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    CRIA President: C-32's Statutory Damages Reform a Licence to Steal

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    Thursday September 16, 2010

    CRIA President Graham Henderson had some noteworthy comments on copyright reform in an article just published by Grammy.com.  While unsurprisingly supportive of Bill C-32, Henderson expressed specific concern about changes to the statutory damages provision.  After the government faced criticism for its $500 cap on downloading damages in Bill C-61, it shifted its approach by rightly distinguishing between commercial and non-commercial infringement. The bill now proposes to establish a maximum statutory damages penalty of $5,000 for infringement that the court considers to be non-commercial.  That contrasts with commercial infringement, which carries a $20,000 per infringement maximum.  Note that the minimums are roughly the same - non-commercial infringement has a $100 minimum, while commercial infringement's minimum is $200.  The existence of maximum and minimum damages places Canada in the minority of countries as most do not have any statutory damages provisions, relying instead on actual damages.

    While $5,000 is still very significant potential liability for non-commercial infringement, it apparently is viewed as licence to steal by CRIA.  Henderson tells Grammy.com:

    "Once this bill is passed, you could go online and steal every movie that's ever made, every book, and every song, put them on your hard drive, admit liability, and write a $5,000 check. That would be the full extent of it — and it would be the first rights holder who would get all the money. Nobody else would get a cent. It's close to saying that for people who want to steal stuff, there's a compulsory license of $5,000."

    Is there anyone - other than CRIA - that seriously believes this is likely to become a common outcome?  The more plausible explanation for the concern is that notwithstanding repeated assurances that it has no plans to resume suing individuals, CRIA would like that approach to remain a viable possibility and it fears that a $5,000 cap on liability would be too small to justify the litigation.


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    Copyright Lobby Astroturf Site Adds Mandatory, Uneditable Letter to MPs

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    Friday June 18, 2010
    The copyright lobby's BalancedCopyrightforCanada.ca astroturfing site has added a new mandatory requirement for all users that want to participate in the Take Action items. According to a site user, the site now requires users to send a form letter to their relevant Member of Parliament.  There are two letter options - one letter for entertainment industry employees and one general letter. 

    Surprisingly for a site claiming to support creativity and copyright, the letters do not provide users with the opportunity to even use their own words - the form letter cannot be edited.  This is particularly striking given the earlier criticism from some of the same groups on a CCER form letter service that offered users complete control over the substance of their letter and merely served as a delivery channel. Notably, the site has already been subject to gaming from non-Canadians as a random search of members turned up at least one U.S. based record company executive with Warner Music.

    The site user reports that the site briefly offered a third form letter for consumers.  That letter has apparently been removed, perhaps because it adopted positions expressly opposed by Canadian creator groups.  While the site purports to protect creator rights, the letter supported format shifting without levies (opposed by groups such as ACTRA) and educational reforms to fair dealing (opposed by writers groups).  The consumer letter included the following:


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    The Copyright Lobby's Astroturf Campaign in Support of C-32

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    Wednesday June 16, 2010
    The copyright lobby, almost certainly led by the Canadian Recording Industry Association, has launched a major astroturf campaign in which it hopes to enlist company employees to register their support for Bill C-32 and to criticize articles or comments that take issue with elements of the proposed legislation. The effort, which even includes paid placement of headlines on Bourque.com, is still shrouded in some secrecy.  A member list, which featured many record company executives, has now disappeared from public view.  Requests to identify who is behind the site have been stonewalled thus far, with both ACTRA and AFM Canada explicitly stating they are not part of the site (this is no surprise since most creator groups have been critical of C-32).

    The heart of the site (which requires full registration) is a daily action item page that encourages users to "make a difference, everyday."  Today's list of 10 items is a mix of suggested tweets, blog comments, and newspaper article feedback.  Each items includes instructions for what should be done and quick link to the target site.  For example, users are asked to respond on Twitter to re-tweets of an op-ed by Dalhousie law professor Graham Reynolds.  The suggested response is "As an employee in entertainment, this Bill will protect your livelihood" or "The discussion around DRMs is largely fear mongering." Other suggested twitter activity includes twittering in support of James Moore and his comment that the Chamber of Commerce represents the best interests of consumers or to start following MPs on Twitter (in the hope they will follow back and later see astroturfed tweets).

    The site also encourages posting comments on a wide range of articles and interviews.  For example, users are encouraged to comment on a Torontoist article on C-32 with the following points:
    • The article completely overstates the expected prevalence of DRMs
    • DRMs have faded quickly from the music industry- why would producers/artists hide their work?
    • There are a whole list of exceptions in the Bill, none of which Michael Geist and his Bit Torrent followers acknowledge

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    Piracy Haven Label Case of Rhetoric Over Reality

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    Monday May 10, 2010
    In the wake of recent reports exposing the activities of former MP Rahim Jaffer, lobbying has been the talk of Ottawa for the past month.  The incident has had an immediate impact on lobbying regulations, with the Conservatives and Liberals jostling over who can introduce tougher disclosure measures. The changes may plug a few loopholes, yet the reality is that lobbying efforts are not always the subject of secretive meetings with high-level officials.

    My weekly technology law column (Toronto Star version, homepage version) considers the intensive lobbying effort on promised intellectual property reform.  In recent weeks, those efforts have escalated dramatically, with most activities taking place in plain view. Scarcely a week goes by without a major event occurring - last week it was a reception sponsored by the Canadian Private Copying Collective, the week before an event hosted by the Entertainment Software Association of Canada, and the week before that the Juno Awards attended by several cabinet ministers and MPs.

    Even more open is the public campaign designed to persuade Canadians that their country is a piracy haven.  Late last month, the IFPI, which represents the global recording industry, released its annual Recording Industry in Numbers report that tracks global record sales.  The report targeted two countries - Canada and Spain - for declining sales and linked those declines to copyright law.  Not coincidentally, both countries are currently working on legal reforms.


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