"Bill C-11 Is No SOPA": My Response
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Wednesday February 08, 2012
The short response is that Sookman's column - along with his clients - downplay the dramatic impact of their proposed amendments. Their proposed amendments to C-11 would radically alter the bill by constraining consumer provisions, heaping greater liability risk on Internet companies, and introducing website blocking and Internet termination to Canada. Several of these provisions are very similar in approach to SOPA in the U.S. and the comparison is both apt and accurate. Moreover, the column leaves the false impression that Bill C-11's digital lock rules are standard when they are widely opposed by numerous stakeholders that Sookman would not dare to call anti-copyright.
There is much more to take issue with in the column and I've done so in paragraph-by-paragraph format below. Sookman's column is posted in italics and my response immediately follows:
Further details on how the proposed amendments to Bill C-11 could be used to target YouTube are available here and discussed in greater detail below. As noted in the post, the language in the bill - if combined with amendments supported by Sookman's clients - could be used to target legitimate sites such as YouTube. Those same proposed amendments call for website blocking and ISP policies that could lead to loss of Internet service.
Activist organizations are urging Canadians to protest what they call the impending Bill C-11 “Internet lockdown.” Making wild claims about the bill that have no basis in reality are groups such as OpenMedia and Avaaz and illicit businesses who sell hacking devices for pirated video games, all urging online protests and all relying on the hyperbolic musings from University of Ottawa academic Michael Geist of what might or possibly or could one day happen. To fully ratchet up the frenzy, these groups are claiming attempts are being made to bring U.S.-style legislation to Canada.
I have written in detail about the SOPA-style rules including website blocking and expansion of liability for sites that could even cover legitimate sites here and here. The concerns about an "Internet lockdown" likely stem from the recording industry's demand for ISP provisions that could lead to termination of Internet services.
These warnings are an attempt to exploit the controversy and unpopular anti-copyright sentiments about the much-misunderstood U.S. legislation in Congress called the Stop Online Piracy Act, and to derail parts of Bill C-11 and proposals to amend it. It doesn’t seem to matter that SOPA and Bill C-11 are entirely different pieces of legislation, with different goals and legislative text. Canadians should examine the facts and see the hysteria for what it is.
SOPA and C-11 are different pieces of legislation as I emphasized in an FAQ on the issue. What matters is the substance of the provisions in C-11 and the proposed changes that would add SOPA-style provisions to the bill.
Bill C-11 contains many provisions that would greatly expand the freedoms of Canadians to copy creative products under new exceptions for format shifting, time shifting and creating mash-ups. ISPs and other online service providers would have new wide exceptions when they act as neutral intermediaries. The bill also proposes new exceptions for broadcasters and to support learning and education. With these new exceptions, Canada’s copyright law would become one of the most user-friendly, if not by far the most user-friendly, in the world. An Internet lockdown? Hardly.
Bill C-11 certainly includes some user-friendly provisions. From the day the bill was introduced, I have argued that there are many aspect of the bill that deserve support. In fact, a review of the transcript of my committee appearance shows I was more supportive of the bill than Sookman, who appeared on the same day. The public has become concerned, however, because Sookman's clients are seeking radical amendments that would scale back even the user-focused provisions. The proposed amendments (this is their document, not mine) includes limitations on the format shifting, time shifting, and user generated content provisions, restrictions on the ISP provisions, and elimination of the broadcaster provision. To suggest that the bill is user-friendly while simultaneously seeking to change those provisions amounts to a classic bait and switch.
Bill C-11 also proposes amendments to provide legal protection for technological protection measures (a.k.a. digital locks or TPMs) that safeguard intellectual property products. These amendments would use internationally accepted measures to support new business models and innovation in digital products and services such as online music and movie streaming services.
This is by far the most contentious aspect of the bill with a digital lock approach that is widely opposed by both major opposition parties, business groups, creator associations, consumer groups, and education associations. The issue is not whether to provide legal protection for digital locks, but rather how to do so in a manner that supports businesses and retains the copyright balance. The Canadian approach goes far beyond international requirements and raises legitimate fears about its impact on consumer property rights, free speech, and privacy. More information on the digital lock rules here.
The SOPA rhetoric has led opponents of legal protection for TPMs to mount further opposition to Bill C-11 by trying to link the anti-copyright sentiments about SOPA to the TPM provisions in Bill C-11, arguing, for example, that they are the “Canadian version of SOPA.” They do this even though there is no connection whatsoever between them.
The argument is that some of the proposed amendments to C-11 are the Canadian version of SOPA. Bill C-11 as it stands is better characterized as the Canadian DMCA, since it largely mirrors the digital lock approach found in that legislation. I discussed this point during my appearance on George Stroumboulopoulos Tonight.
Bill C-11 also proposes an amendment intended to make it an infringement of copyright for a person using the Internet to knowingly enable copyright infringement. The poster children for this legislation are BitTorrent sites such as IsoHunt.com that have been found to facilitate the distribution of files, 95% to 99% of which are infringing. Other targets of the enablement provision are sites such as Megaupload.com, a cyber locker site whose principals were just indicted for criminal copyright infringement. The FBI estimates that the founder, Kim Dotcom, personally made $115,000 a day from his network of sites.
In 2008, Sookman sent isoHunt a cease and desist letter that threatened legal action that would seek up to $20,000 per infringement. That letter was based on current Canadian copyright law. In 2010, Sookman's firm filed a lawsuit against isoHunt, citing a long list of copyright infringing activities based on current law. IsoHunt may be the poster child for the enabler provision, but Sookman is the poster child for how current Canadian law can be used to target these same sites.
This provision is currently worded to apply only to sites that are “designed primarily to enable acts of copyright infringement.” Mr. Geist claims that clarifying the wording to expressly cover services that are “primarily operated to enable infringement or induce infringement” could be used to shut down sites such as YouTube and would stifle innovation. These claims are ridiculous, though not surprising given his historical antipathy to laws designed to protect the creative industries from theft.
The amendments proposed by the recording industry are not "clarifications" of the enabler provision. They represent a significant expansion of the provision that would risk being applied to legitimate sites as well. I provide a full analysis of why the expanded provision could be used to target sites such as YouTube here.
To be clear, SOPA was intended to target foreign rogue websites that would already be illegal under U.S. copyright law if those sites were operated from the U.S. Bill C-11 is not about foreign pirate sites: It is Canada’s attempt to establish rules about what is and isn’t legal in Canada. This is long overdue. The fact that Canada has not updated its copyright laws to deal with the Internet environment has led to our reputation as a haven for internet piracy operations both with our trading partners and pirate operators including Megaupload’s Kim Dotcom.
As noted above, Sookman's legal threats and lawsuits make it clear that he thinks these sites are illegal under current Canadian law. Canada's reputation as a piracy haven is due to the hyperbolic claims of Sookman and his clients. The Business Software Alliance’s annual Global Piracy Report shows Canada among the 15 lowest piracy countries in the world with the Canadian piracy rate at an all-time low. The Canadian Motion Pictures Distributors Association has acknowledged that illegal camcording had largely disappeared from the Canadian market. In 2010, the World Economic Forum found that global executives rank Canadian intellectual property protection ahead of the United States, the United Kingdom, Japan, and most of Europe. Canada is a world leader in digital music sales that even the Canadian Recording Industry Association now characterizes as a commercial opportunity.
The current wave of opposition to the amendments appears to be an opportunist effort to turn the tide on effective copyright reform by leveraging anti-SOPA public opinion. The amendments that are being objected to were first tabled before the Parliamentary Committee examining Bill C-32 in March 2011 and were publically disseminated even by Mr. Geist, well before the SOPA ruckus. At that time there was no public opposition to the proposed amendments as going too far.
The Bill C-32 committee solicited comments and proposed amendments from all Canadians. It received dozens of submissions, but none were posted online or made publicly available. I obtained copies of the submissions last summer after Bill C-32 died on the order paper as part of a request from the committee clerk. There was no public opposition to the proposed amendments because few people were actually aware of the specifics. Moreover, by Sookman's standard, there were no objections to the dozens of suggested changes, the majority of which called for reforms to the digital lock rules.
The new argument that amendments would cover sites such as YouTube is spurious. Bill C-11 provides a series of criteria that a court would need to consider in determining if a site primarily enables infringement. The targeted sites are those: promoted to enable acts of infringement; that know they are being used to enable significant infringements; that have no significant uses other than enabling infringement; that benefit from enabling infringement; and that would be economically unviable but for enabling infringement. The types of sites that would be affected are such sites as IsoHunt and Megaupload, the very wealth-destroying “innovators” the bill targets.
I outlined how the specific criteria could applied to YouTube here. To repeat, contrast the Bill C-11 criteria that a court may consider with Viacom's claims against YouTube, as found in its appellate brief:
The government has acknowledged that technical amendments to Bill C-11 are required. A healthy debate based on facts can be expected as Parliament’s Special Legislative Committee continues to consider it, and thoughtful debate is always helpful in ensuring a proposed law meets its objectives. But let’s not be fooled by Chicken Little claims. Canadians will all be hurt if the debate continues to be marred by political opportunism and misinformation spread for political purposes.
If there has been political opportunism and misinformation, it has been the consistent mischaracterization of Canadian law by groups such as CRIA and their representatives, which sue on the one hand and lobby for reform on the other. The fact that tens of thousands of Canadians have woken up to Bill C-11 and the radical proposed amendments supported by Sookman's clients is a welcome development, one that will help ensure a full debate with politicians from all parties better aware of where Canadians stand on copyright reform.
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Wednesday February 08, 2012