Digital Copyright Canada

If you want an old-style, hard-working, windows, icons, menus, and pointer desktop, then what you want is Linux Mint 15.

Mint isn't just an outstanding Linux desktop, it's the best new desktop operating system of any kind available now.

Glenn Fleishman had me on his New Disruptors podcast and we had a great conversation! (MP3)

This week I wrote about the need for reform of the Copyright Board of Canada. Copyright collective management is addressed in two chapters of The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, an effort by many of Canada's leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy. As I've noted in previous posts, the book is available for purchase and is also available as a free download under a Creative Commons licence. The book can be downloaded in its entirety or each of the 14 chapters can be downloaded individually.

First, the complexity of copyright collective management is a recurring theme in debates over whether the Copyright Board of Canada, the Copyright Act and industry practice result in multiple payments for use of the same works. Jeremy de Beer describes this as "copyright royalty stacking" in his important chapter that unpacks "the layering of multiple payments for permission - through a certified tariff, collective blanket license or individual contract-to use copyright - protected subject matter."


The chapter notes there is reason for optimism as the decisions, along with recent copyright reforms, may reduce copyright royalty stacking. While this may result in reduced revenues for copyright management organizations in the short term, the longer-term effects may be more positive, with increased certainty, reduced transaction costs, and a growing market. Creators - whether individually or acting through collective management organization - would be the net beneficiaries, with more commercial opportunities and innovation in the distribution of creative works.

With copyright collectives involved as parties in all the copyright pentalogy cases, the implications of those decisions are particularly pronounced for the collectives and the future of copyright collective management. Daniel Gervais sharply criticizes the Court’s decisions, which, he says, "can be seen as a frontal assault on collective management of rights."

Gervais assesses the ESA, Bell and Alberta (Education) decisions, finding each wanting. He maintains that the decisions adopt a binary view of copyright-good vs. bad, control vs. free-when the reality is far more nuanced. Gervais argues that collective management organizations better reflect that nuance and that a system that effectively replaces collective management with fair dealing runs the danger of creating greater uncertainty and lost revenues for creators.

The Guardian

The Canadian Library Association issued a statement late last week on the Access Copyright lawsuit filed against York University, urging it to abandon the lawsuit and pointing to several legal concerns.

The National Post reports that the Competition Bureau of Canada plans to launch an investigation into Google Canada. The scope of the investigation is unknown.

With the latest phase of Canadian copyright reform now complete, the government may soon turn to the question of what comes next. Given last year's major legislative overhaul and the landmark series of copyright decisions from the Supreme Court of Canada, significant substantive changes are unlikely to be on the agenda for the foreseeable future.

Instead, my weekly technology law column (Toronto Star version, homepage version) argues that it is time for the government to set its sights on the Copyright Board of Canada, a relatively obscure regulatory body that sets the fees to be paid for the use of copyright works. The Board is largely unknown in public circles, but it has played a pivotal role in establishing the costs associated with private copying (including a one-time iPod levy), educational copying, and the use of music by Canadian broadcasters.

The litany of complaints about the Board has mounted in recent years: the public rarely participates in its activities due to high costs, it moves painfully slowly by only issuing a handful of decisions each year, and its rules encourage copyright collectives and users to establish extreme positions that make market-driven settlements more difficult.

Moreover, over the past ten months, the Supreme Court has ruled that its approach to fair dealing was unreasonable, the Board itself admitted to palpable error in a decision that resulted in a hugely inflated tariff, and it has ignored the will of Parliament in reshaping Canadian copyright law. The Board may keep a steady stream of lawyers and economists busy, but it is time to acknowledge that it is broken.


Last summer's five Supreme Court copyright decisions were all the result of appeals from Board decisions.  In the most closely watched case - that involving the scope of fair dealing for copying within Canadian education - the majority of court lambasted the Board's approach, using terms such as "flawed", "unreasonable", and "skewed" as well as questioning analysis reached despite an "evidentiary vacuum". The Board responded with a thinly veiled shot at the court.

Months later, the Board released decision involving a tariff for the reproduction of music works in cinematographic works for private use or for theatrical exhibition.  The Canadian Association of Film Distributors and Exporters had proposed a tiered tariff approach of a maximum of 2 cents per copy containing 30 minutes of music or more (less music would result in a lower tariff).

The Board mistakenly established a tariff of three cents per copy, incorrectly treating three tiers as three cents. The result was the prospect of royalties that were as much as 15 times higher than those proposed by the film distributors. The Board was later forced to acknowledge the error, admitting that the mistake resulted in procedural unfairness. 

Perhaps most troubling is the sense that the Board has little regard for the recent legislative and caselaw emphasis on the need for balance. The latest reforms included provisions that removed the need for payment for some copying by radio stations. The copyright collectives warned a House of Commons committee that the bill would "eliminate the revenues authors and publishers now received from broadcasters when reproductions of musical works are made and used for broadcasting purposes."

Soon after the bill took effect, the Canadian Association of Broadcasters filed an application with the Board to rescind the commercial radio tariff. The Board dismissed the application, arguing that the committee comments did not constitute a basis for statutory interpretation. Instead, it called the CAB's application "untenable" and engaged in its own statutory interpretation, suggesting that broadcasters might not be able to rely on the new exceptions.

The decision is par for the course for a board that has seemingly shifted from neutral arbiter to self-appointed copyright collective guardian with little regard for Parliament and the Supreme Court. If the government is looking for the next copyright issue to examine, it might well focus on a board that is largely inaccessible to the public and content to craft its own view of copyright regardless of what the government legislates or the Supreme Court says.

The next phase of the Microsoft v. Motorola litigation in Seattle will begin on August 26th. It will be a jury trial, as Motorola requested. I hope some of you are nearby and can attend. This will be the part about Microsoft's claims of breach of contract based on its assertion that Motorola violated a RAND contract by its opening bid being allegedly too high.

To describe it is to express the ridiculousness of what has been happening in Seattle. Why do I say that? I'll show you.

As I mentioned in my March Locus column, I'm celebrating the tenth anniversary of Down and Out in the Magic Kingdom by m planning a prequel. volume As part of that, planning'I going to read aloud the entire text of that first book into the podcast, making notes on the book as I go. Here's part eight.

Mastering by John Taylor Williams: wryneckstudio@gmail.com

John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."

MP3 link

I gave the annual Sense About Science lecture last week in London, and The Guardian recorded and podcasted it (MP3). It's based on the Waffle Iron Connected to a Fax Machine talk I gave at Re:publica in Berlin the week before.

There are now 68 public comments listed on the FTC's website on the topic of patent trolls. Patent Progress's David Balko's article, The End-Users Strike Back, notes that a surprising number are from end users, defined as "retailers, financial services, grocery stores, advertising, hotel industries, and even oil companies [who] are coming out in droves to fight abusive patent troll tactics":Patent trolls have started to target end-users, especially small companies, because they typically lack the expertise, experience and ability to fight questionable claims. Litigation costs can quickly mount up to $250,000 to $500,000, and reach millions if the case goes all the way through trial (not to mention appeals). End-users also have to deal with disruptions to their business from discovery requests and managing the litigation. Often companies are forced to divulge secret financial and technical information as well as divert key personnel from their work to participate in depositions and give testimony. Patent trolls, on the other hand, have few costs in pursuing a suit because they do not operate in any market. The lawsuit has no disruptive effect on the patent troll's business because it is the patent troll's business. You may enjoy going through them, but I thought you might like to see one of the more thoughtful of the public comments, the one from Ken Wasch [PDF], President of the Software & Information Industry Association, or SIIA, a trade association for the software industry with 700 plus members, because it provides details on how the patent trolls attack and what the results have been. I don't see members listed on the site, but the Software Board lists a number of companies, including Red Hat and IBM, and a number of smaller companies. And the comment states that trolls are hindering innovation, being "masters at abusing and manipulating the patent system." The footnotes alone are worth noting, but the really interesting part is how the comment explains how trolls do what they do. I learned something I've long wondered about, why trolls hide who they are in litigation.

The Globe and Mail

I reviewed Ronald Diebert's new book Black Code in this weekend's edition of the Globe and Mail. Diebert runs the Citizen Lab at the University of Toronto and has been instrumental in several high-profile reports that outed government spying (like Chinese hackers who compromised the Dalai Lama's computer and turned it into a covert CCTV) and massive criminal hacks (like the Koobface extortion racket). His book is an amazing account of how cops, spies and crooks all treat the Internet as the same kind of thing: a tool for getting information out of people without their knowledge or consent, and how they end up in a kind of emergent conspiracy to erode the net's security to further their own ends. It's an absolutely brilliant and important book:

Ronald Deibert’s new book, Black Code, is a gripping and absolutely terrifying blow-by-blow account of the way that companies, governments, cops and crooks have entered into an accidental conspiracy to poison our collective digital water supply in ways small and large, treating the Internet as a way to make a quick and dirty buck or as a snoopy spy’s best friend. The book is so thoroughly disheartening for its first 14 chapters that I found myself growing impatient with it, worrying that it was a mere counsel of despair.

But the final chapter of Black Code is an incandescent call to arms demanding that states and their agents cease their depraved indifference to the unintended consequences of their online war games and join with civil society groups that work to make the networked society into a freer, better place than the world it has overwritten.

Deibert is the founder and director of The Citizen Lab, a unique institution at the University of Toronto’s Munk School of Global Affairs. It is one part X-Files hacker clubhouse, one part computer science lab and one part international relations observatory. The Citizen Lab’s researchers have scored a string of international coups: Uncovering GhostNet, the group of Chinese hackers taking over sensitive diplomatic computers around the world and eavesdropping on the private lives of governments; cracking Koobface, a group of Russian petty crooks who extorted millions from random people on the Internet, a few hundred dollars at a time; exposing another Chinese attack directed at the Tibetan government in exile and the Dalai Lama. Each of these exploits is beautifully recounted in Black Code and used to frame a larger, vivid narrative of a network that is global, vital and terribly fragile.

Yes, fragile. The value of the Internet to us as a species is incalculable, but there are plenty of parties for whom the Internet’s value increases when it is selectively broken.

How to make cyberspace safe for human habitation

Black Code: Inside the Battle for Cyberspace

The beat goes on in the Apple v. Motorola appeal of Judge Richard Posner's ruling dismissing both parties' claims with prejudice, saying neither was entitled to damages or an injunction. Both are appealing, but for different reasons. Motorola has now filed its redacted reply brief [PDF] in response to Apple's response and reply brief [PDF]. And as soon as Judge James Robart issued his Microsoft-friendly ruling in Microsoft v. Motorola in the Seattle litigation, Apple sent a letter to this appeals court, bringing it to the court's attention, because it supports Apple's position and calls Motorola's patents a trivial contribution to the standard.

Motorola defends the value of its patents and then tells the Federal Circuit that RAND patent holders have to be able to seek injunctions against "intransigent" licensees like Apple. Otherwise, they'll take advantage, delaying by litigation any reckoning for years while benefiting from the technology without paying for it.

What exactly should happen to a company that refuses to pay and won't accept an offered rate or a court-set rate? The RAND patent holder *still* can't do a thing? No injunction? Nothing? Apple began its infringement, Motorola points out, in 2007. It's now 2013, and it still hasn't paid a dime. "Motorola should have the opportunity to seek an injunction to stop Apple's six years of ill-gotten gains from stretching into a decade or more," Motorola says.

In Elf-man v. Does 1-57, and several other cases brought by Elf-man, LLC, in Oregon, the Magistrate Judge has recommended that the cases be severed and dismissed as to all Does other than Doe #1, and that the subpoenas as to those parties be quashed.

May 14, 2013, Order, Findings, and Recommendation, Hon. Thomas M. Coffin, Magistrate Judge Ray Beckerman, P.C.

In Voltage Pictures v. Does 1-198, and certain companion cases, the District Court of Oregon has severed and dismissed, and quashed the subpoenas, as to all Does other than Doe #1, both on the ground that allegations of being in a BitTorrent swarm are not subject to joinder, and on the ground that discretionary factors do not warrant joinder.

May 4, 2013, Order, Hon. Ann Aiken, District Judge Ray Beckerman, P.C.

Hacking Politics is a new book recounting the history of the fight against SOPA, when geeks, hackers and activists turned Washington politics upside-down and changed how Congress thinks about the Internet. It collects essays by many people (including me): Aaron Swartz, Larry Lessig, Zoe Lofgren, Mike Masnick, Kim Dotcom, Nicole Powers, Tiffiny Cheng, Alexis Ohanian, and many others. It's a name-your-price ebook download.

Hacking Politics is a firsthand account of how a ragtag band of activists and technologists overcame a $90 million lobbying machine to defeat the most serious threat to Internet freedom in memory. The book is a revealing look at how Washington works today – and how citizens successfully fought back.

Written by the core Internet figures – video gamers, Tea Partiers, tech titans, lefty activists and ordinary Americans among them – who defeated a pair of special interest bills called SOPA (“Stop Online Piracy Act”) and PIPA (“Protect IP Act”), Hacking Politics provides the first detailed account of the glorious, grand chaos that led to the demise of that legislation and helped foster an Internet-based network of amateur activists.

Hacking Politics

The examination of the proposed Bell acquisition of Astral Communications took place last week in Montreal with the Canadian Radio-television and Telecommunications Commission hearing from a wide range of supporters and opponents of a deal that only last year was rejected as contrary to the public interest.  

As Bell and Astral sought to defend their plan, a familiar enemy emerged - Netflix. What does a U.S.-based Internet video service with roughly two million Canadian subscribers have to do with a mega-merger of Bell and Astral?  

My weekly technology law column (Toronto Star version, homepage version) notes that for the past few years, it has become standard operating procedure at CRTC hearings to ominously point to the Netflix threat. When Internet providers tried to defend usage based billing practices that led to expensive bills and some of the world's most restrictive data caps, they pointed to the bandwidth threat posed by Netflix. When cultural groups sought to overturn years of CRTC policy that takes a hands-off approach to Internet regulation, they argued that Netflix was a threat that needed to be addressed. So when Bell and Astral seek to merge, they naturally raise the need to respond to Netflix.


This is an age-old strategy that seems to resurface every decade. In the 1980s, it was the effort to keep large U.S. specialty channels such as ESPN and MTV out of the market that led to the creation of TSN and MuchMusic. In the 1990s, the U.S. satellite television providers were branded the "death stars" and kept out of the market to allow for Canadian entries. In the 2000s, it was U.S. satellite radio services that were denied entry until acquiescing to minimum Canadian content requirements.

In this decade, it is the Internet's turn as over-the-top video services such as Netflix are viewed as threats to established Canadian broadcasters, broadcast distributors, and content creators.

To date, the CRTC has largely skirted the issue by pointing to studies that suggest that Netflix and other over-the-top video providers have only had a minimal impact on the consumer market. But that won't last. Whether Netflix or the myriad of other online video services - from YouTube's forthcoming subscription services to the National Film Board's documentary film Netflix competitor (scheduled to launch in 2014) to sports leagues offering season packages for Internet distribution to film studios launching their own services - the online distribution model is only going to increase in popularity.

Rather than claiming limited impact, the CRTC should embrace the trend by concluding that the services are a boon to both consumers and content creators consistent with its policy mandate that does not require regulatory change or protection for established Canadian broadcasters.  

For consumers, the benefits are obvious with more choice, greater convenience, and lower prices.

Creators also benefit from the proliferation of these services by virtue of the heightened competition for their content. In years past, the competitive landscape in Canada was limited to a handful of broadcasting organizations. The entry of new competitors means there will be a larger ecosystem of distributors, intermediaries, and original producers all vying for enough content to make a compelling offering to consumers.

The established players unsurprisingly view the new entrants as a threat since they offer competitive content at a fraction of the price of a typical cable or satellite bill, increase acquisition costs, and free consumers from being locked into a small number of service providers.

Broadcasters and some content creator groups may be comfortable with a highly regulated system that provides a steady stream of revenue, but the new environment creates a more competitive landscape and the promise of increased demand for new creative works. Viewed in that light, the shift toward a robust online video market should be welcomed by the CRTC with open arms, not viewed warily as a threat in need of regulatory intervention.

We made it. A decade of Groklaw as of today. Who'd a thunk it?

Not I.

When I started, I thought I'd do a little fiddling around for a couple of months to learn how to blog. But then all you guys showed up and taught me some important things that I didn't know, and vice versa I hope, and here we are, on our 10th anniversary, still going strong, together on a very different path than I originally imagined. The important moment for me was when I realized the potential we had as a group and decided to try to surf this incredible wave all of you created by contributing your skills and time. I saw we could work as a group, explain technology to the legal world so lawyers and judges could make better decisions, and explain the legal process to techies, so they could avoid troubles and also could be enabled to work effectively to defend Free and Open Source Software from cynical "Intellectual Property" attacks from the proprietary world.

And it worked! That's the amazing part. It actually worked. So far, so good.

If I take three things away from our experience, it's this: 1.) Education is never a waste,
2.) All of us together are smarter and more powerful than any one of us alone, and
3) FUD withers in sunlight. It only works when people lack accurate information. Group dynamics are awesome. Whenever there is a new need, somehow the right people show up and fill it. Whether it was meticulously demolishing SCO's claims, one by one, or doing patent prior art searching, or explaining that software is mathematics and hence unpatentable subject matter, or noticing what the real game is in the patent smartphone wars, you came through with competence, donating your knowledge, research, and skills to the group effort. And you did it entirely as volunteers, as a free gift to the world.

Groklaw was attacked with venom, of course. But here we are, ten years later, still standing.