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Michael Geist's Blog

New Yahoo Case Raises Old Questions

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 and disclaimers."

Ironically, the real problem with the expert evidence is not its degree of accuracy, but rather that it is now woefully out-of-date.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.
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Lessons Learned

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.

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Fighting for the Right to Fund Politicians

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."

Pfohl's response:

"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.
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5722 Votes

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.

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Confirming the Copyright Gap

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.

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Balanced Meal Review

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!

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The Sam Bulte Podcast

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."

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A Balanced Meal

Online Rights Canada has just announced that it will be holding a bash of its own on Thursday night at the Drake Hotel (invitation here) in Toronto. As the notice indicates, the event is strictly non-partisan and will provide people with the opportunity to learn more about balanced copyright reform.  My guess is that many concerned with creators will find this event far more accessible than the $250 hosted fundraiser celebration being held at the same time. 

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It's a Celebration

I know I've said this before, but the Sam Bulte issue continues to resonate, with articles this week in Macleans and the National Post (behind a paywall).  Moreover, constituents are still raising the issue with Bulte at all-candidates meetings.  The Toronto Star reports on last night's meeting, where the fundraiser concern popped up yet again. 

Bulte's response is interesting since it suggests that she's now searching for another basis for justifying Thursday's event.  Last week she argued that the fundraiser was merely being hosted (rather than sponsored) by the entertainment industry lobby groups.  Now, despite clearly labelling the event as a fundraiser on her own website, she's arguing it isn't a fundraiser at all.  Instead, in response to the question "How can we count on you to carry on. . . impartially when you are taking money from special interest groups?", the Star reports that Bulte responded:

"They are not hosting a fundraiser for me. It's a celebration of my support for the arts community."

Uh huh.  A cynic might say that it doesn't really matter what Bulte calls the $250 per person event (the invitation states that "all funds raised will go to Sam's re-election campaign"), since if the current polls are to be believed, it may ultimately be characterized as a farewell party.

Update:  The excellent National Post article is now online.

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Yet Another Reason for Fair Use

The Liberal Party has provided a helpful reminder about why we need a fair use right under Canadian copyright law.  The Liberals have called on the Conservatives to withdraw an advertisement titled Even Liberals (currently the top link at the video portion of the party's site) because of copyright infringement.  The ad features about a two second clip of Paul Martin at a CBC town hall meeting.  The Liberals argue that the use of the clip infringes CBC's copyright and that the Conservatives did not obtain the broadcaster's permission.

Leaving aside the surprise that the Liberals are concerned with an alleged infringement of someone else's copyright, the claim (which the Conservatives dispute) highlights why we need a fair use right in Canada.  If the CBC challenged them for failing to obtain prior permission, I think the Conservatives could try to raise fair dealing defences for the use of the short clip based on criticism and news reporting.  That said, the notion that there should be legal uncertainty about the use of a tiny clip of a town hall meeting during an election is simply bad policy.  It is unfortunate that copyright is being used here to chill political speech, rather than to meet the law's twin purposes of creator and user rights.  When copyright law is used to do that, the appropriate response is not to change the commercial.  The right response is to change the law.
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