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CRTC Rejects Bell Request for Private Meeting On Super Bowl Simsub Decision

Michael Geist Law RSS Feed - Mon, 2015/02/02 - 16:45

The CRTC has rejected a request from Bell for private meetings with some or all of the CRTC Commissioners to discuss the recent simultaneous substitution decision involving the Super Bowl. According to recently obtained correspondence (posted below), Bell wrote privately to the CRTC Commissioners over the weekend to request an opportunity to discuss the ruling with each or all of them. The CRTC responded immediately, noting that the decision was the result of a public process that is still ongoing and that it would be inappropriate for Bell to hold private meetings with the Commissioners to discuss the decision.  The full correspondence is posted below:

De :  Envoyé : Sunday, February 01, 2015 09:09 AM À : Blais, Jean-Pierre; Pentefountas, Tom; Menzies, Peter; Molnar, Candice; Shoan, Raj; Dupras, Yves; Simpson, Stephen Objet : Impacts of Super Bowl Simsub Decision
 
Good morning Commissioners and apologies in advance for communicating on a weekend.
 
As most of you know, I do not often email Commissioners about substantive regulatory issues and I have rarely (if ever) communicated to everyone at the same time to convey concern about a decision.
 
You have undoubtedly heard our perspective on the Super Bowl decision and you also had the benefit of the overwhelming evidence presented at the hearing showing the significant impacts that loss of simsub, even for the Super Bowl, would have on Canadian advertisers, promotional opportunities for Canadian content and on Bell Media’s revenues.  I have attached below two press releases and an article directly relevant to theses issues.
 
While I may often disagree with CRTC rulings, I always respect that the Commission has to take the broader public interest into account.  In this case however, I really do believe the negative impacts to advertisers, Canadian content and Bell Media significantly outweigh the convenience to some viewers of being able to watch American ads within the broadcast itself.
 
I would appreciate any opportunity to further discuss this issue with each or all of you.
 
Best regards,
 
——————–
CRTC Response
 
From: Laizner, Christianne 
Sent: February-02-15 2:00 PM
To: ‘
Subject: Broadcasting Regulatory Policy 2015-25
 
Dear Mr. ,
 
Your correspondence of 1 February 2015 to Commissioners has been forwarded to me for response. In that correspondence, you indicated your disagreement with the Commission’s decision regarding simultaneous substitution and the Super Bowl. You requested meetings with each or all of the Commissioners to discuss your views on this decision.
 
I would note that the decision in question was reached following an extensive public proceeding which examined many options with respect to simultaneous substitution including its complete elimination. The Commission considered all of the evidence and submissions put before it, in that public proceeding. I would further note, as indicated in the Commission’s decision, there will be further public process to implement the Commission’s decision via regulation. As such, the implementation of this decision is still before the Commission. In addition, the Commission has not yet issued its decisions on the many other outstanding issues from the public proceeding.
 
In light of the above, it would be inappropriate for you to hold private meetings with Commissioners either individually or collectively to discuss your views on this decision. It would be unfair to other parties to the public proceeding for Commissioners to hold off the record conversations with one party with a view to altering a decision already taken.
 
Sincerely,
 
Christianne Laizner
Avocate générale principale / Directrice exécutive
Senior General Counsel / Executive Director
Secteur juridique / Legal Sector
Conseil de la radiodiffusion et des télécommunications canadiennes /
Canadian Radio-television and Telecommunications Commission
CRTC, Ottawa, Ontario K1A 0N2

The post CRTC Rejects Bell Request for Private Meeting On Super Bowl Simsub Decision appeared first on Michael Geist.

In Partial Defense of the Seahawks’ Play Calling

Freedom to Tinker - Mon, 2015/02/02 - 09:30
The conventional wisdom about last night’s Super Bowl is that the Seahawks made a game-losing mistake by running a passing play from the Patriots’ one yard line in the closing seconds. Some are calling it the worst Super Bowl play call ever. I disagree. I won’t claim it was the right call, but I do […]

2014’s best science fiction and fantasy


Locus magazine has published its annual recommended

I was delighted and honored to find that my stories "Petard" (from Twelve Tomorrows) and "The Man Who Sold the Moon" (from Hieroglyph) (excerpt) made the cut (both have also been selected for several of this year's Year's Best anthos, for which I am extremely grateful!).

For me, the publication of the Locus List always marks the day when I fill in my Hugo nominations ballot, using it to jostle my memory and figure out which works I want to put forward. If you're interested in my own eligible works, they're the two stories above (best novelette and novella, respectively), "Information Doesn't Want to Be Free" (best related work) and "In Real Life" (with Jen Wang) (best graphic novel).

Here's the sf novels on this year's list:

* Ultima, Stephen Baxter (Gollancz; Roc 2015)
* War Dogs, Greg Bear (Orbit US; Gollancz)
* Shipstar, Gregory Benford & Larry Niven (Tor; Titan 2015)
* Chimpanzee, Darin Bradley (Underland)
* Cibola Burn, James S.A. Corey (Orbit US; Orbit UK)
* The Book of Strange New Things, Michel Faber (Hogarth; Canongate)
* The Peripheral, William Gibson (Putnam; Viking UK)
* Afterparty, Daryl Gregory (Tor; Titan)
* Work Done for Hire, Joe Haldeman (Ace)
* Tigerman, Nick Harkaway (Knopf; Heinemann 2015)
* Europe in Autumn, Dave Hutchinson (Solaris US; Solaris UK)
* Wolves, Simon Ings (Gollancz)
* Ancillary Sword, Ann Leckie (Orbit US; Orbit UK)
* Artemis Awakening, Jane Lindskold (Tor)
* The Three-Body Problem, Cixin Liu (Tor)
* The Causal Angel, Hannu Rajaniemi (Tor; Gollancz)
* The Memory of Sky, Robert Reed (Prime)
* Bête, Adam Roberts (Gollancz)
* Lock In, John Scalzi (Tor; Gollancz)
* The Blood of Angels, Johanna Sinisalo (Peter Owens)
* The Bone Clocks, David Mitchell (Random House; Sceptre)
* Lagoon, Nnedi Okorafor (Hodder; Saga 2015)
* All Those Vanished Engines, Paul Park (Tor)
* Annihilation/Authority/Acceptance, Jeff VanderMeer (FSG Originals; Fourth Estate; HarperCollins Canada)
* Dark Lightning, John Varley (Ace)
* My Real Children, Jo Walton (Tor; Corsair)
* Echopraxia, Peter Watts (Tor; Head of Zeus 2015)
* World of Trouble, Ben H. Winters (Quirk)

2014 Locus Recommended Reading List

Government’s Cloud Computing Strategy Focused on Keeping Data in Canada

Michael Geist Law RSS Feed - Fri, 2015/01/30 - 12:10

Over the past few months, the Treasury Board of Canada has quietly been developing a government-wide policy on the use of cloud computing services. The initiative started with an industry engagement event in November that highlighted many of the issues faced by the government.  Following that event, the government issued a cloud computing Request for Information that asked the industry to provide detailed information and recommendations on the government’s approach. The deadline for submissions to the RFI close today. Unfortunately, the public is unlikely to gain access to the submissions as the government has promised to keep confidential the information it receives.

The government’s cloud computing RFI provides considerable insight into its current thinking. Of particular interest are the privacy implications of using cloud computing services, particularly where the data is either hosted outside the country or by foreign-owned organizations. While the consultation asks the industry for its views on these questions, the document features proposed contractual clauses that address encryption and data storage. These include:

The Contractor must encrypt all non-public, personal and sensitive data and information in
transit to the Cloud during the life of the Contract and 90 days after termination.

The Services Provider (the Contractor) must not store any non-public, personal or sensitive data and information outside of Canada. This includes backup data and disaster recovery locations.

The Contractor and/or any and all subcontractors must ensure that all the databases
used by organizations to provide the services described in the Contract containing any
Personal Information, related to the Work, are located in Canada, the United States (US),
the European Union (EU) or in the following additional countries with which Canada has
a Bilateral and Multinational Memorandum of Understanding and Industrial Security
Arrangement: Australia, Israel, New Zealand, Norway, and Switzerland.

The government apparently hopes to conclude its process with a fully-developed cloud computing usage policy by the summer.

The post Government’s Cloud Computing Strategy Focused on Keeping Data in Canada appeared first on Michael Geist.

Nine awesome Bitcoin projects at Princeton

Freedom to Tinker - Fri, 2015/01/30 - 11:39
As promised, here are the final project presentations from the Bitcoin and cryptocurrency technologies class I taught at Princeton. I encouraged students to build something real, rather than toy class projects, and they delivered. I hope you’ll find these presentations interesting and educational, and that you build on the work presented here (I’ve linked to the projects […]

“No Fast Lanes and Slow Lanes”: CRTC Rules Bell’s Mobile TV Service Violates Telecommunications Act

Michael Geist Law RSS Feed - Thu, 2015/01/29 - 11:35

The CRTC has issued a major new decision with implications for net neutrality, ruling that Bell and Videotron violated the Telecommunications Act by granting their own wireless television services an undue preference by exempting them from data charges. The Commission grounded the decision in net neutrality concerns, stating the Bell and Videotron services “may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice.”

The case arose from a complaint filed by Ben Klass, a graduate student, who noted that Bell offers a $5 per month mobile TV service that allows users to watch dozens of Bell-owned or licensed television channels for ten hours without affecting their data cap. By comparison, users accessing the same online video through a third-party service such as Netflix would be on the hook for a far more expensive data plan since all of the data usage would count against their monthly cap. Videotron was later added to the case, based on similar concerns with its mobile television service.

Bell raised several arguments in response, claiming that the mobile television services were subject broadcast regulation, not telecom regulation and that, in any event, the offering was good for consumers and should be encouraged.

The CRTC ruled that mobile television services effectively invoke both broadcast and telecom regulation, since a data connection is required to access the service. Indeed, it agreed with Klass that “from a subscriber’s perspective, the mobile TV services are accessed and delivered under conditions that are substantially similar to those of other Internet-originated telecommunications services.” That aspect of the decision is important, since it ensures that providers will not avoid the regulatory features of the Telecommunications Act by arguing that the services should be treated solely as broadcast.

Given the application of telecom regulation, the Commission examined whether the Bell and Videotron approach violated the rules undue preferences, which prohibit carriers from granting themselves an undue or unreasonable preference. It concluded that it did:

the Commission finds that the preference given in relation to the transport of Bell Mobility’s and Videotron’s mobile TV services to subscribers’ mobile devices, and the corresponding disadvantage in relation to the transport of other audiovisual content services available over the Internet, will grow and will have a material impact on consumers, and other audiovisual content services in particular.

The decision was clearly grounded with net neutrality principles in mind. CRTC Chair Jean-Pierre Blais, speaking just prior to the release of the decision, stated that there would be “no fast and slow lanes”, adding:

At its core, this decision isn’t so much about Bell or Vidéotron. It’s about all of us and our ability to access content equally and fairly, in an open market that favours innovation and choice. The CRTC always wants to ensure ­– and this decision supports this goal ­– that Canadians have fair and reasonable access to content. That everyone can access the bridges without restrictions. We also want to ensure that abuses of power in the system do not go unchecked.

It may be tempting for large vertically integrated companies to offer certain perks to their customers, and innovation in its purest form is to be applauded. By all means, we at the CRTC want broadcasters to move television forward by creating new and exciting ways to view content. But when the impetus to innovate steps on the toes of the principle of fair and open access to content, we will intervene. We’ve got to keep the lanes of our bridges unobstructed so that everyone can cross.

Yet despite the ringing endorsement of the principles of net neutrality, it should be noted that the decision did not apply the CRTC’s Internet traffic management practices (ITMPs). The ITMPs, which are frequently referred to as the net neutrality rules, were viewed as inapplicable, with the Commission ruling that Bell and Videotron were not using an ITMP as part of the service (though Videotron did at one point in time and later dropped it).

That distinction is important, since it suggests that the ITMPs may be more limited in scope than some had anticipated. Given that the CRTC found that the services still violated the rules under the Telecommunications Act, it points an evolving net neutrality framework in Canada that includes analysis of both the ITMPs and the principles of undue preference.

The post “No Fast Lanes and Slow Lanes”: CRTC Rules Bell’s Mobile TV Service Violates Telecommunications Act appeared first on Michael Geist.

The House of Representatives steps up the fight against human trafficking

Google Public Policy BLOG - Wed, 2015/01/28 - 12:32
Posted by Susan Molinari, Vice President of Government Affairs and Public Policy
There are few issues more horrifying than human slavery and trafficking. Yesterday, the House of Representatives took important steps to address these issues by passing twelve bills aimed at helping the victims and calling attention to these criminal acts. We are encouraged by the actions taken yesterday and applaud the House’s leadership.
We recently heard about a number of these bills from Members of both the House and Senate at an event Google hosted with the McCain Institute and Rights4Girls. In addition to the launch of the No Such Thing campaign to eradicate the term “child prostitute,” we heard from organizations on the frontlines of the modern anti-trafficking movement, including the National Center for Missing and Exploited Children (NCMEC), Polaris, and Thorn: Digital Defenders of Children, about how they are using technology to stop human trafficking and help those who have been trafficked. You can watch the event here and here.
Collaboration and technology are key weapons in the fight. That’s why Google recently launched a new feature in our search results with Polaris, connecting victims of human trafficking with organizations who can help. We also worked with Polaris, La Strada International, and Liberty Asia to launch the Global Human Trafficking Hotline Network, to connect global hotlines and better help victims and prevention efforts. Google also has a zero-tolerance policy for any ads for paid sex acts, and we work around the clock to fight illegal content and abuse on our platforms.
Fighting human slavery and trafficking is not a partisan issue. The more voices who say it is morally unacceptable to enslave and exploit humans, the more we can reduce the demand and help the victims. There’s more work to be done, so let’s keep going — together.

Android WebView security and the mobile advertising marketplace

Freedom to Tinker - Wed, 2015/01/28 - 09:00
Freedom to Tinker readers are probably aware of the current controversy over Google’s handling of ongoing security vulnerabilities in its Android WebView component. What sounds at first like a routine security problem turns out to have some deep challenges.  Let’s start by filling in some background and build up to the big problem they’re not […]

Overclocked is now a DRM-free audiobook


My multi-award-winning short story collection Overclocked is now a DRM-free audiobook, courtesy of Downpour.com

And no, it's not on Audible, because they refuse to carry my books unless I let them put DRM on them.

Have you ever wondered what it’s like to live through a bioweapon attack or to have every aspect of your life governed by invisible ants? In Cory Doctorow’s collection of novellas, he wields his formidable experience in technology and computing to give us mind-bending sci-fi tales that explore the possibilities of information technology—and its various uses—run amok.

“Anda’s Game” is a spin on the bizarre new phenomenon of “cyber sweatshops,” in which people are paid very low wages to play online games all day in order to generate in-game wealth, which can be converted into actual money. Another tale tells of the heroic exploits of “sysadmins”—systems administrators—as they defend the cyberworld, and hence the world at large, from worms and bioweapons. And yes, there is a story about zombies too.


Overclocked :
Stories of the Future Present

Is the Digital Taxman Headed to Canada?

Michael Geist Law RSS Feed - Tue, 2015/01/27 - 11:24

As e-commerce and online digital services command a growing share of the market, it comes as little surprise to find the government angling to claim what it sees as its fair share in tax revenue. Last spring, the federal government’s budget quietly announced plans to consult on the prospect of levying sales taxes (GST/HST) on digital products such as music downloads or online video services.

My weekly technology law column (Toronto Star version, homepage version) notes the chief argument underlying the call for digital sales taxes is a level playing field. Digital services with a physical presence in Canada, such as Apple iTunes, Amazon, and Shomi charge GST/HST. However, foreign companies without a Canadian presence, most notably Internet video giant Netflix, do not (interestingly, when Netflix is purchased through a third party service such as AppleTV, the tax is applied).

As these services become more popular, proponents of extending the sales tax to foreign digital services argue that the government will start losing significant revenues and Canadian services will be placed at a competitive disadvantage on their home soil. The government consultation led a diverse group of companies and organizations ranging from Rogers Communications to ACTRA, the actors’ union, to argue in favour of extending sales taxes on digital services to foreign companies.

While some of these claims stem from the ongoing fear of marketplace disruption from Netflix, the tax fairness argument is a good one. In fact, many other countries or tax jurisdictions have either instituted sales taxes on foreign digital services or are in the process of doing so. For example, the City of Buenos Aires in Argentina last year passed a resolution forcing debit and credit card issuers to withhold three per cent from payments made to streaming service providers. The levy was specifically targeted at Netflix subscribers in the city and was reportedly designed to make local streaming services more competitive.

Interestingly, technically there is tax equivalency since Canadians are supposed to self-report the applicable sales tax in a self-assessment. In reality though, few are aware of the obligation and even fewer do so. Indeed, with an annual HST bill of $12.46 for a 12-month Netflix subscription, the missing dollars seem insignificant on an individual level.

Those individual bills can add up to millions of dollars, however, which may provide enough incentive for the federal government to conveniently forget the fall promise of “no Netflix tax” (which referred to a fee for creating Canadian content, not sales tax) and establish a system to require foreign digital operators to collect and remit sales tax on their Canadian sales.

Should the government embrace extending sales taxes to foreign services, the big question will lie in the implementation.  The issue of creating a global sales tax system that requires foreign provides to register and remit sales taxes is fraught with complexity.

Registration requirements alone create new costs that some businesses may be unwilling to bear. In fact, some may simply decide to avoid or block the Canadian market altogether, leading to even more services that either decline to sell to Canadians or which increase their prices to account for the regulatory cost burden.

In order to avoid burdening small businesses, countries may set a revenue threshold before registration and collection requirements kick in.  For example, Switzerland requires foreign digital service providers to register and collect an 8 per cent tax provided that they earn more than C$140,000 annually in income.

Even with a threshold to limit collection to larger businesses, the complexity associated with digital sales taxes is difficult to avoid.  Will the collection apply solely to consumer purchases or also business-to-business sales? Will all digital sales – including virtual property in games or cloud computing services – be subject to a levy?

Given the ever-changing digital environment, the digital taxman may be on the way, but identifying what is subject to sales tax will be easier said than done.

The post Is the Digital Taxman Headed to Canada? appeared first on Michael Geist.

Is the Digital Taxman Headed to Canada?

Michael Geist Law RSS Feed - Tue, 2015/01/27 - 11:21

Appeared in the Toronto Star on January 24, 2015 as Is the Digital Taxman Headed to Canada?

As e-commerce and online digital services command a growing share of the market, it comes as little surprise to find the government angling to claim what it sees as its fair share in tax revenue. Last spring, the federal government’s budget quietly announced plans to consult on the prospect of levying sales taxes (GST/HST) on digital products such as music downloads or online video services.

The chief argument underlying the call for digital sales taxes is a level playing field. Digital services with a physical presence in Canada, such as Apple iTunes, Amazon, and Shomi charge GST/HST. However, foreign companies without a Canadian presence, most notably Internet video giant Netflix, do not (interestingly, when Netflix is purchased through a third party service such as AppleTV, the tax is applied).

As these services become more popular, proponents of extending the sales tax to foreign digital services argue that the government will start losing significant revenues and Canadian services will be placed at a competitive disadvantage on their home soil. The government consultation led a diverse group of companies and organizations ranging from Rogers Communications to ACTRA, the actors’ union, to argue in favour of extending sales taxes on digital services to foreign companies.

While some of these claims stem from the ongoing fear of marketplace disruption from Netflix, the tax fairness argument is a good one. In fact, many other countries or tax jurisdictions have either instituted sales taxes on foreign digital services or are in the process of doing so. For example, the City of Buenos Aires in Argentina last year passed a resolution forcing debit and credit card issuers to withhold three per cent from payments made to streaming service providers. The levy was specifically targeted at Netflix subscribers in the city and was reportedly designed to make local streaming services more competitive.

Interestingly, technically there is tax equivalency since Canadians are supposed to self-report the applicable sales tax in a self-assessment. In reality though, few are aware of the obligation and even fewer do so. Indeed, with an annual HST bill of $12.46 for a 12-month Netflix subscription, the missing dollars seem insignificant on an individual level.

Those individual bills can add up to millions of dollars, however, which may provide enough incentive for the federal government to conveniently forget the fall promise of “no Netflix tax” (which referred to a fee for creating Canadian content, not sales tax) and establish a system to require foreign digital operators to collect and remit sales tax on their Canadian sales.

Should the government embrace extending sales taxes to foreign services, the big question will lie in the implementation.  The issue of creating a global sales tax system that requires foreign provides to register and remit sales taxes is fraught with complexity.

Registration requirements alone create new costs that some businesses may be unwilling to bear. In fact, some may simply decide to avoid or block the Canadian market altogether, leading to even more services that either decline to sell to Canadians or which increase their prices to account for the regulatory cost burden.

In order to avoid burdening small businesses, countries may set a revenue threshold before registration and collection requirements kick in.  For example, Switzerland requires foreign digital service providers to register and collect an 8 per cent tax provided that they earn more than C$140,000 annually in income.

Even with a threshold to limit collection to larger businesses, the complexity associated with digital sales taxes is difficult to avoid.  Will the collection apply solely to consumer purchases or also business-to-business sales? Will all digital sales – including virtual property in games or cloud computing services – be subject to a levy?

Given the ever-changing digital environment, the digital taxman may be on the way, but identifying what is subject to sales tax will be easier said than done.

The post Is the Digital Taxman Headed to Canada? appeared first on Michael Geist.

Sign up now for the Bitcoin and cryptocurrency technologies online course

Freedom to Tinker - Fri, 2015/01/23 - 13:38
At Princeton I taught a course on Bitcoin and cryptocurrency technologies during the semester that just ended. Joe Bonneau unofficially co-taught it with me. Based on student feedback and what we accomplished in the course, it was extremely successful. Next week I’ll post videos of all the final project presentations. The course was based on […]

How to fix copyright in two easy steps (and one hard one)


My new Locus column, A New Deal for Copyright, summarizes the argument in my book Information Doesn't Want to Be Free, and proposes a set of policy changes we could make that would help artists make money in the Internet age while decoupling copyright from Internet surveillance and censorship.

There are two small policy interventions that would make a huge differ­ence to the balance of commercial power in the arts, while safeguarding human rights and civil liberties.

1. Reform DRM law.

It should never be a crime to:

* Report a vulnerability in a DRM;

* Remove DRM to accomplish a lawful purpose.

With this simple reform, DRM would no longer turn our devices into long-lived reservoirs of pathogens (because bugs could be reported as soon as they were discovered), and would no longer give the whip-hand over publishing to tech companies (because re­moving DRM to do something legal, like moving a book between two different readers, would be likewise legal).

2. Reform intermediary liability.

* The DMCA ‘‘safe harbor’’ should require submission of evidence that the identified works are indeed infringing;

* If you file a DMCA takedown notice that ma­terially misrepresents the facts as you know them or should have known them, you should be liable to stiff, exemplary statutory damages, with both the intermediary and the creator of the censored work having a cause of action against you, and with the courts having the power to award costs to the victims’ lawyers.

By ensuring a minimum standard of care for censorship demands, and penalties for abuse, the practice of carelessly sending millions of slop­pily compiled takedowns would be stopped dead (last year, Fox perjured itself and had copies of my novel Homeland removed from sites that were authorized to host them, because it couldn’t be bothered to distinguish my novel from its TV show). Likewise, penalties for abuse with a loser-pays system of fees would give the victims of malicious censorship attempts grounds for punishing the wrongdoers who make a mockery of out the copyright holder’s toolkit to silence their opponents.

But so long as we’re making a wish-list, here’s the big policy change that would make all this stuff much less fraught: STOP APPLYING COPYRIGHT TO ANYONE EXCEPT THE ENTERTAINMENT INDUSTRY.

A New Deal for Copyright

Consumerist on Information Doesn’t Want to Be Free


Consumerist's Kate Cox has turned in a long, excellent, in-depth review of my book Information Doesn't Want to Be Free, really nailing the book's thesis. Namely, that extremist copyright laws don't just mess up artists, but actually endanger all our privacy, freedom and whole digital lives.

Doctorow draws two bright lines connecting copyright law to other major issues: government surveillance, as shared by Edward Snowden; censorship by private companies; and the necessity of free expression to civil and human rights.

Copyright claims are often used as a silencing tactic, where a party with power issues a takedown claim to get content from a party with less power removed from the internet.

For example, Doctorow cites copyright takedown notices issued by police departments demanding to have videos of their officers committing illegal acts taken down on the grounds that the police, not the person with an iPhone who recorded them, have copyright on the videos. Or takedown notices issued by the Church of Scientology to have removed articles from opponents who used leaked internal documents to criticize the organization.

“There are almost never penalties for abusing the takedown process,” Doctorow notes. “It’s the measure of first resort for rich and powerful people and companies who are threatened by online disclosures of corruption and misdeeds.”

Likewise, intermediary companies become gatekeepers of what end users may and may not consume — because they don’t want to get sued. So they fall into the “notice and takedown” scheme, and pass it all along to you. And that includes possibly having your entire broadband connection throttled or hijacked if a copyright holder doesn’t like what a user of that connection has been doing.

Because they have the right, and the ability, to keep an eye on you if you’re anywhere in the ecosystem: using a computer, phone, or internet connection that you didn’t build out of string yourself.

4 Ways Copyright Law Actually Controls Your Whole Digital Life [Kate Cox/Consumerist]

Anonymous programmers can be identified by analyzing coding style

Freedom to Tinker - Wed, 2015/01/21 - 14:11
Every programmer learns to code in a unique way which results in distinguishing “fingerprints” in coding style. These fingerprints can be used to compare the source code of known programmers with an anonymous piece of source code to find out which one of the known programmers authored the anonymous code. This method can aid in […]

Stream On?: How Canadian Law Views Online Streaming Video

Michael Geist Law RSS Feed - Tue, 2015/01/20 - 10:43

The misuse of Canada’s new copyright notice-and-notice system has attracted considerable media and political attention over the past week. With revelations that some rights holders are requiring Internet providers to send notifications that misstate the law in an effort to extract payments based on unproven infringement allegations, the government has acknowledged that the notices are misleading and promised to contact providers and rights holders to stop the practice.

While the launch of the copyright system has proven to be an embarrassment for Industry Minister James Moore, my weekly technology law column (Toronto Star version, homepage version) notes that many Canadians are still left wondering whether the law applies to Internet video streaming, which has emerged as the most popular way to access online video.

In recent years, the use of BitTorrent and similar technologies to engage in unauthorized copying has not disappeared, but network usage indicates its importance is rapidly diminishing. Waterloo-based Sandvine recently reported the BitTorrent now comprises only five per cent of Internet traffic during peak periods in North America (file sharing as a whole takes up seven per cent).  That represents a massive decline since 2008, when file sharing constituted nearly one-third of all peak period network traffic.

The decline largely reflects a shift toward streaming video, which is now the dominant use of network traffic. Netflix alone comprises almost 35 per cent of download network traffic in North America during peak periods with the other top sources of online streaming video – YouTube, Facebook, Amazon Prime, and Hulu – pushing the total to nearly 60 per cent.

The emergence of streaming video raises some interesting legal questions, particularly for users wondering whether the notice-and-notice system might apply to their streaming habits. The answer is complicated by the myriad of online video sources that raise different issues.

The most important sources are the authorized online video services operating in Canada such as Netflix, Shomi, CraveTV, YouTube, and streaming video that comes directly from broadcasters or content creators. These popular services, which may be subscription-based or advertiser-supported, raise few legal concerns since the streaming site has obtained permission to make the content available or made it easy for rights holders to remove it.

Closely related are authorized online video services that do not currently serve the Canadian market. These would include Hulu or Amazon Prime, along with the U.S. version of Netflix. Subscribers can often circumvent geographic blocks by using a “virtual private network” that makes it appear as if they are located in the U.S. Accessing the service may violate the terms of service, but would not result in a legal notification from the rights holder.

The most controversial sources are unauthorized streaming websites that offer free content without permission of the rights holder. Canadian copyright law is well-equipped to stop such unauthorized services if they are located in Canada since the law features provisions that can be used to shut down websites that “enable” infringement.

Those accessing the streams are unlikely to be infringing copyright, however. The law exempts temporary reproductions of copyrighted works if completed for technical reasons. Since most streaming video does not actually involve downloading a copy of the work (it merely creates a temporary copy that cannot be permanently copied), users can legitimately argue that merely watching a non-downloaded stream does not run afoul of the law.

Not only does the law give the viewer some comfort, but enforcement against individuals would in any event be exceptionally difficult. Unlike peer-to-peer downloading, in which users’ Internet addresses are publicly visible, only the online streaming site knows the address of the streaming viewer. That means that rights holders simply do not know who is watching an unauthorized stream and are therefore unable to forward notifications.

While some might see that as an invitation to stream from unauthorized sites, the data suggests that services such as Netflix constitute the overwhelming majority of online streaming activity. Should unauthorized streaming services continue to grow, however, rights holders will likely become more aggressive in targeting the sites themselves using another feature of the 2012 Canadian copyright reform package.

The post Stream On?: How Canadian Law Views Online Streaming Video appeared first on Michael Geist.

How Canadian Law Views Online Streaming Video

Michael Geist Law RSS Feed - Tue, 2015/01/20 - 10:41

Appeared in the Toronto Star on January 17, 2015 as How Canadian Law Views Online Streaming Video

The misuse of Canada’s new copyright notice-and-notice system has attracted considerable media and political attention over the past week. With revelations that some rights holders are requiring Internet providers to send notifications that misstate the law in an effort to extract payments based on unproven infringement allegations, the government has acknowledged that the notices are misleading and promised to contact providers and rights holders to stop the practice.

While the launch of the copyright system has proven to be an embarrassment for Industry Minister James Moore, many Canadians are still left wondering whether the law applies to Internet video streaming, which has emerged as the most popular way to access online video.

In recent years, the use of BitTorrent and similar technologies to engage in unauthorized copying has not disappeared, but network usage indicates its importance is rapidly diminishing. Waterloo-based Sandvine recently reported the BitTorrent now comprises only five per cent of Internet traffic during peak periods in North America (file sharing as a whole takes up seven per cent).  That represents a massive decline since 2008, when file sharing constituted nearly one-third of all peak period network traffic.

The decline largely reflects a shift toward streaming video, which is now the dominant use of network traffic. Netflix alone comprises almost 35 per cent of download network traffic in North America during peak periods with the other top sources of online streaming video – YouTube, Facebook, Amazon Prime, and Hulu – pushing the total to nearly 60 per cent.

The emergence of streaming video raises some interesting legal questions, particularly for users wondering whether the notice-and-notice system might apply to their streaming habits. The answer is complicated by the myriad of online video sources that raise different issues.

The most important sources are the authorized online video services operating in Canada such as Netflix, Shomi, CraveTV, YouTube, and streaming video that comes directly from broadcasters or content creators. These popular services, which may be subscription-based or advertiser-supported, raise few legal concerns since the streaming site has obtained permission to make the content available or made it easy for rights holders to remove it.

Closely related are authorized online video services that do not currently serve the Canadian market. These would include Hulu or Amazon Prime, along with the U.S. version of Netflix. Subscribers can often circumvent geographic blocks by using a “virtual private network” that makes it appear as if they are located in the U.S. Accessing the service may violate the terms of service, but would not result in a legal notification from the rights holder.

The most controversial sources are unauthorized streaming websites that offer free content without permission of the rights holder. Canadian copyright law is well-equipped to stop such unauthorized services if they are located in Canada since the law features provisions that can be used to shut down websites that “enable” infringement.

Those accessing the streams are unlikely to be infringing copyright, however. The law exempts temporary reproductions of copyrighted works if completed for technical reasons. Since most streaming video does not actually involve downloading a copy of the work (it merely creates a temporary copy that cannot be permanently copied), users can legitimately argue that merely watching a non-downloaded stream does not run afoul of the law.

Not only does the law give the viewer some comfort, but enforcement against individuals would in any event be exceptionally difficult. Unlike peer-to-peer downloading, in which users’ Internet addresses are publicly visible, only the online streaming site knows the address of the streaming viewer. That means that rights holders simply do not know who is watching an unauthorized stream and are therefore unable to forward notifications.

While some might see that as an invitation to stream from unauthorized sites, the data suggests that services such as Netflix constitute the overwhelming majority of online streaming activity. Should unauthorized streaming services continue to grow, however, rights holders will likely become more aggressive in targeting the sites themselves using another feature of the 2012 Canadian copyright reform package.


Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

The post How Canadian Law Views Online Streaming Video appeared first on Michael Geist.

a $3.5 billion reminder

Fair Duty by Meera Nair - Sun, 2015/01/18 - 19:19

Investor-State Dispute Settlement (ISDS) reappeared in the news last week. Writing for Toronto Star, Les Whittington alerts Canadians that our country is on the receiving end of a claim of $3.5 billion by the owner of the Ambassador Bridge which connects Windsor and Detroit. “Matty Moroun … is claiming damages from Ottawa in connection with Canada’s plan to help build a second bridge linking Ontario to Michigan at Detroit.”

It is the ISDS mechanism established within the North American Free Trade Agreement (NAFTA) that is providing the avenue of complaint for Moroun. I have written about ISDS before (most recently, see here); in essence, foreign corporations have recourse to sue governments, via private tribunal, when government or judicial actions of the home country are deemed to compromise the foreign investment. ISDS was introduced ostensibly to provide security to corporations when dealing in countries with less-than-robust systems of law, but has now become part and parcel of most bi-lateral or multi-lateral trade agreements. The recently agreed upon Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, and the pending Trans-Pacific Partnership (TPP) which is described as the largest trade agreement negotiated outside of the World Trade Organization, are no exceptions. From a Canadian perspective though, it is perplexing that any government of Canada should embrace the continuance of ISDS in trade agreements.

Whittington draws from a newly–released compilation of actions against NAFTA governments, authored by Scott Sinclair for the Canadian Centre for Policy Alternatives (CCPA), to observe that, disproportionately, Canada receives most of the action. It could be argued that Canadian trade with the United States is of higher volume than that of Mexico, and thus such proportion is inevitable. One could also argue that Canada’s past commitments to public-wellbeing are more likely to impede a laissez-faire mantra, and that is why we attract unwanted attention. A day after Whittington’s article, Thomas Walkom also weighed in via Toronto Star: “… 69 of the 77 complaints made against governments in the three countries were leveled against public policy measures in areas such as environmental protection, land-use planning, drug regulation and health care.”

Whittington observes that the Canadian government sees concerns of ISDS as overdrawn; with respect to CETA, he quotes a representative: “Investment protections have long been a core element of trade policy in Canada and Europe, and will encourage job-creating investment and economic growth on both sides of the Atlantic.” But, in March of last year, Public Citizen issued a report which comprehensively illustrates that ISDS offers protection far beyond what occurred in the past and that “… countries bound by ISDS pacts have not seen significant FDI increases, [whereas] countries without such pacts have not lacked for foreign investment (p.3).” And in that same report, Public Citizen illustrates precisely how deleterious actions under ISDS are to public well-being.

For instance, both Uruguay and Australia have drawn fire for their anti-smoking efforts (larger warning labels and plain packaging requirements), despite the fact that the World Health Organization commends such effort. (Jim Armitage, writing for The Independent last fall, described in detail Uruguay’s success in reducing smoking rates among its population.) Yet tobacco company Phillip Morris, is challenging both countries by way of ISDS. As noted by Public Citizen, “Philip Morris is demanding compensation from the two governments claiming that the public health measures expropriate the corporation’s investments in violation of investor rights established in Bilateral Investment Treaties (p.2).” Neither Uruguay’s health success nor the fact that Australia’s regulations were upheld by its Supreme Court, will have much sway in the tribunal operations of ISDS.

Under ISDS, disputes are managed by a trio of corporate attorneys who rotate among the positions of representative and judge. These tribunals are not answerable to any electorate and do not address public well-being as a court of law would do when confronted with the same dispute. Even if one is willing to accept that such critical decisions are rendered outside the forum of any country’s judiciary, the lack of statutory guidance to the outcome is extraordinary; Public Citizen writes:

If a tribunal rules against a challenged policy, there is no limit to the amount of taxpayer money that the tribunal can order the government to pay the foreign corporation. Such compensation orders are based on what an ISDS tribunal surmises that an investor would have earned in the absence of the public policy it is attacking. The cases cannot be appealed on the merits. There are narrow technical and procedural grounds for annulment. Firms that win an award can collect by seizing a government’s assets if payment is not made promptly. Even when governments win cases, they are often ordered to pay for a share of the tribunal’s costs. Given that the costs just for defending a challenged policy in an ISDS case total $8 million on average, the mere filing of a case can create a chilling effect on government policymaking, even if the government expects to win (p.2-3).

For Canadians, that last sentence is not conjecture; Walkom writes “[In 2013] … the Ontario government paid a U.S.-based company $15 million to withdraw its complaint.” Moreover, the phrase “would have earned in the absence of the public policy it is attacking” should send chills down everyone’s spine. Clean air, clean water, access to medicine, and, worker and public safety, all sit on the cost side of any ledger. It is unrealistic to expect that measures addressing these social needs would have been voluntarily adopted by entire industries, and then maintained by those industries, without some prodding from government. The appropriate forum to address dispute between corporate expectation and government commitment to public well-being, can only be a court of law.

Harold Innis (1894-1952) once remarked upon the brilliant achievement that was the development of law; that law represented “an alternative to force.” True, in the 21st century, citizens of nation states do not fear marauding armies traipsing through the streets in a hostile takeover of the nation. But we should not lose sight of the fact that nations can be taken over in a far more insidious way; losing the supremacy of our judiciary and the autonomy of our government should be an early warning sign.


Shaping Wi-Fi’s future: the wireless-mobile convergence

Freedom to Tinker - Sat, 2015/01/17 - 13:26
According to recent news, Comcast is being sued because it is taking advantage of users’ resources to build up its own nationwide Wi-Fi network. Since mid-2013 the company has been updating consumers’ routers by installing new firmware that makes the router partially devoted to the “home-user” network and partially devoted to the “mobile-user” network (a […]

Transparency Report: New numbers and a new look for government requests

Google Public Policy BLOG - Sat, 2015/01/17 - 00:02
Posted by: Trevor Callaghan, Director, Legal

We launched the Transparency Report in 2010 to show how laws and policies affect access to information online, including law enforcement orders for user data and government requests to remove information. Since then, many other companies have launched their own transparency reports, and we’ve been excited to see our industry come together around transparency.

After doing things the same way for nearly five years, we thought it was time to give the Transparency Report an update. So today, as we release data about requests from governments to remove content from our services for the ninth time, we’re doing it with a new look and some new features that we hope will make the information more meaningful, and continue to push the envelope on the story we can tell with this kind of information.

More about that shortly—first, the data highlights. From June to December 2013, we received 3,105 government requests to remove 14,637 pieces of content. You may notice that this total decreased slightly from the first half of 2013; this is due to a spike in requests from Turkey during that period, which has since returned to lower levels. Meanwhile, the number of requests from Russia increased by 25 percent compared to the last reporting period. Requests from Thailand and Italy are on the rise as well. In the second half of 2013, the top three products for which governments requested removals were Blogger (1,066 requests), Search (841 requests) and YouTube (765 requests). In the second half of 2013, 38 percent of government removal requests cited defamation as a reason for removal, 16 percent cited obscenity or nudity, and 11 percent cited privacy or security.

As for the redesign, we’ve worked with our friends at Blue State Digital on a more interactive Transparency Report that lets us include additional information—like explanations of our process—and highlight stats. We’ve also added examples of nearly 30 actual requests we’ve received from governments around the world. For example, we have an annotation that gives a bit of descriptive information about our first government request from Kosovo, when law enforcement requested the removal of two YouTube videos showing minors fighting. If you’re looking for details on the content types and reasons for removal, use the Country explorer to dig into those details for each of the listed countries.*

Our Transparency Report is certainly not a comprehensive view of censorship online. However, it does provide a lens on the things that governments and courts ask us to remove, underscoring the importance of transparency around the processes governing such requests. We hope that you'll take the time to explore the new report to learn more about the government removals across Google.

*Update Jan 16: We updated the 'Country Explorer' section of the Transparency Report on January 16, 2015 to correct inaccuracies in the initially reported Government Requests figures.
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