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Would a SOPA Version of the Canadian Copyright Bill Target Youtube?

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Wednesday January 25, 2012
My post this week on the behind-the-scenes demands to make Bill C-11, the current copyright bill, more like SOPA has attracted considerable attention with mainstream (National Post, La Presse) and online media (Mashable, Wire Report) covering the story. The music industry alone is seeking over a dozen changes to the bill, including website blocking, Internet termination for alleged repeat infringers, and an expansion of the "enabler" provision that is supposedly designed to target pirate sites. Meanwhile, the Entertainment Software Association of Canada also wants an expansion of the enabler provision along with further tightening of the already-restrictive digital lock rules.

The concern with expanding the enabler provision is that overly broad language could create increased legal risk for legitimate websites. As a result, new online businesses may avoid investing in Canada for fear of potential liability or costly lawsuits. My post cited concerns about SOPA being used to target sites like Youtube and the danger that that could spill over into Canada. Industry lawyer Barry Sookman responds in the National Post article, arguing that it is "inconceivable" and "not remotely possible" that the law could be used to shut down a mainstream site like Youtube.

Millions of Internet users certainly hope Sookman is right, yet recent experience suggests that the content industry is open to using these kinds of provisions in massive lawsuits against sites like Youtube. For example, consider the ongoing Viacom lawsuit against Youtube/Google. 

Viacom lost at the trial level in 2010, but has appealed the decision. The SOPA-style enabler provision under Bill C-11 that the content industry is demanding  would include six factors for a court to consider. Contrast the Bill C-11 factors that a court may consider with Viacom's claims in its appellate brief:

Bill C-11 Enabler Provision Factors
Viacom's Claims
whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement
"YouTube’s founders built an integrated media entertainment business, in the district court’s words, by “welcom[ing] copyright-infringing material being placed on their website.”  That copyrighted material was “attractive to users” and “enhanced defendants’ income from advertisements,” enabling YouTube’s founders to sell the business to Google for $1.65 billion."
whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement
"Almost immediately after YouTube came online, YouTube became aware of widespread infringement on its site.  And it was the copyrighted videos—not home movies—that people flocked to YouTube to see."
whether the service has significant uses other than to enable acts of copyright infringement
"In their written presentation to Google’s board and senior management, Google’s financial advisors stated that 60 percent of YouTube’s views were “premium” —i.e., copyrighted—and only 10 percent of the premium videos were licensed."
the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so
"Dunton similarly put a stop to efforts to implement software that would notify copyright owners when infringing videos were uploaded.  Even though a YouTube engineer said that implementing an automated anti-infringement tool to alert copyright owners when suspected  infringing content was uploaded “isn’t hard” and would “take another day or [weekend],”  Dunton ordered the engineer to “forget about the email alerts stuff” because “we’re just trying to cover our asses so we don’t get sued.”"
any benefits the person received as a result of enabling the acts of copyright
infringement
"Unable to compete with YouTube’s pirated content, in late 2006, Google bought YouTube for $1.65 billion."
the economic viability of the provision of the service if it were not used to enable acts of copyright infringement
"As early as June of 2005, YouTube’s Internet service provider complained that YouTube was violating its user agreement by, YouTube founder Steve Chen believed, “hosting copyrighted content.”  But Chen resolved that YouTube was “not about to take down content because our ISP is giving us shit.”  And, in emails with the other founders, he later remarked “we need to attract traffic. . . .  [T]he only reason why our traffic surged was due to a video of this type”—i.e., copyrighted and unauthorized"

This is obviously one side of the story and is an appeal from a decision that ruled in Youtube's favour, concluding the site is protected by the safe harbours found in the DMCA. Moreover, the same kind of suit launched against Veoh, another online video site, recently also failed (though it cost the founder his company).

Yet reading the Viacom claims makes it clear that applying its arguments to a SOPA-version of the Bill C-11 enabler clause (which content groups want expanded to include operating or inducing infringement) could create a huge chill in the investment and technology community in Canada. Online video sites, cloud computing sites, and other online services may look at the Bill C-11 and fear that even a lawsuit could create massive costs, scare away investors, and stifle new innovation. Indeed, a recent study by Booz & Company found this to be a very real problem, with a large majority of the angel investors and venture capitalists saying they will not put their money in digital content intermediaries if governments pass tough new rules allowing websites to be sued or fined for infringing digital content posted by users. The U.S. has dropped SOPA, but now incredibly Canada may consider the very provisions that causes investors to become skittish.

The Business Coalition for Balanced Copyright, which includes leading technology, telecom, retail, and Internet companies, has already expressed concern with the Bill C-11 digital lock rules. Turning Bill C-11 into a Canadian SOPA would only make matters worse, creating a legal framework that would harm Canadian business and consumers.
Comments (28)add comment

Mikey said:

Lost jobs...
I keep hearing how the industries are hurting because of piracy and that means lost jobs... but sound to me like SOPA and the proposed changes would make new jobs impossible, and possibly lost jobs in the internet, retail, telcom and leading technology companies. You take into account all the companies at risk seems like the job loss would be far greater than that of piracy.

Sounds to me the new legislation wouldn't solve a thing but really just make the problem far far worse.


January 25, 2012

Michael Bennett said:

concerning, but...
I agree that a YouTube size player could be shut down, I see it as unlikely. If these absurd copywrong measures do pass I think the bigger players will work out deals with the major copywrong holders.

Hollywood only grosses about $11 billion in ticket sales annually, DVD/media sales peak at another $11 billion, which is a peak number,services like Netflix have allegedly been eroding that base. This isn't the only money Hollywood makes, but it beginsbto paint a picture of just how small an industry film/television is. Google grosses close to $30 billion annually, and they're one tech company. There were even rumors last year that Google, might buy the music industry!

My real concern is for the independants. People that actually make copyright, and slef promote. These people don't stand a chance.

Sadly copywrong isn't their only enemy. Companies like Apple are adding clauses to their EULAs that allow Apple exclusive distribution rights, and/or censorship rights.

*on the subject of people 'losing jobs' this statement is ludicrous at best. Big business, and cheap labour cost us the jobs, and even whole industries. Personally i blame the unions for this. The unions could have gone overseas when the businesses did almost a hundred years ago.
January 25, 2012

Byte said:

Business Interests
And what's happening again? One group of businesses, another group of businesses. Absent are of course the consumers, general populace, or however you want to call "us". How are the politicians supposed to represent us if we don't have a voice in these discussions?

Read the essay by Rick Falkvinge that is included in "No Safe Harbor" - released under Creative Commons license (CC-BY-NC-SA) by the US Pirate Party available here: http://www.nosafeharbor.com/
Rick makes a strong case that it should be the consumers more than "publishers" and "authors" who should decide on copyright.

This is what the problem is. We don't have a single, Canada-wide, well-supported, Consumer Advocacy movement. We don't get a say.
January 25, 2012

LP said:

What ca we do?
What can we do to stop this. I'm lost here and i would like to help.
January 25, 2012

Chris Brand said:

Fundamentally...
...any platform that facilitates free communication also enables people to share things that they shouldn't. The only real question is which is more important - and whether the fact that the Internet is not like TV and radio because it enables free communication is a good or bad thing.
The fact that we even have these discussions in a supposedly free and democratic society is rather scary.
January 25, 2012

Deb Johnson said:

We need to get the word out
We need to get the word out about this. Publish this link on your blogs/Twitter/Facebook/Reddit. Get an submission in at slashdot.org and Boingboing. Get people informed - that's how the internet black out worked. The longer we sit wringing our hands the more time they have.
January 25, 2012

Spike said:

...
Sookman is so full of shit. Why do we even repeat what this recording industry lobbyist/puppet even says anymore? Its all hyperbole.

We all know damn well, rather than just the (arguably harmless) torrent search engines that simply crawl other websites for torrent files, that any site blocking laws will be quickly applied to every cloud storage type site out there.

This is the primary reason why they want SOPA in the US, as these cloud storage sites are the latest threat to their ever aging business model.
Its not all about the torrents anymore as Sookman would want you to believe, infact, torrents are rapidly declining in popularity in the US due to the many legal alternatives they have there.

Maybe bring some real legal alternatives to Canada that don't suck instead? Right, that will make too much sense.
And if you mention that useless abomination we have in Canada called Netflix I will bitchslap you.
January 25, 2012

Shlepzig said:

It's a trap
The entire SOPA/PIPA/ACTA and all the other international treaties are just reach-around techniques to erode due-process for information based crimes and a tool to abuse the law to eliminate competition. Functionally, YouTube/Google and other big players will get a pass, rightsholders can selectively scuttle easy targets without risking a major court battle. Smaller sites can be effectively seized and elminated without due-process. Any "offending" information can effectively be silenced with mere accusations of some sort of wrong-doing. Furthermore the ability to abuse these laws will not be spread evenly. You will be left with a select cabal that will be able to decide what you are and are not allowed to post online and law-enforcement will give them a pass to do so.

-Shlep
January 25, 2012

CultureGap said:

Lost Jobs, Piracy
Show me one instance where shutting down a "pirate site" lead to increased business for traditional companies.
January 25, 2012

end user said:

...
>CultureGap

I will say one thing though, piracy puts money into other markets. For example I downloaded Space 1999 and Star Trek (OG) dvd sets saving myself $$$. Now the money I would have spent on those DVD sets I took and went to the pawn shop where I got about 12 dvd for $2 each and had $$$ left over. Because the S1999/ST dvd set are so expensive I wouldn't have paid for them any ways so who ever is crying the most about it would have never got that money from me in the first place. Do I feel bad about downloading them, well no BUT if you made them available for download for say $30 for the set I would have spent the $30 instead of waiting 3 days to down load them.
January 25, 2012

Rich said:

Great Firewall of America
First, sorry if my english is not perfect.

Well some of you might know that China have a very, very, very restrictive "network" They control almost anything chineses people can see online. If theses bills pass (sopa, pipa, acta ...) Every country will be able to control which site can be "good" or not, even if the server is not in their country ! Bye bye wikileaks and all others sites who provide behind the scene informations not available to public. It's not only to shutdown torrent site or a web site where you can download free mp3... it's about the freedom of speech, freedom of information. They will be able to control theses informations.
We must not let them pass theses bill !
We must tell our government we, the people, don't want theses kind of bill in our country !
January 25, 2012

Chris said:

Harper thinks he's the President of the US. (Or Common Carrier)
Since Harper think that he must do EVERYTHING to keep his southern friends happy.

From the war in Iraq, to the recent pulling out of the Kyoto treaty, not to mention his refusal to Arrest Bush and Cheny after admitting they used Torture.

So I can see where they are going with this.

Recently on the Daily show, there was a quote that the poor people have no lobbyist.

But would the Common-Carrier rules not defeat this sort of thing?


January 25, 2012

Mark said:

...
With SOPA-like laws in Canada, Youtube would not have to be shut down at all... all DNS servers located in Canada would be obligated to redirect any references to Youtube to a government-run website that states the rquested domain is being used for piracy. Using foreign DNS servers would probably be considered a bypassing mechanism, and would also be outlawed.
January 25, 2012

Dennis said:

YouTube will never be taken down...
BUT - here's what will happen.

All user-generated content will be blocked, and the government will take it over, using it as a propaganda tool for messages that big corporations want us to hear, and nothing else.

Welcome to the "Peoples Republic of Canada"
January 25, 2012

oldguy said:

copyright infringment - without making a copy???

Off the specific topic, but still in the general ballpark.

http://www.dpreview.com/news/2...right_Case

Things are getting way out of hand. The only way I can see this decision as being valid, is if the line between copyrights and patents has somehow been crossed.

And some people wonder why the younger generation are losing respect for the *concept* of copyright.

I'd like to poll the opinion of any authors and musicians and artists that come by here. Do you feel this court's interpretation of copyright would impact your ability to practice your "art"? Why? or Why not?

John? Anybody?

January 26, 2012

Moomin Papa said:

Money Grab
It's a money grab by content distributors. If they can get one of their competitors shut down they think the public will come flocking back to them and their outmoded business model. In reality, something different will appear, there will be workarounds and people will find a way.

The biggest problem I have with SOPA and SOPA-style bills is that it gives the distributors a phenomenal amount of power without resort to due process. But the problem is that their business is hurting but they don't want to change their model. So this is about grabbing all the cash without any of the change necessary to keep them afloat in the longer term.
January 26, 2012

Moi said:

Don't worry be happy
Harper and his hound of Jackboots will pass a SOPA like law to please his American Masters, you watch.
January 26, 2012

Devil's Advocate said:

@Mark:
"...all DNS servers located in Canada..."

Since all .com and .ca domains are ultimately controlled by the U.S., there would be no recourse when one of them is pulled down by ICE or whoever, and its subsequent IP address(es)and DNS assignment being "decommissioned" by IANA (by order of any number of U.S. "authorities").
January 26, 2012

IamME said:

@Mark @DA
But if there is a fear of prosecution, due to strict licensing/copyright laws, there is nothing to stop YouTube from closing it's doors to Canada. We're a small market compared to many others in the world, so the loss for them would be marginal at worst. There are countless US sites that already do this. Hulu, Pandora, HBO, and Amazon come to mind. They either block us out entirely or block all streaming capabilities. Netflix (Well at least the good Netflix) has a majority of it's content blocked to us as YouTube also has a lot of content blocked from Canada already. With the exception of, perhaps, iTunes, music download services are usually a shadow of their American incarnations, many of which are still riddled with DRM protected content.

So no, I don't think SOPA-style laws here could ever shut down YouTube, but they could certainly geo-block Canadians from accessing the site, like so many others already do.
January 26, 2012

PLUCX said:

January 27, 2012

James said:

They should try to stop scammers instead
Instead of trying to pass something like this that would be political suicide for the party, they should try to eliminate those scam e-mails that get sent out.
January 28, 2012

David said:

...
I will be truly shocked if C-11 passes in its current form
January 30, 2012

IamME said:

@David
"I will be truly shocked if C-11 passes in its current form"

I'd avoid standing in water when the vote passes. I hear shocks a lot worse if you're in water.
February 01, 2012

Jay said:

...
So does this mean that VPN providers business is going to explode in popularity?
February 09, 2012

anon said:

@Jay
maybe at first, but in short time, vpn's will be considered a method of circumvention. they'll be blocked or sued into annihilation. isp's will monitor their customers and bust them if a vpn is being used for non-legitimate purposes, etc, etc...

@PLUCX
great video that explains how file-sharing software was put into consumer hands by media companies all along. cbs/viacom distributed bittorrent and now they're using it against us. pwn'd by cnet. 10/10 nice troll.



February 11, 2012

Wind Walker said:

...
The reason is because alot of people are waking up to the NWO . The Internet is controlled like mainstream media . Study project paper clip . Study Illuminati . Is it coincidence ? That many are talking about this sort of stuff ? Connect the dots . They say its for this , but really its for that . Everything discussed on Facebook goes to the friend activity at Homeland security page . NSA page . check it out yourself . The perimeter road they are building is for American troops to have speedy access into Canada . Everything will be crammed down our throats . Wake up !! I swear its no joke .
February 20, 2012

Wind Walker said:

...
My mistake , the Internet is not controlled like mainstream media . Where one who is objective has no voice .
February 20, 2012

Adel said:

You Tube
Haa become too big to fail. Just immagine the pubic outcry if some govenment official moved to shut it down because of some claim of copyright infringment of a dead music industry.
February 29, 2012

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