Columns

Ipod Levy May Yet Face The Music

My weekly Law Bytes column (Toronto Star version, Ottawa Citizen version, homepage version) focuses on last month's Copyright Board decision that re-opens the door to placing a levy of up to $75 on iPods as part of the private copying levy. I note that the case may create a sense of déjà vu, since it marks the second time that the Canadian Private Copying Collective, the collective that has pocketed more than $150 million from the levy since 2000, has sought to include iPods within the levy system. It first introduced an iPod levy in 2003, only to have the Federal Court of Appeal strike it down as the court declared that "it is for Parliament to decide whether digital audio recorders such as MP3 players are to be brought within the class of items that can be levied. . .as [the law] now reads, there is no authority for certifying a levy on such devices or the memory embedded therein."

Notwithstanding the Court's unambiguous language, the CPCC reintroduced the iPod levy earlier this year, arguing that the MP3 player comments were "obiter"(a legal reference to a passing remark that does not form a necessary part of the court's decision). Canadian retailers and storage media companies unsurprisingly challenged that interpretation, leading to last month's ruling that sided with the CPCC. The Copyright Board did not mince words, suggesting that the levy could also be applied to cellphones and personal computers, and warning that excluding the iPod from the levy system would "instantly makes the conduct of millions of Canadians illegal, and even possibly criminal."

The decision will presumably be appealed, virtually guaranteeing years of litigation that promises to divert millions of dollars earmarked for artists to lawyers instead. While the legal challenges are important, the political repercussions carry greater significance since they may lead to dramatic changes to both the levy and the Copyright Board.

August 6, 2007 — 4 comments — Columns

Dell Case Sets Standard for Online Contracts

My weekly Law Bytes column (Toronto Star version, The Tyee version, homepage version) examines the recent Supreme Court of Canada decision involving Dell Computer, online contracting, and mandatory arbitration clauses. Late on a Friday afternoon in April 2003, Dell Computer's Canadian website featured a pair of erroneous prices for the Axim, the company's handheld computer. Rather than listing the two versions of the device correctly at $379 and $549, the site indicated that the price was $89 and $118. Dell blocked access to the pages the following day, however, the mistakes remained accessible throughout the weekend via a direct hyperlink.

Dell typically sold about three Axims each weekend, yet on this particular April weekend, 354 Quebec-based consumers placed 509 orders. Olivier Dumoulin was among those consumers and when Dell refused to honour the mistaken price, he joined forces with a Quebec-based consumer group to launch a class action lawsuit against the company. Dell tried to block the suit, arguing that its consumer contract provided that all disputes were to be resolved by arbitration.

The Dell case wound its way through the Canadian court system, concluding with a Supreme Court of Canada decision last month. Quebec trial and appellate courts both sided with Dumoulin, ruling that the arbitration clause was not enforceable and that the consumer class action could proceed. The Supreme Court overturned those decisions, concluding that the arbitration clause was enforceable and that the use of a hyperlink was sufficient. Dell unsurprisingly welcomed the decision, maintaining that the ability to use arbitration "will lead to the fair and efficient resolution of cases for consumers and business alike." Consumer groups were furious, stating that the decision marked "a dark day for online shoppers in Canada.”

Yet a closer examination of the decision and the current state of e-commerce in Canada suggests that neither side is right.

July 30, 2007 — 7 comments — Columns

Uncompetitive Canadian Pricing Threatens Mobile Internet

My weekly Law Bytes column (Ottawa Citizen version, Toronto Star version, homepage version) focuses on the mobile Internet in Canada, arguing that we are falling behind even developing countries as a consequence of overpriced mobile data services in our cozy, uncompetitive market. Until recently, the conventional wisdom held that there were two barriers – technology and cost – to the emergence of widespread mobile Internet use. From a technological perspective, most cellphones and wireless devices could manage email and text messaging, but were ill-suited for the full Internet experience including browsing and Internet video. That technology barrier has largely been eliminated, fuelled by popularity of devices such as the Apple iPhone.

The cost barrier still looms large, however. Canadian carriers have treated mobile Internet use as a business product, establishing pricing plans that force most consumers to frugally conserve their time online. Indeed, the mobile Internet in Canada is reminiscent of Internet access in the mid-1990s, when dial-up access dominated the market and consumers paid by the minute for their time online.
For example, Rogers – Canada's sole GSM provider and therefore the only telecom company currently equipped to offer the iPhone – offers a starter data plan that provides 1.5 megabytes of data per month for $15 (each additional MB is $21). Since that is not even enough data to download a single high-resolution photograph, most consumers presumably opt for more. The company's biggest data plan provides 500 MB, yet costs $210 per month – far beyond the reach of most consumers.

This pricing, which is comparable to plans found with Bell and Telus, is not close to competitive internationally.

July 23, 2007 — 16 comments — Columns

Diversity of Voices

My weekly Law Bytes column (Toronto Star version, homepage version) focuses on the CRTC's upcoming diversity of voices proceeding. The column notes that the initiative should be seen as part of the larger new media challenge, which CRTC Chair Konrad von Finckenstein has described as "the defining challenge of our time in broadcasting. There is no more important matter facing the Commission, nor does any other matter have such long-term consequences."

The CRTC has launched the New Media Project initiative will analyze whether new media should be regulated and assess its impact on the creation and distribution of Canadian content. The initiative will also consider critical access issues including network neutrality (described by von Finckenstein as "Internet traffic prioritization") and whether access to high-speed broadband networks should be elevated to a core policy objective. A final project report is not expected until March 2009, however, the CRTC has a second initiative that will cover some of the same terrain much sooner – the Diversity of Voices proceeding.

The Diversity of Voices proceeding comes in response to the growing consolidation of Canadian media and seeks commentary on whether the changing corporate landscape has had a negative impact on the diversity of perspectives within the Canadian broadcasting system. The CRTC’s interest in the issue arises directly from the Broadcasting Act, which includes a statutory objective that Canadian broadcasting "provide a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern."

The need for an open consultation on media diversity is long overdue.

July 16, 2007 — 1 comment — Columns

Giving the Internet a Sporting Chance

The Victoria Park Racing and Recreation Grounds was a popular racecourse in Sydney, Australia in the 1930s. Built in an open fairground, the owners erected a fence around the track to ensure that only ticket buyers could watch the action or place bets on the races. In response, a neighbour built a tower that was used by an Australian broadcaster to peer over the fence and broadcast descriptions of the races on its radio stations. Victoria Park Racing sued both the neighbour and the broadcaster on nuisance and property rights grounds. The Australian High Court dismissed the suit in 1937, but the case marked the arrival of an ongoing fight over the rights of sports leagues and teams to control coverage of their events that continues to this day.

Seventy years later, the battle has shifted to the Internet. My weekly Law Bytes column (Toronto Star version, homepage version) focuses on how in recent months, a growing number of leagues and sports associations have sought to assert control over athlete blogging, posting photographs and video online, and even the use of player statistics.

July 9, 2007 — Comments are Disabled — Columns