confident that the online community had a real impact in Parkdale High-Park (although I again hasten to add that without a strong candidate running against Bulte this definitely would not have happened). The voting shift was fairly significant given that this was a rematch of the 2004 election and no other Toronto riding in similar circumstances experienced quite as dramatic a move toward the NDP. This suggests that some new - potentially the copyright issue - played a role.
Moreover, from a distance it appeared that the copyright questions had an impact on Bulte's effectiveness on the campaign trail. When she first faced the issue, she focused on transparency and characterized my claims as "egregious." I have the sense that it went downhill from there as she soon jumped to the infamous "pro-user zealot" remark, the claim that it wasn't a fundraiser, the threat to sue, and then finally last night strangely responding to her defeat by stating that she "had no thoughts", she didn't care about a minority government, and that "according to everybody, I did nothing."
I should also note that the way the story spread through the blogosphere - with high traffic blogs and sites such as BoingBoing, Larry Lessig, and Bourque; local blogs such as the Accordion Guy and Ross Radar; law blogs such as Rob Hyndman and Copyright Watch; political blogs such as Progressive Bloggers; industry blogs such as Quill and Quire; mainstream media blogs such as Dan Cook (Globe and Mail), Antonia Zerbisias (Toronto Star), Colby Cosh (Macleans), and the CBC's Election Blog; online news sites such as P2Pnet.net and ZDNet; along with dozens of other blogs and chat boards tells us a lot about how stories propagate online. Further, the distribution of video, audio, parodies, bumper stickers, and a petition are all a fascinating part of the Internet story.
But they are not the most important part of the story. More important than the story about blogs, is the substantive lessons to be learned from the past three weeks. Building on a copyrightwatch post that mines the same theme, I offer three:
First, the recent events send a clear message that Canadians want copyright policy (and indeed all policy making) to be both fair and to be seen to be fair. That means accounting for all stakeholders and removing the lobbyist influence from the equation. My article on the role of the lobby groups in the copyright process attracted considerable interest as many people expressed surprise at just how badly the system is broken. It was this message that resonated with many people in the riding who may know little about copyright policy, but can identify a perceived conflict of interest when they see one. Going forward, all parties must work to clean up copyright.
Second, among the most important voices in the debate came from artists such as Matthew Good, Steven Page, and Neil Leyton. As groups such as CRIA were rightly identified as lobbyists who represent predominantly foreign interests, Canadian artists and Canadian interests began to speak up. If (or more likely when) a new copyright bill comes to committee, it will be incumbent on Canada's politicians to hear not only from the lobby groups, but also from the creators and users, many of whom are singing a much different tune from the lobbyists.
Third, this could have been about any issue, but it wasn't. It was about copyright. Copyright is often described as a fringe issue, yet to millions of Canadians it has an enormous impact on their daily lives, affecting education, culture, creativity, the use of personal property, privacy, and security. Labeling those concerned with these issues as pro-user zealots or claiming that this is merely about music downloading is to miss a much bigger story and to fail to connect with a segment of the population.
Six thousand votes, the shift in Parkdale-High Park, may not sound like much, but last night it would have been enough to alter the outcome of 123 ridings across Canada. Politicians should keep that in mind when the copyright issue once again takes centre stage.
Update: Noteworthy takes a closer look at voter turnout in Parkdale-High Park, while the Toronto Star runs a very favourable farewell article to Sam Bulte.
Update II: The Law Times has published another review of the Bulte story that includes some discussion of what may lie ahead.
TagsShareTuesday January 24, 2006
Almost lost amidst the aftermath of yesterday's election is a letter to the editor from CRIA General Counsel Richard Pfohl. It would appear that CRIA wants to fight for more than just U.S. style copyright reform. They also want to fight for the right to provide campaign contributions to politicians who then decide copyright policy. Pfohl responds to an article that appeared on Sunday in the Toronto Star which said "there is, unfortunately, nothing illegal about MPs accepting money from interest groups and then becoming their advocates in Parliament."
"Scowen's proposed political 'solution' - that organizations should be prohibited from fully participating in the democratic process by contributing to candidates - is not only anti-democratic, it's unfair. It would leave Canada's cultural associations hamstrung while file-sharing advocates are unhampered."
Of course, the limitation would not hamstring lobby groups such as CRIA but rather work to level the playing field with those seeking balanced copyright reform. Then again, if their best arguments come in the form of a cheque, then perhaps they would be hamstrung.TagsShareTuesday January 24, 2006
Parkdale-High Park - 190/190 polls reporting
Peggy Nash - 20690
Sam Bulte - 18489
In 2004, Sam Bulte won Parkdale-High Park by 3521 votes. By shifting 5722 votes (more than any Toronto riding), I suspect that the copyright balance and fundraising issue played a role in the outcome. While some will focus on the role of bloggers, the real story here (in addition to a strong NDP candidate and the national decline in Liberal support) is that Canadians, represented in this instance by the voters of Parkdale-High Park, sent a clear message that they are not comfortable with politicians who unapologetically trumpet their links to lobbyists, who promote one-sided copyright policies, and who denigrate those opposed to such views as zealots.
Update: The Toronto Star covers the election results with comments from Sam Bulte while bloggers chime in here, here, here, and here.
TagsShareTuesday January 24, 2006
The Toronto Star today featured a lengthy article by Sam Bulte titled Closing the Copyright Gap which explains her views on copyright reform (unfortunately the article is not currently online). The article makes the arguments that observers of this issue would expect: WIPO ratification is good, Canadian digital businesses are being hurt by the current framework, downloading is a major problem, and opponents of WIPO treaties "employ hyperbole and ad hominem attacks to get their message out" (sort of like Bulte's comments in the all-candidates meetings or a release she posted last week that included a blatant lie from Margaret Atwood who criticizes "so-called newspaper columnists funded as lobbyists by foreign concerns", but I digress).
In my view, the article provides perhaps the clearest demonstration of what critics of Ms. Bulte's fundraiser have argued. Not that Bulte's copyright policies are not in the best interests of Canada (which they are not), but rather that she is too closely aligned with groups from whom she accepts campaign contributions. In this case, the Bulte article is little more than a rehash of claims made in an assortment of CRIA press releases, speeches, and editorials.
While it is too much to go through each paragraph, allow me to cite just a few examples. First, Bulte spends several paragraphs on the need to ratify WIPO and argues that the Supreme Court of Canada has lamented our failure to do so. This is nonsense - the Supreme Court has actually focused on the need for balance in copyright - but that didn't stop CRIA from making these same arguments in a July 2004 release.
Second, Bulte then argues that the absence of the treaties has hamstrung Canadian digital music services. Bulte says:
"While U.S. online music ventures, such as iTunes and Napsters, are prospering because of the certainty of modern copyright laws there, Canada's legal digital music services have suffered without similar legislation. On a per capita basis, Canadian legal downloads should be the equivalent of roughly 10 percent of U.S. sales. Given Canada's relatively higher broadband penetration, the figure could be even higher. However, lacking the same legal supports, Canadians have downloaded only two percent of the amount south of the border. Why? The OECD reported in June 2005 that Canada has the dubious distinction of having the highest rate of unauthorized file sharing in the world."
If the comments sound familiar, consider what CRIA said in a September 5, 2005 release (for my rebuttal back in September see CRIA and Kazaa):
"In other countries, legal music downloading services are thriving, with legions of consumers attracted by the convenience, selection and high quality that are provided. By contrast, Canada's legal digital music sales continue to be hamstrung by antiquated copyright laws and widespread Internet piracy. Digital sales in this country run at one-half of one percent of US levels, but should be in the 12 to 15 percent range given relative broadband penetration in the two countries. An Organization for Economic Co-operation and Development (OECD) report released in June of this year found that Canada has the highest per capita rate of unauthorized file-swapping in the world."
Third, Bulte then focuses on software piracy, arguing:
"Currently, 36 percent of all software used in this country pirated according to IDC, far greater than in the UK or the US (each at 27 percent). By not properly protecting copyright-related sectors, we place Canada's economic growth at risk. According to IDC, introducing tougher copyright legislation that resulted in a 10 percent cut to the piracy rate would create 14,000 new jobs, $8.1 billion in new economic growth"
This is what Graham Henderson, President of CRIA wrote in the Ottawa Citizen on January 9, 2006:
"Due to Canada's outdated copyright laws, theft of software is higher in this country (36 per cent of sales) than in our closest trading partners, such as the United Kingdom or the United States (both 27 per cent). Reducing theft by 10 percentage points would create 14,000 new jobs and yield $8.1 billion in economic growth"
Fourth, Bulte then searches for data on the importance of the copyright industries and states:
"In 2000, the gross domestic product (GDP) of our copyright-related sectors was $65.9 billion, accounting for 7.4 per cent of Canadian GDP. These sectors were growing at an average annual rate of 6.6 percent; double that of the rest of the Canadian economy."
In a speech to the National Press Club on September 29, 2005, Graham Henderson told an audience that included Ms. Bulte that:
"in 2000 the gross domestic product (GDP) of our copyright-related sectors was $65.9 billion, accounting for 7.4% of Canadian GDP. These sectors were growing at an average annual rate of 6.6%; double that of the rest of the Canadian economy."
Fifth, Bulte then cites the December 2005 CRIA-commissioned survey on Canadian views on copyright. That would be the same survey that the Ottawa Citizen ridiculed in an editorial, concluding that "we shouldn't take their surveys too seriously."
I could continue but I trust the point is clear. Citing a series of CRIA studies and editorials doesn't prove Bulte's case. It actually makes the point that critics have been raising for the past three weeks.
TagsShareSunday January 22, 2006
Accordion Guy provides coverage of last night's Online Rights Canada Balanced Meal event at the Drake Hotel in Toronto (plus yet more coverage of the Bulte story in today's Globe and Mail, a piece that I overlooked in National Post from earlier this week, and don't miss the comments from Steven Page of the Barenaked Ladies). Several other accounts confirm that it was standing room only and that everyone was a bit bemused by the amount of security on hand. I was not there, so in light of recent comments it remains unclear to me whether they were there to protect those in the cafe or those at the fundraiser.
Update: IT Business reports on the Balanced Meal event and Antonio Zerbisias has an interesting piece on blogs and the election that references the Bulte story. Meanwhile, Bulte's "user zealot" remark has led one reader to generate "pro-user zealot" bumper stickers!
TagsShareFriday January 20, 2006
As Sam Bulte gears up for her fundraiser tonight (and Online Rights Canada holds its event at the Drake Hotel at the same time), several people have written to ask whether Sam Bulte really tried to argue that CRIA et al are not hosting a fundraiser for her as was reported in the Toronto Star. It turns out there is an MP3 version of that all-candidates event available for download. The copyright discussion runs from roughly 21:00 - 31:00 and includes a question on copyright policy (which is targeted at Peggy Nash and just happens to come from the co-author of a letter to the editor in today's Toronto Star, the other author of the letter being a Bulte fundraiser co-host) as well as one on the fundraiser.
Bulte's comments on the fundraiser are remarkable because she makes three claims in about 30 seconds that are all subject to challenge. At around 26:00, the questioner raises the fundraiser and expresses concern about Bulte's ability to serve impartially. Bulte responds:
"I am not taking money from special interest groups. As you know, you can look at my returns. All of my election returns are noted, they are transparent. Ninety percent of my donations came from individuals. Ten percent came from organizations or corporations. They are not hosting a fundraiser for me. A fundraiser is being held. Individuals are invited. Everyone is invited. It is self-funding. And yes, there will be artists there. It will be a celebation of my support for the arts community."
Let me address each claim in turn. First, Bulte says she is not taking money from special interest groups. As I documented earlier this month, Bulte has accepted contributions from a long list of copyright associations and collectives, so her claim would only be truthful if she is no longer taking their money. However, given that the leaders of the copyright lobby associations are hosting the fundraiser and providing the entertainment, that does not appear to be a supportable claim.
Second, Bulte says that 90 percent of her donations came from individuals on her last return. This is simply false. Her 2004 riding association return posted on the Elections Canada site shows contributions of $67,737 (the fifth largest total among Ontario Liberals). That amount breaks down as $38,789 from individuals (57 percent), 19,848 from corporations (29 percent), and $9,100 from trade unions (13 percent), which include several copyright collectives.
Third, Bulte indeed stated that "they are not hosting a fundraiser for me." Again, looking at her website and the registration form this does not stand up to even minimal scrutiny.
Update: The Globe and Mail has posted a lengthy article on the fundraiser issue. It notes (as I have) that the fundraiser is lawful yet raises the concerns that many are expressing about the perception that it creates. Apparently Bulte believes that raising this issue is nearing the point of being defamatory, since she again calls me a zealot and says "I am not going to sue him before the election but dammit, watch me after the election."
TagsShareWednesday January 18, 2006