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    Michael Geist's Blog

    isoHunt Files New Statement of Claim Against CRIA

    isoHunt, the Canadian-based Torrent search engine, has filed a follow-up statement of claim against the Canadian Recording Industry Association as it seeks a declaration that it is operating legally in Canada. The filing is well worth reading as it explains BitTorrent technology and argues that isoHunt is a P2P search engine that merely indexes torrent files found on other indexing sites (it describes itself as a Super-Indexer).  Further, it notes the limits of its involvement in the copying process as well as its compliance with the DMCA notice-and-takedown system. isoHunt clearly tries to position itself as a specialized search engine that does not host infringing content. The filing is the second in the case.  CRIA challenged isoHunt's earlier filing, arguing that a full trial was needed.  The B.C. courts agreed and this marks the continuation of the case. 

    The CRIA response will be interesting since it faces a conflict between its rhetoric and its view of Canadian law.  On the one hand, it has argued that the isoHunt case is indication that Canadian law is out-of-date, suggesting that it provides a clear sign that reform is needed.  On the other, given that it initiated cease and desist letters, it is unlikely to simply say that isoHunt is correct and that it is operating legally.  In other words, if it challenges isoHunt's claims, it acknowledges that it believes that Canadian law can be used to stop torrent search sites.  If it doesn't make such an argument, it can continue to make the claim for reform, but it loses the case.
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    Government Introduces Mandatory Child Porn Reporting Law

    Justice Minister Rob Nicholson today tabled the Child Protection Act (Online Sexual Exploitation).  As widely reported, Bill C-58 creates a mandatory disclosure requirement on Internet providers where they become aware of child pornography websites or have reason to believe a subscriber is using their service to violate child pornography laws.  Where an Internet provider submits a report on a user, they must preserve the relevant computer data for 21 days and they are prohibited from disclosing the disclosure to the customer.  Failure to report may result in fines or imprisonment and providers are granted immunity from liability for reporting the activity.  The definition of Internet provider is broad, extending beyond just ISPs to include those providing Internet access, hosting, or email services.  In other words, services like Google, Hotmail, and Facebook are all covered.

    The bill shares similarities with provincial laws (ie. Ontario) and those that report under the provincial law are exempt from the federal version.  While few will criticize a bill targeting child pornography - everyone agrees that child pornography is abhorrent and we need to ensure that we have laws to deal with the problem - it is hard to see what this bill actually accomplishes.  Canada already has:

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    Opposition Mounts in Europe To Three-Strikes Proposals

    Multiple reports today indicate that opposition is growing in Europe to plans for three-strikes policies that could lead to the termination of Internet access for some subscribers.  In the U.K., protests are mounting over those plans in the recently introduced Digital Economy Bill.  The BBC reports that thousands of people have signed a petition urging the government to reconsider its approach, while the Open Rights Group says it has seen a big spike in membership.  The UK's Internet Service Provider Association has unsurprisingly voiced its opposition, stating "rather than focusing blindly on enforcement, the government should be asking rights holders to reform the licensing framework so that legal content can be distributed online to consumers in a way that they are clearly demanding."  The Telegraph reports popular author Stephen Fry has lent his support to opposing the bill, vowing to urge people to sign the petition until a million people have signed on.

    Meanwhile, European Union Telecom Commissioner Vivianne Reding has warned Spain against adopting a three-strikes model without a procedure before a judge.  Reding added:

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    Broadcaster Plan Involves More Than Just Fee-For-Carriage

    In the weeks leading to the CRTC hearing on broadcasting licences, Canadians were inundated with splashy advertising campaigns claiming that new fees for local signals were either a TV tax or would save local television.  With all of the major broadcasters and cable companies appearing before the commission, the fee-for-carriage (or value-for-signal) issue unsurprisingly took centre stage at last week's hearing.

    Yet those convinced that the broadcaster plan was limited to a new fee were in for a rude awakening.  My weekly technology law column (Toronto Star version, homepage version) notes that fee-for-carriage is only part of the story, as broadcasters are also seeking to block U.S. signals, leave some Canadian communities without over-the-air television, and delay the transition to digital television transmission until 2013.

    The prospect of blocking U.S. television signals will come as a shock to many, but both CTV and Canwest, Canada's two largest private broadcasters, have asked the CRTC to establish a new program deletion policy. 

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    OECD Confirms Canada Among Lowest Sources Of Counterfeiting

    The OECD has released new data on its global counterfeiting estimates, concluding that the share of counterfeit and pirated goods in world trade is estimated to have increased from 1.85% in 2000 to 1.95% in 2007.  That represents an increase to $250 billion worldwide.  That is obviously a big number, but notably far lower than the claims from ACTA supporters.  Copyright lobby groups have long claimed - without empirical support - that counterfeiting and piracy represents 5 - 7% of global trade.  The OECD data indicates those claims are wildly exaggerated.

    This is particularly relevant in Canada where counterfeiting claims have been based on the same faulty data (the international story is similar).  For example, the Chamber of Commerce's IP Council claimed in its report on IP that "it has been conservatively estimated that counterfeiting and piracy cost the Canadian economy $22 billion annually in lost tax revenue, investment and innovation." The source for this claim is a speech by Chamber President Perrin Beatty.  Similarly, the Ontario Chamber of Commerce has argued:


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    Why The Lack of ACTA Transparency Is Not Standard

    In the face of widespread criticism of the lack of ACTA transparency, participating governments and music industry lobbyists have claimed that the transparency issue is much ado about nothing.  As governments seek to keep relevant information secret, those same governments released a joint statement last week arguing that "it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation."

    It is important to emphatically state that this is simply not the case for many multilateral agreements and the activities of international organizations that typically serve as the forum for global agreement discussions.  U.S. NGO groups have made a strong case for how ACTA's lack of transparency is out-of-step with many other global norm setting exercises.  With regard to international fora, they note that the WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law, and an assortment of other conventions have all been far more open than ACTA.  For example, it notes that the WIPO Internet treaties, which offer the closest substantive parallel to the ACTA Internet provisions, were by comparison very transparent:

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    Copyright Consultation Provides Blueprint for Reform

    Forgotten amidst the focus on ACTA over the past two weeks, was a recent column (HT PDF version, homepage version) I wrote for the Hill Times on the lessons that can be drawn from this summer's copyright consultation. The piece appears as part of a special section on copyright that included an interview with Industry Minister Tony Clement, Charlie Angus, Howard Knopf, Pina D'Agostino, and Simon Doyle (amont others). I note the government is still in the midst of posting all the submissions, but with thousands now online, it is not too early to begin drawing some lessons. 

    What does the consultation teach us?  There are at least eight conclusions of note:


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    Canadian Telco Ownership Rules From By-Gone Era

    Corporate structures and loan agreements are rarely the stuff of public interest, yet, as my weekly technology column notes (Toronto Star version, homepage version) last month they attracted considerable attention in a case involving Globalive, a new wireless company vying to shake up Canada’s telecommunications industry.  Operating as Wind Mobile, the company paid hundreds of millions of dollars in 2008 to scoop up spectrum to enable it to operate as a new national wireless carrier.

    Bell Canada, Telus Corp., and Rogers Communications, the big three incumbent carriers, unsurprisingly opposed the new rival.  First they lobbied against a set-aside of spectrum for new entrants. When that failed, they argued Globalive failed to comply with the Telecommunications Act's foreign control restrictions. Last month, the Canadian Radio-television and Telecommunications Commission agreed. While Industry Canada previously concluded the company met the Canadian control requirements for the purposes of the Radiocommunications Act when it bid for spectrum, the CRTC concluded that its ownership and control structure do not meet the legal requirements to operate as a wireless carrier.  

    The commission identified a number of changes that will be needed to comply with the law and Globalive says it is evaluating its options. The first option is presumably for the federal cabinet to overrule the CRTC. Last week, Industry Minister Tony Clement gave Canada's telecom players until Wednesday to provide their views on the issue as he conducts a pre-cabinet review.  A decision may be weeks away, but the process puts a much bigger question into play: Will the Globalive case become the catalyst for the elimination of telecom foreign control restrictions?


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    CTV & Canwest Ask CRTC To Order Blocking Of U.S. Programs

    The CRTC kicks off two weeks of hearings next week that place the spotlight on the fee-for-carriage fight. Last night, I participated in an interesting debate on the issue on TVO's The Agenda called A Pox On Both Their Houses: Cable and TV.  The program is embedded below.  One issue that was not raised - indeed it has not received any real public attention - was noted earlier today by Alan Sawyer.  He notes that CTV and Canwest have quietly asked the CRTC to order cable and satellite companies to establish a new policy of "program deletion."  The new policy (which is supported in a Toronto Star piece today) would mean that when a Canadian broadcaster buys the Canadian rights to a U.S. program, the U.S. broadcast would be blocked in Canada for a seven-day window. 

    In other words, rather than the current simultaneous substitution policy, which allows for the programs to air at the same time and for the substitution of the Canadian broadcast on the U.S. channel (thereby leading to the annual complaints about Super Bowl commercials), the U.S. broadcast would be blocked altogether.  That would allow Canadian broadcasters to air the U.S. program whenever they like and block the U.S. version altogether.  In a world when consumers expect to view programs on their schedule, CTV and Canwest seek a return to a prior era when the broadcaster retains (now illusory) control over access to the broadcasts in Canada.


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    Sandvine Report Should Raise Doubt About Traffic Management Practices

    Mark Goldberg points to a recent Sandvine broadband report on recent broadband traffic patterns. Goldberg points to the growth of real-time entertainment traffic, such as streaming, which is consistent with what the CRTC heard during the net neutrality hearings over the summer.  Most notable, however, is yet another confirmation that P2P traffic is declining as a percentage of overall traffic.  Sandvine reports that it dropped by 25 percent as a share of overall traffic.  Moreover, in a table on peak-time bandwidth share, Sandvine reports that web browsing leads (34.4%), followed by real-time entertainment (29.1%), and then P2P (16.9%).  Sandvine also reports that peak-time usage is narrowing.  In 2008, peak-time ran from 6:00 to 11:00 pm.  In 2009, Sandvine said it has narrowed to 7:00 to 10:00 pm.

    This data is important in considering the test established by the CRTC for reasonable traffic management practices.  First, practices that target P2P will be increasingly difficult to justify (many argue application-specific approaches are never justifiable), given its declining share of traffic the application represents.  Second, far broader peak-time characterizations - Bell claims that its peak-time runs from 4:30 pm to 2:00 am - are unlikely to meet the CRTC's standard for any harm from traffic management practices being as little as reasonably possible.
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