Feed aggregator

Canadian Copyright Reform Requires Fix to the Fair Dealing Gap

Michael Geist Law RSS Feed - Fri, 2016/12/09 - 10:56

In the decade of lobbying leading up to the reform of Canadian copyright law in 2012, copyright lobby groups had one core message: Canada needed to implement and ratify the World Intellectual Property Organization’s Internet treaties. While many education, consumer, and business groups expressed concern that the digital lock rules in the treaties would harm innovation, the industry was insistent that the treaties represented an essential component of digital copyright reform.

My op-ed for the Hill Times notes that the lobbying campaign was successful as Canada proceeded to implement and ratify the treaties. The legislation is still relatively new, but in a stunning reversal, one of the leading lobby groups now says that the drafters of the WIPO Internet Treaties were just guessing and suggests that they guessed wrong.

The intensity of the lobbying for the WIPO Internet treaties is difficult to overstate. For years, the industry emphasized the importance of the treaties as the baseline starting point for reform. But in a speech to the Economic Club of Canada last month, Music Canada President Graham Henderson acknowledged that “the people setting the rules for our world were well-intentioned and clever; but the reality is that they were guessing.”

Henderson proceeded to make the case that the drafters guessed wrong, arguing that “everything would come down to the question of balance” and that “very quickly, fissures began to appear” with benefits to intermediaries and losses to creators. This led Henderson to claim that there is a “value gap”, which he defines as “the gross mismatch between the volume of music being enjoyed by consumers and the revenues being returned to the music community.”

The criticism of the WIPO Internet treaties raises several issues.

It is striking to see Henderson now talk about the need for balance in the treaties since that is exactly what educators, librarians, consumer groups, and many innovative businesses argued in 2010 when the reform bill was introduced. Simply put, there was no balance in the bill’s digital lock provisions, which remain among the most restrictive in the world and badly undermine the traditional copyright balance in the digital world.

While Canadians can freely exercise their fair dealing rights in the analog world, the 2012 reforms went far beyond the WIPO treaty requirements by creating unnecessary restrictions on fair dealing in the digital environment. This creates a “fair dealing gap”, where there is a gross mismatch between user rights in the analog world and the digital world. The fair dealing gap should be addressed in 2017 by establishing a long overdue fair dealing exception for the digital lock rules.

Second, claims that the treaties led to an unfair balance favouring technology companies simply does not apply in Canada (if anywhere). Canada did not implement the U.S. DMCA notice-and-takedown system nor grant safe harbours from liability in 1998. The 2012 Canadian reforms include some safe harbours, but not before the industry received the right to forward an unlimited number of notices to Internet users at no cost through the notice-and-notice rules, a new enabler provision to make it easier to target piracy websites, and the restrictive digital lock rules.

Further, the government also gave the music industry a copyright term extension for sound recordings in 2015 with little public debate or consultation. In other words, claims that “policy-making regarding copyright law continues to be driven by the popular mythology that digital technologies and platforms produce lucrative new opportunities for the creative economy”, as stated by Henderson, is not reflective of the Canadian experience.

Third, unlike the fair dealing gap which is the result of legislative reform, the so-called “value gap” has nothing to do with legislative change. Industry frustration with payments for streaming services are not a function of the law, but rather based on revenue sharing from advertising.

Some may wish to paint the Canadian and U.S. digital copyright experiences as the same, but the reality is that they are very different. Canada did not enact the U.S. rules in 1998. Rather, it ultimately gave the industry what it asked for, implementing and ratifying the WIPO Internet treaties in an overly restrictive manner that created a fair dealing gap that persists to this day.

If Canada is to re-examine the decision to ratify those treaties on the basis that it was all just a wrong guess, the starting point would be to fix the imbalance on fair dealing in the analog and digital worlds that has undermined Canadian innovation and the commitment to balance found in copyright law.

The post Canadian Copyright Reform Requires Fix to the Fair Dealing Gap appeared first on Michael Geist.

Upon Further Review, the Ruling Should Stand: Why the CRTC Made the Right Call on the Super Bowl Simsub Ban

Michael Geist Law RSS Feed - Thu, 2016/12/08 - 09:51

The CRTC’s 2015 decision to ban simultaneous substitution from the Super Bowl broadcast starting in February 2017 has generated renewed criticism in recent days as the NFL, Bell, and the U.S. government launch a lobbying blitz against the decision that will take effect with this season’s game. The league, broadcaster and their supporters argue that the inability to block the U.S. feed will mean lost revenue for the Canadian broadcaster and presumably reduced licensing revenue in the future for the NFL as the Canadian rights may be viewed as less valuable.

Despite claims about damage to Canadian broadcasting, the ban on simultaneous substitution for the Super Bowl does not eliminate the ability of the Canadian broadcaster to air its own commercials. In fact, the use of simultaneous substitution for the Super Bowl is an outlier when compared to the broadcast of most other major sporting events in Canada. Whether the Stanley Cup finals, the World Series, the Olympics, or the World Cup, Canadians typically have access to both Canadian and U.S. feeds. Canadians often opt for the Canadian version, perhaps because they like the commentators or the Canadian-oriented coverage. No one suggests that Canadian access to the Stanley Cup finals on NBC or the World Series on Fox (Sportsnet uses the international feed and many commented this year that they preferred that version that included Buck Martinez on colour commentary) eradicates rights or eliminates the ability for a Canadian broadcaster to successfully air the same event.

With the elimination of simultaneous substitution, Canadians will have a choice between the U.S. and Canadian feeds. If the two are identical, some will likely opt for the U.S. feed to view the U.S. commercials. If Bell uses the opportunity to compete with local content, many may prefer the Canadian feed. Regardless, Canadian advertisers are not blocked from advertising during the Super Bowl and the predicted revenue losses are purely speculative since no one knows the impact on ratings. Critics contend that relatively few people have filed official complaints about simultaneous substitution of the Super Bowl. But if they are correct that few Canadians truly care, most will watch the Canadian feed with limited impact on domestic television ratings. However, if many Canadians opt for the U.S. feed, that will signal that many more were unhappy with simultaneous substitution, preferring greater choice.

Suggestions that the U.S. may lodge a trade complaint over the issue are rather remarkable given that the U.S. spent years lobbying against simultaneous substitution. There is little chance the U.S. will now argue that Canada must impose Canadian commercials over a U.S. broadcast. With respect to the value on NFL rights, that too is speculative given the enormous interest in the NFL and the active competition between sports networks for television rights. If Bell no longer wants the Super Bowl without simultaneous substitution, Rogers would presumably be happy to scoop up the rights.

The real concern for some in the Canadian broadcasting world is the fear that this marks the beginning of the end of simultaneous substitution. Yet the end of simultaneous substitution started years ago. The growth of specialty channels, which now represent a far bigger slice of the broadcasting revenue pie than conventional channels, heralded the decreasing importance of simultaneous substitution with fewer programs substituted and subscription revenue surpassing conventional television advertising revenue. Moreover, consumers gaining increasing control over what they watch and when they watch it contribute to its declining importance. Recording television shows or watching them on demand eliminates the simultaneous substitution issue. Sports leagues now package their seasons for full streaming (including NFL GamePass) and many watch streamed versions of shows directly from broadcasters or through services like Netflix and CraveTV.

Not only has the relevance of simultaneous substitution declined in recent years, but the policy has arguably harmed the long-term success of the Canadian system. It effectively trades some additional revenue for loss of control over the Canadian programming schedule and turns the Canadian system into a country-wide U.S. affiliate with hundreds of millions of dollars spent on the rights to non-Canadian programming. The CRTC recognized that eliminating simultaneous substitution altogether would still create a shock to the system. Limiting the elimination to the Super Bowl has the practical benefit of starting to move the industry off the addiction to U.S. programming and toward competition rather than regulatory protection.

The CRTC faces no shortage of criticism, but in this instance it is doing exactly what it said it would: “placing Canadians at the centre of the communication system.” The criticism over the decision boils down to broadcasters arguing that Canadians should not be able to see what they want during the broadcast because doing so might hurt their bottom lines. That is not placing Canadians at the centre of the broadcast system, which the CRTC has tried to do with its decision on Super Bowl broadcasts.

The post Upon Further Review, the Ruling Should Stand: Why the CRTC Made the Right Call on the Super Bowl Simsub Ban appeared first on Michael Geist.

Google v. Equustek: The SCC Hearing on Internet Jurisdiction and Free Speech

Michael Geist Law RSS Feed - Wed, 2016/12/07 - 10:28

The Supreme Court of Canada heard arguments in Google v. Equustek Solutions, a hugely important Internet case with implications for Internet jurisdiction and free speech online. I wrote about the lower court and appellate court decisions and I have a forthcoming piece in the Communications of the ACM on the case.  I attended yesterday’s hearing and live tweeted some of the main exchanges between counsel and the court. As my final tweet of the hearing indicated, I have no idea where the court is heading in this case. A storified version of my hearing tweets is posted below.

[View the story “Google v. Equustek: The Supreme Court of Canada Hearing on Internet Jurisdiction & Free Speech” on Storify]

The post Google v. Equustek: The SCC Hearing on Internet Jurisdiction and Free Speech appeared first on Michael Geist.

MyDemocracy.ca Responses Don’t Count If You Refuse To Disclose Household Income and Other Personal Information

Michael Geist Law RSS Feed - Tue, 2016/12/06 - 09:28

The government’s MyDemocracy.ca survey/consultation/questionnaire launched yesterday to a steady stream of criticism as the initiative does not follow the typical consultative approach. Rather than asking direct questions about public electoral preferences, there are a series of questions on “values, preferences, and priorities” that are supposedly designed to discern user preferences. The questions focus on representation, parties, and voting rules (there are several questions on electronic voting that ask if there is support even if the systems are less secure).

The initiative is being run by Vox Pop Labs and the site’s privacy policy advises that the Privacy Act and PIPEDA apply.  However, dig into the policy and you learn that users that do not provide detailed demographic information – including age, gender, education, household income, profession, language, interest in politics, and postal code – will not have their responses considered as part of the study. The specific provision states:

You do not need to provide your name to use MyDemocracy.ca. However, you will be asked to complete a profile about yourself. You may be asked to provide us with your gender, year of birth, level of education, household income, and other demographic information. The purpose for collecting this information is for Vox Pop Labs to ensure that the overall results of the study are representative of the Canadian population. While answering the profile questions is optional, not answering these questions will result in your input not being included as part of the overall results of the study. [emphasis added]

The demographic information may or may not be personally identifiable. For Canadians in large communities, it may be difficult to identify a particular person. For those from smaller communities, the combination of postal code, profession, education, gender, age, language, and possible identification with certain groups could be enough to identify a specific person.  Regardless, it is inappropriate for a government-backed consultation to require Canadians to provide detailed demographic information in order for their opinions to actually count.

Update 12/8/16: The government has updated the privacy policy by dropping the language indicating that not answering personal information would result in the input not being included. The new policy states:

You do not need to provide your name to use MyDemocracy.ca. However, you will be asked to complete a profile about yourself. You may be asked to provide us with your gender, year of birth, level of education, household income, and other demographic information. The purpose for collecting this information is for Vox Pop Labs to ensure that the overall results of the study are representative of the Canadian population by weighting the data against population data such as the census. While answering the profile questions is optional, not answering these questions will result in your input not being included as part of the weighted results of the study. Aggregate statistics for all responses will still be included in the final report.

The post MyDemocracy.ca Responses Don’t Count If You Refuse To Disclose Household Income and Other Personal Information appeared first on Michael Geist.

Routing Detours: Can We Avoid Nation-State Surveillance?

Freedom to Tinker - Tue, 2016/08/30 - 18:44
Since 2013, Brazil has taken significant steps to build out their networking infrastructure to thwart nation-state mass surveillance.  For example, the country is deploying a 3,500-mile fiber cable from Fortaleza, Brazil to Portugal; they’ve switched their government email system from Microsoft Outlook to a state-built system called Expresso; and they now have the largest IXP […]

Differential Privacy is Vulnerable to Correlated Data — Introducing Dependent Differential Privacy

Freedom to Tinker - Fri, 2016/08/26 - 09:57
[This post is joint work with Princeton graduate student Changchang Liu and IBM researcher Supriyo Chakraborty. See our paper for full details. — Prateek Mittal ] The tussle between data utility and data privacy Information sharing is important for realizing the vision of a data-driven customization of our environment. Data that were earlier locked up […]

Language necessarily contains human biases, and so will machines trained on language corpora

Freedom to Tinker - Wed, 2016/08/24 - 16:32
I have a new draft paper with Aylin Caliskan-Islam and Joanna Bryson titled Semantics derived automatically from language corpora necessarily contain human biases. We show empirically that natural language necessarily contains human biases, and the paradigm of training machine learning on language corpora means that AI will inevitably imbibe these biases as well. Specifically, we look at […]

Security against Election Hacking – Part 2: Cyberoffense is not the best cyberdefense!

Freedom to Tinker - Thu, 2016/08/18 - 09:00
State and county election officials across the country employ thousands of computers in election administration, most of them are connected (from time to time) to the internet (or exchange data cartridges with machines that are connected).  In my previous post I explained how we must audit elections independently of the computers, so we can trust the […]

Security against Election Hacking – Part 1: Software Independence

Freedom to Tinker - Wed, 2016/08/17 - 09:27
There’s been a lot of discussion of whether the November 2016 U.S. election can be hacked.  Should the U.S. Government designate all the states’ and counties’ election computers as “critical cyber infrastructure” and prioritize the “cyberdefense” of these systems?  Will it make any difference to activate those buzzwords with less than 3 months until the […]

Can Facebook really make ads unblockable?

Freedom to Tinker - Thu, 2016/08/11 - 17:18
[This is a joint post with Grant Storey, a Princeton undergraduate who is working with me on a tool to help users understand Facebook’s targeted advertising.] Facebook announced two days ago that it would make its ads indistinguishable from regular posts, and hence impossible to block. But within hours, the developers of Adblock Plus released an […]

The workshop on Data and Algorithmic Transparency

Freedom to Tinker - Wed, 2016/08/10 - 09:57
From online advertising to Uber to predictive policing, algorithmic systems powered by personal data affect more and more of our lives. As our society begins to grapple with the consequences of this shift, empirical investigation of these systems has proved vital to understand the potential for discrimination, privacy breaches, and vulnerability to manipulation. This emerging […]

A response to the National Association of Secretaries of State

Freedom to Tinker - Tue, 2016/08/09 - 08:11
Election administration in the United States is largely managed state-by-state, with a small amount of Federal involvement. This generally means that each state’s chief election official is that state’s Secretary of State. Their umbrella organization, the National Association of Secretaries of State, consequently has a lot of involvement in voting issues, and recently issued a […]

Supplement for Revealing Algorithmic Rankers (Table 1)

Freedom to Tinker - Fri, 2016/08/05 - 05:35
Table 1: A ranking of Computer Science departments per csrankings.org, with additional attributes from the NRC assessment dataset. Here, the average count computes the geometric mean of the adjusted number of publications in each area by institution, faculty is the number of faculty in the department, pubs is the average number of publications per faculty […]

Revealing Algorithmic Rankers

Freedom to Tinker - Fri, 2016/08/05 - 05:35
By Julia Stoyanovich (Assistant Professor of Computer Science, Drexel University) and Ellen P. Goodman (Professor, Rutgers Law School) ProPublica’s story on “machine bias” in an algorithm used for sentencing defendants amplified calls to make algorithms more transparent and accountable. It has never been more clear that algorithms are political (Gillespie) and embody contested choices (Crawford), […]

Election security as a national security issue

Freedom to Tinker - Wed, 2016/08/03 - 13:11
We recently learned that Russian state actors may have been responsible for the DNC emails recently leaked to Wikileaks. Earlier this spring, once they became aware of the hack, the DNC hired Crowdstrike, an incident response firm. The New York Times reports: Preliminary conclusions were discussed last week at a weekly cyberintelligence meeting for senior officials. […]

Brexit Exposes Old and Deepening Data Divide between EU and UK

Freedom to Tinker - Mon, 2016/07/25 - 10:45
After the Brexit vote, politicians, businesses and citizens are all wondering what’s next. In general, legal uncertainty permeates Brexit, but in the world of bits and bytes, Brussels and London have in fact been on a collision course at least since the 90s. The new British prime minister, Theresa May, has been personally responsible for […]

Pokémon Go and The Law: Privacy, Intellectual Property, and Other Legal Concerns

Freedom to Tinker - Tue, 2016/07/19 - 10:59
Pokémon Go made 22-year-old Kyrie Tompkins fall and twist her ankle. “[The game]  vibrated to let me know there was something nearby and I looked up and just fell in a hole,” she told local news outlet WHEC 10. So far, no one has sued Niantic or The Pokémon Company for injuries suffered while playing […]

A Peek at A/B Testing in the Wild

Freedom to Tinker - Thu, 2016/05/26 - 09:40
[Dillon Reisman was previously an undergraduate at Princeton when he worked on a neat study of the surveillance implications of cookies. Now he’s working with the WebTAP project again in a research + engineering role. — Arvind Narayanan] In 2014, Facebook revealed that they had manipulated users’ news feeds for the sake of a psychology study […]

The Princeton Web Census: a 1-million-site measurement and analysis of web privacy

Freedom to Tinker - Wed, 2016/05/18 - 11:59
Web privacy measurement — observing websites and services to detect, characterize, and quantify privacy impacting behaviors — has repeatedly forced companies to improve their privacy practices due to public pressure, press coverage, and regulatory action. In previous blog posts I’ve analyzed why our 2014 collaboration with KU Leuven researchers studying canvas fingerprinting was successful, and […]

Is Tesla Motors a Hidden Warrior for Consumer Digital Privacy?

Freedom to Tinker - Wed, 2016/05/18 - 07:00
Amid the privacy intrusions of modern digital life, few are as ubiquitous and alarming as those perpetrated by marketers. The economics of the entire industry are built on tools that exist in shadowy corners of the Internet and lurk about while we engage with information, products and even friends online, harvesting our data everywhere our […]
Syndicate content