Columns

The Recording Industry’s Digital Strategy Out of Tune

My weekly Law Bytes column (Toronto Star version, homepage version) begins with the following:

Ten years ago, as the Internet began to mushroom in popularity and emerging technologies enabled consumers to make near-perfect copies of digital content, the recording industry emphasized a two-pronged strategy in response to the changing business environment. First, it focused on copy-control technologies, often referred to as digital rights management (DRM), that many in the industry believed would allow it re-assert control over music copying. Second, it lobbied the Canadian government for a private copying levy to compensate for the music copying that it could not control.

While the industry’s approach proved successful on the legal front – the 1996 World Intellectual Property Organization’s Internet Treaties established legal protections for DRM and Ottawa introduced a private copying levy on blank media such as cassettes and CDs in 1997 – the strategy’s effectiveness has long been subject to debate. The week of February 5th may ultimately be viewed as the beginning of the end of that debate. That week, which began with Apple CEO Steve Jobs calling on the industry to drop DRM and concluded with the Canadian Private Copying Collective (CPCC), the collective that administers the private copying levy, applying for its dramatic expansion, leaves little doubt that the recording industry got it wrong.

The column proceeds to discuss the failure of DRM and the mounting pressure on the industry to drop it.

February 19, 2007 — 5 comments — Columns

The Canadian Net Neutrality Debate

My weekly Law Bytes column (Toronto Star version, homepage version) discusses the recent revelations that Industry Canada is highly skeptical about the need for net neutrality legislation. I argue that the need to prevent a two-tier Internet in Canada has never been greater. The Canadian competitive landscape is dominated by a handful of companies, with the top five providers controlling 84 percent of Canadian Internet connections. Indeed, Canadian consumers who have access to broadband networks (many communities are still without access) invariably face steady price increases and service limitations from the indistinguishable choice between cable and DSL.

Leveraging their dominant positions, Canadian telecommunications companies have been embroiled in a growing number of incidents involving content or application discrimination. Over the past two years, Telus blocked access to hundreds of websites during a dispute with its labour union, Shaw attempted to levy surcharges for Internet telephony services, Rogers quietly limited bandwidth for legitimate peer-to-peer software applications, and Videotron mused publicly about establishing a new Internet transmission tariff that would require content creators to pay millions for the privilege of transmitting their content.

The government documents uncovered last week confirm that Industry Minister Maxime Bernier is aware of the situation.

February 14, 2007 — 10 comments — Columns

Movie Piracy Claims More Fiction Than Fact

My weekly Law Bytes column (Toronto Star version, homepage version) examines recent claims that Canada has become the world's leading source of movie piracy. The column finds that a closer examination of the industry's own data reveals that the claims are based primarily on fiction rather than fact, featuring unsubstantiated and inconsistent claims about camcording, exaggerations about its economic harm, and misleading critiques of Canadian law.

First, the camcorder claims have themselves involved wildly different figures. Over the past two weeks, reports have pegged the Canadian percentage of global camcording at either forty or fifty percent. Yet the International Intellectual Property Alliance, a U.S. lobby group that includes the MPAA, advised the U.S. government in late September that Canadians were the source for 23 percent of camcorded copies of DVDs.

Not surprisingly, none of these figures have been subject to independent audit or review. In fact, AT&T Labs, which conducted the last major public study on movie piracy in 2003, concluded that 77 percent of pirated movies actually originate from industry insiders and advance screener copies provided to movie reviewers.

Moreover, the industry's numbers indicate that camcorded versions of DVDs strike only a fraction of the movies that are released each year. As of August 2006, the MPAA documented 179 camcorded movies as the source for infringing DVDs since 2004. During that time, its members released approximately 1400 movies, suggesting that approximately one in every ten movies is camcorded and sold as infringing DVDs. According to this data, Canadian sources are therefore responsible for camcorded DVD versions of about three percent of all MPAA member movies.

Second, the claims of economic harm associated with camcorded movies have been grossly exaggerated.

February 5, 2007 — 14 comments — Columns

Vista’s Fine Print

With Microsoft's Vista set to hit stores tomorrow, my weekly Law Bytes column (Toronto Star version, homepage version) looks at the legal and technical fine print behind the operating system upgrade. The article notes that in the name of shielding consumers from computer viruses and protecting copyright owners from potential infringement, Vista seemingly wrestles control of the “user experience” from the user.

Vista's legal fine print includes extensive provisions granting Microsoft the right to regularly check the legitimacy of the software and holds the prospect of deleting certain programs without the user's knowledge. During the installation process, users "activate" Vista by associating it with a particular computer or device and transmitting certain hardware information directly to Microsoft.

Even after installation, the legal agreement grants Microsoft the right to revalidate the software or to require users to reactivate it should they make changes to their computer components. In addition, it sets significant limits on the ability to copy or transfer the software, prohibiting anything more than a single backup copy and setting strict limits on transferring the software to different devices or users.

Vista also incorporates Windows Defender, an anti-virus program that actively scans computers for "spyware, adware, and other potentially unwanted software." The agreement does not define any of these terms, leaving it to Microsoft to determine what constitutes unwanted software. Once operational, the agreement warns that Windows Defender will, by default, automatically remove software rated "high" or "severe,"even though that may result in other software ceasing to work or mistakenly result in the removal of software that is not unwanted.

For greater certainty, the terms and conditions remove any doubt about who is in control by providing that "this agreement only gives you some rights to use the software. Microsoft reserves all other rights." For those users frustrated by the software's limitations, Microsoft cautions that "you may not work around any technical limitations in the software." Those technical limitations have proven to be even more controversial than the legal ones.

January 27, 2007 — 73 comments — Columns

Privacy Breaches Expose Flaws in the Law

My weekly Law Bytes column (Toronto Star version, homepage version) focuses on the need for Canadian privacy reform in light of last week's security breaches involving CIBC and retailer giant Winners. I note that these two incidents highlight the fragility of sensitive, personal information that is entrusted to Canadian businesses as well as the inadequacy of current Canadian privacy legislation. Business groups have cautioned against privacy law reforms, yet as the risk of identity theft grows, the calls for change are likely to become more vocal.

While the U.S. pushes forward with security breach disclosure legislation, Canadian business has argued strongly against similar reforms. The Information Technology Association of Canada, which features representatives from companies such as BCE, Telus, Rogers, Microsoft, Nortel, and Research in Motion on its board of directors, warned against mandatory notification legislation in an appearance before a parliamentary committee last month.

January 22, 2007 — 3 comments — Columns