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- A “Pet Valu” franchisee in Ontario claimed that sales were declining, so she terminated the Franchise Agreement. After termination of the agreement, her husband established a competing “Pet Stuff” business nearby. When a franchise location fails as it did in this case, what happens with the “restrictive covenants” in the ...
The Competition Bureau of Canada has just released its submission to the CRTC's consultation on domestic roaming rates and with it left no doubt about its concerns with the state of wireless competition in Canada. Despite repeated efforts of the big three incumbent providers to argue that the Canadian market is competitive, the Competition Bureau has concluded that the big three enjoy "market power." As the Bureau notes, market power is "the ability of a firm or firms to profitably maintain prices above competitive levels (or similarly restrict non-price dimensions of competition) for a significant period of time."
Given its market power, the Bureau finds the wireless incumbents can use roaming to shield themselves from competition. It states:
"Incumbents can use the terms and conditions of roaming agreements to raise their rivalsâ costs such that incumbents are shielded from the full effect of their the rivalsâ (i.e., entrants) entry. Making it more costly for entrants to access incumbent networks through roaming agreements is one way for an incumbent service provider to relax competitive pressure."
In light of the competition concerns, the Bureau concludes that the CRTC should establish regulatory safeguards on domestic roaming pricing. In fact, it states that given the choice between a remedy that goes further than necessary and one that does not go far enough, it would prefer a remedy that is more than strictly necessary.
The Bureau report notably rejects the wireless companies' arguments that the market is competitive, particularly the Church and Wilkins report on the issue:
In the Bureau's view, the C-W Report does not provide adequate support for Bellâs claims that mobile wireless markets in Canada are competitive. Instead, based on the factors described above, the Bureau believes that incumbent service providers do have market power in the provision of retail mobile wireless services, and the CRTC should take this fact into account when considering this matter.
The Competition Bureau submission is a bombshell finding, confirming concerns about the lack of competitiveness in the Canadian wireless market. It opens the door to regulatory action to address the ongoing competition problems and firmly rejects persistent incumbent claims that there is no reason for worry.
Earlier this week, I wrote a column (Toronto Star version, homepage version) arguing that Canada's telecom companies should come clean about their disclosures of customer information. That column was in response to a public letter from leading civil liberties groups and academics sent to Canada's leading telecom companies asking them to shed new light into their data retention and sharing policies. The letter writing initiative, which was led by Christopher Parsons of the Citizen Lab at the University of Toronto's Munk School of Global Affairs, is the latest attempt to address the lack of transparency regarding how and when Canadians' personal information may be disclosed without their knowledge to law enforcement or intelligence agencies.
That initiative has now effectively been joined by the Office of the Privacy Commissioner of Canada and NDP MP Charmaine Borg. Chantal Bernier, the interim Privacy Commissioner of Canada, released recommendations yesterday designed to reinforce privacy protections in the age of cyber-surveillance. The report includes the following recommended reform to PIPEDA:
require public reporting on the use of various disclosure provisions under PIPEDA where private-sector entities such as telecommunications companies release personal information to national security entities without court oversight.
In addition, Borg has filed an order paper question (Q-233) seeking detailed data on requests to telecom companies from various government agencies.
As my column notes, concerns with telecom secrecy has become particularly pronounced in recent months as a steady stream of revelations that have painted a picture of ubiquitous surveillance that captures "all the signals all the time", sweeping up billions of phone calls, texts, emails, and Internet activity with dragnet-style efficiency.
Canada's role in the surveillance activities remains a bit of mystery, yet there is little doubt that Canadian telecom and Internet companies play an important part as intermediaries that access, retain, and possibly disclose information about their subscribers' activities.
In the United States, companies such as Verizon and AT&T have announced plans to issue regular transparency reports on the number of law enforcement requests they receive for customer information. The telecom transparency reports come following a similar trend from top Internet companies such as Google, Twitter, Microsoft, and Facebook.
The first Verizon report was released last week and it revealed that there are hundreds of thousands of requests for subscriber information every year. Last year this included more than 30,000 demands for location data, the majority of which lacked a warrant.
By contrast, Canada's telecom companies remain secretive about their participation in the surveillance activities, with no transparency reports and no public indications of their willingness to disclose customer information without a court order.
The scope of such participation is potentially very broad. Not only is there the prospect of co-operation with Canadian intelligence agencies, but Canadian networks and services are frequently configured to allow for U.S. surveillance of Canadian activities.
For example, Bell and Rogers link their email systems for residential customers to U.S. giants with Bell linked to Microsoft and Rogers linked to Yahoo. In both cases, the inclusion of a U.S. email service provider may allow for U.S. surveillance of Canadian email activity. Moreover, Bell requires other Canadian Internet providers to exchange Internet traffic outside the country at U.S. exchange points, ensuring that the data is potentially subject to U.S. surveillance.
Secret disclosures of subscriber information extend beyond surveillance programs run by Canadian and U.S. intelligence agencies. Under Canadian law, telecom companies and Internet providers are permitted to disclose customer information without a court order as part of a lawful investigation. According to data obtained under Access to Information, the RCMP has successfully obtained such information tens of thousands of times.
In fact, Bill C-13, the so-called "cyberbullying" bill, includes a provision that is likely to increase the number of voluntary disclosures without court oversight since it grants telecom companies and Internet providers complete immunity from any civil or criminal liability for those disclosures.
The privacy implications of this secret disclosure system are enormous, potentially touching on the private data of hundreds of thousands of Canadians. Yet the policies seemingly operate between the cracks in the law, permitting some disclosures without court oversight, blocking notifications to those who are affected, and even providing financial compensation from taxpayers to the telecom companies for their co-operation.â¨
Canadian privacy law requires telecom companies and Internet providers to adhere to an openness principle that includes making "readily available to individuals specific information about (its) policies and practices relating to the management of personal information." Those companies have failed to comply with the spirit of this principle, suggesting that Privacy Commissioner of Canada should consider supplementing last week's civil society letter with an investigation of her own. a href=
The Canadian government quietly tabled five intellectual property treaties in the House of Commons on Monday:
Mr. Speaker, pursuant to Standing Order 32(2) I have the honour to table, in both official languages, five treaties, entitled, one, Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on June 27, 1989, as amended on October 3, 2006, and on November 12, 2007; two, the Singapore Treaty on the Law of Trademarks, adopted at Singapore on March 27, 2006; three, the Nice Agreement Concerning the International Classifications of Goods and Services for the Purposes of the Registration of Marks, adopted in Nice on June 15, 1957, as revised at Stockholm on July 14, 1967, and at Geneva on May 13, 1977, and amended on September 20, 1979; four, the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs adopted at Geneva on July 2, 1999; and, five, Patent Law Treaty, done at Geneva on June 1, 2000.
I wrote about the move toward ratifying these treaties last year. The Industry Committee recommended their ratification despite the fact that no witnesses raised the issue during lengthy committee hearings. So why the recommendation? I suggested then that the decision is primarily designed to place Canada in position to ratify the Canada - EU Trade Agreement and the Trans Pacific Partnership. While neither of those trade agreements are public, leaks suggest that both include provisions requiring signatories to adopt those IP treaties. The five IP treaties, which focus largely on administrative issues, will now enter the treaty ratification process, which includes a 21-sitting day period where MPs can initiate debate.
The Bibliocracy blog posts the results of a response to an order paper question on the Department of Fisheries and Ocean's library system with very discouraging news: massive destruction of materials and no information on what was digitized.
Earlier today, Professor Peter Jaszi of American University’s Washington College of Law gave testimony concerning fair use to the U.S. House Judiciary Subcommittee on the Courts, Intellectual Property and the Internet. Jaszi is undoubtedly one of the most knowledgeable sources on the subject, with more than forty years of experience in the field. He credits his early teachers, Benjamin Kaplan and Lyman Ray Patterson, for their prescience in forecasting the importance of fair use to American advancement, particularly in what we now describe as the digital age.
In his testimony, Jaszi recounts how an early pronouncement of fair use as a right earned him an immediate rebuke but notes that both the courts and Congress have proven him correct (details on page 3). He acknowledges that the early years following codification of fair use into American law through the 1976 amendments did not bode well. However, he happily reports that fair use’s fortunes are much better: “Today, fair use is working!” That success owes a great deal to the federal courts which removed commercial exploitation as the anchor of fair use analysis, and gave more consideration to the purpose of the use. But Jaszi also emphasizes that willingness by the courts to think broadly would have come to naught without the user communities who were:
… willing to step up and make their own contribution to develop fair use by employing it and – where necessary – defending its exercise. Many groups deserve credit here: on the one hand, of course, libraries and tech startups, but also their occasional sparring partners commercial publishers and entertainment companies (p.4).
Jaszi’s testimony is comprehensive yet succinct; in less than eight pages of text he explains the early 21st century misconceptions surrounding fair use and offers clarification. He leaves no doubt as the value of the exception: “The fair use doctrine adds materially to our cultural choices, our learning opportunities, and our access to innovation (emphasis mine).” His message to the members of the Subcommittee is that fair use does not need legislative reform, although it could benefit by some measures of support to facilitate further use of the exception thereby securing more benefit to the United States as a whole.
Finally, Jaszi raises the principled concern that current U.S. trade negotiations, particularly with developing countries, leave those countries with “lingering and crippling doubts” as to whether they may emulate the American example. Reminding all that nations are interwoven in today’s world-economy, Jaszi asks: “…whether this one-sided approach is really in our national interest – and (beyond that) whether it is ethically defensible?”
As an update to my previous post in August (click here), this bill (Bill C-8) has been re-introduced in Canadian Parliament, and is currently in second reading. Bill C-8 amends the Copyright Act and the Trade-marks Act to add new civil and criminal remedies and new border measures designed to ...
The Canadian Radio-Television and Telecommunications has spent the past year-and-a-half trying to reinvent itself a pro-consumer regulator. On the broadcast front, the most obvious manifestation of that approach is the gradual move toward pick-and-pay channels, which seems likely to emerge as a policy option later this year. Establishing mandated pick-and-pay would be a political and consumer winner, but there are still reasons for Canadians to vent against the regulator. The retention of simultaneous substitution policies is one of them.
I made the case for gradually eliminating the simultaneous substitution policy late last year, arguing that the policy hurts Canadian broadcasters (by ceding control over their schedules to U.S. networks) and Canadian content (which suffers from promotion). Moreover, simultaneous substitution will become less important over time as consumers shift toward on-demand availability of programs. There are still supporters of simultaneous substitution, but few come from the consumer community. Indeed, even the CRTC is hard-pressed to identify consumer benefits in its FAQ on the policy. In fact, its Super Bowl commercial FAQ claims viewers benefit from signal substitution during the broadcast, but the Commission can't seem to identify any benefits.
Given the lack of consumer interest in, and occasional hostility toward, simultaneous substitution, the policy represents a problem for the CRTC's pro-consumer orientation. With that background in mind, last week CRTC Chair Jean-Pierre Blais wrote to Rogers to complain about the company's Twitter response to a customer complaint about simultaneous substitution. When a customer complained about the CTV substitution of the Fox feed of the NFC Championship (Go Hawks), the company noted that "it's due to the CRTC rules so no way to watch the Fox feed sorry."
After stating that he was dismayed to read the Rogers response, Blais stated:
There is an important distinction to be made between authorizing broadcasters to substitute signals and forcing them to do so. As I said at the 2013 Prime Time in Ottawa conference, the time has come for broadcasters and distributors to start speaking up on simultaneous substitution rather than simply passing blame onto the CRTC.
There are several problems with Blais' letter. First, the Rogers response isn't inaccurate. The viewer is unable to view the Fox feed due to the Canadian broadcaster (CTV) using the simultaneous substitution regulations created by the CRTC. The broadcast distributor (Rogers) is required by licence to abide by the simultaneous substitution request. The entire simultaneous substitution system is a regulatory creation of the CRTC and attempts to distance itself from it are misleading. Second, Blais' prepared remarks at the 2013 Prime Time conference did not say that it was time for broadcasters and distributors to speak up on simultaneous substitution (perhaps remarks after the speech did). The speech contained one reference to simultaneous substitution, but there was no urging of broadcasters and distributors to speak out on the issue. [Update: the CRTC Twitter feed points out the Blais went off script to urge broadcasters and broadcast distributors to stop blaming the CRTC for simultaneous substitution].
Third, it is odd to see the CRTC Chair exhorting broadcasters and broadcast distributors to speak out in favour of simultaneous substitution. According to Blais, the Commission's "Let's Talk TV" consultation is "open to any suggestion, question or idea you want to bring forward." Is the Commission open to removing the simultaneous substitution rules? Or is it merely looking for cover from broadcasters and broadcast distributors on a policy that is not well-liked by many consumers and which ultimately provides less choice by creating Canadian networks that mirror their U.S. counterparts during prime time? If the CRTC wants to retain the unpopular policy, it should own it, not try to pass the responsibility for public support to broadcasters and broadcast distributors.
Here's a reading of my latest Locus column, Cheap Writing Tricks, which discusses the mysterious business of why stories are satisfying, and how to make them so:
Plots are funny things. In the real world, stuff is always happening, but it’s not a plot. People live. People die. People are made glorious or miserable. Things eagerly awaited are realized, or hopes are cruelly dashed. Love is gained; love is lost. But all these things are not a plot – they lack the fundamental tidiness and orderliness that makes a story a story.
In fiction-land, stories have beginnings, middles and ends. They have dramatic tension, which rises to a climax towards the end of the story, and then roll on a while longer, into denouement. A plot is what you get when you draw a line around a set of circumstances and say, ‘‘These things are all part of one story, and they comprise its beginning, middle and end, and its arc from low tension to high. This moment here is the climax of this story.’’
That line is wholly arbitrary, of course – your personal life-story’s climax is merely a passing moment in someone else’s arc – but the really weird thing is that a story that lacks this arbitrariness feels arbitrary. A bunch of things that happen without any curation or pruning away of extraneous moments do not a story make, despite the fact that this is how the world actually works.
Mastering by John Taylor Williams: firstname.lastname@example.org
John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."
In Capitol Records v. Vimeo, the Court has certified its September, 2013, decision of the respective summary judgment motions for an interlocutory appeal.
The Court also partially granted defendant's motion for reconsideration seeking summary judgment dismissing the case as to additional videos, and granted plaintiff's motion for leave to amend its complaint.
Kotaku conducted a Q&A with Jen and me about the book and its themes, and lavishly illustrated it with art and panels from the book:
The book touches on points that some people who play video games don't want to think about, like the social attitudes or economic politics surrounding the delivery and maintenance of these experiences. The reluctance happens because it's not easy to think about these things. "I am as guilty of this as anyone is. It doesn't feel good to think about it. I think that life in the modern world embodies all kinds of contradictions that are difficult to face," Doctorow said over e-mail. "We don't decide to abandon our principles in a rush—rather, they slide away in a series of incremental steps, each of which seems like a reasonable compromise based on the LAST compromise."
"We are most capable of detecting relative differences. Once you've made a little compromise, another little compromise seems like not much, and another, and another. No one wants to admit that the fun bit of plastic he unboxed from Amazon this morning is awash in invisible blood, especially because, as an individual, there's nothing he can do about the blood, and not buying the thing doesn't make it any less bloody. So you draw the curtains."
Gold farming is the kind of thing that captured the public imagination for a while and is now accepted as par for the course in massively online games. When asked why he'd want to re-visit the practice now, Doctorow said that "science fiction isn't about the future, it's always about the present." "When you contemplate the microscale phenomenon of a world-in-a-bottle like an MMO and the toy economy within it, it equips you with a graspable metaphor for understanding the macroscale world of monetary policy. In other words: thinking about gold farming is a gateway drug to thinking about money itself."
In Real Life [Amazon]
Rogers' executive Rob Bruce in 2012 on changes to Canadian foreign investment rules that removed restrictions for companies with less than ten percent of the market:
âOur view is 'bring it on. As far as competition goes, we've always been a full-speed-ahead competitor and we're ready to go with whoever comes to market.â
Rogers' CEO Nazr Mohamed in 2013 on Canadian wireless foreign investment rules:
Mohamed repeated that Rogers favours opening foreign investment for large telecom players too, which can't be more than one-third foreign owned. "If the Canadian government decides to open up foreign ownership, it should open it up for everybody," he told reporters later.
Rogers Deputy Chair Edward Rogers yesterday on Canadian foreign investment rules:
It's a complex topic but I think our view is as Canadians we better really study and understand what that is before we do it, because the model we have now, I believe, allows Canadians to have the best wireless industry, the best cable industry, and some fantastic media assets in Canada. And I personally donât want to just sell that. So, the shareholders maybe the richest executives enjoy that. But we have the hollowing out of Canada after that. I don't think there's any formula where any of these companies are own outside of Canada and they do better for customer. I think there is a lot you could argue that if we were a branch plant that Canada would be last.
Graham Henderson, the head of the Music Canada (formerly the Canadian Recording Industry Association) wrote a blog post late last year lamenting musicians' earnings, a situation he blames on the Internet allowing a few to "amass staggering, unprecedented wealth" while musicians toil for tiny incomes. Leaving aside the facts that the Canadian music industry experienced increased digital sales last year (while sales declined in the U.S.) and that the Ontario government is handing out tens of millions of tax dollars to the industry, Henderson now says the government needs to step in and regulate the Internet. According to Music Canada, government support must be complimented by:
judicious and reasonable regulation of the internet. The actions taken by courts in other jurisdictions have very reasonably required ISPs to block websites that are almost entirely dedicated to the theft of intellectual property.
In fact, Internet regulation and blocking websites are not the only music industry target. Last week, Music Canada appeared before the Ontario Standing Committee on Finance and Economic Affairs, where it cited Google as a problem:
the federal government has done a lot to help us in our battle against illegal sources, but they could certainly do more. One of the biggest problems we have is that consumers cannot find legal services on Google. Type in: "Carly Rae Jepsen"; pick your song; press âsearch.â You would have to look to page 7 of the results to find iTunes. Before you get there, you have six and a half pages littered with illegal sites which are constantly being taken down and constantly being put back. With government support, maybe we can urge intermediaries to actually do something to help consumers find legitimate sources, because I think theyâd like to.
I tried replicating Henderson's claims regarding Google and arrived at much different results. Searching for Carly Rae Jepsen and the song Call Me Maybe, the very first result was a music video posted by Jepsen's label which receives royalties and has a link to the iTunes version for purchase. Other top results include Jepsen's own website (with links to iTunes sales of her songs) and licensed streaming versions of the song, which all appear before "infringing sites."
With digital sales on the rise in Canada and copyright reform now complete, regulating the Internet, blocking websites, and manipulating search results is the last thing government's should be mandating. Yet it seems that is precisely what the music industry once again has on its mind.
In the case of Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, released last Friday, the Supreme Court of Canada has declared the Alberta Personal Information Protection Act (PIPA) invalid in its entirety. This case pits constitutional rights against privacy rights. The court ...
Posted by Rob Mahini, Policy Counsel
Once upon a time, Tax Day meant pens and pencils, paper forms, and long waits at the post office. Now, the Internet makes tax day much simpler -- online software and e-Filing now allows everyone a much smoother Tax Day experience. Unfortunately, the Internet also makes something else easier: tax identity theft that allows scammers to do things like file for fraudulent tax refunds or apply for jobs.
As the FTC noted earlier this month, "identity theft has been the top consumer complaint to the FTC for 13 consecutive years, and tax identity theft has been an increasing share of the Commission’s identity theft complaints." In fact, tax ID theft accounted for more than 43 percent of the FTC's ID theft complaints, "making it the largest category of identity theft complaints by a substantial margin."
With this in mind, the FTC hosted events around the country last week as part of its Tax Identity Theft Awareness Week, to educate consumers about the risks of tax identity theft and how to avoid becoming a victim. The IRS also released a video this month to educate taxpayers on what to do if they are victimized by tax ID theft.
At Google's Good To Know site, consumers can learn about the many ways that they can protect all of their data, including their SSN, tax forms, and other information that tax identity thieves are after. For example:
The ease and convenience of the Internet has helped simplify tax filing. And following these tips will help keep your tax information safe in the process.
Today we reveal the addition of another session focused on this topic, “Snowden 2.0: A Field Report From the NSA Archives.” This session will feature Barton Gellman (pictured at left) of the Century Foundation, who won a Pulitzer Prize for his reporting on Vice President Dick Cheney. Gellman is one of three reporters entrusted by Edward Snowden last May with top secret NSA archives. In December 2013, he was the first to interview Snowden face-to-face in Moscow. Nine months after breaking the PRISM story in The Washington Post, Gellman looks back at what we have learned, what it means, and what we still don't know. Snowden gave birth to an insurgency against the surveillance-industrial state. A counterinsurgency rose to defend the status quo. Gellman offers an insider's view of who is winning and why.
Among the many Internet success stories of the past two decades, Google stands alone. The undisputed king of search, hundreds of millions rely on it daily, supporting an Internet advertising business model that generates tens of billions of dollars annually.
My weekly technology law column (Toronto Star version, homepage version) notes that kind of success invariably leads to legal and regulatory issues, though most of Google's legal fights have focused on content, such as the inclusion of controversial websites in its search index, the digitization of millions of books through its book search initiative, and the removal of links that may lead to websites that host infringing content.
Until recently, Google's Internet advertising business model has, with a few notable exceptions (including a large U.S. settlement involving pharmaceutical advertising), been spared much regulatory scrutiny. That has started to change with high profile actions in the U.S. and European Union and the prospect of similar investigations in Canada.
In the U.S., the Federal Trade Commission conducted a two-year investigation into Google's business practices that wrapped up last year with a settlement featuring several commitments for business practice changes. The settlement stopped short, however, of finding anti-competitive bias in Google's search results.
While the U.S. settlement was widely viewed as a win for Google, European regulators are conducting their own investigation and may demand greater concessions. In fact, European officials recently warned the company that time is running out to settle claims of abuse of its dominant position.
The U.S. and European Union may have been active on the Google front, but Canadian officials have generally remained on the sidelines. The federal privacy commissioner has examined privacy-related issues, with action involving Google Street View (its popular street-level mapping service) and Google Buzz, but broader investigations into the company's business model have been largely absent.
That too is changing, as in recent months both the Competition Bureau and the federal privacy commissioner have either launched or concluded investigations involving Google's business model. Both investigations were complaint-driven, suggesting that competitors or disgruntled users may increasingly turn to those regulatory bodies to address their concerns.
The Competition Bureau investigation mirrors the actions in the U.S. and Europe. According to court documents filed in December, the Bureau has worked with Google's competitors to identify the information the company should be ordered to disclose as part of a competition law investigation. Last month, the Federal Court of Canada issued an order mandating disclosure of information related to the company's business activities, which the complainants claim rise to the level of anti-competitive behaviour.
The investigation remains at an early stage with no indication that the Bureau is close to reaching a conclusion. However, the Bureau's interest in Google indicates that the company is now firmly on the Canadian radar screen and competition watchers will be looking closely to see whether Canada follows the U.S. example or adopts the more aggressive European approach.
The federal privacy commissioner has also waded into Google's business model. Last week, the office concluded an investigation into online behavioural advertising that arose from a complaint by a Google user who was uncomfortable with health-related targeted advertisements that suggested his Internet usage was being tracked. After he searched for medical devices for sleep apnea, he began receiving advertisements on random sites for the devices.
The reality is that website usage is tracked, hence the mounting demands for do-not-track legislation that would provide users with greater control over the data generated by their Internet activities. In this case, the privacy commissioner concluded that the advertising breached Canadian privacy law as the tailored advertisements involved sensitive information that required an explicit opt-in consent.
Google agreed to several changes in response to the finding, including increased monitoring of its advertising programs to ensure compliance with company policies and the law. Given the heightened interest from Canadian regulators, the company is apparently no longer alone in the monitoring of its advertising practices and business activities.
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