The Bill
C-11 committee
conducts its final witness hearing on copyright reform today and not a
moment too soon. Based on the demands from music industry witnesses
this week, shutting down the Internet must surely be coming next. The
week started with the Canadian Independent Music Association seeking changes to
the
enabler provision that would create liability risk for social
networking sites, search
engines, blogging platforms, video sites, and many other websites
featuring third party contributions. It also called for a new iPod tax,
an extension in the term
of copyright, a removal of protections for user generated content,
parody, and satire, as well as an unlimited
statutory damage awards and a content takedown system with no court
oversight. CIMA was followed by ADISQ, which wants its own lawful access
approach
that would require Internet providers to disclose subscriber
information without court oversight based on allegations of
infringement (the attack on fair dealing is covered in a separate post).
Yesterday the Canadian Music Publishers Association added to the demand
list by pulling out the SOPA playbook and calling for website blocking
provisions. Implausibly describing the demand as a "technical
amendment", the CMPA argued that Internet providers take an active role
in shaping the Internet traffic on their systems and therefore it wants
to "create a positive obligation for service providers to prevent the
use of their services to infringe copyright by offshore sites." If the
actual wording is as broad as the proposal (the CMPA acknowledged that
it has an alternate, more limited version), this would open the door to
blocking
thousands of legitimate sites. The CMPA admitted that the proposal
bears a similarity to SOPA and PIPA, but argued that it was narrower
than the controversial U.S. bills. While that may technically be true - SOPA
envisioned DNS blocking and targeting advertising and payment networks
- the website blocking provisions look a lot like the legislation
that sparked massive public protest.
The net effect of the music industry demands represents more than a
stunning overhaul of Bill C-11 as it is effectively calling for a
radical reform of the Internet in Canada. Taken together, the proposals
would require Internet providers to block access to foreign sites, take
down content without court oversight, and disclose subscriber
information without a warrant. On top of those demands, the industry
also wants individuals to face unlimited statutory damages and pay a
new iPod tax. It also wants an expanded
enabler provision that is so broadly defined as potentially capture
social networking sites and search engines.
When Bill C-32 was first introduced, Canadian Heritage Minister James
Moore famously characterized opponents as radical
extremists.
As the hearing on the bill nears its conclusion, it has become apparent
that the only radical extremism are music industry proposals that are so over-the-top that they have managed to make the digital lock rules look tame by comparison (which may have been the
intent). For Canadian concerned with copyright and the Internet, this
really is the final call as the bill will go to clause-by-clause review
next week. Tell your MP and members
of the C-11 committee
to reject the industry's extreme demands and to ensure that the bill is
balanced by adding the Canadian Library Association's suggested
technical amendment to digital locks.
The extremist demands on Bill C-11 are not limited to the music
industry's massive overhaul of Canadian copyright reform
that would require Internet providers to block access to foreign sites,
take
down content without court oversight, and disclose subscriber
information without a warrant. Over the past two days, several groups
have also taken aim at fair dealing. While those groups start by
focusing on the extension of fair dealing in Bill C-11 to include
parody, satire, and education, under questioning it becomes clear that
they their real target is the full fair dealing provision and the
desire to undo the Supreme Court of Canada's CCH decision.
On Monday, the Writers' Union of Canada told the committee: Read More ...
We don't really want the six factors
to be written into the act. The court is going to apply the six factors
no matter what. That's what the Supreme Court looks at, how they
analyze it and they've done that for a long time, and recently in the
CCH case, codified it. We are concerned about their treatment of those
six factors because they don't take the market factor very seriously.
We want you to write into the act some sort of language that makes the
market primary, or at least to be a major factor. We would be happy if
you would do only that.
That view was repeated by the Canadian Publishers' Council yesterday:
I think the CCH case was a very
specific case about a very specific kind of content with a very
specific role that the publisher played in that instance. Our concern
with CCH is that it does not make the primacy of the market first and
foremost; in fact, it quite blatantly states that “fair” isn't really
defined by the commercial impact on the work. For us, that's absolutely
antithetical to the notion of copyright: how can it be fair if it
undermines the commercial prospects for the work? We just don't
understand that. That's why we feel CCH does not elevate the
marketplace to the first priority.
As the hearings wind down, the pretense of concern about expanding fair
dealing to education is gradually giving way to the real issue:
overturning the Supreme Court of Canada and its six-factor fair dealing
test. The earlier claims that adding education to the list of fair
dealing categories would open the door to unlimited copying was always demonstrably
false.
The real intent of the opposition is to use Bill C-11 to turn back
the clock on fair dealing, a move that would have an impact on all
Canadians who rely on fair dealing as a crucial part of the copyright
balance. Such a change clearly does not qualify as a "technical
amendment" to the bill, but it isn't stopping the full court press for
the reform.
At a stakeholder meeting yesterday, the U.S. Trade Representative indicated
that Canada would not have a voice in negotiating the Trans Pacific
Partnership. The USTR has adopted the position that late entrants such
as Canada, Japan, and Mexico will have to take the agreement "as is",
potentially including copyright term extension and a rejection of some
of the Bill C-11 provisions.
The "enabler provision" has emerged as one of the major demands by
copyright lobby groups, who want to see significant expansion of the
current provision by including SOPA-style reforms that could target
sites such as Youtube. In fact, the music industry has gone even
further with demands
that could create liability risk for social networking sites, search
engines, blogging platforms, video sites, and many other websites
featuring third party contributions. Jason Kee of the Entertainment
Software Association of Canada argues
that unless the enabler provision is expanded "the provision is
useless." All of these demands come despite the fact that the industry
is using existing law to sue isoHunt
for millions of dollars under current copyright law.
In addition to expanding the provision, the same groups want to add
statutory damages to the mix (the music industry recently argued that
statutory damages should be unlimited).
Yet a June
2010 letter
to SOCAN from Canadian Heritage Minister James Moore's department
indicates it is opposed to the change since it stems from a lack of
understanding about how statutory damages work. The letter
states: Read More ...
This reason for this is that the type
of acts targeted by the enabling provision would often be of a
commercial nature (as evidenced by the nature of the service itself and
the factors for the court's considerations listed under the new
Subsection 27(2.4)). As a result, the scale of statutory damages
infringement for commercial purposes would apply in many cases. This
scale, as defined under the new Subsection 38.1(1) is applied on a "per
work infringed" basis.
However, in establishing a copyright
infringement under Subsection 27(2.3), there is no requirement to prove
specific infringements, but rather only requires that some
infringement(s) occurred as a result of the act of enabling copyright
infringement. As such, there is no specific number of infringed works
that needs to be established. Consequently, it would create serious
difficulties for the application of the enabling provision if a remedy
based on a "per work infringed" basis was available.
It should be remembered that actual
damages, accounting of profits and injunctions are available for a
violation of the new enabling provision. Furthermore, where the actions
of a person are particularly reprehensible, punitive damages may also
be awarded by the courts.
The Canadian Heritage response is instructive for at least three
reasons. First, it points to the fact that the rights holders have
numerous tools within the law to obtain huge financial damages,
particularly if the actual damages are as significant as they claim.
Second, statutory damages do not fit neatly within the framework given
that there may not be a need to prove a large number of actual
infringements. Third - and perhaps most tellingly - it is clear the
department believes that current Canadian law can deal with sites such
as isoHunt given the reference to relying on the present commercial
statutory damages clause instead.
Imagine a scenario in which a country enacts a law that bans the sale
of asbestos and includes the power to seize the assets of any company
selling the product anywhere in the world. The country tests the law by
obtaining a court order to seize key assets of a Canadian company,
whose operations with hundreds of employees takes a major hit. The
Canadian government is outraged, promising to support the company in
its efforts to restore its operations.
That is the opening of my technology law column this week (Toronto
Star version, homepage
version) which continues by noting this scenario became reality
last week, though the product was not
asbestos and the Canadian government has yet to respond. The case
involves Bodog.com, a Canadian-owned online sports gaming site and the
country doing the seizing was the United States. Supporting online
gaming operations will undoubtedly make governments somewhat squeamish,
but the broader implications of last week’s seizure touch on millions
of websites and Internet companies who now find themselves subject to
U.S. jurisdiction.
Bodog.com and its owner, Canadian Calvin Ayre, was one of the world’s
largest sports gambling operations, employing hundreds of people in
Canada and Costa Rica. Last November, its free gaming site, Bodog.net,
signed a three-year sponsorship deal with the Canadian Football League.
The U.S. has been particularly aggressive about trying to shut down
online gambling operations (Las Vegas and Atlantic City are apparently
less of a problem), though typically those operations have some U.S.
connection. In the Bodog.com case, U.S. officials targeted a site with
limited connections to the country as the site had licensed out the
bodog.com domain name in 2006 and stopped accepting U.S. bettors late
last year.
The legal issues surrounding its operations will be played out in
court, but the manner in which the bodog.com name was seized could have
a lasting impact on Internet governance.
The domain name was registered in Canada with Vancouver-based
DomainClip. In past years, registering a domain name with a non-U.S.
registrar and avoiding U.S. servers was viewed as sufficient to fall
outside U.S. jurisdiction. This is because a court order requiring the
domain name registrar to transfer ownership of the domain (or redirect
the site) was only enforceable in the jurisdiction in which it was
issued.
No longer.
In the Bodog.com case, State of Maryland prosecutors were able to
obtain a warrant ordering Verisign, the company that manages the
dot-com domain name registry, to redirect the website to a warning page
advising that it has been seized by the U.S. Department of Homeland
Security.
The message from the case is clear: all dot-com, dot-net, and dot-org
domain names are subject to U.S. jurisdiction regardless of where they
operate or where they were registered. This grants the U.S. a form of
“super-jurisdiction” over Internet activities since most other
countries are limited to jurisdiction with a real and substantial
connection. For the U.S., the location of the domain name registry is
good enough.
The aggressive assertion of Internet jurisdiction was one of the key
concerns with the Stop Online Piracy Act (SOPA), the controversial bill
that died following a massive online protest in January. It simply
defined any domain name with a registrar or registry in the U.S. as
domestic for U.S. law purposes. The bodog.com case suggests that the
provision was not changing the law as much as restating it, since U.S.
prosecutors and courts follow much the same approach.
In an era when governments are becoming increasingly active in
regulating online activities, the Bodog.com case provides a warning
that by using popular dot-com domain names, companies and registrants
are effectively opting-in to U.S. law and courts as part of the package.
Imagine a scenario in which a country enacts a law that bans the sale
of asbestos and includes the power to seize the assets of any company
selling the product anywhere in the world. The country tests the law by
obtaining a court order to seize key assets of a Canadian company,
whose operations with hundreds of employees takes a major hit. The
Canadian government is outraged, promising to support the company in
its efforts to restore its operations.
Last week, this scenario became reality, though the product was not
asbestos and the Canadian government has yet to respond. The case
involves Bodog.com, a Canadian-owned online sports gaming site and the
country doing the seizing was the United States. Supporting online
gaming operations will undoubtedly make governments somewhat squeamish,
but the broader implications of last week’s seizure touch on millions
of websites and Internet companies who now find themselves subject to
U.S. jurisdiction.
Bodog.com and its owner, Canadian Calvin Ayre, was one of the world’s
largest sports gambling operations, employing hundreds of people in
Canada and Costa Rica. Last November, its free gaming site, Bodog.net,
signed a three-year sponsorship deal with the Canadian Football League.
The U.S. has been particularly aggressive about trying to shut down
online gambling operations (Las Vegas and Atlantic City are apparently
less of a problem), though typically those operations have some U.S.
connection. In the Bodog.com case, U.S. officials targeted a site with
limited connections to the country as the site had licensed out the
bodog.com domain name in 2006 and stopped accepting U.S. bettors late
last year.
The legal issues surrounding its operations will be played out in
court, but the manner in which the bodog.com name was seized could have
a lasting impact on Internet governance.
The domain name was registered in Canada with Vancouver-based
DomainClip. In past years, registering a domain name with a non-U.S.
registrar and avoiding U.S. servers was viewed as sufficient to fall
outside U.S. jurisdiction. This is because a court order requiring the
domain name registrar to transfer ownership of the domain (or redirect
the site) was only enforceable in the jurisdiction in which it was
issued.
No longer.
In the Bodog.com case, State of Maryland prosecutors were able to
obtain a warrant ordering Verisign, the company that manages the
dot-com domain name registry, to redirect the website to a warning page
advising that it has been seized by the U.S. Department of Homeland
Security.
The message from the case is clear: all dot-com, dot-net, and dot-org
domain names are subject to U.S. jurisdiction regardless of where they
operate or where they were registered. This grants the U.S. a form of
“super-jurisdiction” over Internet activities since most other
countries are limited to jurisdiction with a real and substantial
connection. For the U.S., the location of the domain name registry is
good enough.
The aggressive assertion of Internet jurisdiction was one of the key
concerns with the Stop Online Piracy Act (SOPA), the controversial bill
that died following a massive online protest in January. It simply
defined any domain name with a registrar or registry in the U.S. as
domestic for U.S. law purposes. The bodog.com case suggests that the
provision was not changing the law as much as restating it, since U.S.
prosecutors and courts follow much the same approach.
In an era when governments are becoming increasingly active in
regulating online activities, the Bodog.com case provides a warning
that by using popular dot-com domain names, companies and registrants
are effectively opting-in to U.S. law and courts as part of the package.
Michael Geist holds the Canada
Research Chair in Internet and E-commerce Law at the University of
Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online
at www.michaelgeist.ca.
Last week I wrote about the astonishing
demands
of the Canadian music industry as it seeks a massive overhaul of Bill
C-11, the copyright reform bill. The Canadian Independent Music
Association is seeking changes to the enabler provision that would
create liability risk for social networking sites, search
engines, blogging platforms, video sites, and many other websites
featuring third party contributions. If that were not enough, it is
also calling for a new iPod tax, an extension in the term
of copyright, a removal of protections for user generated content,
parody, and satire, as well as an increase in statutory damage awards.
CIMA and ADISQ, which represents the Quebec music industry, appeared
before the C-11 committee last week and the demands only seemed to
increase. For example, ADISQ is asking the government to add a
requirement for Internet providers to disclose customer name and
address information to copyright owners without court oversight.
Conservative MP Paul
Calandra rightly noted the obvious parallels to Bill C-30, where the
government wants similar disclosures to law enforcement. In this case,
however, ADISQ wants the information disclosed to a private party based
on nothing more than an allegation of infringement. Calandra's comments
suggest that the government recognizes the dangers of such an approach.
The proposed lack of due process is not limited to the disclosure of
subscriber information. During its appearance, CIMA said it wanted a
takedown system without any due process.
Mike Lake, the Parliamentary
Secretary to the Minister of Industry, took the organization to task
for the proposal. In response
to Lake's concerns, CIMA replied:
Don't get us wrong there. We believe
that there should be some due process. What we don't believe is that
it's practical to expect.
In other words, CIMA believes in due process, but doesn't think
Canadians should expect any.
As for where proposed mandatory disclosure of subscriber information in
copyright claims and content takedowns might lead, the industry also
wants
unlimited damage awards for individuals. When asked for a figure, CIMA
responded:
Quite frankly, we'd rather see no
limit on statutory damages, but in the spirit of the act, I don't
think, as an association, we've talked about a specific ceiling. We
were hoping to engage in more discussions on that with folks on your
side of the table to talk about what is an appropriate level, if it is
deemed that there should in fact be a level.
The comments bring to mind assurances
from movie industry representatives last year that there no plans to
file lawsuits against individuals, only to launch dozens of lawsuits
against individuals over the alleged downloading of the Hurt Locker
movie a few months later. The Bill C-11 hearings continue this
afternoon.
Yesterday I appeared at the European Parliament's INTA Workshop on the
Anti-Counterfeiting Trade Agreement. I have written a
commissioned
report for the committee on ACTA that should be released in a few
weeks. In the meantime, my prepared
remarks provide a good overview of the main arguments and this video provides a
quick ten minute presentation on why ACTA's harms outweigh its
benefits.
With so much focus this week on Bill C-11
and ACTA,
I've neglected to
post two recent columns on lawful access. The first piece (Ottawa
Citizen version, homepage
version)
focuses on the potential for compromise in the legislation, with
particular attention to the issue of maintaining court oversight for
subscriber information disclosures but providing greater assurances of
rapid access when necessary for law enforcement. The second article (Toronto
Star version, homepage
version)
discusses the "Big Brother Inc" implications of lawful access,
connecting the growing global industry in surveillance technologies
with Bill C-30's provisions that give the government the power to
insert its own surveillance tools directly within Internet provider
networks.
Following UBC's
announcement that it will not sign the Access Copyright model
licence, three additional universities have followed suit - Athabasca,
Windsor,
and Winnipeg.
The four universities demonstrate that the licence raises concerns in
all types of universites - big, medium, small and distance-focused.
May.22/12Comments (0)
Reports indicate
that the European Union is set to provide an 80 billion euro boost to
open access by making open access publishing the norm for its Horizon
2020 research program.
May.22/12Comments (0)
Romanian Prime Minister Victor Ponta says
his country will not ratify the Anti-Counterfeiting Trade Agreement
unless the European Parliament modifies the agreement. Since the EP
does not have the power to amend ACTA, that makes ratification unlikely.
May.22/12Comments (0)
Dozens of leading U.S. law professors have written
to the U.S. Senate Committee on Finance to express concern about the
lack of constitutional authority to approve the Anti-Counterfeiting
Trade Agreement without submitting it for Congressional approval. May.17/12Comments (0)
Harvard Professor Winston Hide has stepped
down from the editorial board of the prestigious Genomics journal
over the lack of open access. May.17/12Comments (0)
In addition to the UBC decision to not sign the Access Copyright model
licence, the Manitoba Library Association has added
its voice
in opposition to the agreement. Moreover, the Trent University Senate
has adopted a motion stating "that the Senate, in solidarity with the
CAUT, the CFS and dozens of other constituent and governing bodies,
reject this unfair and unreasonable AUCC-Access Copyright 'model
license' and instead affirm and abide by 'the right to fair and
reasonable access to copyrighted works for educational purposes.'"
May.16/12Comments (1)
The Globe's John Ibbitson has a column
that confirms much of the private speculation about lawful access,
namely that the bill is going nowhere so long as Vic Toews remains
public safety minister. This is consistent with the prevailing view
that Toews is so closely associated with the worst of the bill -
warrantless disclosure of subscriber information, new surveillance
technologies, and divisive us vs. them framing - that a change will be
needed for the bill to come back. Ibbitson focuses on the likelihood of
Parliament proroging before the bill is revamped and returns, yet
speculating on those issues is always difficult. What is certain
is
that lawful access will return at some point, meaning Canadians will
need to remain vigilant to ensure that any future bill addresses the myriad of
concerns associated with Bill C-30.
May.16/12Comments (2)
Conservative MP Dean Del Mastro offers up one of the oddest copyright
analogies during the C-11 debate, likening format shifting to socks
and shoes.
May.16/12Comments (11)
The Wall Streeet Journal's MarketWatch picks
up
on Canada's missing digital economy strategy, using the Penske File
framing to discuss the failure of Industry Minister Christian Paradis
to lead on the file.
May.16/12Comments (0)
