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Competition Bureau Raises Concerns Over Canadian Wireless Market

Michael Geist Law RSS Feed - Mon, 2014/02/10 - 02:17
The longstanding debate over the state of wireless services in Canada has veered across many issues - pricing, roaming fees, locked devices, new entrants, and foreign investment to name a few. At the heart of all of these questions is a single issue: is the current Canadian wireless market competitive?

My weekly technology law column (Toronto Star version, homepage version) notes the competitiveness of the Canadian market is a foundational question since the answer has huge implications for legislative and regulatory policy. If the market is competitive, regulators (namely the CRTC) can reasonably adopt a "hands-off" approach, confident that competitive forces will result in fair prices and consumer choice. If it is not competitive, standing on the sidelines is not option, thereby pressuring government and the CRTC to promote more competition and to implement measures to prevent the established players from abusing their advantageous position.

The importance of the question has not been lost on the incumbent wireless providers.  Responding to public and government concerns about the state of competition, Bell recently told the CRTC "the wireless market in Canada remains robustly competitive." Similarly, Telus maintains the "claim that Canada's wireless market is uncompetitive is, frankly, not just woefully misleading, it is an insult to Telus' team members." To support their position, the incumbent providers have relied on a University of Calgary study that concluded "there is no competition problem."

Yet if there is a neutral arbiter on the state of wireless competition in Canada, it would be the Competition Bureau of Canada, an independent law enforcement agency responsible for ensuring a competitive marketplace. Indeed, in a recent submission to the CRTC, Bell cites to a 2005 Competition Bureau decision to support its contention that the market remains competitive.

Last month, the Competition Bureau offered its latest opinion on the wireless competitive environment and it wasn't even close: it believes the Canadian market is not competitive and regulation is needed.

The Bureau's opinion came in a submission to the CRTC on domestic roaming regulation. Both the Commission and the government have indicated they plan to pursue regulation to guard against abusive wholesale pricing of domestic roaming. The issue may be invisible to consumers, but it is a major concern for regional and smaller wireless providers, who rely on the national incumbents' networks for access in markets they do not serve.  Those providers claim that the incumbents are charging unfair prices, thereby limiting their ability to compete.

While the national providers have been dismissive of the need for regulation (Bell has argued that entire process is "without legal foundation"), the Bureau examined the issue and concluded that companies like Bell can use roaming to shield themselves from competition, noting that "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."

If the market was competitive, this would not be a concern. However, the Bureau concluded that the incumbents enjoy "market power", which it defines as "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."  Moreover, it rejected the University of Calgary study, concluding that it "does not provide adequate support for Bell's claims that mobile wireless markets in Canada are competitive."

Given its findings, the Bureau urged the CRTC to establish regulatory safeguards on domestic roaming pricing. New domestic roaming regulations may be the initial takeaway, but the Bureau's finding could have far bigger implications.  Not only does it validate federal industry minister James Moore's insistence on the need for more wireless competition, but it also opens the door to examining other potential competitive barriers, including exclusive content deals, international roaming arrangements, and access to new smartphones.

Who Gets a Large Share of Access Copyright Education Licensing Revenues?: US Publishers Say They Do

Michael Geist Law RSS Feed - Fri, 2014/02/07 - 09:17
As the Canadian education community continues to shift away from the Access Copyright licence, relying instead on a combination of site licenses for materials, open access, fair dealing, and individual transactional licences, U.S. publishers are now urging the U.S. government to pressure the Canadian government to take action. The IIPA, the leading U.S. copyright lobby group, filed its submission today as part of the Special 301 process, a U.S. review of foreign intellectual property laws.

This year's IIPA submission devotes several paragraphs to educational licensing, lamenting the shift away from Access Copyright and claiming that it is U.S. publishers that are being hurt in the process. According to the IIPA:

as soon as the new Act came into force, virtually all K-12 school boards across Canada cancelled their licenses with Access Copyright. Anticipated 2013 annual licensing revenue of at least C$12 million to right holders and authors - much of it destined for U.S. publishers, which enjoy a large market share in the educational sector - evaporated.

The IIPA urges the U.S. government to "engage" with Canadian authorities in the hope that they will tell Canadian educational institutions to pay Access Copyright. While that isn't likely to happen - the government rejected Access Copyright's demands for limitations on the expansion of fair dealing - the IIPA submission is notable for the claim that a large share of the Access Copyright educational licensing revenue was headed not for Canadian authors and publishers, but rather to the United States.

CIRA Commits One Million Dollars to Improving Canada's Internet

Michael Geist Law RSS Feed - Thu, 2014/02/06 - 04:17
The Canadian Internet Registration Authority, the organization that manages the dot-ca domain, has unveiled an exciting new initiative that will deliver a million dollars toward community projects, research, and other related activities (full disclosure: I am a member of the CIRA board and chair of the committee that will review applications). The typical grant is expected to be worth $25,000 - $50,000, though grants can climb as high as $100,000. Funds are available for community groups, not-for-profit organizations, academic institutions, and associated researchers. The application period opened earlier this week and will run until February 28th. Application guidelines can be found here and the application form is here. This is a great initiative that holds the promise of injecting much needed support into Canadian Internet initiatives. Take a closer look and apply today!

Why DRM is the root of all evil

Why DRM is the root of all evil

In my latest Guardian column, What happens with digital rights management in the real world?, I explain why the most important fact about DRM is how it relates to security and disclosure, and not how it relates to fair use and copyright. Most importantly, I propose a shortcut through DRM reform, through a carefully designed legal test-case.

The DMCA is a long and complex instrument, but what I'm talking about here is section 1201: the notorious "anti-circumvention" provisions. They make it illegal to circumvent an "effective means of access control" that restricts a copyrighted work. The companies that make DRM and the courts have interpreted this very broadly, enjoining people from publishing information about vulnerabilities in DRM, from publishing the secret keys hidden in the DRM, from publishing instructions for getting around the DRM – basically, anything that could conceivably give aid and comfort to someone who wanted to do something that the manufacturer or the copyright holder forbade.

Significantly, in 2000, a US appeals court found (in Universal City Studios, Inc v Reimerdes) that breaking DRM was illegal, even if you were trying to do something that would otherwise be legal. In other words, if your ebook has a restriction that stops you reading it on Wednesdays, you can't break that restriction, even if it would be otherwise legal to read the book on Wednesdays.

In the USA, the First Amendment of the Constitution gives broad protection to free expression, and prohibits government from making laws that abridge Americans' free speech rights. Here, the Reimerdes case set another bad precedent: it moved computer code from the realm of protected expression into a kind of grey-zone where it may or may not be protected.

In 1997's Bernstein v United States, another US appeals court found that code was protected expression. Bernstein was a turning point in the history of computers and the law: it concerned itself with a UC Berkeley mathematician named Daniel Bernstein who challenged the American prohibition on producing cryptographic tools that could scramble messages with such efficiency that the police could not unscramble them. The US National Security Agency (NSA) called such programs "munitions" and severely restricted their use and publication. Bernstein published his encryption programs on the internet, and successfully defended his right to do so by citing the First Amendment. When the appellate court agreed, the NSA's ability to control civilian use of strong cryptography was destroyed. Ever since, our computers have had the power to keep secrets that none may extract except with our permission – that's why the NSA and GCHQ's secret anti-security initiatives, Bullrun and Edgehill, targetted vulnerabilities in operating systems, programs, and hardware. They couldn't defeat the maths (they also tried to subvert the maths, getting the US National Institute for Standards in Technology to adopt a weak algorithm for producing random numbers).

What happens with digital rights management in the real world?

Motion to sever and dismiss granted in Killer Joe Nevada v Does 1-39

Recording Industry vs The People - Tue, 2014/02/04 - 18:17
Hat tip to Ernesto at TorrentFreak:

In Killer Joe Nevada v. Does 1-39, and four similar BitTorrent downloading cases, in the Southern District of Iowa, the cases were dismissed and severed as to all defendants other than Doe 1, by District Judge Stephanie M. Rose. Doe #18 in one of the cases had moved to sever and dismiss. The court granted that Doe's motion, and sua sponte severed and dismissed in the other cases as well.

December 20, 2013, Decision, Severing and Dismissing as to Does 2-39, Hon. Stephanie M. Rose, US District Judge

Commentary & discussion:

TorrentFreak Ray Beckerman, P.C.

Against Oversight: Why Fixing the Oversight of Canadian Surveillance Won't Solve the Problem

Michael Geist Law RSS Feed - Tue, 2014/02/04 - 04:21
Last summer, I discussed the Snowden leaks and concerns about Canadian surveillance activities with a senior government official. The official remarked that in the wake of the Snowden revelations the political risk did not lie with surveillance itself, since most Canadians basically trusted their government and intelligence agencies to avoid misuse (the steady stream of Snowden leaks and Canada's increasingly apparent role may have changed this analysis). Rather, the real concern was with being caught lying about the surveillance activities. This person was of the view that Canadians would accept surveillance, but they would not accept lying about surveillance programs.

Those comments came to mind over the past week with the latest revelations about CSEC metadata surveillance. While the story has been characterized as an airport wifi surveillance issue, it is clear that the airport wifi angle misses the real concern. The leaked document and subsequent explanations reveal an attempt to identify travel patterns and geographic locations using user ID data over a two week period provided by a Canadian source (CSEC referred to this as metadata in the Senate committee hearing yesterday) along with a database of geo-locations of IP addresses supplied by Quova (I once served as an advisor to Quova). By identifying airport wifi IP addresses along with broader usage data and geo-identifying information, CSEC hopes to be able to identify locational movements of individual users. Bruce Schneier provides a helpful review of the likely intent of the program.

While some argued the program tracks Canadians and is therefore illegal (citing Charter violations and activities beyond the CSEC mandate), the Justice Minister maintains the program is legal and CSEC has defended the program in a release the day after the story broke and again at the Senate committee yesterday. Moreover, the CSEC Commissioner has posted a somewhat cryptic statement that emphasizes the independence of the review process. Ryan Gallagher has responded to those statements with a post arguing the denials are hollow.

Yesterday's Senate committee hearing did provide further insight into the program. CSEC painted the new revelations as a simple application of data it is already collecting. Noting that there have been ministerial approvals for metadata collection since 2005, CSEC suggests that this is effectively an exercise to determine whether the metadata can be used in conjunction with other data to determine location. It steadfastly defended its approach, seeking to distinguish between metadata (data about data) and content. Further, it noted that metadata is deleted according to retention limits contained in the ministerial approval (though no one raised the fact that those retention periods are secret).

I'm left with four takeaways from the past week. 

First, CSEC's surveillance activities of Internet communications in Canada are far more extensive than previously realized. Its trove of metadata - presumably obtained with the cooperation of Canada's major telecom companies - provides enormous insight into the communications habits and activities of millions of Canadians. The use of metadata has been the subject of some concern from the CSEC Commissioner, yet the full scope of activities remain largely secret. Moreover, the ministerial directive on metadata appears to be so broad that it enables widespread tracking and surveillance as CESC is able to mine the data for a myriad of purposes.

Given those capabilities, assurances that metadata surveillance is less invasive than tracking the content of telephone calls or Internet usage ring hollow. Metadata can include geo-location information, call duration, call participants, and Internet protocol addresses. While officials suggest that this information is not sensitive, there are many studies that have concluded otherwise. These studies have found that metadata alone can be used to identify specific persons, reveal locational data, or even disclose important medical and business information. I discuss the issues associated with metadata - including Supreme Court of Canada and Bill C-13 concerns - here. For CSEC to argue that it otherwise does not track Canadians because it only accesses metadata, is misleading at best.

Second, the geographical limits of CSEC - its framework requires that foreign intelligence activities "not be directed at Canadians or any person in Canada" - are being completely blurred. The commingling of data through integrated communications networks and "borderless" Internet services residing on servers around the world suggests that distinguishing between Canadian and foreign data seems like an outdated and increasingly impossible task. CSEC's repeated references to the "global Internet" as opposed to the Internet might well be an attempt to emphasize the foreign component of largely Canadian-based activities. Indeed, the fact that CSEC focuses on Canadian-based metadata (CSEC was asked yesterday why it doesn't collect data from other countries instead) ensures that most of its metadata will include a Canadian component, thereby increasing the likelihood of Canadian surveillance.

Third, the government (including Justice and CSEC) are confident that the programs are legal under the current CSEC mandate. The metadata program operates under ministerial approval, which CSEC would argue extends to uses such as the IP location (or airport wifi) tests. Given the fears of being caught lying, it seems unlikely officials would adopt this position without internal legal reviews and advice.

Fourth, fixing the oversight of CSEC won't solve the problem. Better oversight is currently being touted as the solution to the surveillance problem. The Liberals are proposing a new parliamentary committee review committee, the federal privacy commissioner has identified opportunities for better reporting and oversight, and Ontario privacy commissioner Ann Cavoukian has called for improved transparency and accountability.

Reforms to the current oversight system are needed but the recent experience demonstrates why they are not sufficient. The current system would certainly benefit from external reviewers, who might be more aggressive in questioning the scope of CSEC programs and the stretching of its mandate. Yet the far bigger problem lies with the law itself: 
  • The use of metadata should be openly examined by acknowledging that data mining capabilities mean that metadata can have the same privacy implications of the content of messages. Allowing CSEC to conduct widespread surveillance under the guise that it's "only metadata" is an incredible violation of basic privacy expectations of most Canadians. The general ministerial authorization has led to a system of widespread surveillance. The scope of metadata must be better defined and judicial authorizations for specific collections instituted.
  • While the current surveillance statutes may have been developed in a world where geography mattered, the communications borders have been largely blurred leaving a North American communications network that has little regard for national boundaries. Canadian law is therefore increasingly unable to provide credible assurances about the limits of domestic collection. As long as CSEC provides the illusion that there is a "global Internet" and a "domestic Internet" that are somehow different, its activities will unquestionably feature a prominent domestic component.
  • Data sharing between agencies and between countries should be subject to strict limits, yet the Mosley federal court decision and the European Parliament's discomfort with Canadian practices highlight how these limits need to be re-examined. CSEC officials often claim there are limits, but the Snowden leaks have renewed doubts about what happens out of the public spotlight.
Improved oversight will help, but it won't solve these issues. The substantive law itself needs open debate and reform, with clear, public information on the limits of metadata and geography. Without it, better oversight will leave the foundational problems behind Canadian surveillance largely unchanged. only metadata

Steve Anderson (February 4th)

Bill C-11 - Tue, 2014/02/04 - 01:00

Thank you for this opportunity to present before the committee regarding the Trans-Pacific Partnership agreement. I'm Steve Anderson, the executive director of OpenMedia.ca.

Founded in 2008, OpenMedia.ca is a community-based, award-winning civic engagement organization working to safeguard the open Internet. We work to bring citizens' and innovators' voices into the digital policy-making process.

OpenMedia is probably best known for our stop the meter campaign that engaged over half a million Canadians to stop meter billing in Canada focused on telecommunications prices. It was the largest online campaign in Canadian history.

In addition to our civic engagement work, we also regularly participate in policy processes and produce public policy reports and recommendations. Many of our recommendations, in particular regarding telecommunications, have now thankfully been adopted as official government policy.

One of our top concerns at the moment is the IP chapter in the Trans-Pacific Partnership agreement, specifically copyright within the IP chapter.

We're working with hundreds of thousands of people in our own trans-Pacific network of public interest groups and web businesses to push for and encourage a balanced copyright provision in the TPP. We are working, as I said, in our own crowdsource process to develop copyright rules that we feel are more befitting of the 21st century.

Our concern with the TPP is focused on the intellectual property chapter, as I mentioned, and its potential limitations on free expression online, commerce, and access to knowledge.

Over 135,000 people have signed on to a campaign that we've run reflecting these same concerns. These concerns are echoed by Canadians and I have, in a sense, crowdsourced this presentation for you today. I asked Canadians online over the last week to let me know what they think I should say, and I did my best to incorporate their input into this presentation. Throughout the presentation, I'll mention a few direct comments that people sent in to me.

The Canadians I heard from were broadly critical of the TPP and their concerns fell roughly into three main categories: the restriction and even censorship of expression in commerce; concerns about the TPP's implications for personal privacy; and thirdly, what many deem as the secretive, closed, and undemocratic TPP negotiating process.

Starting with the first concern—the implications on expression in commerce—Canada took 10 years, as I'm sure many of you know, to pass our copyright policies in Bill C-11. When I attended a TPP negotiating round in Auckland, I asked our own TPP chief negotiator if she would commit to uploading our copyright law and not overriding it through the TPP process. She refused to make that commitment.

Generally, I don't think Bill C-11 is exactly how I would have written it, but I think it's a reasonable compromise. But if we get into some of the specifics of the TPP that have been unfortunately revealed through leaked documents, I think we can start with digital locks or technological protection mechanisms.

The U.S. proposal in the TPP would increase the penalties for circumvention and restrict the ability for Canada to create new digital lock exceptions.

On the issue of digital locks, a woman online, named Monica, wrote into our process, and I want to convey this to you today. She said that as part of the special needs community, she wants to be able to continue sharing resources with others without fear of sanctions. As a community, they are often isolated, and without the Internet, they would be even more so. So the TPP threatens to limit the flexibility and exceptions on copyright that those with disabilities depend upon in their use of technology.

According to leaked documents, the TPP would also remove our relatively fair, I would say, notice system for dealing with those accused of copyright infringement. Instead, they would create new, costly liabilities for online service providers and ISPs. This increased cost for Internet service providers will result in Canadian consumers paying more for telecom services. As I'm sure you're aware, we pay some of the highest prices in the industrialized world for telecom services, and increasing fees is the last thing Canadians need right now.

The new business costs could knock independent Internet service providers—the smaller players—out of business and remove choice from the telecom marketplace. The liability costs could also add a barrier to entry for online entrepreneurs that are increasingly critical to our economy.

In short, if this U.S.-backed TPP-ISP liability proposal is adopted, it would mark a major step back for the government's commitment to lower telecom prices and improve choices.

Just to make this a little more concrete, on a daily basis countless photographs and other content are shared through new innovative services that are fundamental to our thriving economy. These services are also threatened by these new liabilities and regulations proposed in the TPP. One example of one online service provider is Vancouver-based HootSuite, which in August raised over $165 million from investors, marking the largest private placement for a privately held tech company in Canada. Another example is Ontario-based e-commerce platform Shopify, which passed the $1 billion evaluation mark this December; and then let's not forget Toronto-based Tucows Inc., which is the world's largest publicly traded domain name registrar.

These companies are threatened by this new liability that will be in the TPP, if it goes through as the U.S. is hoping it will. Do we really want to threaten to burden these budding businesses with new costs and regulations? Do we want to create a new cost that prevents the next HootSuite or Shopify from starting in the first place? Furthermore, as everything from our cars to our fridges are connected to the Internet, these proposed liabilities and costs fundamentally threaten to create red tape for a dizzying array of services. The new liabilities could be particularly damaging to the emerging Internet-fuelled sharing economy that is currently driving value across a range of sectors.

According to the Information Technology Association of Canada, the national Internet economy accounted for 3% of Canada's gross domestic product in 2010, compared to an average of 4.7% in the United States. It's estimated that ratio will become more out of balance if we don't take action to invest in our digital economy. We simply cannot afford to add new red tape and costly regulations to online businesses and commerce, while increasing telecom costs for Canadians.

Increasing ISP liabilities is also a threat to individual expression online. According to IP experts the TPP proposals could result in ISPs taking down and even blocking content based on accusations. In short, the TPP represents a regime that could amount to widespread Internet censorship. One commentator online had this to say on the topic:

Censorship of any kind is undemocratic. It has no business in our society and we should actively DISTANCE ourselves from such heavy-handed policies.

Here is the fundamental point. There's no way that increasing online liabilities as proposed in the TPP is in the national interest of Canada. Old media conglomerates in Hollywood have no problem pushing for policies that will hold back the Canadian economy or free expression, but legislators surely should.

Beyond new service liabilities, there's also concern about the TPP criminalizing common activities that involve small-scale and often accidental copyright infringement, such as sharing a recipe online. According to intellectual property experts and Professor Sean Flynn, the U.S. TPP proposal would severely increase penalties for copyright infringement even when done without commercial intent. He notes that we could even be looking at controversial copyright cases in the U.S. where teenagers and their mothers have been required to pay big record companies hundreds of thousands of dollars for copying music for personal use.

Canadian copyright law now includes an important distinction with respect to statutory damages as it features a cap of $5,000 for non-commercial infringement.

As it stands, we already have copyright trolls trying to use copyright litigation as a business model. Under the TPP, damages could skyrocket. We could see many more of those court cases and we could see Canadians much more timid and fearful online.

Podcast: What does David Cameron’s Great Firewall look like?

Here's a reading of a recent Guardian column, What does David Cameron's Great Firewall look like? which debunks the UK government's stupid arguments for its national anti-porn firewall:

David Cameron's attempt to create a Made-in-Britain version of Iran's "Halal Internet" is the worst of both worlds for parents like me. Kids are prevented from seeing things that they need to access – sites about sexual health, for example – and I still have to monitor my daughter all the time when she uses the net (or teach her how to cope with seeing things no kid should see) because the filter won't stop her from accessing the bad stuff.

And for parents who don't understand that filters are bunkum, the situation is much worse. It's one thing to know that there are risks to your kid from the internet. But parents who rely on the filter are living in bubble of false security. There's nothing more deadly than a false sense of security: If you know your car is having brake problems, you can compensate by driving with extra care, increasing your following distance, and so on. If you falsely believe your brakes to be in good running order, you're liable to find out the hard way that they aren't (if you survive, you can thank Bruce Schneier for that apt and useful analogy).

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."


Locus recommended reading list for best science fiction and fantasy of 2013

Locus Magazine has published its annual Recommended Reading list, which is my favorite annual guide to the best that science fiction and fantasy have to offer. The 2013 roundup includes several of the books I've reviewed on Boing Boing this year, including Paolo Bacigalupi's Zombie Baseball Beatdown, Charlie Stross's Neptune's Brood, Lauren Beukes's The Shining Girls, Richard Kadrey's Dead Set, Terry Pratchett's Raising Steam, Ian Tregillis's Necessary Evil, Holly Black's The Coldest Girl in Coldtown and Nathan Ballingrud's North American Lake Monsters.

I'm also delighted to see that my novel Homeland (the sequel to Little Brother) made the list!

The whole list is just a fantastic signposting of the best the field has to offer.

2013 Locus Recommended Reading List

(via Tor.com)

Internet Sales Tax Update

IPBlog (Calgary) - Thu, 2014/01/30 - 08:00
We recently reported on a case out of New York State, which dealt with the question of sales tax liability in the case of online sales. That decision (in Overstock.com v. New York Taxation Dept. and the companion case of Amazon.com v. New York Taxation Dept.) decided that internet retailers ...

What Happens When a Franchise Agreement Ends, Part 1: Restrictive Covenants

IPBlog (Calgary) - Wed, 2014/01/29 - 16:00
- 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 ...

Competition Bureau Raises Wireless Competition Concerns, Concludes Big Three Have "Market ...

Michael Geist Law RSS Feed - Wed, 2014/01/29 - 08:51
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 rivals’ costs such that incumbents are shielded from the full effect of their the rivals’ (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 Bell’s 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.

Why Canada's Telecom Companies Should Come Clean About Customer Information

Michael Geist Law RSS Feed - Wed, 2014/01/29 - 00:36
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.

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=

Another Step Toward the TPP: Canada Moves to Ratify Five Intellectual Property Treaties

Michael Geist Law RSS Feed - Wed, 2014/01/29 - 00:34
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 Destruction of the Department of Fisheries Libraries

Michael Geist Law RSS Feed - Wed, 2014/01/29 - 00:29
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.

Jaszi on fair use

Fair Duty by Meera Nair - Tue, 2014/01/28 - 22:58

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?”

Another Update: Combating Counterfeit Products Act

IPBlog (Calgary) - Tue, 2014/01/28 - 18:00
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 CRTC's Simultaneous Substitution Problem

Michael Geist Law RSS Feed - Tue, 2014/01/28 - 00:18
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.

Podcast: Cheap writing tricks

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: 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."


Makers review from high-school senior Rebecca Nguyen

Rebecca Nguyen is a high-school senior who is a fan of my young adult novels. Recently, she read my book Makers and liked it so much that she wrote a great review of it, which she placed with the Poughkeepsie Journal. It's an incisive review, and I'm very grateful to Rebecca for it. Thank you, Rebecca! I hope the Journal gives you more reviewing work in the future -- you're very good at it!

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