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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.

My talk on the Internet of Things, wealth disparity, surveillance, evidence-based policy and the future of the world



Here's the audio from last night's talk on the Internet of Things at Central European University in Budapest! It was recorded by the Mindenki Joga Radio Show.

Re: The surprising state of millennial media spending

Russell McOrmond on Disqus - Fri, 2015/01/16 - 05:46

I'm not a "millennial" (Born in '68), but am one of those media consumers that the older media companies are avoiding allowing to pay. I did spend decades involved in copyright policy, and contrary to beliefs that Internet savvy people don't want to pay I believe it is non-Internet savvy media companies that don't want us to pay.

I wrote about this on Tuesday: Evidence suggests broadcasters like the BBC don't want our money
http://mcormond.blogspot.ca/20...

Your summary mentioned the potential un-tieing of HBO GO from cable in the US, but that is unlikely to happen in Canada (where I live) given HBO has an exclusive with Bell, one of the BDUs (Broadcast Distribution Undertakings). While the content may be available to Bell customers, it won't be to people like me who refuse to subsidize companies I consider to be political opponents.

Legitimacy of new TV options CraveTV (Bell) and Shomi (Rogers, Shaw)
http://mcormond.blogspot.ca/20...

I have been sending message to HBO for a few years asking when they are going to allow me to pay, but have never heard anything back. This is a service I am very interested in, but not one that has been offered to me.

While I believe these anti-competitive tied selling (What Canada's Competition Act calls this harm to the economy) should be prosecuted, I'm not holding my breath. I do believe, in the meantime, that those trying to get at the pocketbooks of Internet savvy media consumers should stop pointing elsewhere for problems created by the media companies.

Re: Netflix US to Remove Doctor Who and Other BBC Programmes

Russell McOrmond on Disqus - Fri, 2015/01/16 - 05:17

I blogged about this:

Evidence suggests broadcasters like the BBC don't want our money
http://mcormond.blogspot.ca/20...

I know there are so many articles from fellow Whovians who explain why people shouldn't infringe copyright on Who. While I don't infringe myself, I understand why people do given the BBC goes out of their way to make it harder for people to access and pay for their programming.

I'm Canadian, so this may not impact us the same way -- again, the total nonsense of geographical barriers.

Verizon’s tracking header: Can they do better?

Freedom to Tinker - Wed, 2015/01/14 - 16:34
Verizon’s practice of injecting a unique ID into the HTTP headers of traffic originating on their wireless network has alarmed privacy advocates and researchers. Jonathan Mayer detailed how this header is already being used by third-parties to create zombie cookies. In this post, I summarize just how much information Verizon collects and shares under their […]

Videotron’s Odd Copyright Notices: No User Rights and Inaccurate Privacy Information

Michael Geist Law RSS Feed - Wed, 2015/01/14 - 10:56

As the misuse of the Canada’s copyright notice-and-notice system continues to attract attention, Industry Canada has taken the first step to try to alleviate public concern. The department has posted an advisory on the notice-and-notice system which seeks to assuage consumer concern, noting that U.S. copyright penalties do not apply in Canada and that the statutory damages cap for non-commercial infringement is C$5000. It also states:

  • Receiving a notice does not necessarily mean that you have in fact infringed copyright or that you will be sued for copyright infringement.
  • The Notice and Notice regime does not impose any obligations on a subscriber who receives a notice and it does not require the subscriber to contact the copyright owner or the intermediary.

This is important information that provides much needed context for the notices. As I noted last week, some Internet providers are forwarding similar information to their subscribers.

But not all. A reader recently sent me the Videotron copyright notice, which is notable for at least two reasons. First, the notice ignores the existence of user rights such as fair dealing and protection for non-commercial user generated content. While those provisions permit usage of copyright materials without permission, Videotron warns that “generally, you must obtain the permission or rights in order to reproduce any protected material.”

Second, the notice oddly claims to protect the privacy of the rights holder sending the complaint, stating:

Because of privacy concerns, we cannot give any information regarding the plaintiff, as we do not provide any information to the plaintiff about you except if ordered by a court of law. If you want to know who the plaintiff is, you can search on the internet who is the copyright owner of the material referenced in the complaint.

This is bizarre statement since the notice does identify the copyright owner and complainant. In fact, providing the name and address of the complainant is a statutory requirement under the Canadian law. Why Videotron would claim to safeguard such information when it is a legal requirement to disclose it suggests that the company might want to take a closer look at both the law and the notices that it forwards.

A full copy of the Videotron notice (which contains both English and French versions) is posted below.

English Version Follows]

Montréal, le 3 janvier 2015

Objet : Utilisation illicite de votre service Internet

Madame, Monsieur,

Nous avons reçu une plainte qui affirme que des activités associées à votre adresse IP portent atteinte à des droits de propriété intellectuelle d’un tiers.

Nous vous rappelons que la reproduction de matériel protégé par des droits de propriété intellectuelle constitue une atteinte au droit exclusif de son titulaire. Toute contrefaçon pourrait vous exposer à une action en justice de sa part et à une condamnation au paiement de dommages-intérêts.
De façon générale, vous devez obtenir les permissions nécessaires afin de reproduire tout matériel ainsi protégé.

Prenez avis que Vidéotron n’entamera aucune mesure contre vous, cependant si des poursuites devaient être intentées par le plaignant, nous n’aurions d’autre alternative que de vous tenir responsable des dommages subis.
Nous vous prions donc de cesser toute activité pouvant porter atteinte à un droit de propriété intellectuelle d’un tiers.

Voici le matériel reproché selon la plainte:

******
Evidentiary information:
Notice ID : xxxxxxxxxxxx
Recent infringement timestamp : 2015-01-03 T00:XX:0X.00X Infringed work : Horrible Bosses 2 Infringing file name : Horrible Bosses 2 (2014) HDRip HC XViD AC3-RAV3N Infringing file size : 1447083361 Protocol : BitTorrent Infringing IP address : XX.XX.XXX.XXX Infringing DNS name :


Infringing entity : Warner Bros. Entertainment Inc.
Infringing Contact : IP-Echelon – Compliance Infringing Address : 6715 Hollywood Blvd
           Los Angeles CA 90028
           United States of America
Infringing Phone : +1 (310) 606 2747
Infringing Email : copyright@ip-echelon.com
******

Par souci de confidentialité, nous ne divulguons aucune information sur le plaignant, tout comme nous ne divulguons aucune information sur vous au plaignant à moins d’une ordonnance de la cour. Cependant, vous pouvez avoir facilement cette information en effectuant une recherche sur internet afin de retrouver le propriétaire des droits du contenu inclus dans la plainte.

Nous vous remercions à l’avance de votre coopération et vous prions de recevoir l’expression de nos salutations distinguées.


Sécurité Internet
Vidéotron

abuse@videotron.ca

Madam, Sir,

We received a complaint affirming that activities associated with your IP address may infringe intellectual property rights of a third party.

We would like to remind you that the reproduction of protected material constitutes an infringement to the exclusive right of its holder. This behaviour could expose you to legal action from this third party and to a judgment to pay damages. Generally, you must obtain the permission or rights in order to reproduce any protected material.

Please note that Videotron will not take any action against you, but if legal actions were to be brought against you by the plaintiff, we would have no other alternative except than hold you responsible for any damages you may have caused. We thus ask you to cease any activity that may be considered an infringement of a third party’s intellectual property rights.

Here is the infringing material according to the complaint:

******
Evidentiary information:
Notice ID: xxxxxxxxxxxx
Recent infringement timestamp: 2015-01-03 T00:XX:XX.00X Infringed work: Horrible Bosses 2

Infringing file name: Horrible Bosses 2 (2014) HDRip HC XViD AC3-RAV3N Infringing file size: 1447083361
Protocol: BitTorrent
Infringing IP address: xx.xxx.xxx.xxx
Infringing DNS name:


Infringing entity : Warner Bros. Entertainment Inc.
Infringing Contact : IP-Echelon – Compliance Infringing Address : 6715 Hollywood Blvd
           Los Angeles CA 90028
           United States of America
Infringing Phone : +1 (310) 606 2747
Infringing Email : copyright@ip-echelon.com
******

Because of privacy concerns, we cannot give any information regarding the plaintiff, as we do not provide any information to the plaintiff about you except if ordered by a court of law. If you want to know who the plaintiff is, you can search on the internet who is the copyright owner of the material referenced in the complaint.

Thank you in advance for your cooperation.

Yours truly,

Internet Security
Vidéotron

abuse@videotron.ca

The post Videotron’s Odd Copyright Notices: No User Rights and Inaccurate Privacy Information appeared first on Michael Geist.

Update: PIPA Revived

IPBlog (Calgary) - Wed, 2015/01/14 - 09:00
By Richard Stobbe As a follow-up to our earlier post (PIPA on Death's Door), Alberta's Personal Information Protection Act (PIPA) has been resuscitated. The Supreme Court of Canada (SCC) has granted a six-month reprieve, to allow the Government of Alberta to pass amendments to PIPA. An amended bill was tabled in ...

CASL 2.0: The Computer Program Provisions (Part 3)

IPBlog (Calgary) - Tue, 2015/01/13 - 15:00
- By Richard Stobbe The CRTC has released guidelines on the implementation of the incoming computer-program provisions of Canada's Anti-Spam Law (CASL). Software vendors should review the  CASL Requirements for Installing Computer Programs for guidance on installing software on other people's computer systems. Remember, the start-date of January 15, 2015 is less than ...

Cyberterrorism or Cybervandalism?

Freedom to Tinker - Tue, 2015/01/13 - 07:00
When hackers believed by the U.S. government to have been sponsored by the state of North Korea infiltrated Sony Pictures’ corporate network and leaked reams of sensitive documents, the act was quickly labeled an act of “cyberterrorism.” When hackers claiming to be affiliated with ISIS subsequently hijacked the YouTube and Twitter accounts of the U.S. […]

UPDATE: Helping Human Trafficking and Modern Day Slavery Victims Around the World

Google Public Policy BLOG - Mon, 2015/01/12 - 16:14
According to the U.S. Trafficking In Persons Report, there may be more than 20 million trafficking victims at any time in the world, but only about 40,000 victims are identified each year. To connect victims of human trafficking to the organizations who can help them, we recently launched a new feature that displays human trafficking hotline numbers when users type in relevant keywords in search.
In July 2014, we launched this feature for the U.S., Japan and South Korea and today we are making it available in 9 more countries in 14 different languages. From working with our partners across the globe, we know that these hotlines play an indispensable role in the fight against human trafficking. Victims may be unfamiliar with support agencies or organizations in their area or unaware there is help available at all.
These hotlines can make life-changing connections to services like crisis response, emergency housing, counseling, and legal aid at the moment victims need them. Confidential hotlines make certain victims receive the anonymity and protection they need to stay safe.

This search feature was made possible because of the work the following organizations do every day to fight human trafficking around the world: Polaris (US), Lighthouse Support Center for Human Trafficking Victims (Japan), Dasi Hamkke Center (South Korea), Taipei Women's Rescue Foundation (Taiwan), La Strada (Bulgaria, Czech Republic, Moldova, Poland and Ukraine), The A21 Campaign (Greece), ASTRA Anti-Trafficking Action (Serbia), and International Organization for Migration (Turkey).
Since the launch, this feature has already helped National Human Trafficking Resource Center to identify at least 25 human trafficking cases in the U.S. We hope that many more human trafficking victims and potential victims will be able to discover the help that they need when they need it.
Posted by Kasumi Widner, Program Manager, Social Impact and Chris Busselle, Principal, Google.org

Canada’s Copyright Notice Fiasco: Why Industry Minister James Moore Bears Some Responsibility

Michael Geist Law RSS Feed - Mon, 2015/01/12 - 11:11

Last week I posted on how Rightscorp, a U.S.-based anti-piracy company, was using Canada’s new copyright notice-and-notice system to require Internet providers to send threats and misstatements of Canadian law in an effort to extract payments based on unproven infringement allegations. Many Canadians may be frightened into a settlement payment since they will be unaware that some of the legal information in the notice is inaccurate and that Rightscorp and BMG do not know who they are.

The revelations attracted considerable attention (I covered the issue in my weekly technology law column – Toronto Star version, homepage version), with NDP Industry Critic Peggy Nash calling on the government to close the loophole that permits false threats. Nash noted that “Canadians are receiving notices threatening them with fines thirty times higher than the law allows for allegedly downloading copyrighted material. The Conservatives are letting these companies send false legal information to Canadians in order to scare them into paying settlements for movies or music no one has even proved they’ve actually downloaded.”

With the notices escalating as a political issue, Jake Enright, Industry Minister James Moore’s spokesman, said on Friday the government would take action.  Enright said that “these notices are misleading and companies cannot use them to demand money from Canadians”, adding that government officials would be contacting ISPs and rights holders to stop the practice.

While that is encouraging, the reality is that this is a mess of the government’s own making. In fact, according to documents obtained under Access to Information, the government previously dismissed calls for changes to the system from Internet providers. Moreover, Industry Canada officials conducted consultations that were designed to create reforms that might have stopped these practices. Moore decided to forge ahead with the notice-and-notice system without any additional regulations, however, a decision that lies at the heart of the current problem.

According to the internal documents, Industry Canada officials prepared a list of issues with the notice-and-notice system as early as July 2012.  It raised the possibility of establishing a strict template for use in notices. Had the government implemented a template in the regulations, the threatening notices from Rightscorp would be invalid. Moreover, by the fall of 2012, the government prepared a letter to stakeholders and a backgrounder that invoked the regulatory powers to prescribe the form or content of the notice and to decrease the statutory damages for failing to meet the notice-and-notice obligations. Moore announced in June 2014 that the system would be implemented without regulations.

This was not the first time Moore decided against reforms to the notice-and-notice system. Further government documents reveal that Bell Canada recommended reforms in January 2012 (before the bill was passed) that included a removal of a minimum statutory damage for failure to to forward a notice. Had the reform been accepted, the government would now be in a position to recommend that Internet providers not forward the misleading Rightscorp notices without fear of liability.

Not only does Moore bear some responsibility for establishing the notice-and-notice rules without regulations, but there is now no quick fix. The Minister may promise to talk to the ISPs and rights holders, but what is going to say? His own rules require ISPs to forward notifications to subscribers under threat of a minimum of $5000 in statutory damages for failing to do so. His own rules do not include a specific form that could have been used to exclude the misleading assertions on Canadian law and the efforts to scare individuals into paying settlement fees. ISPs have little choice but to forward the notifications and there seems little likelihood that a company like Rightscorp, which is being sued in the U.S. for its practices, will care what a Canadian government minister has to say.

Merely stating that the government disapproves of the misleading practices is not enough. To address the issue, the government should ask the Competition Bureau to conduct an investigation into the misleading conduct. Moreover, Moore should move quickly to implement the very regulations he previously dismissed, which could be used to prohibit the inclusion of settlement demands within the notices and create penalties for those companies that send notices with false or misleading information.

The post Canada’s Copyright Notice Fiasco: Why Industry Minister James Moore Bears Some Responsibility appeared first on Michael Geist.

Canadians Facing Barrage of Misleading Copyright Demand Notices Due Loophole in New Law

Michael Geist Law RSS Feed - Mon, 2015/01/12 - 11:08

Appeared in the Toronto Star on January 10, 2015 as Canadians Face Barrage of Misleading Copyright Demands

Canada’s new copyright notification system – dubbed the “notice-and-notice” approach since it allows rights holders to send notices alleging infringement to Internet providers who are required to forward those notices to subscribers – took effect at the start of the year. The launch attracted considerable attention with many Canadians examining their Internet habits and the state of Canadian copyright law.

Supporters of the approach, which has been used informally for over a decade, argue that it strikes the right balance by educating the public about copyright without the threat of lawsuits or lost Internet access. Internet providers do not disclose their subscribers’ identity and the government has created strict caps on liability for non-commercial infringement, making lawsuits for individual file sharing unlikely.

Yet despite the good intentions, the notice-and-notice system has already been subject to misuse. At least one U.S.-based anti-piracy firm has been using the system to send notifications to subscribers that misstate Canadian law, citing U.S. damage awards and the possibility of Internet termination to sow fear among Canadians so that they pay a settlement fee.

The inclusion of a settlement fee demand within the notices is the consequence of a loophole in the law that arose due to Industry Minister James Moore’s desire to implement the system without accompanying regulations.  On Friday, NDP Industry Critic Peggy Nash called on the government to close the loophole, noting “the Conservatives have a duty to protect the public against companies that try to intimidate Canadians by sending them false legal information. They need to close the loopholes now.”

The government engaged in a lengthy consultation process on notice-and-notice regulations after passing its 2012 copyright reform package. Internet providers argued that the system transferred significant costs to them in order to process notices and that there should be a fee charged to rights holders. Moreover, they noted that the law specified certain requirements for the notices, but did not establish any limitations on the inclusion of additional information nor any penalties for notices that contain false or misleading information.

Most stakeholders expected some regulations, but Moore decided to forge ahead with only the statutory provisions. As a result, companies are free to use the notice system to add information that extends beyond the minimum required by the statute. Although the system is only days old, rights holders have already sent notices that contain inaccurate legal information accompanied by demands for payment.

For example, one notice obtained the Star claims that Canadian subscribers could face liability of up to $150,000 per infringement. In reality, Canadian law limits liability at $5,000 for all infringements. Moreover, the same notice also warns that subscribers could face suspension of their accounts, though there is no such provision under Canadian law.

Relying on the false information regarding Canadian law, the notice then offers to “settle” the dispute if the subscriber pays a fee of $20. The notice does not mention that the rights holder does not know the identity of the subscriber and would need a court order to proceed with potential litigation.

The misuse of the Canadian system could have been avoided with more detailed regulations that featured explicit limits on the content of copyright notices. Without such limitations, rights holders are free to exploit the loophole by using the system in a manner that was never envisioned by the government, sending millions of demand letters at no cost to unsuspecting Canadians.

Given the current situation, Internet service providers should add their own information to the notices, providing their subscribers with an accurate picture of Canadian law and assurances that they have not disclosed their information to the notice sender.  In fact, several providers have started supplementing the notices with additional information to subscribers so that they better understand the context of threats. Interestingly, in the United States, Internet giant Comcast has removed threatening language from notices before forwarding them to subscribers.

Further, Moore should move quickly to implement regulations prohibiting the inclusion of settlement demands within the notices and create penalties for those companies that send notices with false or misleading information. The federal government regularly cites the notice-and-notice system as a balanced approach, but its fairness is being undermined with Canadians now facing the prospect of a barrage of misleading settlement demands.

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 Canadians Facing Barrage of Misleading Copyright Demand Notices Due Loophole in New Law appeared first on Michael Geist.

Indirect Patent Infringement in the US

IPBlog (Calgary) - Fri, 2015/01/09 - 19:00
By Richard Stobbe In a recent decision in the US (Riverbed Technology, Inc. v. Silver Peak Systems, Inc.), a company was found liable for indirect patent infringement even though the infringing features of its product were disabled when the product was sold. In the post-sale period, customers enabled the infringing features.  This was ...

Canadian ISPs Responding to Copyright Notices By Adding Information on Notice System, Privacy Concerns

Michael Geist Law RSS Feed - Fri, 2015/01/09 - 10:13

The revelations that Rightscorp has been using the new copyright notice-and-notice system to force Internet providers to forward notifications with false copyright law information and demands for payment sparked considerable concern among many Canadian Internet users. In my post on the issue, I suggested two responses.  First, the introduction of government regulations prohibiting the inclusion of settlement demands within the notices and creating penalties for those companies that send notices with false or misleading information.  Second, Internet service providers adding their own information to the notices, advising their subscribers on the true state of Canadian law and reassuring them that they have not disclosed their personal information to the notice sender.

While there has been no response from the government, some Canadian ISPs are providing their subscribers with much-needed context. For example, TechAeris has posted the message provided by Shaw Cablesystems, which states:

Dear Subscriber

Content owners that hold property rights for material such as movies, music and other content, actively monitor Internet activity to protect their rights. We have been notified by a content owner that your Internet Protocol (IP) address has been associated with suspected copyright infringement. As part of new Canadian copyright legislation*, we are obliged to forward to you the attached copy of the content owner’s notice. We are unaware of the full details and merit of this infringement claim. If you have questions concerning this matter, please contact the content owner directly – contact information is listed in the attached notice.

Infringement of copyright laws may result in the content owner pursuing remedies available under applicable laws to protect its interests. We encourage enabling secured passwords on your home Wi-Fi network if you have one to avoid unauthorized use of your Internet connection.

Thank you for your attention to this matter.
Please see the link below for more information:

http://balancedcopyright.gc.ca/eic/site/crp-prda.nsf/eng/home
Sincerely,
Shaw Cablesystems G.P.

Start Communications, a London-based ISP, states:

Subject: Copyright Infringement Notice

Re: Account with Start Communications (Account #1234567)

We have received a copyright infringement notice on behalf of Some Copyright Holder Inc., regarding Some Title which was allegedly downloaded from 555.555.555.555 on 2015-01-07 at 12:34:56. As part of Canada’s Copyright Modernization Act which came into effect January 2015, we are legally obligated to pass this attached notice from the copyright holder on to you as well as store the notice for 6 months. To be clear, Start Communications has not provided any of your information to the copyright holder and we do not monitor your activity for any violations.

We have included some reference links about copyright law in Canada, including our legal obligations:

- »news.gc.ca/web/article-en.do?nid=858069
- »www.ic.gc.ca/eic/site/crp-prda.n···153.html
- »www.balancedcopyright.gc.ca

Sincerely,

Service Desk
Start Communications
519-434-5888 / 1-877-78-START
www.start.ca

TorrentFreak has posted the message from Bell Aliant:

From: Copyright Notification 

Date: Thu, Jan 8, 2015 at XX:XX

Subject: Important notice regarding your Internet activity [******]

The Government of Canada requires by law that all Internet Service Providers (ISPs) let their clients know when content owners contact them about possible unauthorized use of the content owner’s material such as illegal downloading of music, videos and games. As a result, we must let you know that we have received the below notification related to your account.

We want to assure you that Bell Aliant as your Internet Service Provider played no part in the identification of possible unauthorized use of content but are only passing on the owner’s message as required by law.

If you have any questions or need clarification please contact the content owner directly. For more information on why you received this notice visit http://news.gc.ca/web/article-en.do?nid=858069 . Thank you for your cooperation.

These are a good start, but TekSavvy’s proposed message provides even more detail and reassures subscribers on the status of their personal information.  Yesterday, TekSavvy’s CEO Marc Gaudrault posted a sample message the company is considering including with the notice:

Subject: Notice of claimed copyright infringement

Body:

Hello,

TekSavvy has received what the Copyright Act calls a “notice of claimed infringement”. It listed an IP address and time. Our systems indicate that the IP address listed in the notice was likely assigned to your account at the specified time. We are therefore legally required to forward the notice to you. The notice is reproduced, unaltered, below.

First, though, there are some things you should know:

(a) We haven’t told the sender who you are. Your privacy is paramount to us. We don’t track, or know, what you do. We do know what IP address we assigned to you within the last 30 days. But we don’t provide personal information like that to anyone unless a court orders us to — and we have not done so here. The notice was simply received by us, and we have forwarded it electronically on to you.

(b) We are an intermediary that is required to forward this notice to you. We do not, and cannot, verify its contents or its sender. However, a private party’s notice does not mean there has been any legal ruling. Only a court can do that.

(c) It is good practice to make sure you secure your account. Your wireless router should be password-protected; the password should be changed regularly; and those who have the password should maintain good virus protection. Your MyAccount allows you to check your bandwidth usage: do so regularly, and make sure what is happening and what you think is happening line up.

(d) We retain IP address information for 30 days. If your modem has not been powered off during that period, then we may have IP address information going back to the last time you did. In addition to requiring us to forward this notice, the Copyright Act also requires us to retain the records matching the IP address and time to your account for six months. If the people who sent the notice apply to a court, they can require us to hold it for longer.

We have provided some links below. The notice, which we are required to forward unaltered, follows.

Copyright Act (see, especially, sections 41.25-26):
»laws-lois.justice.gc.ca/eng/acts/C-42/

TekSavvy:
»teksavvy.com/en/why-teksavvy/pol···y-policy
»myaccount.teksavvy.com/

Automated translation (you may need to copy and paste):
»translate.google.com/?hl=fr
»www.bing.com/translator/

— Forwarded Notice of Infringement follows:

*snip this is where their notice is added*

This is precisely the kind of the information that ISPs should be providing their subscribers, though action to stop misleading or inaccurate notices along with settlement demands in notices is still needed. It remains to be seen how some of the other major ISPs handle the notice-and-notice issue.

The post Canadian ISPs Responding to Copyright Notices By Adding Information on Notice System, Privacy Concerns appeared first on Michael Geist.

Rightscorp and BMG Exploiting Copyright Notice-and-Notice System: Citing False Legal Information in Payment Demands

Michael Geist Law RSS Feed - Thu, 2015/01/08 - 11:16

Canada’s new copyright notice-and-notice system has been in place for less than a week, but rights holders are already exploiting a loophole to send demands for payment citing false legal information. Earlier this week, a Canadian ISP forwarded to me a sample notice it received from Rightscorp on behalf of BMG Rights Management. The notice, which is posted below with identifying information removed, must be forwarded to the subscriber or the ISP faces the possibility of statutory damages of between $5 – 10,000. Rightscorp announced that it was entering the Canadian market last year, so its participation in the notice-and-notice system is not a surprise. What is surprising is that the company has brought its model of issuing demands for payments to Canada by warning of U.S. damage awards and Internet termination in order to stoke fear among Canadians that they could face massive liability if they refuse to pay.

The notice falsely warns that the recipient could be liable for up to $150,000 per infringement when the reality is that Canadian law caps liability for non-commercial infringement at $5,000 for all infringements. The notice also warns that the user’s Internet service could be suspended, yet there is no such provision under Canadian law. Moreover, given the existence of the private copying system (which features levies on blank media such as CDs), some experts argue that certain personal music downloads may qualify as private copying and therefore be legal in Canada (Howard Knopf explains the applicability when the music is copied to “audio recording medium”).

In addition to misstating Canadian law, the notice is instructive for what it does not say. While a recipient might fear a lawsuit with huge liability, there is very little likelihood of a lawsuit given that Rightscorp and BMG do not have the personal information of the subscriber. To obtain that information, they would need a court order, which can be a very expensive proposition. Moreover, this is merely an allegation that would need to be proven in court (assuming the rights holder is able to obtain a court order for the subscriber information).

The full notice states:

Subject: Unauthorized Use of Copyrights RE:
Date: Fri,  2 Jan 2015 00:00:00 -0600 (CST)
From: DMCA@DigitalRightsCorp.com
To: abuse@isp.com

**NOTE TO ISP: PLEASE FORWARD THE ENTIRE NOTICE***

Re: Unauthorized Use of Copyrights Owned Exclusively by BMG Rights Management (US) LLC

Reference#: 

Dear Sir or Madam:

Your ISP has forwarded you this notice.
Your ISP account has been used to download, upload or offer for upload copyrighted content in a manner that infringes on the rights of the copyright owner.
Your ISP service could be suspended if this matter is not resolved.
You could be liable for up to $150,000 per infringement in civil penalties.

The file BMG Artist – BMG Song.mp3  was infringed upon by a computer at IP Address 192.—.—.— on 2015-01-02 00:00:00.0 GMT.

We represent the copyright owner.
This notice is an offer of settlement.
If you follow the link below and login to the Rightscorp, Inc. automated settlement system, for $20 per infringement, you will receive a legal release from the copyright owner.

Follow this link or copy and paste into your browser:
https://secure.digitalrightscorp.com/settle/

Rightscorp, Inc. represents the following ‘copyright owner(s)’ BMG Rights Management (US) LLC (‘BMG’). BMG is the exclusive owners of copyrights for BMG Artist musical
compositions, including the musical compositions listed below. It has come to our attention that ISP Internet Services Provider is the service provider for the IP address listed below, from which unauthorized copying and distribution (downloading, uploading, file serving, file ‘swapping’ or other similar activities) of BMG’s exclusive copyrights listed below is taking place.

This unauthorized copying and/or distribution constitutes copyright infringement under the U.S. Copyright Act. Pursuant to 17 U.S.C. 512(c), this letter serves as actual notice of infringement. We hereby demand you immediately and permanently cease and desist the unauthorized copying and/or distribution (including, but not limited to downloading, uploading, file sharing, file ‘swapping’ or other similar activities) of recordings of  BMG Artist compositions, including but not limited to those items listed in this correspondence.

BMG will pursue every available remedy including injunctions and recovery of attorney’s fees, costs and any and all other damages which are incurred by BMG as a result of any action that is commenced against you. Nothing contained or omitted from this letter is, or shall be deemed to be either a full statement of the facts or applicable law, an admission of any fact, or a waiver or limitation of any of BMG’s rights or remedies, all of which are specifically retained and reserved. The information in this notification is accurate.

We have a good faith belief that use of the material in the manner complained of herein is not authorized by the copyright owner, its agent, or by operation of law. I swear, under penalty of perjury, that I am authorized to act on behalf of the owner of the exclusive rights that have been infringed. While BMG is entitled to monetary damages from the infringing party under 17 U.S.C. Section 504, The BMG believes that it may be expeditious to settle this matter without the need of costly and time-consuming litigation.

In order to help you avoid further legal action from BMG, we have been authorized to offer a settlement solution that we believe is reasonable for everyone. To access this settlement offer, please copy and paste the URL below into a browser and follow the instructions for the settlement offer:

https://secure.digitalrightscorp.com/settle/

Very truly yours,

Christopher Sabec
CEO
Rightscorp, Inc.
3100 Donald Douglas Loop, North,
Santa Monica, CA 90405
Telephone: (310) 751-7510

** For any correspondence regarding this case, please send your emails to DMCA@DigitalRightsCorp.com and refer to Notice ID:

If you need immediate assistance or if you have general questions please call the number listed above.

Infringement Source: Torrent
Timestamp: 2015-01-02 00:00:00.0 GMT
Infringers IP Address: 192.—.—.—-
Infringers Port: 12345
Listing of infringement(s) (Title/Filename/Timestamp/Hash): BMG Artist
BMG Song | BMG Artist – BMG Song.mp3 | 2015-01-02 00:00:00.0 | SHA1 |

In a nutshell, Rightscorp and BMG are using the notice-and-notice system to require ISPs to send threats and misstatements of Canadian law in an effort to extract payments based on unproven infringement allegations. Many Canadians may be frightened into a settlement payment since they will be unaware that some of the legal information in the notice is inaccurate and that Rightscorp and BMG do not know who they are.

The government could have avoided this misuse of the system had it issued regulations specifying the precise content of the notices. Despite months of discussions on the regulations, Industry Minister James Moore abandoned the process, implementing the system with no additional information requirements and no sanctions for the inclusion of false or misleading information. The government’s backgrounder says that the law “sets clear rules on the content of these notices”, however, it does not restrict the ability for rights holders to include information that goes beyond the statutory minimum. Rightscorp and BMG are exploiting this loophole to send demands for payment accompanied by false information on Canadian law.

These actions necessitate two responses. First, Internet service providers should add their own information to the notices, advising their subscribers on the true state of Canadian law and reassuring them that they have not disclosed their personal information to the notice sender. The law does not prohibit ISPs from adding additional information within the forwarded notice and they should begin doing so immediately.

Second, the government should quickly implement regulations prohibiting the inclusion of settlement demands within the notices and creating penalties for those companies that send notices with false or misleading information. The Canadian government has frequently defended the notice-and-notice system as a balanced approach, but its fairness is being undermined with Canadians now facing the prospect of misleading settlement demands.

The post Rightscorp and BMG Exploiting Copyright Notice-and-Notice System: Citing False Legal Information in Payment Demands appeared first on Michael Geist.

The Troubles with Patent Inventorship

IPBlog (Calgary) - Tue, 2015/01/06 - 17:00
By Richard Stobbe Determining inventorship is answering the question: who contributed enough to an invention to be named as an "inventor" on the patent application? It's critical, as reviewed by my colleague Shohini Bagchee in her article Whose Invention Is It Anyway? – Some Thoughts on Patent Inventorship and Ownership. Although the US case ...

Glass Houses and Throwing Stones: Why a Canadian Anti-Piracy Firm May Need to Send Itself Copyright Infringement Notices

Michael Geist Law RSS Feed - Tue, 2015/01/06 - 10:47

Canipre, a Montreal-based intellectual property enforcement firm, yesterday issued a press release announcing an infringement monitoring program designed to take advantage of the new copyright notice-and-notice system. The release notes that the service detects online infringement and sends notifications alleging infringement to Canadian Internet providers, who must forward the notifications to their subscribers. The company has been involved in the Voltage Pictures – TekSavvy lawsuit and it cites that case as evidence of the effectiveness of its services.

Yet what Canipre does not say is that a blog associated with the company may have been engaged in copyright infringement for many months. The blog – copyrightenforcement.ca – is run by Barry Logan, the company’s Managing Director, Operations (I received an email from Mr. Logan last year that listed the site as his blog address). In addition to posting releases from Canipre and information about the TekSavvy case, the site has posted dozens of full-text articles from media organizations around the world.

For example, last week it posted the full text of a 1200 word article on TV piracy from the Wire Report, an Ottawa-based telecom publication. The article resides behind a paywall limited to subscribers and is listed as “exclusive content.” In fact, reposting full-text articles from other sources is a regular occurrence on the site. Posts in December feature articles from the Huffington Post Canada, Business Insider, and CNET.  Earlier posts include full-text articles from the Hollywood Reporter, StreamDaily, Reuters, the Canadian Press, Global News, Vancouver Sun, and the National Post. Some of the posts include articles that strip out reference to the author (Chronicle Herald, CBC) and others include no attribution whatsoever. The site also uses photos from the articles, often without attribution.

While the use of clips of articles will often qualify as fair dealing and even full text of articles can be fair dealing in some circumstances, posting full text articles without attribution or including subscription-only information that is not otherwise available, is much more likely to be viewed as infringement if posted without authorization. Canipre would likely offer its services to the media companies whose work is affected, yet it might want to take a closer look at its internal conduct before throwing stones in the form of thousands of notices alleging infringement.

The post Glass Houses and Throwing Stones: Why a Canadian Anti-Piracy Firm May Need to Send Itself Copyright Infringement Notices appeared first on Michael Geist.

Two Privacy Class Actions: Facebook and Apple (Part 2)

IPBlog (Calgary) - Mon, 2015/01/05 - 17:00
- By Richard Stobbe In Part 1, we looked at the B.C. decision in Douez v. Facebook, Inc. Another proposed privacy class action was heard in the B.C. court a few months later: Ladas v. Apple Inc., 2014 BCSC 1821 (CanLII). This was a claim by a representative plaintiff, Ms. Ladas, alleging that ...
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