Digital Copyright Canada

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.

In WNET v. Aereo, and its companion case, defendant has moved for summary judgment dismissing the remaining claims, in the wake of last month's Second Circuit ruling affirming denial of plaintiffs' preliminary injunction motion.

Defendants' memorandum of law in support of motion for summary judgment Ray Beckerman, P.C.

Update with correction: Hat tip to Barry Werbin of Herrick, Feinstein LLP, Chairperson of the New York City Bar Association’s Copyright and Literary Property Law Committee, who pointed out to me what I had missed -- where in his opinion Judge Pauley partially granted a defendant's motion for reconsideration. It was here:On page 13, the court opens up the direct infringement judgment previously issued against Robertson only as to "EMI's ownership of the copyrights for two of the songs he sideloaded, ‘White Christmas’ by Frank Sinatra and ‘Devil in Me’ by 22-20s, because Plaintiffs did not provide registrations for those copyrights... Further, EMI relies on copyrights registered as compilations for thirteen of the songs Robertson sideloaded. Because compilations contain pre-existing constituent works that may have been fixed prior to February 15, 1972 or that may have been previously registered by another owner, Robertson has created an issue of fact with respect to those songs."

So defendant’s Roberson's motion was granted in part to that limited extent

My original post was as follows:

In Capitol Records v. MP3Tunes, in which the Court had been asked to reconsider its earlier decision, in light of the Second Circuit's subsequent ruling in Viacom v. YouTube, the record companies' motion has been granted almost entirely, and the defendants' motions denied.*

The district court:

-accepted the record companies' argument that there were several documents in the record which a jury could reasonably have interpreted as requiring further inquiry into specific and identifiable instances of infringement, thus possibly triggering the 'wilful blindness' issue and requiring explicit fact-finding
-"reluctantly" accepted the record companies' argument that MP3Tunes's "red flag" knowledge could not be resolved on summary judgment
-denied the record companies' request for reinstatement of their seperate "inducement" claim
-rejected defendants' argument that the algorithm which copied plaintiffs' cover art was covered by the DMCA safe harbor
-rejected defendant Robertson's argument that his personal liability for 'sideloading' some files due to evidence of an implied license by virtue of the record companies' making free downloads available
-rejected defendant Robertson's argument that the district court in New York did not have personal jurisdiction over him
-rejected defendant Robertson's argument that the vicarious liability claim against him should be dismissed

Memorandum and Order granting plaintiffs' motions for reconsideration and denying defendants' motions

*Although the decision states that defendants' motions were partially granted, I could not find any part of the decision which granted any part of defendants' motions. If you find anything, please shoot me a comment and let me know so I can correct this blog post. Thanks. -R.B. Ray Beckerman, P.C.

As negotiators at WIPO prepare for a June 17-22 diplomatic conference in Marrakesh to create a new international instrument/treaty for the benefit of the visually impaired.  The treaty is intended, by its proponents, to make copyright works more accessible to the visually impaired.  It is currently estimated that only 5% of works are available in a accessible format.  Stevie Wonder and other key activists have been proponents of the treaty.

Negotiations have, according to reports (and here), hit stumbling blocks that could foil the agreement.  WIPO held an "Informal and Special Session" to discuss the instrument in April that concluded by posting a draft text (of April 20) of the instrument/treaty, available here.  Media conglomerates, copyright lobby groups, the Obama administration, and the European Commission have sought to weaken or derail the treaty.  The draft text has been filled with brackets and alternatives that will make a final agreed text more difficult to come to.  It is now feared that the conference will end in a deadlock, or in a treaty that contains so much red tape it will be utterly useless.  I have observed in my book that this has been the result of many efforts to create copyright exceptions,  including the provisions of the 1971 Berne Convention, which was intended, but failed utterly, to create copyright exceptions for developing countries.

An access to information request has shown the close involvement of UK publishers with the UK negotiators.  Intellectual property owners argue that any treaty on users' rights that doesn't have something in it for them is unacceptable.

Knowledge Ecology International held a discussion on the instrument/treaty.  Video clips are available here.

Want to run Linux on the Google Computer Engine cloud? Starting immediately, Debian Linux is Google's Linux of choice.

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 seven.

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 am sure you saw that somebody in Germany, a company called nachtausgabe.de, has sneaked through a trademarking of the word HACKATHON in Germany. There was no opposition, because nobody knew about it. We know now, however, so what can anyone do about it? It turns out, plenty.

It's a word that OpenBSD and Sun each came up with independently at the same time back in the '90s, for heavens sake, and it surely can't belong to any one company now that it's in the dictionary and everyone has freely used it for years now.

Anyway, as soon as I read about it, I wrote to the German equivalent of the USPTO, DPMA, the German Patent and Trademark Office, and I've learned some things that can still be done. I'll share them with you, so the community knows how to go forward if it proves necessary.

The Guardian

My latest Guardian column is "3D printed guns are going to create big legal precedents," and it looks at an underappreciated risk from 3D printed guns: that courts will be so freaked out by the idea of 3D printed guns that they'll issue reactionary decisions that are bad for the health of the Internet and its users:

More interesting is the destiny of the files describing 3D printed guns. These model-files have been temporarily removed from the internet at the behest of the US State Department, which is investigating the possibility that they violate the International Traffic in Arms Regulations. Wilson says that he's on safe ground here, because the regulations do not cover material in a library, and he says the internet is like a library. As this is taking place in the US, there's also the First Amendment to be considered, which limits government regulation of speech.

Here's where things get scary for me. Defense Distributed is headed for some important, possibly precedent-setting legal battles with the US government, and I'm worried that the fact that we're talking about guns here will cloud judges' minds. Bad cases made bad law, and it's hard to think of a more emotionally overheated subject area. So while I'd love to see a court evaluate whether the internet should be treated as a library in law, I'm worried that when it comes to guns, the judge may find himself framing the question in terms of whether a gun foundry should be treated as a library.

3D printed guns are going to create big legal precedents

Last month, the University of Ottawa Press published 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.

The book includes two articles on technological neutrality, whose inclusion as a foundational principle  of Canadian copyright was a landmark aspect of the copyright pentalogy.  The message from the Court is clear: copyright law should not stand in the way of technological progress and potentially impede the opportunities for greater access afforded by the Internet through the imposition of  additional fees or restrictive rules that create extra user costs. Viewed in this light, technological neutrality as a principle within Canadian copyright may have the same dramatic effects on the law as the articulation of users’ rights did in 2004.


Carys Craig opens the technological neutrality part with a critical assessment of the significance of the principle and its potential to guide future development of copyright law and policy in Canada. Craig's chapter examines the various meanings that can be attached to technological neutrality, as a principle of both regulation and statutory interpretation. Craig offers a strong endorsement of technological neutrality as a guiding principle for Canadian copyright, arguing that its justification can be found in the oft-referenced need for balance in copyright. Her chapter emphasizes the importance of thinking of technological neutrality in a functional sense with the goal of shaping copyright norms that treat technologies in a roughly equivalent fashion in order to preserve the copyright balance in the digital environment.

Greg Hagen's discussion of technological neutrality considers its potential application to contentious copyright policy issues. For example, Hagen argues that the principle of technological neutrality  can be used to create new exceptions to the prohibition on circumventing technological protection measures (TPMs, often referred to as "digital locks") and to strike down some prohibitions (which make user rights subject to not circumventing a TPM) on the basis of a conflict with the rule of law. Hagen notes that anti-circumvention legislation favours incumbents over new market rivals, raising concerns about whether such rules meet the technological neutrality principle articulated by the Court. Indeed, Hagen suggests that courts should be empowered to establish new exceptions to the anti-circumvention rules in order to preserve technological neutrality.

This shouldn't come as any great surprise, but Linux is faster than Windows, and at least one anonymous Microsoft developer is willing to admit it and explain why that's the case.

Well, this is fabulous news: Rapture of the Nerds, the novel Charlie Stross and I published last year, is a finalist for the 2013 Campbell Award for best novel. It's in some truly outstanding company, too -- check out that shortlist!

OMG. CLS Bank v. Alice Corp. has been decided [PDF] by the the Federal Circuit en banc. And Patently O says the court "finds many software patents ineligible"!As described more fully below, we would affirm the district court's judgment in its entirety and hold that the method, computer-readable medium, and corresponding system claims before us recite patent-ineligible subject matter under 35 U.S.C. § 101.1

_____
1 While Chief Judge Rader is correct to note that no single opinion issued today commands a majority, seven of the ten members, a majority, of this en banc court have agreed that the method and computer-readable medium claims before us fail to recite patent-eligible subject matter. In addition, eight judges, a majority, have concluded that the particular method, medium, and system claims at issue in this case should rise or fall together in the § 101 analysis. The Federal Circuit. OMG. We've worked hard for so many years to get to this point, I almost can't believe it. And I suppose it's possible it could be appealed, but this is proof of what I've always told you, that education is never a waste. Judge Rader is very upset, I gather. He has written a dissent. But he didn't prevail. And I'm sure he gave it his best effort. OMG. This is a new day.

I knew you'd want to know *that* immediately. We can read and analyze it later in more detail, so stop back by. After I read it again, I'll be sure to post it and we can discuss.

I remember the first time we wrote on Groklaw that software and patents need to get a divorce. Remember? So long ago, and how everybody laughed at us. I remember that too. I am thinking about Apple and Microsoft and all the software patent bullies. Well, let's not get ahead of ourselves. I'll read it more carefully now.

Does Linux really need another application packaging and installment system? Ubuntu will be adding another one for its Ubuntu Touch smartphones and tablets.