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Talking with APM’s Marketplace about the Disneyland prospectus

I was on American Public Media’s Marketplace yesterday talking (MP3) about our posting of a rarer-than-rare Disney treasure, the never-before-seen original prospectus for Disneyland, scanned before it was sold to noted jerkface Glenn Beck, who has squirreled it away in his private Scrooge McDuck vault.

Guardian publishes "Snowden and the Future" essay

SFLC News Releases - Tue, 2014/05/27 - 11:46
Guardian publishes "Snowden and the Future" essay

What if the CBC Really Put Everything Up for Review?

Michael Geist Law RSS Feed - Tue, 2014/05/27 - 00:55
The future of broadcasting has emerged as a hot issue with Canada's broadcast regulator effectively putting everything up for grabs as part of its comprehensive TalkTV review of broadcasting regulation. Acknowledging the dramatic shift in the way Canadians access and interact with broadcasting, reforms to seemingly untouchable policies such as simultaneous substitution, genre protection, and over-the-air broadcasting are all on the table.

The Canadian Radio-television and Telecommunications Commission has effectively acknowledged that the world has changed and policies based on a different landscape merit a review. In the current market, scarcity has given way to abundance and broadcasters have ceded considerable control to consumers’ demands to watch what they want, when they want.

My weekly technology law column (Toronto Star version, homepage version) notes that Canada’s public broadcaster, the Canadian Broadcasting Corporation, is undergoing a similar review. If recent comments from its president Hubert Lacroix are any indication, however, there is no willingness to radically rethink its future. In a speech earlier this month to the Canadian Club of Montreal, Lacroix devoted much of his time to lamenting the budgetary challenges faced by CBC with unfavourable comparisons to support for public broadcasting in other countries.  


Liberal MP Stéphane Dion adopted a similar approach in comments in the House of the Commons, focusing on budget cuts and claiming that "more than ever, Canada needs a quality public broadcaster."

Lacroix and Dion start from the position that the public broadcaster (particularly English language broadcasting) remains as important today as it did decades ago and that the challenges are primarily budgetary in nature. Yet a more ambitious review would not start with the assumption that this is primarily a debate over financing, but rather open the door to considering whether Canada really does need a public broadcaster in its current form "more than ever".

Indeed, given the many changes in the broadcast environment, the necessity for a public broadcaster that is not dramatically different from the myriad of private choices is not entirely clear. The private sector offers equally compelling news programming and strong sports coverage. The CBC frequently emphasizes the need for a domestic voice and perspective, but today Canadians are empowered to do this on their own.

What the public often needs are the "raw materials" to enhance their content and better platforms to help distribute and market it. What if the CBC saw its public role primarily through that prism?  It could continue to produce news programming, but openly licence its content so that Canadians could freely use it for their own creativity and storytelling. Moreover, the CBC could provide the digital platform for those new perspectives, becoming an aggregator for Canadian voices on everything from hockey to politics.

Rethinking the role of the public broadcaster could also mean embracing "non-economic" programming such as local news. While Lacroix muses about whether the CBC should forego local news programming due to the costs, the growing challenge for the private broadcasters to offer comprehensive local news is precisely why a case can be made for public dollars to step in and fund it.

The CBC could also re-examine how it distributes its programming and what it airs during prime time. The public broadcaster could launch an English-language Netflix competitor, offering unlimited on-demand Canadian programming online at no cost. Rather than shutting down over-the-air broadcasting, it could enhance its over-the-air approach by offering mobile television services that by-pass the pricey private alternatives.

As for its conventional programming, it could drop the "me-too" reality shows and use its prime time hours to air Canadian movies and documentaries, providing far more exposure to professionally produced Canadian programming that often struggles to find widespread distribution.

There are legal restrictions that render a fundamental rethinking of the CBC enormously difficult. While no one has all the answers, starting with the view that what ails the CBC is primarily a lack of funding demonstrates a lack of vision and misses the broadcast revolution that is well underway.

Canadian Bar Association Releases Recommended Reforms For Bill C-13

Michael Geist Law RSS Feed - Tue, 2014/05/27 - 00:42
With Justice Minister Peter McKay insistent that the government will not be splitting Bill C-13 into the lawful access and cyber-bullying components, the Canadian Bar Association heads to Parliament hill today to appear before the Justice Committee to discuss the bill. The CBA's submission features 19 recommendations, including the need for "an independent comprehensive review of privacy interests in the context of electronic investigations." That call echoes an NDP recommendation for a similar independent review.  The brief also includes other recommendations for lawful access reform, such as raising the threshold for a transmission data warrant and establishing additional limitations on preservation orders.

In Defence of the Government Tracking Social Media Activity

Michael Geist Law RSS Feed - Mon, 2014/05/26 - 00:04
For most of the past decade, many people concerned with digital rights have used the Internet and social media to raise awareness in the hope that the government might pay closer attention to their views. The Canadian experience has provided more than its fair share of success stories from copyright reform to usage based billing to the Vic Toews lawful access bill. Yet in recent weeks, there has been mounting criticism about the government's tracking of social media. This post provides a partial defence of the government, arguing that it should be tracking social media activity provided it does so for policy-making purposes.

The controversy started with news that the Privacy Commissioner of Canada has written to the government to express concern that an increasing number of government institutions are collecting publicly available personal information from social media sites such as Facebook and Twitter. The initial report generated considerable media attention with claims that the activity may violate the Privacy Act (or at least the spirit of the legislation).

Last week, Treasury Board President Tony Clement told Jesse Brown that the collection was largely in aggregate form to track public sentiment and that a full review of current practices would be undertaken. However, a later report demonstrated that government officials tracking Bill C-30 (the earlier lawful access bill) did identify specific Twitter users and their tweets (many internal documents I've obtained under Access to Information suggest that the Public Safety officials have been exceptionally defensive about lawful access and often seem to drift away from a balanced position).


As noted above, I think government tracking of social media activity - particularly where it is public and aimed at a policy issue - is a good thing.  That support comes with a few caveats. First, social media activity - such as posts, likes, and tweets - are obviously personal information. The fact that they are publicly posted does not alter their status as personal information. The suggestion that the information is fair game for any use since it publicly available is simply wrong. Note that the issue involves postings that are public, not private.

Second, the Privacy Act does indeed establish some limitations on the collection of personal information. Section 4 provides:

No personal information shall be collected by a government institution unless it relates directly to an operating program or activity of the institution.

If the collection of social media information falls outside of this provision, it is offside the law.

Third, there are clearly dangers of misuse, as the Cindy Blackstock case demonstrated. Using social media to target a specific individual raises serious concerns.

With those caveats, I find myself supportive of the government tracking social media activity, if for the purposes of staying current with public opinion on policy, government bills or other political issues. Facebook and Twitter are excellent sources of discussion on policy issues and government policy makers should be tracking what is said much like they monitor mainstream media reports. Too often government creates its own consultation forum that attracts little attention, while the public actively discusses the issue on social media sites. It seems to me that the public benefits when the government pays attention to this discussion. Users that tweet "at" a minister or use a searchable hashtag are surely hoping that someone pays attention to their comment. To see that government officials are tracking these tweets is a good thing, representing a win for individuals that speak out on public policy.

There certainly needs to be policies that ensure that the information is used appropriately and in compliance with the law, but if the current controversy leads to warnings against any tracking of social media, I fear that would represent a huge loss for many groups that have fought to have the government to pay more attention to their concerns.

Canada has ratified WCT and WPPT

Digital Copyright Canada BLOG - Fri, 2014/05/23 - 09:59

While we knew this was coming, Canada has officially ratified the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

This doesn't mean Canadian law can't be fixed when it comes to "technological measures" given these treaties don't require access controls or protection of circumventions of measures not related to copyright infringement. This means nearly all of the direct or indirect infringements of IT property rights, and all the anti-competitive behaviour (tied selling, copyright holders manipulating hardware/software markets, hardware/software companies manipulating content industries, etc), can be clarified as not legalized or legally protected under copyright" law.

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Canada Ratifies WIPO Internet Treaties

Michael Geist Law RSS Feed - Fri, 2014/05/23 - 04:12
Canada has formally ratified  the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The ratification was a key part of the copyright reform process, leading to contentious debate over the Canadian approach to providing legal protection for digital locks. The treaties will enter into force on August 13, 2014.

From Toews to Todd: The Unravelling of the Government's Lawful Access Sales Strategy

Michael Geist Law RSS Feed - Fri, 2014/05/23 - 03:32
As criticism of Bill C-13 mounts, the government's sales strategy for its latest lawful access bill is starting to unravel. Many will recall the immediate, visceral opposition to Bill C-30, the last lawful access bill that started with then-Public Safety Minister Vic Toews declaring the day before introduction that Canadians could either stand with the government or with the child pornographers. The bill never recovered as Toews' divisive remarks placed the spotlight on the warrantless disclosure provisions and the lack of privacy balance. Within ten days it was on placed on hiatus and formally killed a year later.

While the government has removed some of the most contentious elements from Bill C-30, many privacy concerns remain (immunity for voluntary disclosure, metadata). Indeed, it appears that its primary takeaway from the last legislative failure - an incredibly rare moment in the life of a majority government - was that it was a botched sales job. So despite a promise not to bring back lawful access legislation, it did so months later, this time armed with a new marketing strategy. Bill C-13 was framed as a cyber-bullying bill and its primary sales people were presumably supposed to be the victims of cyber-bullying and their parents.

The turning point on Bill C-13 came ten days ago when they appeared before the Justice Committee studying the bill. Carol Todd, the mother of Amanda, led off and courageously insisted that the government stop using her child's name to undermine privacy:


"While I applaud the efforts of all of you in crafting the extortion, revenge, porn, and cyberbullying sections of Bill C-13, I am concerned about some of the other unrelated provisions that have been added to the bill in the name of Amanda, Rehtaeh, and all of the children lost to cyberbullying attacks.

I don't want to see our children victimized again by losing privacy rights. I am troubled by some of these provisions condoning the sharing of the privacy information of Canadians without proper legal process. We are Canadians with strong civil rights and values. A warrant should be required before any Canadian's personal information is turned over to anyone, including government authorities. We should also be holding our telecommunication companies and Internet providers responsible for mishandling our private and personal information. We should not have to choose between our privacy and our safety.


We should not have to sacrifice our children's privacy rights to make them safe from cyberbullying, sextortion and revenge pornography."

Ms. Todd's comments effectively derailed the government's sales strategy for Bill C-13, making it clear that the failure to appropriately protect our privacy victimizes the same people the bill purports to protect. In the days since her appearance, the voices against the bill have grown louder. Ontario Privacy Commissioner Ann Cavoukian this week:

"The time for dressing up overreaching surveillance powers in the sheep-like clothing of sanctimony about the serious harms caused by child pornography and cyberbullying is long past."

Former Public Safety Minister Stockwell Day, who faced his own backlash against lawful access, yesterday:

"There can be an overreaction in terms of how you correct it. So [Cavoukian is] raising a bit of an alarm here. Let's be very careful in how we could protect someone in a situation like this, but let's also be careful in going too far and limiting even things like free speech, [or using] invasive techniques that could be employed by policing. I'm hoping they take another look at this and kind of curtail some of those powers."

Next week, the committee resumes with appearances from criminal lawyers, the Canadian Bar Association, and others (I'm currently scheduled to appear on Thursday). With the criticism likely to grow, the government should recognize that its lawful access strategy has failed yet again. The right approach would be to separate the bills, move forward on addressing cyber-bullying, and go back to the drawing board on surveillance and lawful access.

Who's Watching Whom: An Examination of Canadian Privacy and Surveillance

Michael Geist Law RSS Feed - Thu, 2014/05/22 - 03:46

Earlier this week I was pleased to speak at the monthly Geek Girls Toronto event. Hosted at the Mozilla offices, a sold-out audience showed yet again that there is enormous public interest and concern with recent privacy and surveillance developments. A video of the talk, which focused on the problems associated with lawful access, privacy reform, and surveillance, is posted below.




The Copyright Board of Canada Music Streaming Decision: The Good, the Bad, and the Ugly

Michael Geist Law RSS Feed - Wed, 2014/05/21 - 00:58
The Copyright Board of Canada issued its long-awaited music streaming decision late last week, setting royalties to be paid by Internet music streaming services such as Pandora for non-interactive and semi-interactive streaming for the years 2009 to 2012. This covers passive Internet radio services and services that allow users to influence what they listen to. Given that Pandora left the Canadian market over high tariff rates, the outcome of the decision was destined to be a key determinant over whether many of the missing Internet music streaming services enter the Canadian market.

For fans of Pandora or similar services, the decision brings good news. The board largely rejected the arguments of Re:Sound, the collective responsible for the tariff and settled on rates close to what the Internet services were seeking. While the collective argued for rates similar to those found in the U.S., the Board ruled that the U.S. was not a suitable comparison. 

Moreover, it rejected arguments that this form of music streaming cannibalizes music sales, concluding that exposure to music through non-interactive and semi-interactive streaming may increase sales:


We are unconvinced that non-interactive and semi-interactive streaming cannibalizes sales of CDs or downloads. Though the Objectors' evidence and arguments in this respect are not without contradictions, we agree with them, for the reasons set out in paragraph 157 below, that non-interactive webcasting is similar to over-the-air radio. We find that neither over-the-air radio nor non-interactive webcasting is likely to cannibalize music sales; if anything, they are likely to stimulate them.

The same is true of semi-interactive webcasts. Pandora's American free and paying subscribers are about twice as likely to purchase CDs or downloads as are non-subscribers. Furthermore, while purchases by Pandora's subscribers are declining, the decline is not as steep as for non-subscribers.

The end result are tariff rates that the Board estimates would constitute between 4 and 5 percent of Pandora's Canadian revenues. By comparison, the board says Pandora pays about 50% of U.S. revenues as royalties. If these estimates are accurate, Canada could emerge as an attractive market for music streaming services.

If that is the good news, the bad news is that Re:Sound may well send the issue to federal court for review. Re:Sound lost on many of its points and ended with a tariff far below what it was seeking. No surprise then that its president is quoted as saying:

“We are disappointed that the rates certified by the Board do not reflect market rates in Canada and are a small fraction of the rates payable by the same services in the U.S."

Re:Sound says it is reviewing the decision and will have more information shortly.

The ugly in this decision is the incredible length of the decision-making process. Re:Sound started this process in March 2008 - more than six years ago. In the years that followed, it adjusted its demands as the market changed. The Board finally heard arguments and evidence over a ten day period in September and October 2012. 

The decision therefore comes more than 18 months after that hearing. By virtually any standard - let alone an Internet one - this is an unacceptably long period of time to address an issue. The Supreme Court of Canada has a much bigger workload, yet releases its decisions far faster. Moreover, technology and the market move much faster than the board - consider that the iPhone launched in Canada in July 2008, months after the initial Re:Sound filing. The long delays created significant commercial uncertainty and likely led to delays in new services entering the Canadian market. As I argued earlier this month, the Copyright Board is broken and a serious digital strategy should commit to fixing it.

Podcast (FIXED): Firefox’s adoption of closed-source DRM breaks my heart

Note: This is a fixed version of this week's podcast; I accidentally uploaded an older podcast under this headline.

Here's a reading (MP3) of a my latest Guardian column, Firefox's adoption of closed-source DRM breaks my heart, a close analysis of the terrible news that Mozilla has opted to add closed source DRM to its flagship Firefox browser:

The decision to produce systems that treat internet users as untrusted adversaries to be controlled by their computers was clearly taken out of a sense of desperation and inevitability.

It’s clear that Mozilla plans to do everything it can to mitigate the harms from its DRM strategy and to attempt to reverse the trend that brought it to this pass.

Like many of Mozilla’s longtime supporters, I hold it to a high standard. It is not a for-profit. It’s a social enterprise with a mission to empower and free its users.

I understand that Apple, Microsoft and Google are for-profit entities that have demonstrated repeatedly that their profitability trumps their customers’ rights, and I fault them for this. But it’s not unreasonable to hold mission-driven nonprofits to a higher standard than their commercial counterparts.

Mozilla says it’s doing everything it can to reduce the harm from what it sees as an inevitable decision. As a Mozilla supporter, contributor and user, I want it to do more.

Mastering by John Taylor Williams: wryneckstudio@gmail.com

John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."

MP3

European 'Right to be Forgotten' Ruling Fails to Strike Free Speech - Privacy Balance

Michael Geist Law RSS Feed - Tue, 2014/05/20 - 00:29
The European Court of Justice shook up the privacy and Internet world last week by ruling that European data protection law includes a right to be forgotten with respect to search engine results that are "inadequate, irrelevant or no longer relevant." As a result of the decision, search companies such as Google will be required to remove results from its index that meet this standard upon request.

My weekly technology law column (Toronto Star version, homepage version) notes that as people flock to remove content from the Google search index - reports indicate that the company began receiving removal requests within hours of the ruling - there remains considerable uncertainty about how to implement the decision, whether it will migrate to Canada, and if a new right to be forgotten will serve the cause of privacy protection or harm free speech and access to information.


The decision arises from a 2010 complaint by a Spanish man who was upset to find that searching his name in Google yielded links to a 1998 announcement in a newspaper on a real estate auction designed to generate proceeds to pay back social security debts. The information was both factual and readily accessible online, yet the man felt that the now-outdated information was a violation of his privacy.

As the case made its way through the courts, several European countries waded into the issue. The Spanish and Italian governments sided with the confirmation of a right to be forgotten, while Austria, Greece, and Poland supported Google’s position that it should not be required to remove lawful content from its search index.

In ruling against Google, the court reached two key conclusions.  

First, it ruled that it could assert jurisdiction over the search giant, despite the fact that the processing of the data took place outside of Spain. That aspect of the decision should not have been particularly surprising, since most countries take the position that a real and substantial connection (Google has a Google.es site and actively markets its services in Spain) is sufficient to assert jurisdiction over an out-of-country entity. For example, Canada maintains that its privacy laws apply to organizations outside the country that collect, use or disclose personal information of Canadians.

Second, the court ruled that Google could be compelled to remove links to personal information that is "inadequate, irrelevant or no longer relevant." While the court suggests that this akin to a right to be forgotten, it is really a right to digital obscurity since the actual content is not removed from the Internet.

Companies may be focused on the practical costs associated with content removal, but many already remove content if served with a valid court order, notification of defamation, or copyright infringement notice. Adding privacy removals may generate additional costs, but they do not raise significant technical challenges.

The legal challenges are far more troubling, however. First, the ruling vests enormous power and responsibility in the hands of search companies and other intermediaries. Rather than leaving difficult questions on the validity or harm of information to impartial courts, the ruling requires search engines to make the call.  Given the potential for liability if they refuse to remove the links, the search engines will likely err on the side of removal.

Second, the ruling does not lead to the removal of the underlying content itself, which in many instances may be both legal and accurate. If there are concerns about third party content (no one doubts the right of an individual to delete content they posted themselves), surely there is a need to address that issue, rather than targeting intermediaries such as search engines.

Third, the Supreme Court of Canada recently ruled that the law must sometimes balance important rights such as privacy and freedom of expression. Yet the European ruling suggests that privacy trumps freedom of expression and the right to information. By eliminating the need for balance, the ruling shockingly undermines important speech rights in return for a bit of online obscurity.

gratitude would have been better

Fair Duty by Meera Nair - Mon, 2014/05/19 - 23:11

Last week, the Ottawa Citizen published an op/ed written by Blayne Haggart, Assistant Professor of Political Science at Brock University. I have crossed paths professionally with Blayne, and fully share his concern about the detriment wrought by the expansion of copyright. However, in this instance, he may have done more harm than good.

At issue is the removal of Chris Hadfield’s reworking and performance of David Bowie’s composition Space Oddity from YouTube. Readers of the Ottawa Citizen may have come away with the impression that Bowie pressured Hadfield to remove the video. Or that Bowie compelled YouTube to issue a takedown notice of the video. As reported by Joe Silver at ArsTechnica on 14 May 2014, Hadfield chose to remove the video himself, in compliance with the agreement he had made with Bowie, and that plans were underway to renew the license. This was a private matter between the two parties, and could have stayed that way.

Yet the fact that something that people liked to watch was disappearing from YouTube prompted a bewildering public outcry. Bowie’s character was impugned, without evidence that Bowie disliked Hadfield’s use of the song, or that he wished it removed from view. In fact, the contrary is more conceivable, given the very positive coverage that followed the release of the video. At that time, Simon Usborne of The Independent wrote: “David Bowie champions Canadian astronaut Chris Hadfield’s ‘Space Oddity’ cover.” Over at the desk of The Telegraph, Neil McCormick wrote: “Chris Hadfield’s performance of David Bowie’s Space Oddity from space is another brilliant moment for one of the greatest comebacks in pop history.” It is quite possible that a future license is forthcoming. That we might have to wait to see the video again, should not be reason for a mass lament.

Moreover, inciting a public condemnation of copyright, on this issue, is not helpful to the larger goal of finding an appropriate balance between copyright holders and copyright users. That goal cannot be accomplished without goodwill on both sides of the negotiations. A mediating point is in the use of exceptions to copyright; exceptions allow unauthorized use of works, without having to wait for copyright’s term of protection to end. Exceptions ensure that the goal of copyright – to foster creativity – is not thwarted by the rights embedded within copyright.

Readers of this blog will know that the most prominent Canadian exception is fair dealing. With the amendments that came into force in 2012, fair dealing addresses unauthorized uses of copyrighted work for purposes of research, private study, criticism, review, news reporting, parody, satire or education, if the manner by which the use occurs is fair. As I have written before, such an evaluation is not as cryptic as it sounds; ten years ago the Supreme Court of Canada gave appropriate guidance. Since then, many people have worked very hard to educate our educators on the importance of using copyright and fair dealing appropriately. But copyright representatives still eye exceptions with askance, and try to roll back the support given to exceptions by both the Supreme Court of Canada and the Federal Government of Canada. In the hands of a copyright lobbyist, op-eds that illustrate a lack of respect for creators and denounce copyright, only facilitate arguments for a continued expanding of rights and diminishing of exceptions.

In its current incarnation, fair dealing is the most expansive it has ever been. However, it still does not offer clear protection to new creative work, when the artist has drawn vigorously from another copyrighted work. Creative endeavor will not always suit a predefined category (see sometimes art is just art). But, a new exception provided in 2012 – section 29.21, non-commercial user-generated content – covers some of this gap. “It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work … .” This exception plays a vital role in protecting Canadians who want to play with existing creations and explore their own potential for creativity via the possibilities that digital technology provides.

Naturally, conditions apply; fortunately, those conditions invoke an analysis very similar to evaluation of fair dealing. Given that some of Bowie’s lyrics were rewritten to suit Hadfield’s situation, it is plausible that Hadfield could have argued the legitimacy of using Bowie’s work without permission, if he had posted the video at a Canadian host. But it should not surprise anyone that a noted representative of Canada, and a musician in his own right, chose to engage with a musician of iconic status and work in cooperation.

Hadfield’s memoir, An Astronaut’s Guide to Life On Earth (2013) describes the team effort that went into making the video, with Bowie’s permission being integral to the project. The outcome was stunning, garnering 10 million views within the first three days and millions more over the following year. I hope that all viewers took note of the last scene of the video; the list of acknowledgements that concludes: “With special thanks to David Bowie, NASA, ROSCOSMOS and the CSA.”

Many are the occasions when it is incumbent to publicly complain about the excesses of copyright. But this was not one of them. Taking our cue from Chris Hadfield, “Thank You” would have been more appropriate.

Update — June 13  Making more music; Chris Hadfield with Emm Gryner.

Update — June 28  The Ottawa Citizen issues an apology to David Bowie (dated 20 June 2014).

 

 

 


Podcast: Firefox’s adoption of closed-source DRM breaks my heart

Here's a reading (MP3) of a my latest Guardian column, Firefox's adoption of closed-source DRM breaks my heart, a close analysis of the terrible news that Mozilla has opted to add closed source DRM to its flagship Firefox browser:

The decision to produce systems that treat internet users as untrusted adversaries to be controlled by their computers was clearly taken out of a sense of desperation and inevitability.

It’s clear that Mozilla plans to do everything it can to mitigate the harms from its DRM strategy and to attempt to reverse the trend that brought it to this pass.

Like many of Mozilla’s longtime supporters, I hold it to a high standard. It is not a for-profit. It’s a social enterprise with a mission to empower and free its users.

I understand that Apple, Microsoft and Google are for-profit entities that have demonstrated repeatedly that their profitability trumps their customers’ rights, and I fault them for this. But it’s not unreasonable to hold mission-driven nonprofits to a higher standard than their commercial counterparts.

Mozilla says it’s doing everything it can to reduce the harm from what it sees as an inevitable decision. As a Mozilla supporter, contributor and user, I want it to do more.

Mastering by John Taylor Williams: wryneckstudio@gmail.com

John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."

MP3

Coming to SLC

I'm delighted to announced that I'll be the guest of honor at Salt Lake City's Westercon 67 this July -- Westercon being the annual convention for science fiction fandom west of the Mississippi. There's quite a fantastic roster of other guests as well! See you 44 days in SLC!

Makers: the Japanese fan-trans

Haruka Tsubota has undertaken a Japanese fan-translation of my novel Makers. It's available as Epub and Mobi, and licensed CC-BY-NC-SA. Here's the original book.

The FCC’s Important Step to Power Wireless Broadband

Google Public Policy BLOG - Fri, 2014/05/16 - 12:24
Posted by Aparna Sridhar, Google Policy Counsel
Today, the Federal Communications Commission took an important step toward powering tomorrow’s wireless broadband.  The FCC adopted new rules that will designate some spectrum--resources that, under the FCC’s plan, would not in any event be auctioned for wireless carriers’ broadband services--for unlicensed devices and applications on a shared basis.  
Unlicensed uses of spectrum are an important complement to carriers’ mobile broadband services.  For example, the Wi-Fi networks in homes, businesses, and coffee shops allow users to take data off the wireless carriers’ licensed networks, which enables faster service and reduces congestion on cellular systems.  For smartphones and tablets in particular, Cisco has found that daily data consumption over Wi-Fi is four times that of cellular.  Offloading data from cellular networks to Wi-Fi has saved mobile network operators billions of dollars in network deployment costs.  Faster and cheaper access to online services drives usage of those services and thus demand for all forms of network access, creating a virtuous cycle of investment.  Access to new, lower-frequency TV band spectrum could accelerate this process and create more unlicensed service options, allowing better indoor coverage and service in rural and underserved areas.  
The FCC’s plan allows television broadcasters to sell their spectrum rights voluntarily so they can be purchased by mobile operators.  This will enable more efficient spectrum use and spur economic growth.
The FCC had a challenge in designing its plan for an auction of TV broadcast spectrum, and we’re pleased that it is supporting both licensed and unlicensed uses.  While the plan doesn’t provide as much unlicensed spectrum as we recommended, it should provide just enough unlicensed spectrum to attract investments in equipment and operations in the new band.  Google will do its part to ensure that our Spectrum Database supports sharing of the newly allocated spectrum.
We’re grateful that Congressional supporters of unlicensed spectrum use have continued to back the FCC’s progress on this front. While there’s still a lot of work ahead to get the final details of the auction right, we look forward to working with all stakeholders to build the next generation of wireless technologies and see them deployed across America.

Competition Bureau Recommends New Regulations To Address Wireless Competition Concerns

Michael Geist Law RSS Feed - Fri, 2014/05/16 - 00:20
The Canadian Competition Bureau has filed a submission to the CRTC's wholesale mobile wireless services review in which it reaffirmed its view that the Canadian wireless market is uncompetitive and would benefit from regulation.  The Bureau finds that a more competitive market would deliver $1 billion annually in benefits to the Canadian economy:

incumbents appear to have the ability and incentive to profitably raise the rates they charge their retail competitors for wholesale roaming services, and potentially other wholesale arrangements, above competitive levels. The incumbents’ wholesale customers may be passing these price increases on to retail customers. These retail price increases may be harming competition in retail mobile wireless services markets in Canada. In particular, more competitive markets could deliver approximately $1 billion in benefits to the Canadian economy.



The submission, which includes a commissioned study on the Canadian market, also concludes that:
  • more customers are either leaving Canadian retail mobile wireless services markets or not entering these markets at all, than would have in a fully competitive marketplace.
  • Rogers and TELUS are generally earning above-normal returns on their mobile wireless investments
  • the CRTC has an opportunity to significantly increase the economic efficiency of the Canadian economy. Specifically, by taking steps to increase competition in wholesale mobile wireless services markets, the CRTC can improve consumer welfare by enhancing the affordability and variety of retail mobile wireless services in Canada.

In light of these findings, the Bureau recommends:

To achieve these significant gains, the CRTC should adopt measures to address the incentives for the incumbents to raise their retail competitors’ wholesale prices. Appropriate measures may include the introduction of competitive safeguards or mandated wholesale access, or targeted spectrum allocations towards non-incumbent carriers in upcoming auctions, which the Bureau may address further as additional evidence develops in this proceeding.

Last year, some commentators suggested that the Competition Bureau consider whether there is a wireless competition concern in Canada. The views of Canada's independent agency responsible for ensuring "that Canadian businesses and consumers prosper in a competitive and innovative marketplace" are now on the record and are unequivocal.  There is a wireless competition problem in Canada and regulation is needed to address it.

Has Canada Caved on Copyright Term Extension in the TPP?

Michael Geist Law RSS Feed - Fri, 2014/05/16 - 00:15
The Trans Pacific Partnership negotiations resume next week and while an agreement does not appear imminent, reports from Japan indicate that the copyright term issue may have been resolved.  Japan and Canada are two of several TPP countries whose term of copyright protection is life of the author plus 50 years. According to the Japan News, those countries (which also include New Zealand, Malaysia, Vietnam, and Brunei) are prepared to cave to U.S. pressure to extend the term of copyright to life of the author plus 70 years:

Among the 12 countries, Japan, Canada and four other countries protect an author's copyright for 50 years after their death, the United States and four other countries for 70 years and Mexico for 100 years. Following the agreement, Japan will extend its duration by 20 years.


If true, the extension represents a major loss for Canada and run counter to a government consultation that generated huge opposition on the issue. The extension in the term of copyright would mean no new works would enter the public domain in Canada until at least 2035 (assuming an agreement takes effect in 2015). â€¨Many important authors would be immediately affected since their works are scheduled to enter the public domain in the 2015 - 2035 period. These include Canadians such as Marshall McLuhan, Gabrielle Roy, Donald Creighton, and Glenn Gould as well as non-Canadians such as TS Eliot, John Steinbeck, JRR Tolkein, and Ayn Rand. Given the potential to make those works more readily accessible to new generations once they enter the public domain, extending the term of copyright as potentially required by the TPP would have a dramatic negative effect on access to Canadian literature and history.

Mozilla breaks our hearts, adds DRM to Firefox


For months, I've been following the story that the Mozilla project was set to add closed source Digital Rights Management technology to its free/open browser Firefox, and today they've made the announcement, which I've covered in depth for The Guardian. Mozilla made the decision out of fear that the organization would haemorrhage users and become irrelevant if it couldn't support Netflix, Hulu, BBC iPlayer, Amazon Video, and other services that only work in browsers that treat their users as untrustable adversaries.

They've gone to great -- even unprecedented -- lengths to minimize the ways in which this DRM can attack Firefox users. But I think there's more that they can, and should, do. I also am skeptical of their claim that it was DRM or irrelevance, though I think they were sincere in making it. I think they hate that it's come to this and that no one there is happy about it.

I could not be more heartsick at this turn of events.

We need to turn the tide on DRM, because there is no place in post-Snowden, post-Heartbleed world for technology that tries to hide things from its owners. DRM has special protection under the law that makes it a crime to tell people if there are flaws in their DRM-locked systems -- so every DRM system is potentially a reservoir of long-lived vulnerabilities that can be exploited by identity thieves, spies, and voyeurs.

It’s clear that Mozilla isn’t happy about this turn of events, and in our conversations, people there characterised it as something they’d been driven to by the entertainment companies and the complicity of the commercial browser vendors, who have enthusiastically sold out their users’ integrity and security.

Mitchell Baker, the executive chairwoman of the Mozilla Foundation and Mozilla Corporation, told me that “this is not a happy day for the web” and “it’s not in line with the values that we’re trying to build. This does not match our value set.”

But both she and Gal were adamant that they felt that they had no choice but to add DRM if they were going to continue Mozilla’s overall mission of keeping the web free and open.

I am sceptical about this claim. I don't doubt that it’s sincerely made, but I found the case for it weak. When I pressed Gal for evidence that without Netflix Firefox users would switch away, he cited the huge volume of internet traffic generated by Netflix streams.

There's no question that Netflix video and other video streams account for an appreciable slice of the internet’s overall traffic. But video streams are also the bulkiest files to transfer. That video streams use a lot of bytes isn't a surprise.

When a charitable nonprofit like Mozilla makes a shift as substantial as this one – installing closed-source software designed to treat computer users as untrusted adversaries – you’d expect there to be a data-driven research story behind it, meticulously documenting the proposition that without DRM irrelevance is inevitable. The large number of bytes being shifted by Netflix is a poor proxy for that detailed picture.

There are other ways in which Mozilla’s DRM is better for user freedom than its commercial competitors’. While the commercial browsers’ DRM assigns unique identifiers to users that can be used to spy on viewing habits across multiple video providers and sessions, the Mozilla DRM uses different identifiers for different services.

Firefox’s adoption of closed-source DRM breaks my heart

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