Columns

“Three Strikes and You’re Out” Policy Strikes Out

The new baseball season is in full swing, yet in recent months the phrase "three strikes and you’re out" has taken on an entirely different meaning on the Internet. My new technology law column (Toronto Star version, homepage version) reports on how, prodded by content lobby groups, a handful of governments have moved toward requiring Internet service providers to terminate subscribers if they engage in file sharing activities on three occasions. The policy – occasionally referred to as "graduated response" – received support last fall from French President Nicolas Sarkozy, who pressured the private sector to negotiate an agreement to implement the three strikes system. The policy soon attracted global attention as the United Kingdom, Japan, and Australia all announced that they were contemplating a similar approach.

In recent weeks, however, it would appear that governments are beginning to have sober second thoughts. After a Swedish judge recommended adopting the three strikes policy, that country's Ministers of Justice and Culture wrote a public opinion piece setting out their forthcoming policy that explicitly excluded the three strikes model.

Earlier this month, the European Parliament delivered an even stronger rejection.

April 21, 2008 — 7 comments — Columns

National Gallery Looking For Profits in the Wrong Place

My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) explores the issue of museums and fees associated with public domain works. As museums experiment with the Internet – many are using online video, social networks, and interactive multimedia to create next-generation museums that pull content from diverse places to create "virtual museums" – the museum community has emerged as a leading voice for the development of legal frameworks that provide sufficient flexibility to facilitate digitization and avoid restrictions that could hamper cultural innovation.

Yet as museums embrace the Internet's potential, there is concern that their advocacy and actions are not always consistent. This is particularly true with respect to their policies on public domain works, for which the term of copyright has expired. The public domain issue has emerged as a contentious one within the museum community. Many museums receive regular requests for copies of works in their collection to be reproduced in school texts, magazines, or other publications. The costs associated with these requests vary widely. Some museums levy administrative fees (for the cost associated with handling the request), reproduction fees (for the cost of reproducing the image), and notwithstanding the expiry of copyright, permission fees.

In 2006, London's famed Victoria and Albert Museum became the first museum to completely drop charges for the reproduction of images in scholarly books and magazines. While that decision generated considerable acclaim, according to documents obtained under the Access to Information Act, the National Gallery of Canada (NGC) appears to be taking the opposite approach by treating public domain works as a profit centre.

April 15, 2008 — 3 comments — Columns

Fair Dealing Reform a Key Innovation Policy Priority

The Hill Times ran a special section [PDF] on innovation policy this week that featured several interesting articles including an op-ed on net neutrality from MP Charlie Angus and a column I wrote that links fair dealing reform and innovation. While the substance behind the Government’s copyright plans remains to be seen, fair dealing reform is a critical part of a copyright reform package linked to innovation. Indeed, the 2006 Gowers Report on Intellectual Property, the leading United Kingdom study on intellectual property reform, concluded that "'fair uses' of copyright can create economic value without damaging the interests of copyright owners."

Similar sentiments have been raised in Canada.

April 8, 2008 — 5 comments — Columns

CMA and MRIA Recommend Against Respecting iOptOut Requests

My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) focuses on the reaction to iOptOut.ca which includes advice from at least two Canadian associations to their members not to respect the legitimate opt-out requests of thousands of Canadians. I argue that this provides a good sense of what lies ahead this fall when the government-mandated list makes its long awaited debut. The iOptOut.ca site is based on a simple premise, namely that Canadian privacy law already gives Canadians the right to withdraw their consent over the use of their personal information (including phone numbers) for telemarketing calls. Visitors to the site are asked to enter their phone number (and email address if they wish) and to indicate their privacy preferences for nearly 150 organizations.

With a single click, the selected organizations each receive an opt-out request, enforceable for the moment through the complaint process under national privacy law. Once the do-not-call list is up and running, there will be a further enforcement mechanism – complete with financial penalties – for those organizations that do not respect the opt-out request. After only one week online, it has become readily apparent that the site has struck a chord with Canadians. More than 17,000 phone numbers have been registered, resulting in over 1.7 million opt-out requests. Interestingly, many users pick-and-choose their organizations, as over a quarter of all registrants do not check all available options.

April 8, 2008 — 11 comments — Columns

Bell’s ‘Throttling’ Plan a Threat to a Competitive Net

My weekly technology law column (Toronto Star version, Vancouver Sun version, Ottawa Citizen version, homepage version) focuses on the competition concerns raised by Bell's throttling plans. I begin by noting that the CRTC has long acknowledged that Canadians enjoy limited competition for high-speed Internet services. In response, it has supported independent ISPs by requiring incumbents like Bell to provide wholesale broadband Internet service at regulated rates. While it is difficult to price-compete – the Bell wholesale pricing creates an effective minimum price – independent ISPs such as Chatham-based Teksavvy and Ottawa’s National Capital Freenet have carved a niche in the Canadian market through attention to customer service, innovative bundling approaches, targeted network investments, and community ownership.

Last week, this important piece of the Canadian Internet connectivity puzzle learned that its future viability has been put at risk due to Bell's plans to "throttle" its wholesale services. Last year, Bell began installing "deep packet inspection" capabilities into its network. The DPI capabilities – which allow ISPs to identify the type of content that runs on their networks – did not go unnoticed by the independent ISPs since DPI is also used to "throttle" Internet content by scaling back the amount of bandwidth allocated to particular applications.

While Bell employed these throttling technologies with their own Sympatico customers, some independent ISPs sought assurances that it would not be applied to the wholesale services. Sources advise that Bell responded positively that its plans were limited to its own customers, consistent with its 2003 assurance to the CRTC that it would only engage in limiting bandwidth for wholesale services "in cases of troubleshooting or to protect the network infrastructure from congestion resulting from malfunctioning or mis-configured equipment or malicious hacking."

April 1, 2008 — 29 comments — Columns